Exhibit 10(cc)
Credit Agreement among the Company, the Lenders, Keybank National Association
(as joint lead arranger and administrative agent) and National City Bank (as
joint lead arranger and syndication agent) dated August 20, 2004.
================================================================================
CREDIT AGREEMENT
AMONG
X. XXXXXXXX, INC.,
AS BORROWER,
THE LENDERS NAMED HEREIN,
AS LENDERS,
KEYBANK NATIONAL ASSOCIATION,
AS JOINT LEAD ARRANGER AND ADMINISTRATIVE AGENT,
AND
NATIONAL CITY BANK,
AS JOINT LEAD ARRANGER AND SYNDICATION AGENT
---------------------
DATED AS OF
AUGUST 20, 2004
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS............................................................. 1
Section 1.1. Definitions....................................................... 1
Section 1.2. Accounting Terms.................................................. 19
Section 1.3. Terms Generally................................................... 19
ARTICLE II. AMOUNT AND TERMS OF CREDIT............................................. 19
Section 2.1. Amount and Nature of Credit....................................... 19
Section 2.2. Revolving Credit.................................................. 20
Section 2.3. Interest.......................................................... 26
Section 2.4. Evidence of Indebtedness.......................................... 27
Section 2.5. Notice of Credit Event; Funding of Loans.......................... 27
Section 2.6. Payment on Loans and Other Obligations............................ 28
Section 2.7. Prepayment........................................................ 29
Section 2.8. Facility and Other Fees........................................... 30
Section 2.9. Modifications of Commitment....................................... 30
Section 2.10. Computation of Interest and Fees................................. 31
Section 2.11. Mandatory Payment................................................ 31
Section 2.12. Extension of Commitment.......................................... 31
ARTICLE III. ADDITIONAL PROVISIONS RELATING TO LIBOR FIXED RATE LOANS;
INCREASED CAPITAL; TAXES................................................. 32
Section 3.1. Requirements of Law............................................... 32
Section 3.2. Taxes............................................................. 33
Section 3.3. Funding Losses.................................................... 35
Section 3.4. Eurodollar Rate or Alternate Currency Rate Lending Unlawful;
Inability to Determine Rate............................................. 35
ARTICLE IV. CONDITIONS PRECEDENT................................................... 36
Section 4.1. Conditions to Each Credit Event................................... 36
Section 4.2. Conditions to the First Credit Event.............................. 36
ARTICLE V. COVENANTS............................................................... 38
Section 5.1. Insurance......................................................... 38
Section 5.2. Money Obligations................................................. 38
Section 5.3. Financial Statements and Information.............................. 38
Section 5.4. Financial Records................................................. 39
Section 5.5. Franchises; Change in Business.................................... 40
Section 5.6. ERISA Compliance.................................................. 40
Section 5.7. Financial Covenants............................................... 40
Section 5.8. Borrowing......................................................... 41
Section 5.9. Liens............................................................. 41
Section 5.10. Regulations T, U and X........................................... 43
Section 5.11. Investments, Loans and Guaranties................................ 43
Section 5.12. Merger and Sale of Assets........................................ 44
Section 5.13. Acquisitions..................................................... 44
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Section 5.14. Notice........................................................... 45
Section 5.15. Restricted Payments.............................................. 45
Section 5.16. Environmental Compliance......................................... 45
Section 5.17. Affiliate Transactions........................................... 46
Section 5.18. Use of Proceeds.................................................. 46
Section 5.19. Corporate Names.................................................. 46
Section 5.20. Subsidiary Guaranties............................................ 46
Section 5.21. Restrictive Agreements........................................... 47
Section 5.22. Other Covenants.................................................. 47
Section 5.23. Guaranty Under Material Indebtedness Agreement................... 47
Section 5.24. Pari Passu Ranking............................................... 47
Section 5.25. Note Agreement................................................... 47
ARTICLE VI. REPRESENTATIONS AND WARRANTIES......................................... 48
Section 6.1. Corporate Existence; Subsidiaries; Foreign Qualification.......... 48
Section 6.2. Corporate Authority............................................... 48
Section 6.3. Compliance with Laws and Contracts................................ 48
Section 6.4. Litigation and Administrative Proceedings......................... 49
Section 6.5. Title to Assets................................................... 49
Section 6.6. Liens and Security Interests...................................... 49
Section 6.7. Tax Returns....................................................... 49
Section 6.8. Environmental Laws................................................ 49
Section 6.9. Continued Business................................................ 50
Section 6.10. Employee Benefits Plans.......................................... 50
Section 6.11. Consents or Approvals............................................ 51
Section 6.12. Solvency......................................................... 51
Section 6.13. Financial Statements............................................. 51
Section 6.14. Regulations...................................................... 51
Section 6.15. Material Agreements.............................................. 51
Section 6.16. Intellectual Property............................................ 52
Section 6.17. Insurance........................................................ 52
Section 6.18. Accurate and Complete Statements................................. 52
Section 6.19. Note Agreement................................................... 52
Section 6.20. Defaults......................................................... 52
ARTICLE VII. EVENTS OF DEFAULT..................................................... 52
Section 7.1. Payments.......................................................... 52
Section 7.2. Special Covenants................................................. 52
Section 7.3. Other Covenants................................................... 52
Section 7.4. Representations and Warranties.................................... 53
Section 7.5. Cross Default..................................................... 53
Section 7.6. ERISA Default..................................................... 53
Section 7.7. Change in Control................................................. 53
Section 7.8. Money Judgment.................................................... 53
Section 7.9. Validity of Loan Documents........................................ 53
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Section 7.10. Note Agreement................................................... 53
Section 7.11. Solvency of Certain Companies.................................... 53
Section 7.12. Solvency......................................................... 54
ARTICLE VIII. REMEDIES UPON DEFAULT................................................ 54
Section 8.1. Optional Defaults................................................. 54
Section 8.2. Automatic Defaults................................................ 54
Section 8.3. Letters of Credit................................................. 55
Section 8.4. Offsets........................................................... 55
Section 8.5. Equalization Provision............................................ 55
Section 8.6. Other Remedies.................................................... 56
ARTICLE IX. THE AGENT.............................................................. 56
Section 9.1. Appointment and Authorization..................................... 56
Section 9.2. Note Holders...................................................... 56
Section 9.3. Consultation With Counsel......................................... 56
Section 9.4. Documents......................................................... 57
Section 9.5. Agent and Affiliates.............................................. 57
Section 9.6. Knowledge of Default.............................................. 57
Section 9.7. Action by Agent................................................... 57
Section 9.8. Release of Guarantor of Payment................................... 57
Section 9.9. Notice of Default................................................. 57
Section 9.10. Indemnification of Agent......................................... 57
Section 9.11. Successor Agent.................................................. 58
Section 9.12. Other Agents..................................................... 58
ARTICLE X. MISCELLANEOUS........................................................... 58
Section 10.1. Lenders' Independent Investigation............................... 58
Section 10.2. No Waiver; Cumulative Remedies................................... 58
Section 10.3. Amendments, Consents............................................. 59
Section 10.4. Notices.......................................................... 59
Section 10.5. Costs, Expenses and Taxes........................................ 59
Section 10.6. Indemnification.................................................. 60
Section 10.7. Obligations Several; No Fiduciary Obligations.................... 60
Section 10.8. Execution in Counterparts........................................ 60
Section 10.9. Binding Effect; Borrower's Assignment............................ 60
Section 10.10. Lender Assignments.............................................. 61
Section 10.11. Sale of Participations.......................................... 62
Section 10.12. Severability of Provisions; Captions; Attachments............... 63
Section 10.13. Investment Purpose.............................................. 63
Section 10.14. Entire Agreement................................................ 64
Section 10.15. Legal Representation of Parties................................. 64
Section 10.16. Currency........................................................ 64
Section 10.17. Governing Law; Submission to Jurisdiction....................... 64
Section 10.18. Jury Trial Waiver............................................... Signature Page 66
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Exhibit A Form of Revolving Credit Note
Exhibit B Form of Competitive Bid Note
Exhibit C Form of Notice of Loan
Exhibit D Form of Compliance Certificate
Exhibit E-1 Form of Competitive Bid Request
Exhibit E-2 Form of Invitation for Competitive Bids
Exhibit E-3 Form of Competitive Bid Notice
Exhibit F Form of Assignment and Acceptance Agreement
Exhibit G Form of Request for Extension
Schedule 1 Commitment of Lenders
Schedule 2 Guarantors of Payment
Schedule 2.2 Existing Letters of Credit
Schedule 5.8 Indebtedness
Schedule 5.9 Liens
Schedule 6.1 Subsidiaries
Schedule 6.4 Litigation and Administrative Proceedings
Schedule 6.10 Employee Benefits Plans
Schedule 6.15 Material Agreements
iv
This CREDIT AGREEMENT (as the same may from time to time be amended,
restated or otherwise modified, this "Agreement") is made effective as of the
20th day of August, 2004, among:
(a) X. XXXXXXXX, INC., a Delaware corporation ("Borrower");
(b) the lenders listed on Schedule 1 hereto and each other Eligible
Transferee, as hereinafter defined, that becomes a party hereto pursuant
to Section 2.9(b) or 10.10 hereof (collectively, the "Lenders" and,
individually, each a "Lender");
(c) KEYBANK NATIONAL ASSOCIATION, as joint lead arranger and
administrative agent for the Lenders under this Agreement ("Agent"); and
(d) NATIONAL CITY BANK, as joint lead arranger and syndication agent
("Syndication Agent").
WITNESSETH:
WHEREAS, Borrower, Agent and the Lenders desire to contract for the
establishment of credits in the aggregate principal amounts hereinafter set
forth, to be made available to Borrower upon the terms and subject to the
conditions hereinafter set forth;
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE I. DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Acquisition" shall mean any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all of the assets of any Person (other than a Company),
or any business or division of any Person (other than a Company), (b) the
acquisition of in excess of fifty percent (50%) of the stock (or other equity
interest) of any Person (other than a Company), or (c) the acquisition of
another Person (other than a Company) by a merger, amalgamation or consolidation
or any other combination with such Person.
"Additional Commitment" shall mean that term as defined in Section 2.9(b)
hereof.
"Additional Lender" shall mean an Eligible Transferee that shall become a
Lender hereunder during the Commitment Increase Period pursuant to Section
2.9(b) hereof.
"Additional Lender Assumption Agreement" shall mean an additional lender
assumption agreement, in form and substance satisfactory to Agent, wherein an
Additional Lender shall become a Lender hereunder.
"Additional Lender Assumption Effective Date" shall mean that term as
defined in Section 2.9(b) hereof.
"Advantage" shall mean any payment (whether made voluntarily or
involuntarily, by offset of any deposit or other indebtedness or otherwise)
received by any Lender in respect of the Obligations, if such payment results in
that Lender having less than its pro rata share of the Obligations then
outstanding, than was the case immediately before such payment.
"Affiliate" shall mean any Person, directly or indirectly, controlling,
controlled by or under common control with a Company and "control" (including
the correlative meanings, the terms "controlling", "controlled by" and "under
common control with") shall mean the power, directly or indirectly, to direct or
cause the direction of the management and policies of a Company, whether through
the ownership of voting securities, by contract or otherwise.
"Agent" shall mean that term as defined in the first paragraph hereof.
"Agent Fee Letter" shall mean the Agent Fee Letter between Borrower and
Agent, dated as of the Closing Date, as the same may from time to time be
amended, restated or otherwise modified.
"Agreement" shall mean that term as defined in the first paragraph hereof.
"Alternate Currency" shall mean Euros, Pounds Sterling or any other
currency, other than Dollars, agreed to by Agent and the Lenders that shall be
freely transferable and convertible into Dollars.
"Alternate Currency Exposure" shall mean, at any time and without
duplication, the sum of the Dollar Equivalent of (a) the aggregate principal
amount of Alternate Currency Loans outstanding, and (b) the Letter of Credit
Exposure that is denominated in one or more Alternate Currencies.
"Alternate Currency Loan" shall mean a Revolving Loan described in Section
2.2(a) hereof that shall be denominated in an Alternate Currency and on which
Borrower shall pay interest at a rate based upon the Derived LIBOR Fixed Rate
applicable to such Alternate Currency.
"Alternate Currency Maximum Amount" shall mean, at any time, the Dollar
Equivalent of Sixty-Five Million Dollars ($65,000,000).
"Alternate Currency Rate" shall mean, with respect to an Alternate
Currency Loan, for any Interest Period, a rate per annum equal to the quotient
obtained (rounded upwards, if necessary, to the nearest 1/16th of 1%) by
dividing (a) the rate of interest, determined by Agent in
2
accordance with its usual procedures (which determination shall be conclusive
absent manifest error) as of approximately 11:00 A.M. (London time) two Business
Days prior to the beginning of such Interest Period pertaining to such Alternate
Currency Loan, as listed on British Bankers Association Interest Rate LIBOR 01
or 02 as provided by Reuters (or, if for any reason such rate is unavailable
from Reuters, from any other similar company or service that provides rate
quotations comparable to those currently provided by Reuters) as the rate in the
London interbank market for deposits in the relevant Alternate Currency in
immediately available funds with a maturity comparable to such Interest Period,
provided that, in the event that such rate quotation is not available for any
reason, then the Alternate Currency Rate shall be the average (rounded upward to
the nearest 1/16th of 1%) of the per annum rates at which deposits in
immediately available funds in the relevant Alternate Currency for the relevant
Interest Period and in the amount of the Alternate Currency Loan to be disbursed
or to remain outstanding during such Interest Period, as the case may be, are
offered to Agent (or an affiliate of Agent, in Agent's discretion) by prime
banks in any Alternate Currency market reasonably selected by Agent, determined
as of 11:00 A.M. (London time) (or as soon thereafter as practicable), two
Business Days prior to the beginning of the relevant Interest Period pertaining
to such Alternate Currency Loan hereunder; by (b) 1.00 minus the Reserve
Percentage.
"Applicable Facility Fee Rate" shall mean:
(a) for the period from the Closing Date through December 31, 2004, ten
(10) basis points; and
(b) commencing with the Consolidated financial statements of Borrower for
the fiscal year ending August 31, 2004, the number of basis points set forth in
the following matrix, based upon the result of the computation of the Leverage
Ratio, shall be used to establish the number of basis points that will go into
effect on January 1, 2005 and thereafter:
APPLICABLE FACILITY
LEVERAGE RATIO FEE RATE
-------------- -------------------
Greater than or equal to 2.75 to 1.00 20.00
Greater than or equal to 2.50 to 1.00 but less than 2.75 to 1.00 15.00
Greater than or equal to 2.00 to 1.00 but less than 2.50 to 1.00 12.50
Less than 2.00 to 1.00 10.00
After January 1, 2005, changes to the Applicable Facility Fee Rate shall be
effective on the first day of the month following the date upon which Agent
received, or, if earlier, Agent should have received, pursuant to Section 5.3(a)
or (b) hereof, the financial statements of the Companies. The above matrix does
not modify or waive, in any respect, the requirements of Section 5.7 hereof, the
rights of Agent and the Lenders to charge the Default Rate, or the rights and
remedies of Agent and the Lenders pursuant to Articles VII and VIII hereof.
3
"Applicable Margin" shall mean:
(a) for the period from the Closing Date through December 31, 2004, thirty
(30) basis points; and
(b) commencing with the Consolidated financial statements of Borrower for
the fiscal quarter ending August 31, 2004, the number of basis points set forth
in the following matrix, based upon the result of the computation of the
Leverage Ratio, shall be used to establish the number of basis points that will
go into effect on January 1, 2005 and thereafter:
APPLICABLE BASIS
POINTS FOR LIBOR
LEVERAGE RATIO FIXED RATE LOANS
-------------- ----------------
Greater than or equal to 2.75 to 1.00 93.00
Greater than or equal to 2.50 to 1.00 but less than 2.75 to 1.00 75.00
Greater than or equal to 2.00 to 1.00 but less than 2.50 to 1.00 62.50
Greater than or equal to 1.50 to 1.00 but less than 2.00 to 1.00 43.00
Less than 1.50 to 1.00 30.00
After January 1, 2005, changes to the Applicable Margin shall be effective on
the first day of the month following the date upon which Agent received, or, if
earlier, Agent should have received, pursuant to Section 5.3(a) or (b) hereof,
the financial statements of the Companies. The above matrix does not modify or
waive, in any respect, the requirements of Section 5.7 hereof, the rights of
Agent and the Lenders to charge the Default Rate, or the rights and remedies of
Agent and the Lenders pursuant to Articles VII and VIII hereof.
"Approved Depository" shall mean any domestic or foreign commercial bank
or United States branch of a foreign bank licensed under the laws of the United
States or a State thereof having (a) capital and surplus in excess of Two
Hundred Fifty Million Dollars ($250,000,000), and (b) a Xxxxx Bank Watch Rating
of "B" or better or, with respect to any investment or deposit in a foreign bank
in excess of One Million Dollars ($1,000,000), an equivalent rating from a
comparable foreign rating agency.
"Assignment Agreement" shall mean an Assignment and Acceptance Agreement
in the form of the attached Exhibit F.
"Authorized Officer" shall mean a Financial Officer or other individual
authorized by a Financial Officer in writing (with a copy to Agent) to handle
certain administrative matters in connection with this Agreement.
"Base Rate" shall mean a rate per annum equal to the greater of (a) the
Prime Rate or (b) one-half of one percent (.50%) in excess of the Federal Funds
Effective Rate. Any change in the Base Rate shall be effective immediately from
and after such change in the Base Rate.
4
"Base Rate Loan" shall mean a Revolving Loan described in Section 2.2(a)
hereof, that shall be denominated in Dollars and on which Borrower shall pay
interest at a rate based on the Base Rate.
"Borrower" shall mean that term as defined in the first paragraph hereof.
"Business Day" shall mean (a) any day that is not a Saturday, Sunday or
other day on which national banking associations are authorized or required to
close, (b) if the applicable Business Day relates to a Eurodollar Loan, a day of
the year on which dealings in deposits are carried on in the London interbank
Eurodollar market, or (c) if the applicable Business Day relates to an Alternate
Currency Loan, a day of the year on which dealings in deposits are carried on in
the relevant Alternate Currency.
"Capital Distribution" shall mean a payment made, liability incurred or
other consideration given by a Company to any Person that is not a Company, for
the purchase, acquisition, redemption, repurchase or retirement of any capital
stock or other equity interest of such Company or as a dividend, return of
capital or other distribution (other than any stock dividend, stock split or
other equity distribution payable only in capital stock or other equity of such
Company) in respect of such Company's capital stock or other equity interest.
"Cash Equivalent" shall mean (a) a security that is the direct obligation
of the United States of America, any member state of the European Union or any
other sovereign nation not targeted for sanctions by the Office of Foreign
Assets Control of the United States Department of the Treasury so long as the
full faith of and credit of such nation is pledged in support thereof; (b) time
deposits, certificates of deposit or bankers acceptances issued by an Approved
Depository; (c) commercial paper or securities that at the time of investment
therein shall have been assigned one of the two highest quality ratings in
accordance with the rating systems employed by any of Xxxxx'x, Standard & Poor's
or Fitch or any equivalent foreign rating agency; (d) fully collateralized
repurchase obligations entered into with any Approved Depository, having a term
of not more than ninety (90) days and covering securities of the type describe
in subpart (a) above; or (e) investments in funds of any Societe
d'Investissement a Capital Variable maintained by an Approved Depository that
invest primarily in cash and cash equivalents.
"Change in Control" shall mean (a) the acquisition of (or, if earlier, the
approval by the shareholders or directors of Borrower of the acquisition of)
ownership or voting control, directly or indirectly, beneficially or of record,
on or after the Closing Date, by any Person or group (within the meaning of Rule
13d-3 of the SEC under the Securities Exchange Act of 1934, as then in effect),
of shares representing more than thirty percent (30%) of the aggregate ordinary
Voting Power represented by the issued and outstanding capital stock of
Borrower; (b) the occupation of a majority of the seats (other than vacant
seats) on the board of directors or other governing body of Borrower by Persons
who were neither (i) nominated by the board of directors or other governing body
of Borrower nor (ii) appointed by directors so nominated; or (c) the occurrence
of a change in control, or other similar provision, as defined in any Material
Indebtedness Agreement.
5
"Closing Commitment Amount" shall mean One Hundred Million Dollars
($100,000,000).
"Closing Date" shall mean the effective date of this Agreement as set
forth in the first paragraph of this Agreement.
"Closing Fee Letter" shall mean the Closing Fee Letter between Borrower
and Agent, dated as of the Closing Date.
"Code" shall mean the Internal Revenue Code of 1986, as amended, together
with the rules and regulations promulgated thereunder.
"Commitment" shall mean the obligation hereunder of the Lenders, during
the Commitment Period, to make Loans and to participate in the issuance of
Letters of Credit pursuant to the Revolving Credit Commitments, up to the Total
Commitment Amount.
"Commitment Increase Period" shall mean the period from the Closing Date
to the date that is six months prior to the last day of the Commitment Period,
or such later date as shall be agreed to in writing by Agent.
"Commitment Percentage" shall mean, for each Lender, the percentage set
forth opposite such Lender's name under the column headed "Commitment
Percentage", as listed in Schedule 1 hereto.
"Commitment Period" shall mean the period from the Closing Date to August
19, 2009, or such earlier date on which the Commitment shall have been
terminated pursuant to Article VIII hereof.
"Companies" shall mean Borrower and all Subsidiaries.
"Company" shall mean Borrower or a Subsidiary.
"Competitive Bid" shall mean an offer by a Lender to make a Competitive
Bid Loan in accordance with Section 2.2(c) hereof.
"Competitive Bid Auction" shall mean a solicitation of Competitive Bids
setting forth the Competitive Bid Rates for a Competitive Bid Loan pursuant to
Section 2.2(c) hereof.
"Competitive Bid Auction Date" shall mean the first Business Day prior to
the proposed date of borrowing of the Competitive Bid Loan, or such other time
or date as to which Borrower and Agent shall have mutually agreed and as to
which Agent shall have notified the Lenders not later than the date of the
Competitive Bid Request for the first Competitive Bid Auction for which such
change is to be effective.
"Competitive Bid Exposure" shall mean, at any time, the aggregate
principal amount of all Competitive Bid Loans then outstanding.
6
"Competitive Bid Loan" shall mean a Loan made by a Lender to Borrower in
accordance with Section 2.2(c) hereof.
"Competitive Bid Loan Maturity Date" shall mean, with respect to a
Competitive Bid Loan, the earlier of (a) the Competitive Bid Loan Maturity Date
for such Competitive Bid Loan, or (b) the last day of the Commitment Period.
"Competitive Bid Note" shall mean each Competitive Bid Note executed and
delivered pursuant to Section 2.4(b) hereof.
"Competitive Bid Notice" shall mean a Competitive Bid Notice substantially
in the form of the attached Exhibit E-3.
"Competitive Bid Rate" shall have the meaning set forth in Section
2.2(c)(iv) hereof.
"Competitive Bid Request" shall mean a Competitive Bid Request
substantially in the form of the attached Exhibit E-1.
"Compliance Certificate" shall mean a certificate, substantially in the
form of the attached Exhibit D.
"Consideration" shall mean, in connection with an Acquisition, the
aggregate consideration paid, including borrowed funds, cash, the issuance of
securities or notes, the assumption or incurring of liabilities (direct or
contingent), the payment, in excess of fair and reasonable amounts, of
consulting fees or fees for a covenant not to compete and any other
consideration paid for such Acquisition.
"Consolidated" shall mean the resultant consolidation of the financial
statements of Borrower and its Subsidiaries in accordance with GAAP, including
principles of consolidation consistent with those applied in preparation of the
consolidated financial statements referred to in Section 6.13 hereof.
"Consolidated Capital Expenditures" shall mean, for any period, the amount
of capital expenditures of Borrower, as determined on a Consolidated basis and
in accordance with GAAP.
"Consolidated Depreciation and Amortization Charges" shall mean, for any
period, the aggregate of all depreciation and amortization charges for fixed
assets, leasehold improvements and general intangibles (specifically including
goodwill, amortization and write-off) of Borrower for such period, as determined
on a Consolidated basis and in accordance with GAAP.
"Consolidated EBIT" shall mean, for any period, as determined on a
Consolidated basis and in accordance with GAAP, Consolidated Net Earnings for
such period plus the aggregate amounts deducted in determining such Consolidated
Net Earnings in respect of (a) Consolidated Interest Expense, and (b)
Consolidated Income Tax Expense.
7
"Consolidated EBITDA" shall mean, for any period, as determined on a
Consolidated basis and in accordance with GAAP, Consolidated EBIT for such
period plus the aggregate amounts deducted in determining Consolidated Net
Earnings in respect of Consolidated Depreciation and Amortization Charges.
"Consolidated Income Tax Expense" shall mean, for any period, all
provisions for taxes based on the gross or net income of Borrower (including,
without limitation, any additions to such taxes, and any penalties and interest
with respect thereto), and all franchise taxes of Borrower, as determined on a
Consolidated basis and in accordance with GAAP.
"Consolidated Interest Expense" shall mean, for any period, the interest
expense of Borrower for such period, as determined on a Consolidated basis and
in accordance with GAAP.
"Consolidated Net Earnings" shall mean, for any period, the net income
(loss) of Borrower for such period, as determined on a Consolidated basis and in
accordance with GAAP (excluding, however, non-recurring gains or losses).
"Consolidated Net Worth" shall mean, at any date, the stockholders' equity
of Borrower, determined as of such date on a Consolidated basis and in
accordance with GAAP (excluding, however, the effect of translation of foreign
currencies from stockholders equity).
"Consolidated Total Indebtedness" shall mean, at any date, all
Indebtedness of Borrower, as determined on a Consolidated basis and in
accordance with GAAP; provided that, in determining the amount of Indebtedness
under any Hedge Agreement, such amount shall be the loss, if any, that would be
incurred by the applicable Company under such Hedge Agreement, if such Hedge
Agreement were marked to market in accordance with GAAP as of such date.
"Controlled Group" shall mean a Company and each Person required to be
aggregated with a Company under Code Section 414(b), (c), (m) or (o).
"Credit Event" shall mean the making by the Lenders of a Loan, the
conversion by the Lenders of a Base Rate Loan to a Eurodollar Loan, the
continuation by the Lenders of a Eurodollar Loan after the end of the applicable
Interest Period, or the issuance by the Fronting Lender of a Letter of Credit.
"Credit Party" shall mean Borrower and any Subsidiary or other Affiliate
that is a Guarantor of Payment.
"Default" shall mean an event or condition that constitutes, or with the
lapse of any applicable grace period or the giving of notice or both would
constitute, an Event of Default, and that has not been waived by the Required
Lenders in writing.
"Default Rate" shall mean (a) with respect to any Loan, a rate per annum
equal to two percent (2%) in excess of the rate otherwise applicable thereto,
and (b) with respect to any other amount, if no rate is specified or available,
a rate per annum equal to two percent (2%) in excess of the Base Rate from time
to time in effect.
8
"Derived LIBOR Fixed Rate" shall mean (a) with respect to a Eurodollar
Loan, a rate per annum equal to the sum of the Applicable Margin (from time to
time in effect) plus the Eurodollar Rate, and (b) with respect to an Alternate
Currency Loan, a rate per annum equal to the sum of the Applicable Margin (from
time to time in effect) plus the Alternate Currency Rate applicable to the
relevant Alternate Currency.
"Dollar" or the sign $ shall mean lawful money of the United States of
America.
"Dollar Equivalent" shall mean (a) with respect to an Alternate Currency
Loan or Letter of Credit denominated in an Alternate Currency, the Dollar
equivalent of the amount of such Alternate Currency Loan or Letter of Credit
denominated in an Alternate Currency, determined by Agent on the basis of its
spot rate at approximately 11:00 A.M. (London time) on the date two Business
Days before the date of such Alternate Currency Loan, for the purchase of the
relevant Alternate Currency with Dollars for delivery on the date of such
Alternate Currency Loan or Letter of Credit, and (b) with respect to any other
amount, if such amount is denominated in Dollars, then such amount in Dollars
and, otherwise the Dollar equivalent of such amount, determined by Agent on the
basis of its spot rate at approximately 11:00 A.M. (London time) on the date for
which the Dollar equivalent amount of such amount is being determined, for the
purchase of the relevant Alternate Currency with Dollars for delivery on such
date; provided, however, that, in calculating the Dollar Equivalent for purposes
of determining (i) Borrower's obligation to prepay Loans and Letters of Credit
pursuant to Section 2.11 hereof, or (ii) Borrower's ability to request
additional Loans or Letters of Credit pursuant to the Commitment (or of Borrower
to request Invitations for Competitive Bids), Agent may, in its discretion, on
any Business Day selected by Agent (prior to payment in full of the
Obligations), calculate the Dollar Equivalent of each such Loan or Letter of
Credit. Agent shall notify Borrower of the Dollar Equivalent of such Alternate
Currency Loan or any other amount, at the time that such Dollar Equivalent shall
have been determined.
"Domestic Subsidiary" shall mean a Subsidiary that is not a Foreign
Subsidiary.
"Dormant Subsidiary" shall mean a Company that (a) is not a Credit Party,
(b) has aggregate assets of less than Two Hundred Fifty Thousand Dollars
($250,000), and (c) has no direct or indirect Subsidiaries with aggregate assets
for all such Subsidiaries of more than Two Hundred Fifty Thousand Dollars
($250,000).
"Eligible Transferee" shall mean a commercial bank, financial institution
or other "accredited investor" (as defined in SEC Regulation D) that is not
Borrower, a Subsidiary or an Affiliate.
"Environmental Laws" shall mean all provisions of law, statutes,
ordinances, rules, regulations, permits, licenses, judgments, writs,
injunctions, decrees, orders, awards and standards promulgated by the government
of the United States of America or any foreign jurisdiction, or by any state or
municipality thereof, or by any court, agency, instrumentality, regulatory
authority or commission of any of the foregoing concerning health, safety and
protection of, or regulation of the discharge of substances into, the
environment.
9
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated pursuant thereto.
"ERISA Event" shall mean (a) the existence of a condition or event with
respect to an ERISA Plan that presents a risk of the imposition of an excise tax
or any other liability on a Company or of the imposition of a Lien on the assets
of a Company; (b) the engagement by a Controlled Group member in a non-exempt
"prohibited transaction" (as defined under ERISA Section 406 or Code Section
4975) or a breach of a fiduciary duty under ERISA that could result in liability
to a Company; (c) the application by a Controlled Group member for a waiver from
the minimum funding requirements of Code Section 412 or ERISA Section 302 or a
Controlled Group member is required to provide security under Code Section
401(a)(29) or ERISA Section 307; (d) the occurrence of a Reportable Event with
respect to any Pension Plan as to which notice is required to be provided to the
PBGC; (e) the withdrawal by a Controlled Group member from a Multiemployer Plan
in a "complete withdrawal" or a "partial withdrawal" (as such terms are defined
in ERISA Sections 4203 and 4205, respectively); (f) the involvement of, or
occurrence or existence of any event or condition that makes likely the
involvement of, a Multiemployer Plan in any reorganization under ERISA Section
4241; (g) the failure of an ERISA Plan (and any related trust) that is intended
to be qualified under Code Sections 401 and 501 to be so qualified or the
failure of any "cash or deferred arrangement" under any such ERISA Plan to meet
the requirements of Code Section 401(k); (h) the taking by the PBGC of any steps
to terminate a Pension Plan or appoint a trustee to administer a Pension Plan,
or the taking by a Controlled Group member of any steps to terminate a Pension
Plan; (i) the failure by a Controlled Group member or an ERISA Plan to satisfy
any requirements of law applicable to an ERISA Plan; (j) the commencement,
existence or threatening of a claim, action, suit, audit or investigation with
respect to an ERISA Plan, other than a routine claim for benefits; or (k) any
incurrence by or any expectation of the incurrence by a Controlled Group member
of any liability for post-retirement benefits under any Welfare Plan, other than
as required by ERISA Section 601, et. seq. or Code Section 4980B.
"ERISA Plan" shall mean an "employee benefit plan" (within the meaning of
ERISA Section 3(3)) that a Controlled Group member at any time sponsors,
maintains, contributes to, has liability with respect to or has an obligation to
contribute to such plan.
"Eurocurrency Liabilities" shall have the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar" shall mean a Dollar denominated deposit in a bank or branch
outside of the United States.
"Eurodollar Loan" shall mean a Revolving Loan described in Section 2.2(a)
hereof that shall be denominated in Dollars and on which Borrower shall pay
interest at a rate based upon the Derived LIBOR Fixed Rate applicable to
Eurodollars.
"Eurodollar Rate" shall mean, with respect to a Eurodollar Loan, for any
Interest Period, a rate per annum equal to the quotient obtained (rounded
upwards, if necessary, to the nearest
10
1/16th of 1%) by dividing (a) the rate of interest, determined by Agent in
accordance with its usual procedures (which determination shall be conclusive
absent manifest error) as of approximately 11:00 A.M. (London time) two Business
Days prior to the beginning of such Interest Period pertaining to such
Eurodollar Loan, as listed on British Bankers Association Interest Rate LIBOR 01
or 02 as provided by Reuters (or, if for any reason such rate is unavailable
from Reuters, from any other similar company or service that provides rate
quotations comparable to those currently provided by Reuters) as the rate in the
London interbank market for Dollar deposits in immediately available funds with
a maturity comparable to such Interest Period, provided that, in the event that
such rate quotation is not available for any reason, then the Eurodollar Rate
shall be the average (rounded upward to the nearest 1/16th of 1%) of the per
annum rates at which deposits in immediately available funds in Dollars for the
relevant Interest Period and in the amount of the Eurodollar Loan to be
disbursed or to remain outstanding during such Interest Period, as the case may
be, are offered to Agent (or an affiliate of Agent, in Agent's discretion) by
prime banks in any Eurodollar market reasonably selected by Agent, determined as
of 11:00 A.M. (London time) (or as soon thereafter as practicable), two Business
Days prior to the beginning of the relevant Interest Period pertaining to such
Eurodollar Loan hereunder; by (b) 1.00 minus the Reserve Percentage.
"Event of Default" shall mean an event or condition that shall constitute
an event of default as defined in Article VII hereof.
"Excluded Taxes" shall mean net income taxes (and franchise taxes imposed
in lieu of net income taxes) imposed on Agent or any Lender by the Governmental
Authority located in the jurisdiction where Agent or such Lender is organized
(other than any such connection arising solely from Agent or such Lender having
executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any other Loan Document).
"Existing Letter of Credit" shall mean that term as defined in Section
2.2(b)(vi) hereof.
"Federal Funds Effective Rate" shall mean, for any day, the rate per annum
(rounded upward to the nearest one one-hundredth of one percent (1/100 of 1%))
announced by the Federal Reserve Bank of New York (or any successor) on such day
as being the weighted average of the rates on overnight federal funds
transactions arranged by federal funds brokers on the previous trading day, as
computed and announced by such Federal Reserve Bank (or any successor) in
substantially the same manner as such Federal Reserve Bank computes and
announces the weighted average it refers to as the "Federal Funds Effective
Rate" as of the Closing Date.
"Financial Officer" shall mean any of the following officers: chief
executive officer, president, chief financial officer or treasurer. Unless
otherwise qualified, all references to a Financial Officer in this Agreement
shall refer to a Financial Officer of Borrower.
"Fitch" shall mean Fitch, Inc., or any successor to such company.
"Foreign Subsidiary" shall mean a Subsidiary that is organized under the
laws of a jurisdiction outside of the United States.
11
"Fronting Lender" shall mean, (a) as to any Letter of Credit transaction
hereunder, KeyBank National Association, as issuer of the Letter of Credit, or,
in the event that KeyBank National Association either shall be unable to issue
or shall agree that another Lender may issue, a Letter of Credit, such other
Lender as Agent shall designate and as shall agree to issue the Letter of Credit
in its own name, but on behalf of the Lenders hereunder, or (b) as to any
Existing Letter of Credit, KeyBank National Association.
"GAAP" shall mean generally accepted accounting principles in the United
States as then in effect, which shall include the official interpretations
thereof by the Financial Accounting Standards Board, applied on a basis
consistent with the past accounting practices and procedures of Borrower.
"Governmental Authority" shall mean any nation or government, any state,
province or territory or other political subdivision thereof, any governmental
agency, department, authority, instrumentality, regulatory body, court, central
bank or other governmental entity exercising executive, legislative, judicial,
taxing, regulatory or administrative functions of or pertaining to government,
any securities exchange and any self-regulatory organization.
"Guarantor" shall mean a Person that shall have pledged its credit or
property in any manner for the payment or other performance of the indebtedness,
contract or other obligation of another and includes (without limitation) any
guarantor (whether of payment or of collection), surety, co-maker, endorser or
Person that shall have agreed conditionally or otherwise to make any purchase,
loan or investment in order thereby to enable another to prevent or correct a
default of any kind.
"Guarantor of Payment" shall mean each of the Companies set forth on
Schedule 2 hereto, that are each executing and delivering a Guaranty of Payment,
or any other Person that shall deliver a Guaranty of Payment to Agent subsequent
to the Closing Date.
"Guaranty of Payment" shall mean each Guaranty of Payment executed and
delivered on or after the Closing Date in connection with this Agreement by the
Guarantors of Payment, as the same may from time to time be amended, restated or
otherwise modified.
"Hedge Agreement" shall mean any (a) hedge agreement, interest rate swap,
basis swap agreement, cap, collar or floor agreement, or other interest rate
management device (including forward rate agreements) entered into by a Company
with any Person in connection with any Indebtedness of such Company, or (b)
currency swap agreement, forward currency purchase agreement or similar
arrangement or agreement designed to protect against fluctuations in currency
exchange rates entered into by a Company with any Person.
"Indebtedness" shall mean, for any Company (excluding in all cases trade
payables payable in the ordinary course of business by such Company), without
duplication, (a) all obligations to repay borrowed money, direct or indirect,
incurred or assumed, (b) all obligations for the deferred purchase price of
capital assets, (c) all obligations under conditional sales or other title
retention agreements, (d) all obligations (contingent or otherwise) under any
letter of
12
credit or banker's acceptance, (e) all obligations under any currency swap
agreement, interest rate swap, cap, collar or floor agreement or other interest
rate management device or any Hedge Agreement, (f) all synthetic leases, (g) all
lease obligations that have been or should be capitalized on the books of such
Company in accordance with GAAP, (h) all obligations of such Company with
respect to asset securitization financing programs to the extent that there is
recourse against such Company or such Company is liable (contingent or
otherwise) under any such program, (i) all obligations to advance funds to, or
to purchase assets, property or services from, any other Person in order to
maintain the financial condition of such Person, (j) any other transaction
(including forward sale or purchase agreements) having the commercial effect of
a borrowing of money entered into by such Company to finance its operations or
capital requirements, and (k) any guaranty of any obligation described in
subpart (a) through (j) hereof. Without limiting the generality of the
foregoing, Indebtedness shall not include any obligations of any Company in
respect of its pension reserves.
"Interest Adjustment Date" shall mean the last day of each Interest
Period.
"Interest Coverage Ratio" shall mean, for the most recently completed four
fiscal quarters of Borrower, on a Consolidated basis and in accordance with
GAAP, the ratio of (a) Consolidated EBIT to (b) Consolidated Interest Expense.
"Interest Period" shall mean, with respect to a LIBOR Fixed Rate Loan, the
period commencing on the date such LIBOR Fixed Rate Loan is made and ending on
the last day of such period, as selected by Borrower pursuant to the provisions
hereof, and, thereafter (unless, with respect to a Eurodollar Loan, such LIBOR
Fixed Rate Loan is converted to a Base Rate Loan), each subsequent period
commencing on the last day of the immediately preceding Interest Period and
ending on the last day of such period, as selected by Borrower pursuant to the
provisions hereof. The duration of each Interest Period for a LIBOR Fixed Rate
Loan shall be one month, two months, three months or six months, in each case as
Borrower may select upon notice, as set forth in Section 2.5 hereof; provided
that (a) if Borrower shall fail to so select the duration of any Interest Period
for a Eurodollar Loan at least three Business Days prior to the Interest
Adjustment Date applicable to such Eurodollar Loan, Borrower shall be deemed to
have converted such LIBOR Fixed Rate Loan to a Base Rate Loan at the end of the
then current Interest Period; and (b) each Alternate Currency Loan must be
repaid on the last day of the Interest Period applicable thereto.
"Invitation for Competitive Bids" shall mean an Invitation for Competitive
Bids substantially in the form of the attached Exhibit E-2.
"Judgment Amount" shall mean that term as defined in Section 10.16(b)
hereof.
"Lender" shall mean that term as defined in the first paragraph hereof.
"Letter of Credit" shall mean a standby letter of credit that shall be
issued by the Fronting Lender for the account of Borrower or a Guarantor of
Payment, including amendments thereto, if any, and shall have an original
expiration date no later than the earlier of (a) one year after its date of
issuance or (b) thirty (30) days prior to the last day of the Commitment Period;
provided,
13
however, that, if the Fronting Lender shall so agree, such Letter of Credit may
provide that such Letter of Credit will renew automatically for one or more
periods unless the beneficiary shall be notified of non-renewal.
"Letter of Credit Commitment" shall mean the commitment of the Fronting
Lender, on behalf of the Lenders, to issue Letters of Credit in an aggregate
face amount of up to Ten Million Dollars ($10,000,000).
"Letter of Credit Exposure" shall mean, at any time, the Dollar Equivalent
of the sum of (a) the aggregate undrawn face amount of all issued and
outstanding Letters of Credit, and (b) the aggregate of the draws made on
Letters of Credit that have not been reimbursed by Borrower or converted to a
Revolving Loan pursuant to Section 2.2(b)(iv) hereof.
"Leverage Ratio" shall mean, as determined on a Consolidated basis and in
accordance with GAAP, the ratio of (a) Consolidated Total Indebtedness (on the
last day of the most recently completed fiscal quarter of Borrower) to (b)
Consolidated EBITDA (for the most recently completed four fiscal quarters of
Borrower).
"LIBOR Fixed Rate Loan" shall mean a Eurodollar Loan or an Alternate
Currency Loan.
"Lien" shall mean any mortgage, deed of trust, security interest, lien
(statutory or other), deemed trust, charge, assignment, hypothecation,
encumbrance on, pledge or deposit of, or conditional sale, leasing (other than
operating leases), sale with a right of redemption or other title retention
agreement and any capitalized lease with respect to any property (real or
personal) or asset.
"Loan" shall mean a Revolving Loan or a Competitive Bid Loan.
"Loan Documents" shall mean, collectively, this Agreement, each Note, each
Guaranty of Payment, all documentation relating to each Letter of Credit, the
Agent Fee Letter and the Closing Fee Letter, as any of the foregoing may from
time to time be amended, restated or otherwise modified or replaced, and any
other document delivered pursuant thereto.
"Loss" shall mean that term as defined in Section 10.16(b) hereof.
"Material Adverse Effect" shall mean a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or prospects
of any Company, (b) the business, operations, property, condition (financial or
otherwise) or prospects of the Companies taken as a whole, or (c) the validity
or enforceability of this Agreement or any of the other Loan Documents or the
rights and remedies of Agent or the Lenders hereunder or thereunder.
"Material Indebtedness Agreement" shall mean (a) the Note Agreement, or
(b) any other debt instrument, lease (capital, operating or otherwise),
guaranty, contract, commitment, agreement or other arrangement evidencing any
Indebtedness of any Company in excess of the aggregate amount of Ten Million
Dollars ($10,000,000); provided that, in determining the amount of Indebtedness
under any Hedge Agreement, such amount shall be the loss, if any, that
14
would be incurred by the applicable Company under such Hedge Agreement if such
Hedge Agreement were marked to market in accordance with GAAP as of any
applicable date.
"Maximum Amount" shall mean, for each Lender, the amount set forth
opposite such Lender's name under the column headed "Maximum Amount" as set
forth on Schedule 1 hereto, subject to decreases determined pursuant to Section
2.9(a) hereof, increases pursuant to Section 2.9(b) hereof and assignments of
interests pursuant to Section 10.10 hereof.
"Maximum Commitment Amount" shall mean One Hundred Fifty Million Dollars
($150,000,000).
"Maximum Rate" shall mean that term as defined in Section 2.3(c) hereof.
"Moody's" shall mean Xxxxx'x Investors Service, Inc., or any successor to
such company.
"Multiemployer Plan" shall mean a Pension Plan that is subject to the
requirements of Subtitle E of Title IV of ERISA.
"NCB Fee Letter" shall mean the NCB Fee Letter between Borrower and
National City Bank, dated as of the Closing Date.
"Non-U.S. Lender" shall mean that term as defined in Section 3.2(e)
hereof.
"Note" shall mean a Revolving Credit Note or Competitive Bid Note, or any
other promissory note delivered pursuant to this Agreement.
"Note Agreement" shall mean the Note Purchase Agreement dated as of August
17, 1999 relating to Borrower's $50,000,000 7.27% Senior Notes, Due 2009, as the
same may from time to time be amended, restated or otherwise modified or
replaced, and any additional note purchase agreement entered into by Borrower
after the Closing Date.
"Notice of Loan" shall mean a Notice of Loan in the form of the attached
Exhibit C.
"Obligations" shall mean, collectively, (a) all Indebtedness and other
obligations incurred by Borrower to Agent, the Fronting Lender or any Lender
pursuant to this Agreement and includes the principal of and interest on all
Loans and all obligations pursuant to Letters of Credit, (b) each extension,
renewal or refinancing of the foregoing, in whole or in part, and (c) the
facility fees, other fees and any prepayment fees payable hereunder, and all
fees and charges in connection with Letters of Credit.
"Organizational Documents" shall mean, with respect to any Person (other
than an individual), such Person's Articles (Certificate) of Incorporation,
operating agreement or equivalent formation documents, and Regulations (Bylaws),
or equivalent governing documents, and any amendments to any of the foregoing.
15
"Original Due Date" shall mean that term as defined in Section 10.16(b)
thereof.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise, ad valorem or property taxes, goods and
services taxes, harmonized sales taxes and other sales taxes, use taxes, value
added taxes, charges or similar taxes or levies arising from any payment made
hereunder or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.
"Participant" shall mean that term as defined in Section 10.11 hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or its
successor.
"Pension Plan" shall mean an ERISA Plan that is a "pension plan" (within
the meaning of ERISA Section 3(2)).
"Person" shall mean any individual, sole proprietorship, partnership,
joint venture, unincorporated organization, corporation, limited liability
company, unlimited liability company, institution, trust, estate, government or
other agency or political subdivision thereof or any other entity.
"Prime Rate" shall mean the interest rate established from time to time by
Agent as Agent's prime rate, whether or not such rate shall be publicly
announced; the Prime Rate may not be the lowest interest rate charged by Agent
for commercial or other extensions of credit. Each change in the Prime Rate
shall be effective immediately from and after such change.
"Register" shall mean that term as defined in Section 10.10(i) hereof.
"Regularly Scheduled Payment Date" shall mean the last day of each March,
June, September and December of each year.
"Related Writing" shall mean each Loan Document and any other assignment,
mortgage, security agreement, guaranty agreement, subordination agreement,
financial statement, audit report or other writing furnished by any Credit
Party, or any of its officers, to Agent or the Lenders pursuant to or otherwise
in connection with this Agreement.
"Reportable Event" shall mean a reportable event as that term is defined
in Title IV of ERISA, except actions of general applicability by the Secretary
of Labor under Section 110 of such Act.
"Request for Extension" shall mean a notice, substantially in the form of
the attached Exhibit G.
"Required Lenders" shall mean the holders of greater than sixty-six and
two-thirds percent (66-2/3%) of the Total Commitment Amount, or, if the
Revolving Credit Commitments shall have expired or been terminated, the holders
of greater than sixty-six and two-thirds percent (66-2/3%), based upon each
Lender's Commitment Percentages, of the sum of (a) the
16
aggregate principal amount outstanding under the Notes (other than the
Competitive Bid Notes), and (b) the Letter of Credit Exposure (including the
aggregate amount of each Lender's risk participation and funded participation in
Letters of Credit); provided that, prior to an increase in the Commitment
pursuant to Section 2.9(b) hereof, Required Lenders shall constitute at least
three (or all, if fewer than three) of the Lenders.
"Requirement of Law" shall mean, as to any Person, any law, treaty, rule
or regulation or determination or policy statement or interpretation of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property.
"Reserve Percentage" shall mean for any day that percentage (expressed as
a decimal) that is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation, all basic,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements) for
a member bank of the Federal Reserve System in Cleveland, Ohio, in respect of
Eurocurrency Liabilities. The Derived LIBOR Fixed Rate shall be adjusted
automatically on and as of the effective date of any change in the Reserve
Percentage.
"Restricted Payment" shall mean, with respect to any Company, (a) any
Capital Distribution, or (b) any amount paid by such Company in repayment,
redemption, retirement or repurchase, directly or indirectly, of any
Subordinated Indebtedness.
"Revolving Credit Commitment" shall mean the obligation hereunder, during
the Commitment Period, of (a) each Lender to make Revolving Loans, and (b) the
Fronting Lender to issue and each Lender to participate in the making of
Revolving Loans and the issuance of Letters of Credit pursuant to the Letter of
Credit Commitment up to the amount set forth opposite such Lender's name under
the column headed "Revolving Credit Commitment Amount" as set forth on Schedule
1 hereto (or such lesser amount as shall be determined pursuant to Section
2.9(a) hereof, or such higher amount as shall be determined pursuant to Section
2.9(b) hereof).
"Revolving Credit Exposure" shall mean, at any time, the Dollar Equivalent
of the sum of (a) the aggregate principal amount of all Revolving Loans
outstanding, (b) the Competitive Bid Exposure, and (c) the Letter of Credit
Exposure.
"Revolving Credit Note" shall mean a Revolving Credit Note executed and
delivered pursuant to Section 2.4(a) hereof.
"Revolving Loan" shall mean a Loan granted to Borrower by the Lenders in
accordance with Section 2.2(a) hereof.
"SEC" shall mean the United States Securities and Exchange Commission, or
any governmental body or agency succeeding to any of its principal functions.
17
"Standard & Poor's" shall mean Standard & Poor's Ratings Group, a division
of XxXxxx-Xxxx, Inc., or any successor to such company.
"Subordinated" shall mean, as applied to Indebtedness, Indebtedness that
shall have been subordinated (by written terms or written agreement being, in
either case, in form and substance satisfactory to Agent and the Required
Lenders) in favor of the prior payment in full of the Obligations.
"Subsidiary" of a Company shall mean (a) a corporation more than fifty
percent (50%) of the Voting Power of which is owned, directly or indirectly, by
such Company or by one or more other subsidiaries of such Company or by such
Company and one or more subsidiaries of such Company, (b) a partnership, limited
liability company or unlimited liability company of which such Company, one or
more other subsidiaries of such Company or such Company and one or more
subsidiaries of such Company, directly or indirectly, is a general partner or
managing member, as the case may be, or otherwise has an ownership interest
greater than fifty percent (50%) of all of the ownership interests in such
partnership, limited liability company or unlimited liability company, or (c)
any other Person (other than a corporation, partnership, limited liability
company or unlimited liability company) in which such Company, one or more other
subsidiaries of such Company or such Company and one or more subsidiaries of
such Company, directly or indirectly, has at least a majority interest in the
Voting Power or the power to elect or direct the election of a majority of
directors or other governing body of such Person.
"Syndication Agent" shall mean that term as defined in the first paragraph
hereof.
"Taxes" shall mean any and all present or future taxes of any kind,
including but not limited to, levies, imposts, duties, charges, fees, deductions
or withholdings now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority (together with any interest, penalties,
additions to taxes or similar liabilities with respect thereto) other than
Excluded Taxes.
"Total Commitment Amount" shall mean the Closing Commitment Amount, as
such amount may be increased up to the Maximum Commitment Amount pursuant to
Section 2.9(b) hereof, or decreased pursuant to Section 2.9(a) hereof.
"U.C.C. Financing Statement" shall mean a financing statement filed or to
be filed in accordance with the Uniform Commercial Code, as in effect from time
to time, in the relevant state or states.
"Voting Power" shall mean, with respect to any Person, the exclusive
ability to control, through the ownership of shares of capital stock,
partnership interests, membership interests or otherwise, the election of
members of the board of directors or other similar governing body of such
Person. The holding of a designated percentage of Voting Power of a Person means
the ownership of shares of capital stock, partnership interests, membership
interests or other interests of such Person sufficient to control exclusively
the election of that percentage of the members of the board of directors or
similar governing body of such Person.
18
"Welfare Plan" shall mean an ERISA Plan that is a "welfare plan" within
the meaning of ERISA Section 3(l).
"Wholly-Owned Subsidiary" shall mean, with respect to any Person, any
corporation, limited liability company, unlimited liability company or other
entity, all of the securities or other ownership interest of which (other than
qualifying shares of officers or members of the board of directors of such
Person) having ordinary Voting Power to elect a majority of the board of
directors, or other persons performing similar functions, are at the time
directly or indirectly owned by such Person.
Section 1.2. Accounting Terms. Any accounting term not specifically
defined in this Article I shall have the meaning ascribed thereto by GAAP.
Section 1.3. Terms Generally. The foregoing definitions shall be
applicable to the singular and plurals of the foregoing defined terms.
ARTICLE II. AMOUNT AND TERMS OF CREDIT
Section 2.1. Amount and Nature of Credit.
(a) Subject to the terms and conditions of this Agreement, the Lenders,
during the Commitment Period and to the extent hereinafter provided, shall make
Loans to Borrower and issue or participate in Letters of Credit at the request
of Borrower, in such aggregate amount as Borrower shall request pursuant to the
Commitment; provided, however, that in no event shall the Revolving Credit
Exposure be in excess of the Total Commitment Amount.
(b) Each Lender, for itself and not one for any other, agrees to make
Loans and issue or participate in Letters of Credit, during the Commitment
Period, on such basis that, immediately after the completion of any borrowing by
Borrower or the issuance of a Letter of Credit:
(i) the Dollar Equivalent of the aggregate outstanding principal
amount of Loans made by such Lender (other than the Competitive Bid
Loans), when combined with such Lender's pro rata share, if any, of the
Letter of Credit Exposure shall not be in excess of the Maximum Amount for
such Lender; and
(ii) such aggregate principal amount outstanding on the Notes (other
than the Competitive Bid Notes) issued to such Lender shall represent that
percentage of the aggregate principal amount then outstanding on all Notes
(other than the Competitive Bid Notes) together with such Lender's
interest in the Letter of Credit Exposure that shall be such Lender's
Commitment Percentage. With the exception of Competitive Bid Loans, each
borrowing from the Lenders shall be made pro rata according to the
respective Commitment Percentages of the Lenders.
19
(c) The Loans may be made as Revolving Loans, as described in Section
2.2(a) hereof, and Competitive Bid Loans, as described in Section 2.2(c) hereof,
and Letters of Credit may be issued in accordance with Section 2.2(b) hereof.
Section 2.2. Revolving Credit.
(a) Revolving Loans. Subject to the terms and conditions of this
Agreement, during the Commitment Period, the Lenders shall make a Revolving Loan
or Revolving Loans to Borrower in such amount or amounts as Borrower may from
time to time request, but not exceeding in aggregate principal amount at any
time outstanding hereunder the Total Commitment Amount, when such Revolving
Loans are combined with the Letter of Credit Exposure and the Competitive Bid
Exposure; provided, however, that Borrower shall not request any Alternate
Currency Loan (and the Lenders shall not be obligated to make an Alternate
Currency Loan) if, after giving effect thereto, the Alternate Currency Exposure
would exceed the Alternate Currency Maximum Amount. Borrower shall have the
option, subject to the terms and conditions set forth herein, to borrow
Revolving Loans, maturing on the last day of the Commitment Period, by means of
any combination of Base Rate Loans, Eurodollar Loans or Alternate Currency
Loans. With respect to each Alternate Currency Loan, subject to the other
provisions of this Agreement, Borrower shall receive all of the proceeds of such
Alternate Currency Loan in one Alternate Currency and repay such Alternate
Currency Loan in the same Alternate Currency. Subject to the provisions of this
Agreement, Borrower shall be entitled under this Section 2.2(a) to borrow funds,
repay the same in whole or in part and re-borrow hereunder at any time and from
time to time during the Commitment Period.
(b) Letters of Credit.
(i) Generally. Subject to the terms and conditions of this
Agreement, during the Commitment Period, the Fronting Lender shall, in its
own name, on behalf of the Lenders, issue such Letters of Credit for the
account of a Credit Party, as Borrower may from time to time request.
Borrower shall not request any Letter of Credit (and the Fronting Lender
shall not be obligated to issue any Letter of Credit) if, after giving
effect thereto, (A) the Letter of Credit Exposure would exceed the Letter
of Credit Commitment, (B) the Revolving Credit Exposure would exceed the
Total Commitment Amount, or (C) with respect to a request for a Letter of
Credit to be issued in an Alternate Currency, the Alternate Currency
Exposure would exceed the Alternate Currency Maximum Amount. The issuance
of each Letter of Credit shall confer upon each Lender the benefits and
liabilities of a participation consisting of an undivided pro rata
interest in the Letter of Credit to the extent of such Lender's Commitment
Percentage.
(ii) Request for Letter of Credit. Each request for a Letter of
Credit shall be delivered to Agent (and to the Fronting Lender, if the
Fronting Lender is a Lender other than Agent) by an Authorized Officer not
later than 11:00 A.M. (Eastern time) three Business Days prior to the day
upon which the Letter of Credit is to be issued. Each such request shall
be in a form acceptable to Agent (and the Fronting Lender, if the Fronting
Lender is a Lender other than Agent) and shall specify the face amount
thereof, the account party, the beneficiary, the intended date of
issuance, the expiry date thereof, the
20
Alternate Currency if other than Dollars are requested, and the nature of
the transaction to be supported thereby. Concurrently with each such
request, Borrower, and any Guarantor of Payment for whose account the
Letter of Credit is to be issued, shall execute and deliver to the
Fronting Lender an appropriate application and agreement, being in the
standard form of the Fronting Lender for such letters of credit, as
amended to conform to the provisions of this Agreement if required by
Agent. Agent shall give the Fronting Lender and each Lender notice of each
such request for a Letter of Credit.
(iii) Letter of Credit Fees. With respect to each Letter of Credit
and the drafts thereunder, if any, whether issued for the account of
Borrower or any other Credit Party, Borrower agrees to (A) pay to Agent,
for the pro rata benefit of the Lenders, a non-refundable commission based
upon the face amount of such Letter of Credit, which shall be paid
quarterly in arrears, on each Regularly Scheduled Payment Date, at a rate
per annum equal to the Applicable Margin (in effect on such Regularly
Scheduled Payment Date) multiplied by the face amount of such Letter of
Credit; (B) pay to Agent, for the sole benefit of the Fronting Lender, an
additional Letter of Credit fee, which shall be paid on each date that
such Letter of Credit shall be issued, amended or renewed at the rate of
one-eighth percent (1/8%) of the face amount of such Letter of Credit; and
(C) pay to Agent, for the sole benefit of the Fronting Lender, such other
issuance, amendment, negotiation, draw, acceptance, telex, courier,
postage and similar transactional fees as are generally charged by the
Fronting Lender under its fee schedule as in effect from time to time.
(iv) Refunding of Letters of Credit with Revolving Loans. Whenever a
Letter of Credit shall be drawn, Borrower shall immediately reimburse the
Fronting Lender for the amount drawn. In the event that the amount drawn
is not in an Alternate Currency and shall not have been reimbursed by
Borrower within one Business Day of the drawing of such Letter of Credit,
at the sole option of Agent (and the Fronting Lender, if the Fronting
Lender is a Lender other than Agent), Borrower shall be deemed to have
requested a Revolving Loan, subject to the provisions of subsection (a) of
this Section 2.2 and 2.5 hereof (other than the requirement set forth in
Section 2.5(d) hereof), in the amount drawn. Such Revolving Loan shall be
evidenced by the Revolving Credit Notes. Each Lender agrees to make a
Revolving Loan on the date of such notice, subject to no conditions
precedent whatsoever. Each Lender acknowledges and agrees that its
obligation to make a Revolving Loan pursuant to subsection (a) of this
Section 2.2 hereof when required by this Section 2.2(b)(iv) shall be
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including, without limitation, the occurrence and continuance
of a Default or Event of Default, and that its payment to Agent, for the
account of the Fronting Lender, of the proceeds of such Revolving Loan
shall be made without any offset, abatement, recoupment, counterclaim,
withholding or reduction whatsoever and whether or not such Lender's
Revolving Credit Commitment shall have been reduced or terminated.
Borrower irrevocably authorizes and instructs Agent to apply the proceeds
of any borrowing pursuant to this subsection to reimburse, in full (other
than the Fronting Lender's pro rata share of such borrowing), the Fronting
Lender, for the amount drawn on such Letter of Credit. Each such Revolving
Loan shall be deemed to be a Base Rate Loan unless otherwise requested by
and available to
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Borrower hereunder. Each Lender is hereby authorized to record on its
records relating to its Revolving Credit Note such Lender's pro rata share
of the amounts paid and not reimbursed on the Letters of Credit.
(v) Participation in Letters of Credit. If, for any reason, the
Fronting Lender shall be unable to or, in the opinion of Agent, it shall
be impracticable to, convert any Letter of Credit to a Revolving Loan
pursuant to the preceding subsection, or if the amount not reimbursed is a
Letter of Credit drawn in an Alternate Currency, the Fronting Lender shall
have the right to request that each Lender purchase a participation in the
amount due with respect to such Letter of Credit, and Agent shall promptly
notify each Lender thereof (by facsimile or telephone, confirmed in
writing). Upon such notice, but without further action, the Fronting
Lender hereby agrees to grant to each Lender, and each Lender hereby
agrees to acquire from the Fronting Lender, an undivided participation
interest in the amount due with respect to such Letter of Credit in an
amount equal to such Lender's Commitment Percentage of the principal
amount due with respect to such Letter of Credit. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay
to Agent, for the account of the Fronting Lender, such Lender's ratable
share of the amount due with respect to such Letter of Credit (determined
in accordance with such Lender's Commitment Percentage). Each Lender
acknowledges and agrees that its obligation to acquire participations in
the amount due under any Letter of Credit that is drawn but not reimbursed
by Borrower pursuant to this subsection (v) shall be absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, the occurrence and continuance of a Default
or Event of Default, and that each such payment shall be made without any
offset, abatement, recoupment, counterclaim, withholding or reduction
whatsoever and whether or not such Lender's Revolving Credit Commitment
shall have been reduced or terminated. Each Lender shall comply with its
obligation under this subsection (v) by wire transfer of immediately
available funds (in Dollars, except in the case of a Letter of Credit
issued and drawn in an Alternate Currency, and, in such case, in such
Alternate Currency), in the same manner as provided in Section 2.6 hereof
with respect to Revolving Loans. Each Lender is hereby authorized to
record on its records such Lender's pro rata share of the amounts paid and
not reimbursed on the Letters of Credit. In addition, each Lender agrees
to risk participate in the Existing Letters of Credit as provided in
subsection (vi) below.
(vi) Existing Letters of Credit. Schedule 2.2 hereto contains a
description of all letters of credit outstanding on, and to continue in
effect after, the Closing Date and issued by a bank that is or becomes a
Lender under this Agreement on the Closing Date (each, an "Existing Letter
of Credit"). Each such Existing Letter of Credit shall constitute a
"Letter of Credit" for all purposes of this Agreement, issued, for
purposes of Section 2.2(b)(v) hereof, on the Closing Date. Borrower, Agent
and the applicable Lenders hereby agree that, from and after such date,
the terms of this Agreement shall apply to the Existing Letters of Credit,
superseding any other agreement theretofore applicable to them to the
extent inconsistent with the terms hereof. Notwithstanding anything to the
contrary in any reimbursement agreement applicable to the Existing
22
Letters of Credit, the fees payable in connection with each Existing
Letter of Credit to be shared with the Lenders shall accrue from the
Closing Date at the rate provided in this Section 2.2.
(c) Competitive Bid Loans.
(i) Competitive Bid Offers. Subject to the terms and conditions of
this Agreement, during the Commitment Period, Borrower may request the
Lenders to submit offers to make Competitive Bid Loans to Borrower from
time to time in such amount or amounts as Borrower may request; provided,
however, that Borrower shall not request the Lenders to submit offers to
make Competitive Bid Loans and no Lender shall make any such offer, if,
after giving effect thereto, the Revolving Credit Exposure would exceed
the Total Commitment Amount. The Lenders may, but shall have no obligation
to, make such offers, and Borrower may, but shall have no obligation to,
accept any such offers in the manner set forth in this Section 2.2.
(ii) Competitive Bid Request. A request by Borrower to obtain
Competitive Bid Loans shall be made by Borrower transmitting to Agent, by
e-mail or facsimile transmission (in each case, such request shall not be
effective unless Borrower receives telephonic, email or facsimile
confirmation of receipt by Agent), a Competitive Bid Request so as to be
received no later than 10:00 A.M. (Eastern time) on the Competitive Bid
Auction Date, which Competitive Bid Request shall specify:
(A) the proposed date of borrowing, which shall be a Business
Day;
(B) the principal amount of the Competitive Bid Loan
requested; and
(C) the duration of the Competitive Bid Loan (which shall not
be less than one day or greater than one hundred eighty (180) days).
Borrower may request offers to make a Competitive Bid Loan for up to three
different durations in any Competitive Bid Request; provided, however,
that no Competitive Bid Request shall be given within one Business Day of
any other Competitive Bid request. Each request shall be in Dollars.
(iii) Invitation for Competitive Bids. Promptly upon receipt of a
Competitive Bid Request, Agent shall send to the Lenders by e-mail or
facsimile transmission an Invitation for Competitive Bids, which shall
constitute an invitation by Borrower to each Lender to submit Competitive
Bids offering to make the Competitive Bid Loans to which such Competitive
Bid Request relates, in accordance with this Section 2.2(c).
(iv) Submission and Contents of Competitive Bids. Each Lender may
submit a Competitive Bid containing an offer or offers to make Competitive
Bid Loans in response to any Invitation for Competitive Bids. Each
Competitive Bid must comply with the requirements of this Section 2.2(c)
and must be submitted to Agent, by e-mail or facsimile transmission, at
its offices specified on the signature page hereof or as
23
otherwise directed by Agent not later than 11:30 A.M. (Eastern time) on
the Competitive Bid Auction Date; provided that any Lender submitting a
Competitive Bid after 11:00 A.M. (Eastern time) on such Competitive Bid
Auction Date, shall confirm Agent's receipt of such Competitive Bid by
telephone, and, provided further that Competitive Bids submitted by Agent
(or any affiliate of Agent) in the capacity of a Lender may be submitted,
and may only be submitted, if Agent or such affiliate notifies Borrower of
the terms of the offer or offers contained therein not later than fifteen
(15) minutes prior to the respective deadline for the other Lenders. Any
Competitive Bid so made by any Lender under this Section 2.2(c) shall be
irrevocable, except that such Competitive Bid may be revoked with the
written consent of Agent. Each Competitive Bid shall be in the form of a
Competitive Bid Notice and shall in each case specify:
(A) the proposed date of such proposed Competitive Bid Loan,
and the proposed Competitive Bid Loan Maturity Date of such proposed
Competitive Bid Loan;
(B) the principal amount of the Competitive Bid Loan for which
each such offer is being made, which principal amount may be greater
than or less than the Revolving Credit Commitment of the quoting
Lender, must be in an amount that shall be at least One Million
Dollars ($1,000,000) and may be increased by increments of One
Hundred Thousand Dollars ($100,000), may not exceed the principal
amount of Competitive Bid Loans for which offers were requested and
may be subject to an aggregate limitation for such quoting Lender as
to the principal amount of Competitive Bid Loans for which offers
being made by such quoting Lender may be accepted;
(C) the rate of interest per annum expressed as a percentage
(specified to the nearest four decimal places) (the "Competitive Bid
Rate") offered for each such Competitive Bid Loan; and
(D) the identity of the quoting Lender.
A Competitive Bid may set forth up to three separate offers by the quoting
Lender.
Any Competitive Bid shall be disregarded if it:
(A) shall not be substantially in the form of a Competitive
Bid Notice or does not specify all of the information required by
this Section 2.2(c);
(B) except as permitted by subsection (v) below, contains
qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bids; or
24
(D) arrives after the time set forth in the first paragraph of
this Section 2.2(c)(iv).
(v) Notice to Borrower. Not later than 12:00 noon (Eastern time) on
the Competitive Bid Auction Date, Agent shall notify Borrower of the terms
(A) of any Competitive Bid submitted by a Lender that shall be in
accordance with Section 2.2(c)(iv) hereof and (B) of any Competitive Bid
that amends, modifies or is otherwise inconsistent with a previous
Competitive Bid submitted by such Lender with respect to the same
Competitive Bid. Any such subsequent Competitive Bid shall be disregarded
by Agent unless such subsequent Competitive Bid shall be submitted solely
to correct a manifest error in such former Competitive Bid. Agent's notice
to Borrower shall specify (1) the aggregate principal amount of
Competitive Bid Loans for which offers shall have been received for the
duration specified in the related Competitive Bid Request, (2) the
respective principal amounts and Competitive Bid Rates so offered, and (3)
if applicable, limitations on the aggregate principal amount of
Competitive Bid Loans for which offers in any single Competitive Bid may
be accepted.
(vi) Acceptance and Notice by Borrower. Not later than 12:30 P.M.
(Eastern time) on the Competitive Bid Auction Date, Borrower shall notify
Agent in writing of its irrevocable acceptance or nonacceptance. Such
notice shall specify the aggregate principal amount of offers for each
Competitive Bid Loan that are accepted. Borrower may accept any
Competitive Bid in whole or in part; provided that:
(A) the aggregate principal amount of each Competitive Bid
Loan must be in an amount that is no less than One Million Dollars
($1,000,000) and may be increased by increments of One Hundred
Thousand Dollars ($100,000);
(B) acceptance of offers may be made only on the basis of
ascending Competitive Bid Rates; and
(C) Borrower may not accept any offer that shall be described
in the last paragraph of subpart (iv) above or that shall otherwise
fail to comply with the requirements of this Agreement.
Not later than 1:00 P.M. (Eastern time) on the Competitive Bid Auction
Date, Agent shall notify the Lenders of the acceptance or non-acceptance
of the offers so notified to Borrower pursuant to subpart (v) above.
(vii) Allocation of Agent. If offers shall have been made by two or
more Lenders with the same Competitive Bid Rates for a greater aggregate
principal amount than the amount in respect of which such offers shall
have been accepted for such Competitive Bid Loan, the principal amount of
Competitive Bid Loans in respect of which such offers shall have been
accepted shall be allocated by Agent among such Lenders as nearly as
possible (in multiples of One Hundred Thousand Dollars ($100,000), as
Agent may deem appropriate) in proportion to the aggregate principal
25
amounts of such offers. Determinations by Agent of the amounts of
Competitive Bid Loans shall be conclusive in the absence of manifest
error.
(viii) Evidence of Obligations and Related Provisions. The Lender
making a Competitive Bid Loan shall have no right to request that the
other Lenders share the risk of such Competitive Bid Loan. A Lender's
extension of credit to Borrower in the form of a Competitive Bid Loan
shall not diminish such Lender's obligation to participate in Revolving
Loans and Letters of Credit to the full extent of such Lender's Commitment
Percentage. Anything herein to the contrary notwithstanding, the extension
of Competitive Bid Loans shall be deemed to be usage of the Commitment,
and all such Competitive Bid Loans shall be subtracted from the Total
Commitment Amount for purposes of determining availability for Loans and
Letters of Credit under the Commitment.
Section 2.3. Interest.
(a) Revolving Loans.
(i) Base Rate Loan. Borrower shall pay interest on the unpaid
principal amount of a Base Rate Loan outstanding from time to time from
the date thereof until paid at the Base Rate from time to time in effect.
Interest on such Base Rate Loan shall be payable, commencing September 30,
2004, and on each Regularly Scheduled Payment Date thereafter and at the
maturity thereof.
(ii) LIBOR Fixed Rate Loans. Borrower shall pay interest on the
unpaid principal amount of each LIBOR Fixed Rate Loan outstanding from
time to time, fixed in advance on the first day of the Interest Period
applicable thereto through the last day of the Interest Period applicable
thereto (but subject to changes in the Applicable Margin), at the Derived
LIBOR Fixed Rate. Interest on such LIBOR Fixed Rate Loan shall be payable
on each Interest Adjustment Date with respect to an Interest Period
(provided that if an Interest Period shall exceed three months, the
interest must be paid every three months, commencing three months from the
beginning of such Interest Period).
(b) Default Rate. Anything herein to the contrary notwithstanding, if an
Event of Default shall occur, (i) the principal of each Loan and the unpaid
interest thereon shall bear interest, until paid, at the Default Rate, (ii) the
fee for the aggregate undrawn face amount of all issued and outstanding Letters
of Credit shall be increased by two percent (2%) in excess of the rate otherwise
applicable thereto, and (iii) in the case of any other amount due from Borrower
hereunder or under any other Loan Document, such amount shall bear interest at
the Default Rate.
(c) Limitation on Interest. In no event shall the rate of interest
hereunder exceed the maximum rate allowable by law. Notwithstanding anything to
the contrary contained in any Loan Document, the interest paid or agreed to be
paid under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the "Maximum Rate"). If Agent or any
Lender shall receive interest in an amount that exceeds the Maximum
26
Rate, the excess interest shall be applied to the principal of the Loans or, if
it exceeds such unpaid principal, refunded to Borrower. In determining whether
the interest contracted for, charged, or received by Agent or a Lender exceeds
the Maximum Rate, such Person may, to the extent permitted by applicable law,
(i) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (ii) exclude voluntary prepayments and the effects
thereof, and (iii) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Obligations.
Section 2.4. Evidence of Indebtedness.
(a) Revolving Loans. The obligation of Borrower to repay the Revolving
Loans made by each Lender and to pay interest thereon shall be evidenced by a
Revolving Credit Note of Borrower in the form of the attached Exhibit A, payable
to the order of such Lender in the principal amount of its Revolving Credit
Commitment, or, if less, the aggregate unpaid principal amount of Revolving
Loans made by such Lender.
(b) Competitive Bid Loans. The obligation of Borrower to repay the
Competitive Bid Loans made to it by each Lender and to pay interest thereon
shall be evidenced by a Competitive Bid Note of Borrower substantially in the
form of the attached Exhibit B, with appropriate insertions, dated the Closing
Date and payable to the order of such Lender in the Total Commitment Amount, or,
if less, the aggregate unpaid principal amount of Competitive Bid Loans made
hereunder by such Lender.
Section 2.5. Notice of Credit Event; Funding of Loans.
(a) Notice of Credit Event. Borrower, through an Authorized Officer, shall
provide to Agent a Notice of Loan prior to (i) 11:00 A.M. (Eastern time) on the
proposed date of borrowing or conversion of any Base Rate Loan, and (ii) 11:00
A.M. (Eastern time) three Business Days prior to the proposed date of borrowing,
conversion or continuation of any LIBOR Fixed Rate Loan. Borrower shall comply
with the notice provisions set forth in Section 2.2(b) hereof with respect to
Letters of Credit and the notice provisions set forth in Section 2.2(c) hereof
with respect to Competitive Bid Loans.
(b) Funding of Loans. Agent shall notify each Lender of the date, amount,
type of currency and Interest Period (if applicable) promptly upon the receipt
of a Notice of Loan, and, in any event, by 2:00 P.M. (Eastern time) on the date
such Notice of Loan is received. On the date that the Credit Event set forth in
such Notice of Loan is to occur, each such Lender shall provide to Agent, not
later than 3:00 P.M. (Eastern time), the amount in Dollars, or, with respect to
an Alternate Currency, in the applicable Alternate Currency, in federal or other
immediately available funds, required of it. If Agent shall elect to advance the
proceeds of such Loan prior to receiving funds from such Lender, Agent shall
have the right, upon prior notice to Borrower, to debit any account of Borrower
or otherwise receive such amount from Borrower, on demand, in the event that
such Lender shall fail to reimburse Agent in accordance with this subsection
(b). Agent shall also have the right to receive interest from such Lender at the
Federal Funds Effective Rate in the event that such Lender shall fail to provide
its portion of the Loan on the date requested and Agent shall elect to provide
such funds.
27
(c) Conversion of Loans. At the request of Borrower to Agent, subject to
the notice and other provisions of this Section 2.5, the Lenders shall convert a
Base Rate Loan to one or more Eurodollar Loans at any time and shall convert a
Eurodollar Loan to a Base Rate Loan on any Interest Adjustment Date applicable
thereto. No Alternate Currency Loan may be converted to a Base Rate Loan or
Eurodollar Loan and no Base Rate Loan or Eurodollar Loan may be converted to an
Alternate Currency Loan. No Competitive Bid Loan may be converted to a Revolving
Loan.
(d) Minimum Amount. Each request for:
(i) a Base Rate Loan shall be in an amount of not less than One
Million Dollars ($1,000,000), increased by increments of Five Hundred
Thousand Dollars ($500,000); and
(ii) a LIBOR Fixed Rate Loan shall be in an amount (or, with respect
to an Alternate Currency Loan, the Dollar Equivalent) of not less than
Three Million Dollars ($3,000,000), increased by increments of One Million
Dollars ($1,000,000) (or, with respect to an Alternate Currency Loan, the
Dollar Equivalent).
(e) Interest Periods. At no time shall Borrower request that LIBOR Fixed
Rate Loans be outstanding for more than eight different Interest Periods, and,
if a Base Rate Loan is outstanding, then LIBOR Fixed Rate Loans shall be limited
to seven different Interest Periods at any time.
Section 2.6. Payment on Loans and Other Obligations.
(a) Payments Generally. Each payment made hereunder by a Credit Party
shall be made without any offset, abatement, recoupment, counterclaim,
withholding or reduction whatsoever.
(b) Payments in Alternate Currency. With respect to any Alternate Currency
Loan or any Alternate Currency Letter of Credit, all payments (including
prepayments) to any Lender of the principal of or interest on such Alternate
Currency Loan or Alternate Currency Letter of Credit shall be made in the same
Alternate Currency as the original Loan or Letter of Credit. All such payments
shall be remitted by Borrower to Agent, at the address of Agent for notices
referred to in Section 10.4 hereof, (or at such other office or account as
designated in writing by Agent to Borrower) for the account of the Lenders (or
the Fronting Lender) not later than 5:00 P.M. (Eastern time) on the due date
thereof in same day funds. Any payments received by Agent after 3:00 P.M.
(Eastern time) shall be deemed to have been made and received on the next
Business Day.
(c) Payments in Dollars. With respect to (i) any Loan (other than an
Alternate Currency Loan), or (ii) any other payment to Agent and the Lenders
that shall not be covered by subsection (b) above, all such payments (including
prepayments) to Agent of any Loan or other payment, including but not limited to
principal, interest, fees or any other amount owed by
28
Borrower under this Agreement, shall be made in Dollars. All payments described
in this subsection (c) shall be remitted to Agent, at the address of Agent for
notices referred to in Section 10.4 hereof, for the account of the Lenders (or
the Fronting Lender) not later than 5:00 P.M. (Eastern time) on the due date
thereof in immediately available funds. Any such payments received by Agent
after 3:00 P.M. (Eastern time) shall be deemed to have been made and received on
the next Business Day.
(d) Payments to Lenders. Upon Agent's receipt of payments hereunder, Agent
shall immediately distribute to each Lender its ratable share, if any, of the
amount of principal, interest, and facility and other fees received by Agent for
the account of such Lender. Payments received by Agent in Dollars shall be
delivered to the Lenders in Dollars in immediately available funds. Payments
received by Agent in any Alternate Currency shall be delivered to the Lenders in
such Alternate Currency in same day funds. Each Lender shall record any
principal, interest or other payment, the principal amounts of Base Rate Loans
and LIBOR Fixed Rate Loans, the type of currency for each Loan, all prepayments
and the applicable dates, including Interest Periods, with respect to the Loans
made, and payments received by such Lender, by such method as such Lender may
generally employ; provided, however, that failure to make any such entry shall
in no way detract from the obligations of Borrower under this Agreement or any
Note. The aggregate unpaid amount of Loans, types of Loans, Interest Periods and
similar information with respect to the Loans and Letters of Credit set forth on
the records of Agent shall be rebuttably presumptive evidence with respect to
such information, including the amounts of principal and interest owing to each
Lender.
(e) Timing of Payments. Whenever any payment to be made hereunder,
including, without limitation, any payment to be made on any Loan, shall be
stated to be due on a day that is not a Business Day, such payment shall be made
on the next Business Day and such extension of time shall in each case be
included in the computation of the interest payable on such Loan; provided,
however, that, with respect to any LIBOR Fixed Rate Loan, if the next Business
Day shall fall in the succeeding calendar month, such payment shall be made on
the preceding Business Day and the relevant Interest Period shall be adjusted
accordingly.
Section 2.7. Prepayment.
(a) Right to Prepay. Borrower shall have the right at any time or from
time to time to prepay, on a pro rata basis (except as to Competitive Bid Notes)
for all of the Lenders, all or any part of the principal amount of the Revolving
Credit Notes or Competitive Bid Notes then outstanding, as designated by
Borrower. Such payment shall include interest accrued on the amount so prepaid
to the date of such prepayment and any amount payable under Article III hereof
with respect to the amount being prepaid. Prepayments of Base Rate Loans shall
be without any premium or penalty, other than any prepayment fees, penalties or
other charges that may be contained in any Hedge Agreement.
(b) Notice of Prepayment. Borrower shall give Agent notice of prepayment
of a Base Rate Loan not later than 11:00 A.M. (Eastern time) on the Business Day
on which such prepayment is to be made and written notice of the prepayment of
any Eurodollar Loan not later
29
than 1:00 P.M. (Eastern time) three Business Days before the Business Day on
which such prepayment is to be made.
(c) Minimum Amount. Each prepayment of a LIBOR Fixed Rate Loan shall be in
the aggregate principal amount of not less than Three Million Dollars
($3,000,000), (or, with respect to an Alternate Currency Loan, the Dollar
Equivalent of such amount) except in the case of a mandatory payment pursuant to
Section 2.11 or Article III hereof.
Section 2.8. Facility and Other Fees.
(a) Facility Fee. Borrower shall pay to Agent, for the ratable account of
the Lenders, as a consideration for the Commitment, a facility fee from the
Closing Date to and including the last day of the Commitment Period, payable
quarterly, at a rate per annum equal to (i) the Applicable Facility Fee Rate in
effect on the payment date, times (ii) the average daily Total Commitment Amount
in effect during such quarter. The facility fee shall be payable in arrears, on
September 30, 2004 and on each Regularly Scheduled Payment Date thereafter, and
on the last day of the Commitment Period.
(b) Agent Fee. Borrower shall pay to Agent, for its sole benefit, the fees
set forth in the Agent Fee Letter.
Section 2.9. Modifications of Commitment.
(a) Optional Reduction of Commitment. Borrower may at any time and from
time to time permanently reduce in whole or ratably in part the Commitment to an
amount not less than the then existing Revolving Credit Exposure, by giving
Agent not fewer than three Business Days' written notice of such reduction,
provided that any such partial reduction shall be in an aggregate amount, for
all of the Lenders, of not less than Five Million Dollars ($5,000,000). Agent
shall promptly notify each Lender of the date of each such reduction and such
Lender's proportionate share thereof. After each such reduction, the facility
fees payable hereunder shall be calculated upon the Total Commitment Amount as
so reduced. If Borrower reduces in whole the Commitment, on the effective date
of such reduction (Borrower having prepaid in full the unpaid principal balance,
if any, of the Loans, together with all interest and facility and other fees
accrued and unpaid, and provided that no Letter of Credit Exposure shall exist),
all of the Notes shall be delivered to Agent marked "Canceled" and Agent shall
redeliver such Notes to Borrower. Any partial reduction in the Commitment shall
be effective during the remainder of the Commitment Period.
(b) Increase in Commitment. At any time during the Commitment Increase
Period, Borrower may request that Agent increase the Total Commitment Amount
from the Closing Commitment Amount up to the Maximum Commitment Amount. Each
such increase shall be in increments of at least Ten Million Dollars
($10,000,000), and may be made by either (i) proportionally increasing, for one
or more Lenders, with their prior written consent, their respective Revolving
Credit Commitments, or (ii) including one or more Additional Lenders, each with
a new Revolving Credit Commitment, as a party to this Agreement (collectively,
the "Additional Commitment"); provided that the Additional Commitment for any
Additional
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Lender shall be in an amount of at least Ten Million Dollars ($10,000,000).
During the Commitment Increase Period, the Lenders agree that Agent, in its
reasonable discretion, may permit one or more Additional Commitments upon
satisfaction of the following requirements: (A) each Additional Lender, if any,
shall execute an Additional Lender Assumption Agreement, (B) Agent shall provide
to each Lender a revised Schedule 1 hereto, including revised Commitment
Percentages for each of the Lenders, if appropriate, at least three Business
Days prior to the effectiveness of such Additional Commitments (each an
"Additional Lender Assumption Effective Date"), and (C) Borrower shall execute
and deliver to Agent and the Lenders such replacement or additional Revolving
Credit Notes as shall be required by Agent. The Lenders hereby authorize Agent
to execute each Additional Lender Assumption Agreement on behalf of the Lenders.
On each Additional Lender Assumption Effective Date, the Lenders shall make
adjustments among themselves with respect to the Revolving Loans then
outstanding and amounts of principal, interest, facility fees and other amounts
paid or payable with respect thereto as shall be necessary, in the opinion of
Agent, in order to reallocate among such Lenders such outstanding amounts, based
on the revised Commitment Percentages and to otherwise carry out fully the
intent and terms of this Section 2.9(b). Borrower shall not request any increase
in the Commitment pursuant to this Section 2.9(b) if a Default or an Event of
Default shall then exist, or immediately after giving effect to any such
increase would exist.
Section 2.10. Computation of Interest and Fees. With the exception of Base
Rate Loans, interest on Loans and facility and other fees and charges hereunder
shall be computed on the basis of a year having three hundred sixty (360) days
and calculated for the actual number of days elapsed. With respect to Base Rate
Loans, interest shall be computed on the basis of a year having three hundred
sixty-five (365) days or three hundred sixty-six (366) days, as the case may be,
and calculated for the actual number of days elapsed.
Section 2.11. Mandatory Payment. If, at any time, the Revolving Credit
Exposure shall exceed the Total Commitment Amount, Borrower shall, as promptly
as practicable, but in no event later than the next Business Day, prepay an
aggregate principal amount of the Loans sufficient to bring the Revolving Credit
Exposure within the Total Commitment Amount. Any prepayment of a LIBOR Fixed
Rate Loan pursuant to this Section 2.11 shall be subject to the prepayment
provisions set forth in Article III hereof.
Section 2.12. Extension of Commitment. Contemporaneously with the delivery
of the financial statements required pursuant to Section 5.3(b) hereof
(beginning with the financial statements for the fiscal year of Borrower ending
August 31, 2005), Borrower may deliver a Request for Extension, requesting that
the Lenders extend the maturity of the Commitment for an additional year. Each
such extension shall require the unanimous written consent of all of the Lenders
and shall be upon such terms and conditions as may be agreed to by Agent,
Borrower and the Lenders. Borrower shall pay any attorneys' fees or other
expenses of Agent in connection with the documentation of any such extension, as
well as such other fees as may be agreed upon between Borrower and Agent.
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ARTICLE III. ADDITIONAL PROVISIONS RELATING TO
LIBOR FIXED RATE LOANS; INCREASED CAPITAL; TAXES
Section 3.1. Requirements of Law.
(a) If, after the Closing Date (i) the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or (ii) the
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority:
(A) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit or any LIBOR Fixed Rate
Loan made by it, or change the basis of taxation of payments to such
Lender in respect thereof (except for Taxes and Excluded Taxes which are
governed by Section 3.2 hereof);
(B) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender that is not otherwise included in the determination
of the Eurodollar Rate or the Alternate Currency Rate; or
(C) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender of
making, converting into, continuing or maintaining LIBOR Fixed Rate Loans or
issuing or participating in Letters of Credit, or to reduce any amount
receivable hereunder in respect thereof, then, in any such case, Borrower shall
pay to such Lender, promptly after receipt of a written request therefor, any
additional amounts necessary to compensate such Lender for such increased cost
or reduced amount receivable. If any Lender becomes entitled to claim any
additional amounts pursuant to this subsection (a), such Lender shall promptly
notify Borrower (with a copy to Agent) of the event by reason of which it has
become so entitled.
(b) If any Lender shall have determined that, after the Closing Date, the
adoption of or any change in any Requirement of Law regarding capital adequacy
or in the interpretation or application thereof or compliance by such Lender or
any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority shall have the effect of reducing the rate of return on such Lender's
or such corporation's capital as a consequence of its obligations hereunder, or
under or in respect of any Letter of Credit, to a level below that which such
Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration the policies of such Lender or corporation
with respect to capital adequacy), then from time to time, upon submission by
such Lender to Borrower (with a copy to Agent) of a written request therefor
(which shall include the method for calculating such amount), Borrower shall
promptly pay or cause to be paid to such Lender such additional amount or
amounts as will compensate such Lender for such reduction.
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(c) A certificate as to any additional amounts payable pursuant to this
Section 3.1 submitted by any Lender to Borrower (with a copy to Agent) shall be
conclusive absent manifest error. In determining any such additional amounts,
such Lender may use any method of averaging and attribution that it (in its sole
discretion) shall deem applicable. The obligations of Borrower pursuant to this
Section 3.1 shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
Section 3.2. Taxes.
(a) All payments made by any Credit Party under any Loan Document shall be
made free and clear of, and without deduction or withholding for or on account
of any Taxes or Other Taxes. If any Taxes or Other Taxes are required to be
deducted or withheld from any amounts payable to Agent or any Lender hereunder,
the amounts so payable to Agent or such Lender shall be increased to the extent
necessary to yield to Agent or such Lender (after deducting withholding and
payment of all Taxes and Other Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in the Loan Documents.
(b) In addition, the Credit Parties shall pay Taxes and Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Taxes or Other Taxes are required to be withheld and paid
by a Credit Party, such Credit Party shall timely withhold and pay such taxes to
the relevant Governmental Authorities. As promptly as possible thereafter, such
Credit Party shall send to Agent for its own account or for the account of the
relevant Lender, as the case may be, a certified copy of an original official
receipt received by such Credit Party showing payment thereof or other evidence
of payment reasonably acceptable to Agent or such Lender. If such Credit Party
shall fail to pay any Taxes or Other Taxes when due to the appropriate
Governmental Authority or fails to remit to Agent the required receipts or other
required documentary evidence, such Credit Party shall indemnify Agent and the
appropriate Lenders on demand for any incremental Taxes or Other Taxes paid or
payable by Agent or such Lender as a result of any such failure.
(d) If any Lender shall be so indemnified by a Credit Party, such Lender
shall use reasonable efforts to obtain the benefits of any refund, deduction or
credit for any taxes or other amounts with respect to the amount paid by such
Credit Party and shall reimburse such Credit Party to the extent, but only to
the extent, that such Lender shall receive a refund with respect to the amount
paid by such Credit Party or an effective net reduction in taxes or other
governmental charges (including any taxes imposed on or measured by the total
net income of such Lender) of the United States or any state or subdivision or
any other Governmental Authority thereof by virtue of any such deduction or
credit, after first giving effect to all other deductions and credits otherwise
available to such Lender. If, at the time any audit of such Lender's income tax
return is completed, such Lender determines, based on such audit, that it shall
not have been entitled to the full amount of any refund reimbursed to such
Credit Party as aforesaid or that its net income taxes shall not have been
reduced by a credit or deduction for the full amount reimbursed to such Credit
Party as aforesaid, such Credit Party, upon request of such Lender, shall
promptly pay to such Lender the amount of the refund claimed to which such
Lender shall not have been so
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entitled, or the amount by which the net income taxes of such Lender shall not
have been so reduced, as the case may be.
(e) Each Lender that is not (i) a citizen or resident of the United States
of America, (ii) a corporation, partnership or other entity created or organized
in or under the laws of the United States of America (or any jurisdiction
thereof), or (iii) an estate or trust that is subject to federal income taxation
regardless of the source of its income (any such Person, a "Non-U.S. Lender")
shall deliver to Borrower and Agent two copies of either U.S. Internal Revenue
Service Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender
claiming exemption from U.S. federal withholding tax under Section 871(h) or
881(c) of the Code with respect to payments of "portfolio interest", a statement
with respect to such interest and a Form W-8BEN, or any subsequent versions
thereof or successors thereto, properly completed and duly executed by such
Non-U.S. Lender claiming complete exemption from, or a reduced rate of, U.S.
federal withholding tax on all payments by Credit Parties under this Agreement
and the other Loan Documents. Such forms shall be delivered by each Non-U.S.
Lender on or before the date it becomes a party to this Agreement or such other
Loan Document. In addition, each Non-U.S. Lender shall deliver such forms or
appropriate replacements promptly upon the obsolescence or invalidity of any
form previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall
promptly notify Borrower at any time it determines that such Lender is no longer
in a position to provide any previously delivered certificate to Borrower (or
any other form of certification adopted by the U.S. taxing authorities for such
purpose). Notwithstanding any other provision of this subsection (e), a Non-U.S.
Lender shall not be required to deliver any form pursuant to this subsection (e)
that such Non-U.S. Lender is not legally able to deliver.
(f) For any period with respect to which a Non-U.S. Lender has failed to
provide Borrower with the appropriate form, statement or other document
described in subsection (e) above (other than if such failure is due to a change
in law, or in the interpretation or application thereof, occurring subsequent to
the date on which the form otherwise is not required under subsection (e)
above), such Non-U.S. Lender shall not be entitled to indemnification under
Section 3.2(a), (b) or (c) with respect to any additional Taxes imposed by the
United States solely by reason of such failure.
(g) A Lender that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the law of the jurisdiction in which a Credit
Party is located, or any treaty to which such jurisdiction is a party, with
respect to payments under any Loan Document shall use reasonable efforts to
deliver to Borrower (with a copy to the Agent), at the time or times prescribed
by applicable law or reasonably requested by Borrower, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate; provided, that
such Lender is legally entitled to complete, execute and deliver such
documentation and in such Lender's judgment such completion, execution or
submission would not materially prejudice the legal position of such Lender.
(h) If, after the Closing Date, a Lender makes an assignment pursuant to
Section 10.10 hereof to a Non-US Lender and such assignment is the sole cause
(in combination with any law or treaty then in effect) of the incurrence by such
Non-US Lender of an obligation to pay
34
withholding taxes under this Agreement, then Borrower shall not be liable for
such withholding taxes to the extent such withholding taxes become applicable at
the time of such assignment.
(i) The agreements in this Section 3.2 shall survive the termination of
the Loan Documents and the payment of the Loans and all other amounts payable
hereunder.
Section 3.3. Funding Losses. Borrower agrees to indemnify each Lender,
promptly after receipt of a written request therefor, and to hold each Lender
harmless from, any loss or expense that such Lender may sustain or incur as a
consequence of (a) default by Borrower in making a borrowing of, conversion into
or continuation of LIBOR Fixed Rate Loans after Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (b)
default by Borrower in making any prepayment of or conversion from LIBOR Fixed
Rate Loans after Borrower has given a notice thereof in accordance with the
provisions of this Agreement, (c) the making of a prepayment of a LIBOR Fixed
Rate Loan on a day that is not the last day of an Interest Period applicable
thereto, or (d) any conversion of a LIBOR Fixed Rate Loan to a Base Rate Loan on
a day that is not the last day of an Interest Period applicable thereto. Such
indemnification shall be in an amount equal to the excess, if any, of (i) the
amount of interest that would have accrued on the amounts so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) that
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the appropriate London
interbank market, along with any administration fee charged by such Lender. A
certificate as to any amounts payable pursuant to this Section 3.3 submitted to
Borrower (with a copy to Agent) by any Lender shall be conclusive absent
manifest error. The obligations of Borrower pursuant to this Section 3.3 shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
Section 3.4. Eurodollar Rate or Alternate Currency Rate Lending Unlawful;
Inability to Determine Rate.
(a) If any Lender shall determine (which determination shall, upon notice
thereof to Borrower and Agent, be conclusive and binding on Borrower) that,
after the Closing Date, (i) the introduction of or any change in or in the
interpretation of any law makes it unlawful, or (ii) any Governmental Authority
asserts that it is unlawful, for such Lender to make or continue any Loan as, or
to convert (if permitted pursuant to this Agreement) any Loan into, a LIBOR
Fixed Rate Loan, the obligations of such Lender to make, continue or convert any
such LIBOR Fixed Rate Loan shall, upon such determination, be suspended until
such Lender shall notify Agent that the circumstances causing such suspension no
longer exist, and all outstanding LIBOR Fixed Rate Loans payable to such Lender
shall automatically convert (if conversion is permitted under this Agreement)
into a Base Rate Loan, or be repaid (if no conversion is permitted) at the end
of the then current Interest Periods with respect thereto or sooner, if required
by law or such assertion.
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(b) If Agent or the Required Lenders determine that for any reason
adequate and reasonable means do not exist for determining the Eurodollar Rate
or Alternate Currency Rate for any requested Interest Period with respect to a
proposed LIBOR Fixed Rate Loan, or that the Eurodollar Rate or Alternate
Currency Rate for any requested Interest Period with respect to a proposed LIBOR
Fixed Rate Loan does not adequately and fairly reflect the cost to the Lenders
of funding such Loan, Agent will promptly so notify Borrower and each Lender.
Thereafter, the obligation of the Lenders to make or maintain such LIBOR Fixed
Rate Loan shall be suspended until Agent (upon the instruction of the Required
Lenders) revokes such notice. Upon receipt of such notice, Borrower may revoke
any pending request for a borrowing of, conversion to or continuation of such
LIBOR Fixed Rate Loan or, failing that, will be deemed to have converted such
request into a request for a borrowing of a Base Rate Loan in the amount
specified therein.
ARTICLE IV. CONDITIONS PRECEDENT
Section 4.1. Conditions to Each Credit Event. The obligation of the
Lenders and the Fronting Lender to participate in any Credit Event shall be
conditioned, in the case of each Credit Event, upon the following:
(a) all conditions precedent as listed in Section 4.2 hereof required to
be satisfied prior to the first Credit Event shall have been satisfied prior to
or as of the first Credit Event;
(b) Borrower shall have submitted a Notice of Loan (or with respect to a
Letter of Credit, complied with the provisions of Section 2.2(b) hereof) and
otherwise complied with Section 2.5 hereof;
(c) no Default or Event of Default shall then exist or immediately after
such Credit Event would exist; and
(d) each of the representations and warranties contained in Article VI
hereof shall be true in all material respects as if made on and as of the date
of such Credit Event, except to the extent that any thereof expressly relate to
an earlier date.
Each request by Borrower for a Credit Event shall be deemed to be a
representation and warranty by Borrower as of the date of such request as to the
satisfaction of the conditions precedent specified in subsections (c) and (d)
above.
Section 4.2. Conditions to the First Credit Event. The obligation of the
Lenders, the Fronting Lender to participate in the first Credit Event is subject
to Borrower satisfying each of the following conditions prior to or concurrently
with such Credit Event:
(a) Notes. Borrower shall have executed and delivered to each Lender a
Revolving Credit Note and a Competitive Bid Note.
36
(b) Guaranties of Payment. Each Guarantor of Payment shall have executed
and delivered to Agent a Guaranty of Payment.
(c) Officer's Certificate, Resolutions, Organizational Documents. Each
Credit Party shall have delivered to Agent an officer's certificate (or
comparable domestic or foreign documents) certifying the names of the officers
of such Credit Party authorized to sign the Loan Documents, together with the
true signatures of such officers and certified copies of (i) the resolutions of
the board of directors (or comparable domestic or foreign documents) of such
Credit Party evidencing approval of the execution and delivery of the Loan
Documents and the execution of other Related Writings to which such Credit Party
is a party, and (ii) the Organizational Documents of such Credit Party.
(d) Good Standing and Full Force and Effect Certificates. Borrower shall
have delivered to Agent a good standing certificate or full force and effect
certificate, as the case may be, for each Credit Party, issued on or about the
Closing Date by the Secretary of State in the state or states where such Credit
Party is incorporated or formed or qualified as a foreign entity.
(e) Legal Opinion. Borrower shall have delivered to Agent an opinion of
counsel for each Credit Party, in form and substance satisfactory to Agent and
the Lenders.
(f) Agent Fee Letter, NCB Fee Letter, Closing Fee Letter and Other Fees.
Borrower shall have (i) executed and delivered to Agent, the Agent Fee Letter
and paid to Agent, for its sole account, the fees stated therein, (ii) executed
and delivered to National City Bank, the NCB Fee Letter and paid to National
City Bank, for its sole account, the fees stated therein, (iii) executed and
delivered to Agent, the Closing Fee Letter and paid to Agent, for the account of
the Lenders, the fees stated therein, and (iv) paid all legal fees and expenses
of Agent in connection with the preparation and negotiation of the Loan
Documents.
(g) Lien Searches. With respect to the property owned or leased by
Borrower and each Guarantor of Payment, Borrower and each Guarantor of Payment,
if applicable, shall have caused to be delivered to Agent the results of Uniform
Commercial Code lien searches, satisfactory to Agent and the Lenders.
(h) Note Agreement. Borrower shall have provided to Agent copies of the
Note Agreement and any amendments thereto, and the other loan documents executed
in connection therewith, certified by a Financial Officer as complete as of the
Closing Date.
(i) Existing Credit Agreement. Borrower shall have terminated the Credit
Agreement among Borrower, the foreign borrowers party thereto and KeyBank
National Association, as agent, dated as of October 2, 2001, as amended, which
termination shall be deemed to have occurred upon payment in full of all of the
Indebtedness outstanding thereunder and termination of the commitments
established therein.
(j) Closing Certificate. Borrower shall have delivered to Agent and the
Lenders an officer's certificate certifying that, as of the Closing Date, (i)
all conditions precedent set forth in this Article IV have been satisfied, (ii)
no Default or Event of Default exists nor immediately
37
after the making of the first Loan or the issuance of the first Letter of Credit
will exist, and (iii) each of the representations and warranties contained in
Article VI hereof are true and correct as of the Closing Date.
(k) Letter of Direction. Borrower shall have delivered to Agent a letter
of direction authorizing Agent, on behalf of the Lenders, to disburse the
proceeds of the Loans, which includes the transfer of funds under this Agreement
and wire instructions setting forth the locations to which such funds shall be
sent.
(l) No Material Adverse Change. No material adverse change, in the opinion
of Agent, shall have occurred in the financial condition, operations or
prospects of the Companies since May 31, 2004.
(m) Miscellaneous. Borrower shall have provided to Agent and the Lenders
such other items and shall have satisfied such other conditions as may be
reasonably required by Agent or the Lenders.
ARTICLE V. COVENANTS
Section 5.1. Insurance. Each Company shall (a) maintain insurance to such
extent and against such hazards and liabilities as is commonly maintained by
Persons similarly situated; and (b) within ten days of any Lender's written
request, furnish to such Lender such information about such Company's insurance
as that Lender may from time to time reasonably request, which information shall
be prepared in form and detail satisfactory to such Lender and certified by a
Financial Officer of such Company.
Section 5.2. Money Obligations. Each Company shall pay in full (a) prior
in each case to the date when penalties would attach, all taxes, assessments and
governmental charges and levies (except only those so long as and to the extent
that the same shall be contested in good faith by appropriate and timely
proceedings and for which adequate provisions have been established in
accordance with GAAP) for which it may be or become liable or to which any or
all of its properties may be or become subject and the failure to pay would have
a Material Adverse Effect; (b) all of its wage obligations to its employees in
compliance with the Fair Labor Standards Act (29 U.S.C. Sections 206-207) or any
comparable provisions, including those under foreign laws with respect to
employee source deductions, obligations and employer obligations to its
employees; and (c) all of its other obligations calling for the payment of money
(except only those so long as and to the extent that the same shall be contested
in good faith and for which adequate provisions have been established in
accordance with GAAP) before such payment becomes overdue and the failure to pay
would have a Material Adverse Effect.
Section 5.3. Financial Statements and Information.
(a) Quarterly Financials. Borrower shall deliver to Agent and the Lenders,
within ninety (90) days after the end of each of the first three quarter-annual
periods of each fiscal year of Borrower, balance sheets of the Companies as of
the end of such period and statements of
38
income (loss), stockholders' equity and cash flow for the quarter and fiscal
year to date periods, all prepared on a Consolidated basis, in accordance with
GAAP, and in form and detail reasonably satisfactory to Agent and the Lenders
and certified by a Financial Officer of Borrower, subject to changes resulting
from normal year-end audit adjustments.
(b) Annual Audit Report. Borrower shall deliver to Agent and the Lenders,
within one hundred twenty (120) days after the end of each fiscal year of
Borrower, an annual audit report of the Companies for that year prepared on a
Consolidated basis, in accordance with GAAP, and in form and detail reasonably
satisfactory to Agent and the Lenders and certified by an independent public
accountant satisfactory to Agent, which report shall include balance sheets and
statements of income (loss), stockholders' equity and cash-flow for that period,
together with a certificate by the accountant setting forth the Defaults and
Events of Default coming to its attention during the course of its audit or, if
none, a statement to that effect.
(c) Compliance Certificate. Borrower shall deliver to Agent and the
Lenders, concurrently with the delivery of the financial statements set forth in
subsections (a) and (b) above, a Compliance Certificate.
(d) Shareholder and SEC Documents. Borrower shall deliver to Agent and the
Lenders, with reasonable promptness after the release thereof, copies of all
notices, reports, definitive proxy or other statements and other documents sent
by Borrower to its shareholders, to the holders of any of its debentures or
bonds or the trustee of any indenture securing the same or pursuant to which
they are issued (other than compliance certificates provided in the ordinary
course of business), or sent by Borrower (in final form) to any securities
exchange or over the counter authority or system, or to the SEC or any similar
federal agency having regulatory jurisdiction over the issuance of Borrower's
securities (other than (i) nonmaterial correspondence provided in the ordinary
course of business, and (ii) comment letters received from the SEC and the
response of Borrower thereto).
(e) Financial Information of Companies. Borrower shall deliver to Agent
and the Lenders, with reasonable promptness after the written request of Agent
or any Lender, such other information about the financial condition, properties
and operations of any Company as Agent or such Lender may from time to time
reasonably request, which information shall be submitted in form and detail
satisfactory to Agent or such Lender and certified by a Financial Officer of the
Company or Companies in question.
Section 5.4. Financial Records. Each Company shall at all times maintain
true and complete records and books of account, including, without limiting the
generality of the foregoing, appropriate provisions for possible losses and
liabilities, all in accordance with GAAP, and at all reasonable times (during
normal business hours and upon notice to such Company) permit Agent, or any
representative of Agent, to examine such Company's books and records and to make
excerpts therefrom and transcripts thereof.
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Section 5.5. Franchises; Change in Business.
(a) Except as otherwise permitted pursuant to Section 5.12 hereof, each
Company (other than a Dormant Subsidiary) shall preserve and maintain at all
times its existence, and its rights and franchises.
(b) No Company shall engage in any business if, as a result thereof, the
general nature of the business of the Companies taken as a whole would be
substantially changed from the general nature of the business the Companies are
engaged in on the Closing Date.
Section 5.6. ERISA Compliance. No Company shall incur any material
accumulated funding deficiency within the meaning of ERISA, or any material
liability to the PBGC, established thereunder in connection with any ERISA Plan.
Borrower shall furnish to the Lenders (a) as soon as possible and in any event
within thirty (30) days after any Company knows or has reason to know that any
Reportable Event with respect to any ERISA Plan has occurred, a statement of a
Financial Officer of such Company, setting forth details as to such Reportable
Event and the action that such Company proposes to take with respect thereto,
together with a copy of the notice of such Reportable Event given to the PBGC if
a copy of such notice is available to such Company, and (b) promptly after
receipt thereof a copy of any notice such Company, or any member of the
Controlled Group may receive from the PBGC or the Internal Revenue Service with
respect to any ERISA Plan administered by such Company; provided, that this
latter clause shall not apply to notices of general application promulgated by
the PBGC or the Internal Revenue Service. Borrower shall promptly notify the
Lenders of any material taxes assessed, proposed to be assessed or that Borrower
has reason to believe may be assessed against a Company by the Internal Revenue
Service with respect to any ERISA Plan. As used in this Section 5.6, "material"
means the measure of a matter of significance that shall be determined as being
an amount equal to five percent (5%) of Consolidated Net Worth. As soon as
practicable, and in any event within twenty (20) days, after any Company shall
become aware that an ERISA Event shall have occurred, such Company shall provide
Agent with notice of such ERISA Event with a certificate by a Financial Officer
of such Company setting forth the details of the event and the action such
Company or another Controlled Group member proposes to take with respect
thereto. Borrower shall, at the request of Agent, deliver or cause to be
delivered to Agent true and correct copies of any documents relating to the
ERISA Plan of any Company.
Section 5.7. Financial Covenants.
(a) Leverage Ratio. The Companies shall not suffer or permit at any time
the Leverage Ratio to exceed 3.00 to 1.00 (excluding from the calculation of the
Leverage Ratio the borrowing permitted under Section 5.8(h) hereof).
(b) Interest Coverage Ratio. The Companies shall not suffer or permit at
any time the Interest Coverage Ratio to be less than 3.00 to 1.00 (excluding
from the calculation of the Interest Coverage Ratio the borrowing permitted
under Section 5.8(h) hereof).
40
Section 5.8. Borrowing. No Company shall create, incur or have outstanding
any Indebtedness of any kind; provided, that this Section 5.8 shall not apply to
the following:
(a) the Loans, the Letters of Credit or any other Indebtedness under this
Agreement;
(b) any loans granted to or capital leases entered into by any
Company for the purchase or lease of fixed assets (and refinancings of such
loans or capital leases), which loans and capital leases shall only be secured
by the fixed assets being purchased or leased, so long as the aggregate
principal amount of all such loans and leases for all Companies shall not exceed
Thirty Million Dollars ($30,000,000) at any time outstanding;
(c) Indebtedness under any Hedge Agreement, so long as such Hedge
Agreement shall have been entered into in the ordinary course of business and
not for speculative purposes;
(d) the Indebtedness existing on the Closing Date, in addition to the
other Indebtedness permitted to be incurred pursuant to this Section 5.8, as set
forth in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof
so long as the principal amount thereof shall not be increased after the Closing
Date);
(e) loans to a Company from a Company;
(f) guaranties of Indebtedness permitted under this Agreement;
(g) additional unsecured Indebtedness of the Companies, to the extent not
otherwise permitted pursuant to subsections (a) through (f) above, so long as
(i) no Default or Event of Default shall then exist or immediately after
incurring such Indebtedness will exist, (ii) the Companies shall be in
compliance with the financial covenants set forth in Section 5.7 hereof both
immediately before and after giving pro forma effect to the incurrence of such
Indebtedness, and (iii) such Indebtedness is permitted to be incurred under the
Note Agreement; or
(h) additional unsecured Indebtedness of the Companies for up to Two
Hundred Twenty-Six Million Euros ((euro)226,000,000) incurred (i) in connection
with Borrower's corporate organizational purposes, (ii) no more frequently than
three times during the Commitment Period and once in any twelve month period,
and (iii) in a single transaction or related series of transactions, to the
extent not otherwise permitted pursuant to subsections (a) through (f) above,
and so long as (A) no Default or Event of Default shall then exist or
immediately after incurring such Indebtedness will exist, (B) the Companies
shall be in compliance with the financial covenants set forth in Section 5.7
hereof both immediately before and after giving pro forma effect to the
incurrence of such Indebtedness, (C) such Indebtedness is permitted to be
incurred under the Note Agreement and (D) the principal shall not be or be
provided to be outstanding for longer than three Business Days.
Section 5.9. Liens. No Company shall create, assume or suffer to exist
(upon the happening of a contingency or otherwise) any Lien upon any of its
property or assets, whether now owned or hereafter acquired; provided that this
Section 5.9 shall not apply to the following:
41
(a) Liens for taxes not yet due or that are being actively contested in
good faith by appropriate proceedings and for which adequate reserves shall have
been established in accordance with GAAP;
(b) other statutory Liens incidental to the conduct of its business or the
ownership of its property and assets that (i) were not incurred in connection
with the borrowing of money or the obtaining of advances or credit, and (ii) do
not in the aggregate materially detract from the value of its property or assets
or materially impair the use thereof in the operation of its business;
(c) the Liens existing on the Closing Date as set forth in Schedule 5.9
hereto and replacements, extensions, renewals, refundings or refinancings
thereof, but only to the extent that the amount of Indebtedness secured thereby
shall not be increased;
(d) easements or other minor defects or irregularities in title of real
property not interfering in any material respect with the use of such property
in the business of any Company;
(e) any Lien granted to Agent, for the benefit of the Lenders;
(f) any Lien on fixed assets owned by a Company as a result of an
Acquisition permitted pursuant to Section 5.13 hereof, so long as such Lien (i)
does not extend beyond the assets of the Company so acquired, and (ii) does not
secure Indebtedness in an amount greater than one hundred percent (100%) of (A)
the Consideration paid in connection with such Acquisition or (B) the fair
market value of the property subject to the Lien as of the date of such
Acquisition;
(g) Liens on fixed assets securing the loans or capital leases pursuant to
Section 5.8(b) hereof, provided that such Lien only attaches to the property
being acquired or leased;
(h) Liens on fixed assets of Foreign Subsidiaries;
(i) judgment or similar Liens, provided that (i) the amount that such
Liens secure does not in the aggregate, for all such Liens, exceed by more than
Ten Million Dollars ($10,000,000) the amount of insurance available to satisfy
the same, and (ii) the execution or other enforcement of such Liens shall have
been and remain effectively stayed and the claims secured thereby are currently
being contested in good faith by appropriate proceedings;
(j) Liens incurred by a Company in connection with the issuance of
Indebtedness by any governmental instrumentality for the purpose of constructing
or acquiring a facility designed for use by a Company in the conduct of its
business, provided that no such Lien shall extend to any property other than the
respective property so constructed or acquired (or the land underlying the same)
or shall secure any Indebtedness in an amount greater than one hundred percent
(100%) of the lesser of (i) the purchase price or construction of the property,
or (ii) the fair market value of the property at the date of acquisition or
construction; or
42
(k) vendor Liens granted in the ordinary course of business in connection
with the customary terms for purchase of materials, supplies and equipment in
European countries.
No Company shall enter into any contract or agreement (other than a contract or
agreement entered into in connection with the purchase or lease of fixed assets
that prohibits Liens on such fixed assets) that would prohibit Agent or the
Lenders from acquiring a security interest, mortgage or other Lien on, or a
collateral assignment of, any of the property or assets of such Company.
Section 5.10. Regulations T, U and X. No Company shall take any action
that would result in any non-compliance of the Loans or Letters of Credit with
Regulations T, U or X, or any other applicable regulation, of the Board of
Governors of the Federal Reserve System.
Section 5.11. Investments, Loans and Guaranties. No Company shall, without
the prior written consent of Agent and the Required Lenders, (a) create, acquire
or hold any Subsidiary, (b) make or hold any investment in any stocks, bonds or
securities of any kind, (c) be or become a party to any joint venture or other
partnership, (d) make or keep outstanding any advance or loan to any Person, or
(e) be or become a Guarantor of any kind; provided that this Section 5.11 shall
not apply to the following:
(i) guarantees for Indebtedness of the Companies incurred or
permitted pursuant to this Agreement;
(ii) any endorsement of a check or other medium of payment for
deposit or collection through normal banking channels or similar
transaction in the normal course of business;
(iii) investments by the Companies in Cash Equivalents;
(iv) the holding of each of the Subsidiaries listed on Schedule 6.1
hereto, and the creation, acquisition and holding of any new Subsidiary
after the Closing Date so long as such new Subsidiary shall have been
created, acquired or held in accordance with the terms and conditions of
this Agreement and such Subsidiary shall, if required pursuant to Section
5.20 hereof, promptly become a Guarantor of Payment;
(v) any investment in, loan to or guaranty of the Indebtedness of,
Borrower or a Domestic Subsidiary;
(vi) any investment in, loan to or guaranty of the Indebtedness or
other obligations or liabilities (including accounts payable and
liabilities incurred for the purchase of equipment) of a Foreign
Subsidiary so long as the Companies are in compliance (and in pro forma
compliance after giving effect to such loan, investment or guaranty) with
the provisions of Section 5.7 hereof;
(vii) any advance or loan to an officer or employee of a Company
made in the ordinary course of such Company's business, so long as all
such advances and loans from
43
all Companies aggregate not more than the maximum principal sum of Five
Million Dollars ($5,000,000) at any time outstanding; or
(viii) in addition to the investments and loans of the Companies
referenced in subparts (i) through (vii) hereof, the Companies may make
investments in and loans to any Person (exclusive of investments in and
loans to Subsidiaries) so long as the aggregate amount of all such
investments by and loans from all Companies, after the Closing Date, does
not exceed fifteen percent (15%) of Consolidated Net Worth (as determined
from time to time for the most recently completed fiscal quarter of
Borrower) during the Commitment Period;
provided, however, that any investment, loan or guaranty not permitted pursuant
to the Note Agreement shall not be permitted under this Section 5.11. For
purposes of this Section 5.11, the amount of any investment in equity interests
shall be based upon the initial amount invested and shall not include any
appreciation in value or return on such investment.
Section 5.12. Merger and Sale of Assets. No Company shall merge,
amalgamate or consolidate with any other Person, or sell, lease or transfer or
otherwise dispose of any assets to any Person other than in the ordinary course
of business, except that, if no Default or Event of Default shall then exist or
immediately thereafter shall begin to exist:
(a) any Company may merge, consolidate or amalgamate with any other
Company (provided that, in a merger with Borrower, Borrower shall be the
continuing or surviving Person);
(b) any Company may sell, lease, transfer or otherwise dispose of any of
its assets to any other Company;
(c) Borrower may liquidate or dissolve any Company that shall not be
Borrower or a Guarantor of Payment;
(d) any Company may sell, lease, transfer or otherwise dispose of any
assets that are obsolete or no longer useful in such Company's business; or
(e) Acquisitions may be effected in accordance with the provisions of
Section 5.13 hereof.
Section 5.13. Acquisitions. No Company shall effect an Acquisition;
provided, however, that a Company may effect an Acquisition so long as:
(a) in the case of a merger, amalgamation or other combination including
Borrower, Borrower shall be the surviving entity;
(b) in the case of a merger, amalgamation or other combination including a
Credit Party (other than Borrower), a Credit Party shall be the surviving
entity;
44
(c) after giving effect to the Acquisition, the general nature of the
business of the Companies taken as a whole shall not substantially change from
the general nature of the business in which the Companies are engaged on the
Closing Date;
(d) the Companies shall be in full compliance with the Loan Documents both
prior to and subsequent to the transaction;
(e) no Default or Event of Default shall exist prior to and after giving
effect to such Acquisition;
(f) such Acquisition shall not be actively opposed by the board of
directors (or similar governing body) of the selling Persons or the Persons
whose equity interests are to be acquired;
(g) with respect to any Acquisition the Consideration for which is in
excess of Twenty Million Dollars ($20,000,000), Borrower shall have provided to
Agent and the Lenders, at least twenty (20) days prior to such Acquisition,
historical financial statements of the target entity; and
(h) with respect to any Acquisition the Consideration for which is in
excess of Forty Million Dollars ($40,000,000), Borrower shall have provided to
Agent and the Lenders, at least twenty (20) days prior to such Acquisition, a
pro forma financial statement of the Companies accompanied by a certificate of a
Financial Officer of Borrower showing pro forma compliance with Section 5.7
hereof, both before and after the proposed Acquisition.
Section 5.14. Notice.
(a) Borrower shall cause a Financial Officer of Borrower to promptly
notify Agent and the Lenders in writing whenever any Default or Event of Default
may occur hereunder or any representation or warranty made in Article VI hereof
or elsewhere in this Agreement or in any Related Writing may for any reason
cease in any material respect to be true and complete.
(b) Borrower shall provide written notice to Agent and the Lenders
contemporaneously with any notice relating to an Event of Default (as defined in
the Note Agreement), or an event with which the passage of time, or the giving
of notice, or both, would constitute an Event of Default (as defined in the Note
Agreement), being provided by any Company or to any Company in connection with
the Note Agreement.
Section 5.15. Restricted Payments. Borrower shall not pay or commit itself
to pay any Restricted Payments at any time if a Default or Event of Default
shall then exist or immediately thereafter shall begin to exist, or if such
Restricted Payment is not permitted under the Note Agreement.
Section 5.16. Environmental Compliance. Each Company shall comply in all
material respects with any and all Environmental Laws including, without
limitation, all Environmental Laws in jurisdictions in which such Company owns
or operates a facility or site, arranges for
45
disposal or treatment of hazardous substances, solid waste or other wastes,
accepts for transport any hazardous substances, solid waste or other wastes or
holds any interest in real property or otherwise. Borrower shall furnish to the
Lenders, promptly after receipt thereof, a copy of any notice such Company may
receive from any Governmental Authority, private Person or otherwise that any
material litigation or proceeding pertaining to any environmental, health or
safety matter has been filed or is threatened against such Company, any real
property in which such Company holds any interest or any past or present
operation of such Company. No Company shall allow the release or disposal of
hazardous waste, solid waste or other wastes on, under or to any real property
in which any Company holds any interest or performs any of its operations, in
violation of any Environmental Law. As used in this Section 5.16, "litigation or
proceeding" means any suit, suit in equity action, or administrative action,
whether brought by any Governmental Authority, private Person or otherwise.
Borrower shall defend, indemnify and hold Agent and the Lenders harmless against
all costs, expenses, claims, damages, penalties and liabilities of every kind or
nature whatsoever (including attorneys' fees) arising out of or resulting from
the noncompliance of any Company with any Environmental Law. Such
indemnification shall survive any termination of this Agreement.
Section 5.17. Affiliate Transactions. No Company shall, directly or
indirectly, enter into or permit to exist any transaction (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with any Affiliate (other than a Company) on terms
that shall be less favorable to such Company than those that might be obtained
at the time in a transaction with a non-Affiliate; provided, however, that the
foregoing shall not prohibit (a) the payment of customary and reasonable
directors' fees (i) to directors who are not employees of a Company or any
Affiliate of a Company or (ii) not in excess of the aggregate, for all
Companies, of Five Hundred Thousand Dollars ($500,000) per year to directors who
are employees of a Company or any Affiliate of a Company, or (b) any transaction
between Borrower and an Affiliate (if a Guarantor of Payment) that Borrower
reasonably determines in good faith is beneficial to Borrower and its Affiliates
as a whole and that shall not be entered into for the purpose of hindering the
exercise by Agent or the Lenders of their rights or remedies under this
Agreement.
Section 5.18. Use of Proceeds. Borrower's use of the proceeds of the Loans
shall be solely for working capital and other general corporate purposes of the
Companies and to refinance existing Indebtedness.
Section 5.19. Corporate Names. No Company shall change its corporate name,
unless, in each case, Borrower shall provide each Lender with thirty (30) days
prior written notice.
Section 5.20. Subsidiary Guaranties.
(a) Each Domestic Subsidiary of a Company (that is not a Dormant
Subsidiary) created, acquired or held subsequent to the Closing Date, shall
immediately execute and deliver to Agent, for the benefit of the Lenders, a
Guaranty of Payment of all of the Obligations, such agreements to be in form and
substance acceptable to Agent, along with any such other supporting
documentation, corporate governance and authorization documents, and an opinion
of counsel as may be deemed necessary or advisable by Agent.
46
(b) Notwithstanding anything in subpart (a) above to the contrary, (i) a
Domestic Subsidiary shall not be required to execute and deliver a Guaranty of
Payment so long as (A) the total assets of such Domestic Subsidiary shall be
less than the amount of One Million Dollars ($1,000,000), and (B) the aggregate
of the total assets of all such Domestic Subsidiaries with total asset values of
less than One Million Dollars ($1,000,000) shall not exceed the aggregate amount
of One Million Five Hundred Thousand Dollars ($1,500,000); provided that, in the
event that the total assets of any Domestic Subsidiary that shall not have
complied with the requirements of Section 5.20(a) above shall be at any time
equal to or greater than One Million Dollars ($1,000,000), Borrower shall
provide Agent and the Lenders with prompt written notice of such asset value and
comply with Section 5.20(a) above with respect to such Domestic Subsidiary; and
(ii) The Sunprene Company shall not be required to execute and deliver a
Guaranty of Payment until such time, if any, as such Company shall become a
Wholly-Owned Subsidiary of Borrower.
Section 5.21. Restrictive Agreements. Except as set forth in this
Agreement, Borrower shall not, and shall not permit any of its Subsidiaries to,
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)
make, directly or indirectly, any Capital Distribution to Borrower, (b) make,
directly or indirectly, loans or advances or capital contributions to Borrower
or (c) transfer, directly or indirectly, any of the properties or assets of such
Subsidiary to Borrower; except for such encumbrances or restrictions existing
under or by reason of (i) applicable law, (ii) customary non-assignment
provisions in leases or other agreements entered in the ordinary course of
business and consistent with past practices, or (iii) customary restrictions in
security agreements or mortgages securing Indebtedness of a Company to the
extent such restrictions shall only restrict the transfer of the property
subject to such security agreement or mortgage.
Section 5.22. Other Covenants. In the event that any Company shall enter
into, or shall have entered into, any Material Indebtedness Agreement, wherein
the covenants contained therein shall be more restrictive than the covenants set
forth herein, then the Companies shall be bound hereunder by such covenants with
the same force and effect as if such covenants were written herein.
Section 5.23. Guaranty Under Material Indebtedness Agreement. No Domestic
Subsidiary shall be or become a Guarantor of the Indebtedness incurred pursuant
to the Note Agreement or any other Material Indebtedness Agreement unless such
Company, if required pursuant to Section 5.20 hereof, shall also be a Guarantor
of Payment under this Agreement prior to or concurrently therewith.
Section 5.24. Pari Passu Ranking. The Obligations shall, and Borrower
shall take all necessary action to ensure that the Obligations shall, at all
times, rank at least pari passu in right of payment with all other senior
unsecured Indebtedness of Borrower.
Section 5.25. Note Agreement. Borrower shall not, without the prior
written consent of Agent and the Required Lenders, amend, restate, supplement or
otherwise modify the Note Agreement to (a) increase the principal amount
outstanding thereunder, unless the amount of
47
such increase shall be permitted pursuant to Section 5.8 hereof, (b) change the
date of any principal or interest payment to an earlier date, or (c) otherwise
modify any provision such that a Default or Event of Default will exist.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES
Section 6.1. Corporate Existence; Subsidiaries; Foreign Qualification.
Each Company is duly organized, validly existing, and in good standing under the
laws of its state or jurisdiction of incorporation or organization and is duly
qualified and authorized to do business and is in good standing as a foreign
entity in the jurisdictions set forth opposite its name on Schedule 6.1 hereto,
all of the states or jurisdictions where the character of its property or its
business activities makes such qualification necessary, except where a failure
to qualify will not cause or result in a Material Adverse Effect. Schedule 6.1
hereto sets forth, as of the Closing Date, each Subsidiary of Borrower (and
whether such Subsidiary is a Dormant Subsidiary), its state of formation, its
relationship to Borrower, including the percentage of membership interests owned
by a Company, each Person that owns the stock or other equity interest of each
Company, the location of its chief executive office and its principal place of
business.
Section 6.2. Corporate Authority. Each Credit Party has the right and
power and is duly authorized and empowered to enter into, execute and deliver
the Loan Documents to which it is a party and to perform and observe the
provisions of the Loan Documents. The Loan Documents to which each Credit Party
is a party have been duly authorized and approved by such Credit Party's board
of directors or other governing body, as applicable, and are the valid and
binding obligations of such Credit Party, enforceable against such Credit Party
in accordance with their respective terms. The execution, delivery and
performance of the Loan Documents will not conflict with nor result in any
breach in any of the provisions of, or constitute a default under, or result in
the creation of any Lien (other than Liens permitted under Section 5.9 hereof)
upon any assets or property of any Company under the provisions of, such
Company's Organizational Documents or any agreement.
Section 6.3. Compliance with Laws and Contracts. Each Company:
(a) holds permits, certificates, licenses, orders, registrations,
franchises, authorizations, and other approvals from any Governmental Authority
necessary for the conduct of its business and is in compliance with all
applicable laws relating thereto, except where the failure to do so would not
have a Material Adverse Effect;
(b) is in compliance with all federal, state, local, or foreign applicable
statutes, rules, regulations, and orders including, without limitation, those
relating to environmental protection, occupational safety and health, and equal
employment practices, except where the failure to be in compliance would not
have a Material Adverse Effect; and
(c) is not in violation of or in default under any agreement to which it
is a party or by which its assets are subject or bound, except with respect to
any violation or default that would not have a Material Adverse Effect.
48
Section 6.4. Litigation and Administrative Proceedings. Except as
disclosed on Schedule 6.4 hereto, as to any of which, if determined adversely,
would not have a Material Adverse Effect, there are (a) no lawsuits, actions,
investigations, or other proceedings pending or threatened against any Company,
or in respect of which any Company may have any liability, in any court or
before any Governmental Authority, arbitration board, or other tribunal, (b) no
orders, writs, injunctions, judgments, or decrees of any court or government
agency or instrumentality to which any Company is a party or by which the
property or assets of any Company are bound, and (c) no grievances, disputes, or
controversies outstanding with any union or other organization of the employees
of any Company, or threats of work stoppage, strike, or pending demands for
collective bargaining.
Section 6.5. Title to Assets. Each Company has good title to and ownership
of all material properties it purports to own, which properties are free and
clear of all Liens, except those permitted under Section 5.9 hereof.
Section 6.6. Liens and Security Interests. On and after the Closing Date,
except for Liens permitted pursuant to Section 5.9 hereof, (a) there is no
U.C.C. Financing Statement outstanding covering any personal property of any
Company (other than any precautionary U.C.C. Financing Statement filed by a
lessor in connection with an operating lease that is a true lease of personal
property); (b) there is no mortgage outstanding covering any real property of
any Company; and (c) no real or personal property of any Company is subject to
any security interest or Lien of any kind. No Company has entered into any
contract or agreement (other than a contract or agreement entered into in
connection with the purchase or lease of fixed assets that prohibits Liens on
such fixed assets) that exists on or after the Closing Date that would prohibit
Agent or the Lenders from acquiring a Lien on, or a collateral assignment of,
any of the property or assets of any Company.
Section 6.7. Tax Returns. All federal, provincial, state and local tax
returns and other reports required by law to be filed in respect of the income,
business, properties and employees of each Company have been filed and all
taxes, assessments, fees and other governmental charges that are due and payable
have been paid, except as otherwise permitted herein or where the failure to do
so does not and will not cause or result in a Material Adverse Effect. The
provision for taxes on the books of each Company is expected to be adequate for
all years not closed by applicable statutes and for the current fiscal year.
Section 6.8. Environmental Laws. Each Company is in compliance with all
Environmental Laws, including, without limitation, all Environmental Laws in all
jurisdictions in which any Company owns or operates, or has owned or operated, a
facility or site, arranges or has arranged for disposal or treatment of
hazardous substances, solid waste or other wastes, accepts or has accepted for
transport any hazardous substances, solid waste or other wastes or holds or has
held any interest in real property or otherwise except where the failure to do
so would not have a Material Adverse Effect. No litigation or proceeding arising
under, relating to or in connection with any Environmental Law is pending
against any Company, any real property in which any Company holds or has held an
interest or any past or present operation of any Company that would have a
Material Adverse Effect. No release, threatened release or
49
disposal of hazardous waste, solid waste or other wastes is occurring, or has
occurred (other than those that are currently being cleaned up in accordance
with Environmental Laws), on, under or to any real property in which any Company
holds any interest or performs any of its operations, in violation of any
Environmental Law. As used in this Section, "litigation or proceeding" means any
suit, suit in equity, action or administrative action, whether brought by any
Governmental Authority or private Person, or otherwise.
Section 6.9. Continued Business. There exists no actual, pending, or, to
Borrower's knowledge, any threatened termination, cancellation or limitation of,
or any modification or change in the business relationship of any Company and
any customer or supplier, or any group of customers or suppliers, whose
purchases or supplies, individually or in the aggregate, are material to the
business of any Company, and there exists no present condition or state of facts
or circumstances that would have a Material Adverse Effect or prevent a Company
from conducting such business or the transactions contemplated by this Agreement
in substantially the same manner in which it was previously conducted.
Section 6.10. Employee Benefits Plans. Schedule 6.10 hereto identifies
each ERISA Plan. Except as set forth on Schedule 6.10 hereto, no ERISA Event has
occurred or is expected to occur with respect to an ERISA Plan. Full payment has
been made of all amounts that a Controlled Group member is required, under
applicable law or under the governing documents, to have paid as a contribution
to or a benefit under each ERISA Plan. The liability of each Controlled Group
member with respect to each ERISA Plan has been fully funded based upon
reasonable and proper actuarial assumptions, has been fully insured, or has been
fully reserved for on its financial statements. No changes have occurred or are
expected to occur that would cause a material increase in the cost of providing
benefits under the ERISA Plan. With respect to each ERISA Plan that is intended
to be qualified under Code Section 401(a), (a) the ERISA Plan and any associated
trust operationally comply with the applicable requirements of Code Section
401(a); (b) the ERISA Plan and any associated trust have been amended to comply
with all such requirements as currently in effect, other than those requirements
for which a retroactive amendment can be made within the "remedial amendment
period" available under Code Section 401(b) (as extended under Treasury
Regulations and other Treasury pronouncements upon which taxpayers may rely);
(c) the ERISA Plan and any associated trust have received a favorable
determination letter from the Internal Revenue Service stating that the ERISA
Plan qualifies under Code Section 401(a), that the associated trust qualifies
under Code Section 501(a) and, if applicable, that any cash or deferred
arrangement under the ERISA Plan qualifies under Code Section 401(k), unless the
ERISA Plan was first adopted at a time for which the above-described "remedial
amendment period" has not yet expired; (d) the ERISA Plan currently satisfies
the requirements of Code Section 410(b), without regard to any retroactive
amendment that may be made within the above-described "remedial amendment
period"; and (e) no contribution made to the ERISA Plan is subject to an excise
tax under Code Section 4972. Except as set forth on Schedule 6.10 hereto, with
respect to any Pension Plan, the "accumulated benefit obligation" of Controlled
Group members with respect to the Pension Plan (as determined in accordance with
Statement of Accounting Standards No. 87, "Employers' Accounting for Pensions")
does not exceed the fair market value of Pension Plan assets.
50
Section 6.11. Consents or Approvals. No consent, approval or authorization
of, or filing, registration or qualification with, any Governmental Authority or
any other Person is required to be obtained or completed by any Company in
connection with the execution, delivery or performance of any of the Loan
Documents, that has not already been obtained or completed.
Section 6.12. Solvency. Borrower has received consideration that is the
reasonable equivalent value of the obligations and liabilities that Borrower has
incurred to Agent and the Lenders. Borrower is not insolvent as defined in any
applicable state, federal or relevant foreign statute, nor will Borrower be
rendered insolvent by the execution and delivery of the Loan Documents to Agent
and the Lenders. Borrower is not engaged or about to engage in any business or
transaction for which the assets retained by it are or will be an unreasonably
small amount of capital, taking into consideration the obligations to Agent and
the Lenders incurred hereunder. Borrower does not intend to, nor does it believe
that it will, incur debts beyond its ability to pay such debts as they mature.
Section 6.13. Financial Statements. The audited Consolidated financial
statements of Borrower, for the fiscal year ended August 31, 2003 and the
unaudited Consolidated financial statements for the fiscal quarter and nine
months ended May 31, 2004, furnished to Agent and the Lenders, are true and
complete, have been prepared in accordance with GAAP, and fairly present in all
material respects the financial condition of the Companies as of the dates of
such financial statements and the results of their operations for the periods
then ending. Since the dates of such statements, there has been no material
adverse change in any Company's financial condition, properties or business or
any material change in any Company's accounting procedures.
Section 6.14. Regulations. No Company is engaged principally or as one of
its important activities, in the business of extending credit for the purpose of
purchasing or carrying any "margin stock" (within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System of the United States of
America). Neither the granting of any Loan (or any conversion thereof) or Letter
of Credit nor the use of the proceeds of any Loan or Letter of Credit will
violate, or be inconsistent with, the provisions of Regulation T, U or X or any
other Regulation of such Board of Governors.
Section 6.15. Material Agreements. Except as disclosed on Schedule 6.15
hereto, no Company is a party to any (a) debt instrument (excluding the Loan
Documents); (b) lease (capital, operating or otherwise), whether as lessee or
lessor thereunder; (c) contract, commitment, agreement, or other arrangement
involving the purchase or sale of any inventory by it, or the license of any
right to or by it; (d) contract, commitment, agreement, or other arrangement
with any of its "Affiliates" (as such term is defined in the Securities Exchange
Act of 1934, as amended) other than a Company; (e) management or employment
contract or contract for personal services with any of its Affiliates that is
not otherwise terminable at will or on less than ninety (90) days' notice
without liability; (f) collective bargaining agreement; or (g) other contract,
agreement, understanding, or arrangement with a third party that, as to
subsections (a) through (g) above, if violated, breached, or terminated for any
reason, would have or would be reasonably expected to have a Material Adverse
Effect.
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Section 6.16. Intellectual Property. Each Company owns or has the right to
use all of its material patents, patent applications, industrial designs,
trademarks, service marks, copyrights, licenses, and rights with respect to the
foregoing necessary for the conduct of its business without any known conflict
with the rights of others, except where the failure to do so would not have a
Material Adverse Effect.
Section 6.17. Insurance. Each Company maintains with financially sound and
reputable insurers insurance with coverage and limits as required by law and as
is customary with similarly situated Persons engaged in the same or similar
businesses as the Companies.
Section 6.18. Accurate and Complete Statements. Neither the Loan Documents
nor any written statement made by any Company in connection with any of the Loan
Documents contains any untrue statement of a material fact or omits a material
fact necessary to make the statements contained therein or in the Loan Documents
not misleading. After due inquiry by Borrower, there is no known fact that any
Company has not disclosed to Agent and the Lenders that has or would have a
Material Adverse Effect.
Section 6.19. Note Agreement. No Event of Default (as defined in the Note
Agreement) or Default (as defined in the Note Agreement) exists, nor will any
such Event of Default or Default exist immediately after the granting of any
Loan or the issuance of any Letter of Credit under this Agreement.
Section 6.20. Defaults. No Default or Event of Default exists hereunder,
nor will any begin to exist immediately after the execution and delivery hereof.
ARTICLE VII. EVENTS OF DEFAULT
Each of the following shall constitute an Event of Default hereunder:
Section 7.1. Payments. If (a) the interest on any Loan or any facility or
other fee shall not be paid in full when due and payable or within five days
thereafter, or (b) the principal of any Loan or any obligation under any Letter
of Credit shall not be paid in full when due and payable.
Section 7.2. Special Covenants. If any Company shall fail or omit to
perform and observe Section 5.7, 5.8, 5.9, 5.11, 5.12, 5.13, 5.15 or 5.22
hereof.
Section 7.3. Other Covenants. If any Company shall fail or omit to perform
and observe any agreement or other provision (other than those referred to in
Section 7.1 or 7.2 hereof) contained or referred to in this Agreement or any
Related Writing that is on such Company's part to be complied with, and that
Default shall not have been fully corrected within thirty (30) days after the
earlier of (a) any Financial Officer of such Company becomes aware of the
occurrence thereof, or (b) the giving of written notice thereof to Borrower by
Agent or the Required Lenders that the specified Default is to be remedied.
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Section 7.4. Representations and Warranties. If any representation,
warranty or statement made in or pursuant to this Agreement or any Related
Writing or any other material information furnished by any Company to the
Lenders or any thereof or any other holder of any Note, shall be false or
erroneous in any material respect.
Section 7.5. Cross Default. If any Company shall default in the payment of
principal or interest due and owing under any Material Indebtedness Agreement
beyond any period of grace provided with respect thereto or in the performance
or observance of any other agreement, term or condition contained in any
agreement under which such obligation is created, if the effect of such default
is to allow the acceleration of the maturity of such Indebtedness or to permit
the holder thereof to cause such Indebtedness to become due prior to its stated
maturity.
Section 7.6. ERISA Default. The occurrence of one or more ERISA Events
that (a) would have a Material Adverse Effect, or (b) results in a Lien on any
of the assets of any Company in excess of the aggregate, for all Companies, of
Five Million Dollars ($5,000,000).
Section 7.7. Change in Control. If any Change in Control shall occur.
Section 7.8. Money Judgment. A final judgment or order for the payment of
money shall be rendered against any Company by a court of competent
jurisdiction, that remains unpaid or unstayed and undischarged for a period
(during which execution shall not be effectively stayed) of thirty (30) days
after the date on which the right to appeal has expired, provided that the
aggregate of all such judgments for all such Companies shall exceed Ten Million
Dollars ($10,000,000).
Section 7.9. Validity of Loan Documents. (a) Any material provision, in
the sole opinion of Agent, of any Loan Document shall at any time for any reason
cease to be valid, binding and enforceable against any Credit Party; (b) the
validity, binding effect or enforceability of any Loan Document against any
Credit Party shall be contested by any Credit Party; (c) any Credit Party shall
deny that it has any or further liability or obligation under any Loan Document;
or (d) any Loan Document shall be terminated, invalidated or set aside, or be
declared ineffective or inoperative or in any way cease to give or provide to
Agent and the Lenders the benefits purported to be created thereby. In addition
to any other material Loan Documents, this Agreement, each Note and each
Guaranty of Payment shall be deemed to be "material".
Section 7.10. Note Agreement. If (a) an Event of Default (as defined in
the Note Agreement) shall occur, (b) the Note Agreement shall be amended,
restated, supplemented or otherwise modified in violation of Section 5.25
hereof, or (c) the Indebtedness incurred in connection with the Note Agreement
shall be accelerated for any reason.
Section 7.11. Solvency of Certain Companies. If any Company with assets
over One Million Dollars ($1,000,000) but less than Ten Million Dollars
($10,000,000) shall engage in or permit to occur (whether voluntarily or
involuntarily) any of the activities set forth in Section 7.12 hereof.
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Section 7.12. Solvency. If Borrower or any Subsidiary with assets over Ten
Million Dollars ($10,000,000) shall (a) except as permitted pursuant to Section
5.12 hereof, discontinue business, (b) generally not pay its debts as such debts
become due, (c) make a general assignment for the benefit of creditors, (d)
apply for or consent to the appointment of a receiver, a custodian, a trustee,
an interim trustee or liquidator of all or a substantial part of its assets, (e)
be adjudicated a debtor or insolvent, or have entered against it an order for
relief under Title 11 of the United States Code, as the same may be amended from
time to time, or under any other bankruptcy insolvency, liquidation, winding-up,
corporate or similar statute or law, foreign, federal state or provincial, in
any applicable jurisdiction, now or hereafter existing, as any of the foregoing
may be amended from time to time, or other applicable statute for jurisdictions
outside of the United States, as the case may be, (f) file a voluntary petition
in bankruptcy, or have an involuntary proceeding filed against it and the same
shall continue undismissed for a period of thirty (30) days from commencement of
such proceeding or case, or file a petition or an answer seeking reorganization
or an arrangement with creditors or seeking to take advantage of any other law
(whether federal or state, or, if applicable, other jurisdiction) relating to
relief of debtors, or admit (by answer, by default or otherwise) the material
allegations of a petition filed against it in any bankruptcy, reorganization,
insolvency or other proceeding (whether federal or state, or, if applicable,
other jurisdiction) relating to relief of debtors, (g) suffer or permit to
continue unstayed and in effect for thirty (30) consecutive days any judgment,
decree or order entered by a court of competent jurisdiction, that approves a
petition seeking its reorganization or appoints a receiver, custodian, trustee,
interim trustee or liquidator of all or a substantial part of its assets, (h)
have an administrative receiver appointed over the whole or substantially the
whole of its assets, or (i) take, or omit to take, any action in order thereby
to effect any of the foregoing.
ARTICLE VIII. REMEDIES UPON DEFAULT
Notwithstanding any contrary provision or inference herein or elsewhere:
Section 8.1. Optional Defaults. If any Event of Default referred to in
Section 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8, 7.9, 7.10 or 7.11 hereof shall
occur, Agent may, with the consent of the Required Lenders, and shall, at the
written request of the Required Lenders, give written notice to Borrower, to:
(a) terminate the Commitment, if not previously terminated, and,
immediately upon such election, the obligations of the Lenders, and each
thereof, to make any further Loan and the obligation of the Fronting Lender to
issue any Letter of Credit immediately shall be terminated; and/or
(b) accelerate the maturity of all of the Obligations (if the Obligations
are not already due and payable), whereupon all of the Obligations shall become
and thereafter be immediately due and payable in full without any presentment or
demand and without any further or other notice of any kind, all of which are
hereby waived by Borrower.
Section 8.2. Automatic Defaults. If any Event of Default referred to in
Section 7.12 hereof shall occur:
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(a) all of the Commitment shall automatically and immediately terminate,
if not previously terminated, and no Lender thereafter shall be under any
obligation to grant any further Loan, nor shall the Fronting Lender be obligated
to issue any Letter of Credit; and
(b) the principal of and interest then outstanding on all of the Loans,
and all of the other Obligations, shall thereupon become and thereafter be
immediately due and payable in full (if the Obligations are not already due and
payable), all without any presentment, demand or notice of any kind, which are
hereby waived by Borrower.
Section 8.3. Letters of Credit. If the maturity of the Obligations shall
be accelerated pursuant to Section 8.1 or 8.2 hereof, Borrower shall immediately
deposit with Agent, as security for the obligations of Borrower and any
Guarantor of Payment to reimburse Agent and the Lenders for any then outstanding
Letters of Credit, cash equal to the sum of the aggregate undrawn balance of any
then outstanding Letters of Credit. Agent and the Lenders are hereby authorized,
at their option, to deduct any and all such amounts from any deposit balances
then owing by any Lender (or any affiliate of such Lender) to or for the credit
or account of any Company, as security for the obligations of Borrower and any
Guarantor of Payment to reimburse Agent and the Lenders for any then outstanding
Letters of Credit.
Section 8.4. Offsets. If there shall occur or exist any Event of Default
referred to in Section 7.12 hereof or if the maturity of the Obligations is
accelerated pursuant to Section 8.1 or 8.2 hereof, each Lender shall have the
right at any time to set off against, and to appropriate and apply toward the
payment of, any and all of the Obligations then owing by Borrower or Guarantor
of Payment to such Lender (including, without limitation, any participation
purchased or to be purchased pursuant to Section 2.2(b) or 8.5 hereof), whether
or not the same shall then have matured, any and all deposit (general or
special) balances and all other indebtedness then held or owing by such Lender
(including, without limitation, by branches and agencies or any affiliate of
such Lender, wherever located) to or for the credit or account of Borrower or
any Guarantor of Payment, all without notice to or demand upon Borrower or any
other Person, all such notices and demands being hereby expressly waived by
Borrower.
Section 8.5. Equalization Provision. Each Lender agrees with the other
Lenders that if it, at any time, shall obtain any Advantage over the other
Lenders or any thereof in respect of the Obligations (except as to Letters of
Credit prior to Agent's giving of notice to participate and except under Article
III hereof), it shall purchase from the other Lenders, for cash and at par, such
additional participation in the Obligations as shall be necessary to nullify the
Advantage. If any such Advantage resulting in the purchase of an additional
participation as aforesaid shall be recovered in whole or in part from the
Lender receiving the Advantage, each such purchase shall be rescinded, and the
purchase price restored (but without interest unless the Lender receiving the
Advantage is required to pay interest on the Advantage to the Person recovering
the Advantage from such Lender) ratably to the extent of the recovery. Each
Lender further agrees with the other Lenders that if it at any time shall
receive any payment for or on behalf of Borrower on any Indebtedness owing by
Borrower to that Lender (whether by voluntary payment, by realization upon
security, by reason of offset of any deposit or other indebtedness, by
counterclaim or cross-action, by the enforcement of any right under any Loan
Document, or
55
otherwise), it will apply such payment first to any and all Obligations owing by
Borrower to that Lender (including, without limitation, any participation
purchased or to be purchased pursuant to this Section 8.5 or any other Section
of this Agreement). Borrower agrees that any Lender so purchasing a
participation from the other Lenders or any thereof pursuant to this Section 8.5
may exercise all of its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender was a direct creditor
of Borrower in the amount of such participation.
Section 8.6. Other Remedies. The remedies in this Article VIII are in
addition to, not in limitation of, any other right, power, privilege, or remedy,
either in law, in equity, or otherwise, to which the Lenders may be entitled.
Agent shall exercise the rights under this Article VIII and all other collection
efforts on behalf of the Lenders and no Lender shall act independently with
respect thereto, except as otherwise specifically set forth in this Agreement.
ARTICLE IX. THE AGENT
The Lenders authorize KeyBank National Association and KeyBank National
Association hereby agrees to act as agent for the Lenders in respect of this
Agreement upon the terms and conditions set forth elsewhere in this Agreement,
and upon the following terms and conditions:
Section 9.1. Appointment and Authorization. Each Lender hereby irrevocably
appoints and authorizes Agent to take such action as agent on its behalf and to
exercise such powers hereunder as are delegated to Agent by the terms hereof,
together with such powers as are reasonably incidental thereto. Neither Agent
nor any of its affiliates, directors, officers, attorneys or employees shall (a)
be liable for any action taken or omitted to be taken by it or them hereunder or
in connection herewith, except for its or their own gross negligence or willful
misconduct (as determined by a court of competent jurisdiction), or be
responsible in any manner to any of the Lenders for the effectiveness,
enforceability, genuineness, validity or due execution of this Agreement or any
other Loan Documents, (b) be under any obligation to any Lender to ascertain or
to inquire as to the performance or observance of any of the terms, covenants or
conditions hereof or thereof on the part of Borrower or any other Company, or
the financial condition of Borrower or any other Company, or (c) be liable to
any of the Companies for consequential damages resulting from any breach of
contract, tort or other wrong in connection with the negotiation, documentation,
administration or collection of the Loans or Letters of Credit or any of the
Loan Documents.
Section 9.2. Note Holders. Agent may treat the payee of any Note as the
holder thereof until written notice of transfer shall have been filed with
Agent, signed by such payee and in form satisfactory to Agent.
Section 9.3. Consultation With Counsel. Agent may consult with legal
counsel selected by Agent and shall not be liable for any action taken or
suffered in good faith by Agent in accordance with the opinion of such counsel.
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Section 9.4. Documents. Agent shall not be under any duty to examine into
or pass upon the validity, effectiveness, genuineness or value of any Loan
Document or any other Related Writing furnished pursuant hereto or in connection
herewith or the value of any collateral obtained hereunder, and Agent shall be
entitled to assume that the same are valid, effective and genuine and what they
purport to be.
Section 9.5. Agent and Affiliates. With respect to the Loans, Agent shall
have the same rights and powers hereunder as any other Lender and may exercise
the same as though it were not Agent, and Agent and its affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
any Company or any Affiliate.
Section 9.6. Knowledge of Default. It is expressly understood and agreed
that Agent shall be entitled to assume that no Default or Event of Default has
occurred, unless Agent has been notified by a Lender in writing that such Lender
believes that a Default or Event of Default has occurred and is continuing and
specifying the nature thereof or has been notified by Borrower pursuant to
Section 5.14 hereof.
Section 9.7. Action by Agent. Subject to the other terms and conditions
hereof, so long as Agent shall be entitled, pursuant to Section 9.6 hereof, to
assume that no Default or Event of Default shall have occurred and be
continuing, Agent shall be entitled to use its discretion with respect to
exercising or refraining from exercising any rights that may be vested in it by,
or with respect to taking or refraining from taking any action or actions that
it may be able to take under or in respect of, this Agreement. Agent shall incur
no liability under or in respect of this Agreement by acting upon any notice,
certificate, warranty or other paper or instrument believed by it to be genuine
or authentic or to be signed by the proper party or parties, or with respect to
anything that it may do or refrain from doing in the reasonable exercise of its
judgment, or that may seem to it to be necessary or desirable in the premises.
Section 9.8. Release of Guarantor of Payment. In the event of a sale of
assets permitted by Section 5.12 hereof (or otherwise permitted pursuant to this
Agreement), Agent, at the request and expense of Borrower, is hereby authorized
by the Lenders to release a Guarantor of Payment in connection with such asset
sale.
Section 9.9. Notice of Default. In the event that Agent shall have
acquired actual knowledge of any Default or Event of Default, Agent shall
promptly notify the Lenders and shall take such action and assert such rights
under this Agreement as the Required Lenders shall direct and Agent shall inform
the other Lenders in writing of the action taken. Agent may take such action and
assert such rights as it deems to be advisable, in its discretion, for the
protection of the interests of the holders of the Obligations.
Section 9.10. Indemnification of Agent. The Lenders agree to indemnify
Agent (to the extent not reimbursed by Borrower) ratably, according to their
respective Commitment Percentages, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees) or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by or asserted against Agent in its
capacity as agent in any way relating to or arising out of this Agreement or any
Loan Document
57
or any action taken or omitted by Agent with respect to this Agreement or any
Loan Document, provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including attorneys' fees) or disbursements resulting from
Agent's gross negligence or willful misconduct as determined by a court of
competent jurisdiction, or from any action taken or omitted by Agent in any
capacity other than as agent under this Agreement or any other Loan Document.
Section 9.11. Successor Agent. Agent may resign as agent hereunder by
giving not fewer than thirty (30) days prior written notice to Borrower and the
Lenders. If Agent shall resign under this Agreement, then either (a) the
Required Lenders shall appoint from among the Lenders a successor agent for the
Lenders (with the consent of Borrower so long as an Event of Default has not
occurred and which consent shall not be unreasonably withheld), or (b) if a
successor agent shall not be so appointed and approved within the thirty (30)
day period following Agent's notice to the Lenders of its resignation, then
Agent shall appoint a successor agent that shall serve as agent until such time
as the Required Lenders appoint a successor agent. Upon its appointment, such
successor agent shall succeed to the rights, powers and duties as agent, and the
term "Agent" shall mean such successor effective upon its appointment, and the
former agent's rights, powers and duties as agent shall be terminated without
any other or further act or deed on the part of such former agent or any of the
parties to this Agreement.
Section 9.12. Other Agents. As used in this Agreement, the term "Agent"
shall only include Agent. The Syndication Agent shall not have any rights,
obligations or responsibilities hereunder in such capacity.
ARTICLE X. MISCELLANEOUS
Section 10.1. Lenders' Independent Investigation. Each Lender, by its
signature to this Agreement, acknowledges and agrees that Agent has made no
representation or warranty, express or implied, with respect to the
creditworthiness, financial condition, or any other condition of any Company or
with respect to the statements contained in any information memorandum furnished
in connection herewith or in any other oral or written communication between
Agent and such Lender. Each Lender represents that it has made and shall
continue to make its own independent investigation of the creditworthiness,
financial condition and affairs of the Companies in connection with the
extension of credit hereunder, and agrees that Agent has no duty or
responsibility, either initially or on a continuing basis, to provide any Lender
with any credit or other information with respect thereto (other than such
notices as may be expressly required to be given by Agent to the Lenders
hereunder), whether coming into its possession before the first Credit Event
hereunder or at any time or times thereafter. Each Lender further represents
that it has reviewed each of the Loan Documents.
Section 10.2. No Waiver; Cumulative Remedies. No omission or course of
dealing on the part of Agent, any Lender or the holder of any Note in exercising
any right, power or remedy hereunder or under any of the Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder or under any of
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the Loan Documents. The remedies herein provided are cumulative and in addition
to any other rights, powers or privileges held by operation of law, by contract
or otherwise.
Section 10.3. Amendments, Consents. No amendment, modification,
termination, or waiver of any provision of any Loan Document nor consent to any
variance therefrom, shall be effective unless the same shall be in writing and
signed by the Required Lenders and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. Anything herein to the contrary notwithstanding, unanimous consent of the
Lenders shall be required with respect to (a) any increase in the Commitment
hereunder (except as specified in Section 2.9(b) hereof), (b) the extension of
maturity of the Loans, the payment date of interest or scheduled principal
thereunder, or the payment date of facility or other fees or amounts payable
hereunder, (c) any reduction in the rate of interest on the Loans (provided that
the institution of the Default Rate and a subsequent removal of the Default Rate
shall not constitute a decrease in interest rate pursuant to this Section 10.3),
or in any amount of scheduled principal or interest due on any Loan, or the
payment of facility or other fees hereunder or any change in the manner of pro
rata application of any payments made by Borrower to the Lenders hereunder, (d)
any change in the method for computing interest or fees on the Loans, (e) any
change in any percentage voting requirement, voting rights, or the Required
Lenders definition in this Agreement, (f) the release of any Guarantor of
Payment (except in connection with a merger, disposition or other transaction
permitted hereunder), or (g) any amendment to this Section 10.3 or Section 8.5
hereof. Notice of amendments or consents ratified by the Lenders hereunder shall
be forwarded by Agent to all of the Lenders. Each Lender or other holder of a
Note (or interest in any Loan) shall be bound by any amendment, waiver or
consent obtained as authorized by this Section, regardless of its failure to
agree thereto.
Section 10.4. Notices. All notices, requests, demands and other
communications provided for hereunder shall be in writing and, if to Borrower,
mailed or delivered to it, addressed to it at the address specified on the
signature pages of this Agreement, if to a Lender, mailed or delivered to it,
addressed to the address of such Lender specified on the signature pages of this
Agreement, or, as to each party, at such other address as shall be designated by
such party in a written notice to each of the other parties. All notices,
statements, requests, demands and other communications provided for hereunder
shall be deemed to be given by overnight delivery or made when delivered or two
Business Days after being deposited in the mail with postage prepaid by
registered or certified mail, addressed as aforesaid, or sent by facsimile with
telephonic confirmation of receipt, except that notices from Borrower to Agent
or the Lenders pursuant to any of the provisions hereof shall not be effective
until received by Agent or the Lenders, as the case may be.
Section 10.5. Costs, Expenses and Taxes. Borrower agrees to pay on demand
all costs and expenses of Agent, including, but not limited to, (a) syndication,
administration, travel and out-of-pocket expenses, including but not limited to
reasonable attorneys' fees and expenses, of Agent in connection with the
preparation, negotiation and closing of the Loan Documents and the
administration of the Loan Documents, the collection and disbursement of all
funds hereunder and the other instruments and documents to be delivered
hereunder, (b) extraordinary expenses of Agent in connection with the
administration of the Loan Documents and the other instruments and documents to
be delivered hereunder, and (c) the reasonable fees and
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out-of-pocket expenses of special counsel for Agent, with respect to the
foregoing, and of local counsel, if any, who may be retained by said special
counsel with respect thereto. Borrower also agrees to pay on demand all costs
and expenses of Agent and the Lenders, including reasonable attorneys' fees and
expenses, in connection with the restructuring or enforcement of the
Obligations, this Agreement or any Related Writing. In addition, Borrower shall
pay any and all stamp and other taxes and fees payable or determined to be
payable in connection with the execution and delivery of the Loan Documents, and
the other instruments and documents to be delivered hereunder, and agrees to
hold Agent and each Lender harmless from and against any and all liabilities
with respect to or resulting from any delay in paying or failure to pay such
taxes or fees.
Section 10.6. Indemnification. Borrower agrees to defend, indemnify and
hold harmless Agent and the Lenders (and their respective affiliates, officers,
directors, attorneys, agents and employees) from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including attorneys' fees) or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by or asserted against Agent
or any Lender in connection with any investigative, administrative or judicial
proceeding (whether or not such Lender or Agent shall be designated a party
thereto) or any other claim by any Person relating to or arising out of any Loan
Document or any actual or proposed use of proceeds of the Loans or any of the
Obligations, or any activities of any Company or its Affiliates; provided that
no Lender nor Agent shall have the right to be indemnified under this Section
10.6 for its own gross negligence or willful misconduct as determined by a court
of competent jurisdiction. All obligations provided for in this Section 10.6
shall survive any termination of this Agreement.
Section 10.7. Obligations Several; No Fiduciary Obligations. The
obligations of the Lenders hereunder are several and not joint. Nothing
contained in this Agreement and no action taken by Agent or the Lenders pursuant
hereto shall be deemed to constitute Agent or the Lenders a partnership,
association, joint venture or other entity. No default by any Lender hereunder
shall excuse the other Lenders from any obligation under this Agreement; but no
Lender shall have or acquire any additional obligation of any kind by reason of
such default. The relationship between Borrower and the Lenders with respect to
the Loan Documents and the Related Writings is and shall be solely that of
debtor and creditors, respectively, and neither Agent nor any Lender shall have
any fiduciary obligation toward any Credit Party with respect to any such
documents or the transactions contemplated thereby.
Section 10.8. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts and by facsimile signature, each of which counterparts when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute but one and the same agreement.
Section 10.9. Binding Effect; Borrower's Assignment. This Agreement shall
become effective when it shall have been executed by Borrower, Agent and each
Lender and thereafter shall be binding upon and inure to the benefit of
Borrower, Agent and each of the Lenders and their respective successors and
assigns, except that Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of Agent and
all of the Lenders.
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Section 10.10. Lender Assignments.
(a) Assignments of Commitments. Each Lender shall have the right at any
time or times to assign to an Eligible Transferee (other than to a Lender that
shall not be in compliance with this Agreement), without recourse, all or a
percentage of all of the following: (i) such Lender's Revolving Credit
Commitment, (ii) all Loans made by that Lender, (iii) such Lender's Notes, and
(iv) such Lender's interest in any Letter of Credit and any participation
purchased pursuant to Section 2.2(b) or 8.5 hereof.
(b) Prior Consent. No assignment may be consummated pursuant to this
Section 10.10 without the prior written consent of Borrower and Agent (other
than an assignment by any Lender to another Lender or to any affiliate of such
Lender which affiliate is an Eligible Transferee and either wholly-owned by a
Lender or is wholly-owned by a Person that wholly owns, either directly or
indirectly, such Lender), which consent of Borrower and Agent shall not be
unreasonably withheld; provided, however, that, Borrower's consent shall not be
required if, at the time of the proposed assignment, any Default or Event of
Default shall then exist. Anything herein to the contrary notwithstanding, any
Lender may at any time make a collateral assignment of all or any portion of its
rights under the Loan Documents to a Federal Reserve Bank, and no such
assignment shall release such assigning Lender from its obligations hereunder.
(c) Minimum Amount. Each such assignment shall be in a minimum amount of
the lesser of Seven Million Five Hundred Thousand Dollars ($7,500,000) of the
assignor's Commitment and interest herein or the entire amount of the assignor's
Commitment and interest herein.
(d) Assignment Fee. Unless the assignment shall be to an affiliate of the
assignor or the assignment shall be due to merger of the assignor or for
regulatory purposes, either the assignor or the assignee shall remit to Agent,
for its own account, an administrative fee of Three Thousand Five Hundred
Dollars ($3,500).
(e) Assignment Agreement. Unless the assignment shall be due to merger of
the assignor or a collateral assignment for regulatory purposes, the assignor
shall (i) cause the assignee to execute and deliver to Borrower and Agent an
Assignment Agreement, and (ii) execute and deliver, or cause the assignee to
execute and deliver, as the case may be, to Agent such additional amendments,
assurances and other writings as Agent may reasonably require.
(f) Non-U.S. Assignee. If the assignment is to be made to an assignee that
is organized under the laws of any jurisdiction other than the United States or
any state thereof, the assignor Lender shall cause such assignee, at least five
Business Days prior to the effective date of such assignment, (i) to represent
to the assignor Lender, Agent and Borrower that under applicable law and
treaties no taxes will be required to be withheld by Agent, Borrower or the
assignor with respect to any payments to be made to such assignee in respect of
the Loans hereunder, (ii) to furnish to the assignor Lender, Agent and Borrower
either U.S. Internal Revenue Service Form W-8ECI or U.S. Internal Revenue
Service Form W-8BEN, as applicable
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(wherein such assignee claims entitlement to complete exemption from U.S.
federal withholding tax on all interest payments hereunder), and (iii) to agree
(for the benefit of the assignor, Agent and Borrower) to provide to the assignor
Lender, Agent and Borrower a new Form W-8ECI or Form W-8BEN, as applicable, upon
the expiration or obsolescence of any previously delivered form and comparable
statements in accordance with applicable U.S. laws and regulations and
amendments duly executed and completed by such assignee, and to comply from time
to time with all applicable U.S. laws and regulations with regard to such
withholding tax exemption.
(g) Deliveries by Borrower. Upon satisfaction of all applicable
requirements specified in subsections (a) through (f) above, Borrower shall
execute and deliver (i) to Agent, the assignor and the assignee, any consent or
release (of all or a portion of the obligations of the assignor) required to be
delivered by Borrower in connection with the Assignment Agreement, and (ii) to
the assignee and the assignor, if applicable, an appropriate Note or Notes.
After delivery of the new Note or Notes, the assignor's Note or Notes being
replaced shall be returned to Borrower marked "replaced".
(h) Effect of Assignment. Upon satisfaction of all applicable requirements
of set forth in subsections (a) through (g) above, and any other condition
contained in this Section 10.10, (i) the assignee shall become and thereafter be
deemed to be a "Lender" for the purposes of this Agreement, (ii) the assignor
shall be released from its obligations hereunder to the extent that its interest
has been assigned, (iii) in the event that the assignor's entire interest has
been assigned, the assignor shall cease to be and thereafter shall no longer be
deemed to be a "Lender" and (iv) the signature pages hereto and Schedule 1
hereto shall be automatically amended, without further action, to reflect the
result of any such assignment.
(i) Agent to Maintain Register. Agent shall maintain at the address for
notices referred to in Section 10.4 hereof a copy of each Assignment Agreement
delivered to it and a register (the "Register") for the recordation of the names
and addresses of the Lenders and the Commitment of, and principal amount of the
Loans owing to, each Lender from time to time. The entries in the Register shall
be conclusive, in the absence of manifest error, and Borrower, Agent and the
Lenders may treat each Person whose name is recorded in the Register as the
owner of the Loan recorded therein for all purposes of this Agreement. The
Register shall be available for inspection by Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
Section 10.11. Sale of Participations. Any Lender may, in the ordinary
course of its commercial banking business and in accordance with applicable law,
at any time sell participations to one or more Eligible Transferees (each a
"Participant") in all or a portion of its rights or obligations under this
Agreement and the other Loan Documents (including, without limitation, all or a
portion of the Commitment and the Loans and participations owing to it and the
Note held by it); provided, that:
(a) any such Lender's obligations under this Agreement and the other Loan
Documents shall remain unchanged;
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(b) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations;
(c) the parties hereto shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement and each of the other Loan Documents;
(d) such Participant shall be bound by the provisions of Section 8.5
hereof, and the Lender selling such participation shall obtain from such
Participant a written confirmation of its agreement to be so bound; and
(e) no Participant (unless such Participant is itself a Lender) shall be
entitled to require such Lender to take or refrain from taking action under this
Agreement or under any other Loan Document, except that such Lender may agree
with such Participant that such Lender will not, without such Participant's
consent, take action of the type described as follows:
(i) increase the portion of the participation amount of any
Participant over the amount thereof then in effect, or extend the
Commitment Period, without the written consent of each Participant
affected thereby; or
(ii) reduce the principal amount of or extend the time for any
payment of principal of any Loan, or reduce the rate of interest or extend
the time for payment of interest on any Loan, or reduce the commitment
fee, without the written consent of each Participant affected thereby.
Borrower agrees that any Lender that sells participations pursuant to this
Section 10.11 shall still be entitled to the benefits of Article III hereof,
notwithstanding any such transfer; provided, however, that the obligations of
Borrower shall not increase as a result of such transfer and Borrower shall have
no obligation to any Participant.
Section 10.12. Severability of Provisions; Captions; Attachments. Any
provision of this Agreement that shall be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction. The several captions to Sections and subsections
herein are inserted for convenience only and shall be ignored in interpreting
the provisions of this Agreement. Each schedule or exhibit attached to this
Agreement shall be incorporated herein and shall be deemed to be a part hereof.
Section 10.13. Investment Purpose. Each of the Lenders represents and
warrants to Borrower that it is entering into this Agreement with the present
intention of acquiring any Note issued pursuant hereto for investment purposes
only and not for the purpose of distribution or resale, it being understood,
however, that each Lender shall at all times retain full control over the
disposition of its assets.
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Section 10.14. Entire Agreement. This Agreement, any Note and any other
Loan Document or other agreement, document or instrument attached hereto or
executed on or as of the Closing Date integrate all of the terms and conditions
mentioned herein or incidental hereto and supersede all oral representations and
negotiations and prior writings with respect to the subject matter hereof.
Section 10.15. Legal Representation of Parties. The Loan Documents were
negotiated by the parties with the benefit of legal representation and any rule
of construction or interpretation otherwise requiring this Agreement or any
other Loan Document to be construed or interpreted against any party shall not
apply to any construction or interpretation hereof or thereof.
Section 10.16. Currency.
(a) Currency Equivalent Generally. For the purposes of making valuations
or computations under this Agreement (but not for the purposes of the
preparation of any financial statements delivered pursuant hereto), unless
expressly provided otherwise, where a reference is made to a dollar amount the
amount is to be considered as the amount in Dollars and, therefor, each other
currency shall be converted into the Dollar Equivalent.
(b) Judgment Currency. If Agent, on behalf of the Lenders, obtains a
judgment or judgments against any Credit Party in an Alternate Currency, the
obligations of such Credit Party in respect of any sum adjudged to be due to
Agent or the Lenders hereunder or under the Notes (the "Judgment Amount") shall
be discharged only to the extent that, on the Business Day following receipt by
Agent of the Judgment Amount in the Alternate Currency, Agent, in accordance
with normal banking procedures, purchases Dollars with the Judgment Amount in
such Alternate Currency. If the amount of Dollars so purchased is less than the
amount of Dollars that could have been purchased with the Judgment Amount on the
date or dates the Judgment Amount (excluding the portion of the Judgment Amount
that has accrued as a result of the failure of such Credit Party to pay the sum
originally due hereunder or under the Notes when it was originally due and owing
to Agent or the Lenders hereunder or under the Notes) was originally due and
owing to Agent or the Lenders hereunder or under the Notes (the "Original Due
Date") (the "Loss"), such Credit Party agrees as a separate obligation and
notwithstanding any such judgment, to indemnify Agent or such Lender, as the
case may be, against the Loss, and if the amount of Dollars so purchased exceeds
the amount of Dollars that could have been purchased with the Judgment Amount on
the Original Due Date, Agent or such Lender agrees to remit such excess to such
Credit Party.
Section 10.17. Governing Law; Submission to Jurisdiction. This Agreement,
each of the Notes and any Related Writing shall be governed by and construed in
accordance with the laws of the State of Ohio and the respective rights and
obligations of Borrower, Agent, and the Lenders shall be governed by Ohio law,
without regard to principles of conflicts of laws. Borrower hereby irrevocably
submits to the non-exclusive jurisdiction of any Ohio state or federal court
sitting in Cleveland, Ohio, over any action or proceeding arising out of or
relating to this Agreement, the Obligations or any Related Writing, and Borrower
hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in
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such Ohio state or federal court. Borrower, on behalf of itself and its
Subsidiaries, hereby irrevocably waives, to the fullest extent permitted by law,
any objection it may now or hereafter have to the laying of venue in any action
or proceeding in any such court as well as any right it may now or hereafter
have to remove such action or proceeding, once commenced, to another court on
the grounds of FORUM NON CONVENIENS or otherwise. Borrower agrees that a final,
nonappealable 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.
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Section 10.18. JURY TRIAL WAIVER. TO THE EXTENT PERMITTED BY LAW,
BORROWER, AGENT AND EACH LENDER WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG
BORROWER, AGENT AND THE LENDERS, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED THERETO.
IN WITNESS WHEREOF, the parties have executed and delivered this Credit
Agreement in Cleveland, Ohio as of the date first set forth above.
Address: 0000 Xxxx Xxxxxx Xxxxxx X. XXXXXXXX, INC.
Xxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
Chief Financial Officer ---------------------------------
Xxxxxx X. Xxxxxxxx
Chairman of the Board, Chief
Financial Officer and
Executive Vice President -
Finance and Administration
Address: 000 Xxxxxx Xxxxxx XXXXXXX NATIONAL ASSOCIATION,
Xxxxxxxxx, Xxxx 00000-0000 as Agent and as a Lender
Attn: Institutional Banking
By: /s/ Xxxxxxxx X. Xxxx
---------------------------------
Xxxxxxxx X. Xxxx
Vice President
Address: Xxx Xxxxxxx Xxxxx XXXXXXXX XXXX XXXX,
Xxxxx, Xxxx 00000 as Syndication Agent and as a
Attn: Commercial Lending Lender
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx
Senior Vice President
Address: 0000 Xxxx 0xx Xxxxxx FIFTH THIRD BANK
Xxxxxxxxx, Xxxx 00000
Attn: Commercial Lending By: /s/ Xxxxxx X. XxXxxxx
---------------------------------
Xxxxxx X. XxXxxxx
Vice President
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Address: 000 Xxxx 00xx Xxxxxx KBC BANK, N.V., NEW YORK BRANCH
New York, New York 10019
Attn: Corporate Banking By: /s/ Xxxx-Xxxxxx Diels
---------------------------------
Name: Xxxx-Xxxxxx Diels
Title: First Vice President
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
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