1
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
December 22, 1998
among
VOLT INFORMATION SCIENCES, INC.,
The Lenders Party Hereto,
THE CHASE MANHATTAN BANK,
as Administrative Agent
and
FLEET BANK, N.A.,
as Co-Agent
CHASE SECURITIES INC., as Book Manager and
as Arranger
$75,000,000 Revolving Credit Facility
EXHIBIT 4.1
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS ....................................................................... 1
SECTION 1.01. Defined Terms ........................................................... 1
SECTION 1.02. Classification of Loans and Borrowings .................................. 15
SECTION 1.03. Terms Generally ......................................................... 15
SECTION 1.04. Accounting Terms; GAAP .................................................. 16
ARTICLE II THE CREDITS ..................................................................... 16
SECTION 2.01. Commitments ............................................................. 16
SECTION 2.02. Loans and Borrowings .................................................... 16
SECTION 2.03. Requests for Revolving Borrowings ....................................... 17
SECTION 2.04. Competitive Bid Procedure ............................................... 18
SECTION 2.05. Swingline Loans ......................................................... 21
SECTION 2.06. Letters of Credit ....................................................... 22
SECTION 2.07. Funding of Borrowings ................................................... 26
SECTION 2.08. Interest Elections ...................................................... 27
SECTION 2.09. Termination and Reduction of Commitments; Discretionary Extension ....... 29
SECTION 2.10. Repayment of Loans; Refinancing of Competitive Loans; Evidence of Debt .. 30
SECTION 2.11. Prepayment of Loans ..................................................... 31
SECTION 2.12. Fees .................................................................... 32
SECTION 2.13. Interest ................................................................ 33
SECTION 2.14. Alternate Rate of Interest .............................................. 34
SECTION 2.15. Increased Costs ......................................................... 35
SECTION 2.16. Break Funding Payments .................................................. 36
SECTION 2.17. Taxes ................................................................... 36
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs ............. 37
SECTION 2.19. Mitigation Obligations; Replacement of Lenders .......................... 39
SECTION 2.20. Subsidiary Borrowers .................................................... 40
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ARTICLE III REPRESENTATIONS AND WARRANTIES................................. 40
SECTION 3.01. Organization; Powers................................... 40
SECTION 3.02. Authorization; Enforceability.......................... 40
SECTION 3.03. Governmental Approvals; No Conflicts................... 40
SECTION 3.04. Financial Condition; No Material Adverse Change........ 41
SECTION 3.05. Properties............................................. 41
SECTION 3.06. Litigation and Environmental Matters................... 42
SECTION 3.07. Compliance with Laws and Agreements; No Default........ 42
SECTION 3.08. Investment and Holding Company Status; Federal Reserve
Regulations............................................ 42
SECTION 3.09. Taxes.................................................. 43
SECTION 3.10. ERISA.................................................. 43
SECTION 3.11. Subsidiaries; Joint Ventures........................... 43
SECTION 3.12. Use of Proceeds........................................ 43
SECTION 3.13. Labor Matters.......................................... 44
SECTION 3.14. Solvency............................................... 44
SECTION 3.15. Disclosure............................................. 44
SECTION 3.16. Year 2000.............................................. 44
SECTION 3.17. Receivable Program..................................... 45
ARTICLE IV CONDITIONS...................................................... 45
SECTION 4.01. Effective Date......................................... 45
SECTION 4.02. Each Credit Event...................................... 46
ARTICLE V AFFIRMATIVE COVENANTS............................................ 47
SECTION 5.01. Financial Statements and Other Information............. 47
SECTION 5.02. Notices of Certain Events.............................. 48
SECTION 5.03. Existence; Conduct of Business......................... 49
SECTION 5.04. Payment of Obligations................................. 49
SECTION 5.05. Maintenance of Properties; Insurance................... 49
SECTION 5.06. Books and Records; Inspection Rights................... 50
SECTION 5.07. Compliance with Laws................................... 50
SECTION 5.08. Use of Proceeds and Letters of Credit.................. 50
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SECTION 5.09. Further Assurances ...................................................... 50
ARTICLE VI NEGATIVE COVENANTS ............................................................... 50
SECTION 6.01. Indebtedness ............................................................ 51
SECTION 6.02. Liens ................................................................... 51
SECTION 6.03. Fundamental Changes ..................................................... 51
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions ............... 52
SECTION 6.05. Hedging Agreements ...................................................... 53
SECTION 6.06. Restricted Payments ..................................................... 53
SECTION 6.07. Transactions with Affiliates ............................................ 54
SECTION 6.08. Restrictive Agreements .................................................. 54
SECTION 6.09. Priority of Obligations ................................................. 54
SECTION 6.10. Certain Financial Covenants ............................................. 54
SECTION 6.11. Accounting, Fiscal Year ................................................. 55
SECTION 6.12. Equal and Ratable Lien; Equitable Lien .................................. 56
ARTICLE VII EVENTS OF DEFAULT ............................................................... 56
ARTICLE VIII THE ADMINISTRATIVE AGENT ....................................................... 58
ARTICLE IX MISCELLANEOUS .................................................................... 60
SECTION 9.01. Notices ................................................................. 60
SECTION 9.02. Waivers; Amendments ..................................................... 61
SECTION 9.03. Expenses; Indemnity; Damage Waiver ...................................... 62
SECTION 9.04. Successors and Assigns .................................................. 63
SECTION 9.05. Survival ................................................................ 65
SECTION 9.06. Counterparts; Integration; Effectiveness ................................ 66
SECTION 9.07. Severability ............................................................ 66
SECTION 9.08. Right of Setoff ......................................................... 66
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process;
Judgement Currency ...................................................... 67
SECTION 9.10. WAIVER OF JURY TRIAL .................................................... 68
SECTION 9.11. Headings ................................................................ 68
SECTION 9.12. Confidentiality ......................................................... 68
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SECTION 9.13. Interest Rate Limitation............................... 69
SECTION 9.14. European Economic and Monetary Union................... 69
SECTION 9.15. Multiple Borrowers..................................... 72
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit 2.09(d) -- Form of Request to Extend Maturity Date
Exhibit 2.20 -- Form of New Borrower Supplement
Exhibit 4.01(b) -- Form of Opinion of Borrower's Counsel
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 2.06 -- Existing Letters of Credit
Schedule 3.04 -- Existing Indebtedness
Schedule 3.06 -- Disclosed Matters
Schedule 3.11 -- Subsidiaries, Investments, Joint Ventures and Partnerships
Schedule 3.13 -- Labor Matters
Schedule 6.02 -- Existing Liens
Schedule 6.08 -- Existing Restrictions
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AMENDED AND RESTATED CREDIT AGREEMENT dated as of December 22, 1998
among VOLT INFORMATION SCIENCES, INC., any Subsidiary Borrower that
hereafter becomes a party hereto, the LENDERS party hereto, and THE
CHASE MANHATTAN BANK, as Administrative Agent, and FLEET BANK, N.A., as
Co-Agent.
RECITALS
The Domestic Borrower, the Lenders, the Co-Agent and the Administrative
Agent are parties to the Credit Agreement dated as of July 2, 1997 (as
heretofore amended or supplemented, the "Original Credit Agreement").
The parties hereto wish to make certain changes to the Original Credit
Agreement to, among other things, provide for the addition of an additional
borrower, provide for a multi-currency funding option, and extend the Maturity
Date, and for convenience of reference, the parties hereto wish to amend and
restate the Original Credit Agreement in its entirety.
The loans outstanding under the Original Credit Agreement on the
Effective Date shall continue as outstanding Loans under this Agreement, with
the same Interest Periods (if any) as then in effect, and the Existing Letters
of Credit shall continue as outstanding Letters of Credit under this Agreement.
NOW THEREFORE, in consideration of the mutual agreements herein, the
parties hereto hereby agree that the Original Credit Agreement is hereby amended
and restated in its entirety as follows:
Article I
Definitions
SECTION 1.01. Defined Terms.
As used in this Agreement, the following terms have the meanings
specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing or
Eurocurrency Borrowing for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO
Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
as administrative agent for the Lenders hereunder.
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"Administrative Questionnaire" means an Administrative Questionnaire in
a form supplied by the Administrative Agent, and as to any Lender, means such
Administrative Questionnaire most recently delivered by such Lender to the
Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Aggregate Principal Amount Outstanding" shall mean, at any time, the
sum of (i) the aggregate principal amount at such time of all outstanding Loans
denominated in dollars and (ii) the aggregate Equivalent Dollar Amount at such
time of the principal amount of all outstanding Eurocurrency Loans
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change
in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate shall be
effective from and including the effective date of such change in the Prime
Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
"Alternative Currency" shall mean Sterling.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any Eurodollar
Loan or Eurocurrency Loan, or with respect to the facility fees payable
hereunder, as the case may be, the applicable rate per annum set forth below
under the caption "Eurodollar/Eurocurrency Loan Spread" or "Facility Fee Rate",
based upon the Specified Ratio applicable on such date:
Specified Ratio: Eurodollar/Eurocurrency Facility Fee
Loan Spread Rate
Less than or equal to 0.30 0.25% .2500%
Greater than 0.30 but less than or 0.25% .2750%
equal to 0.40
Greater than 0.40 0.275% .3000%
"Assessment Rate" means, for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance
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Corporation for insurance by such Corporation of time deposits made in dollars
at the offices of such member in the United States; provided that if, as a
result of any change in any law, rule or regulation, it is no longer possible to
determine the Assessment Rate as aforesaid, then the Assessment Rate shall be
such annual rate as shall be determined by the Administrative Agent to be
representative of the cost of such insurance to the Lenders.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the Effective
Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD Rate
multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrowers" means, collectively, the Domestic Borrower and, from and
after such time as a Subsidiary Borrower becomes a party hereto pursuant to
Section 2.20, such Subsidiary Borrower.
"Borrowing" means (a) Revolving Loans to the same Borrower of the same
Type, made, converted or continued on the same date and, in the case of
Eurocurrency Loans and Eurodollar Loans, as to which a single Interest Period is
in effect, (b) a Competitive Loan or group of Competitive Loans of the same Type
made on the same date and as to which a single Interest Period is in effect or
(c) a Swingline Loan.
"Borrowing Request" means a request by a Borrower for a Revolving
Borrowing in accordance with Section 2.03 or a request deemed to have been made
by the Domestic Borrower for an ABR Revolving Borrowing in accordance with
Section 2.10(a).
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, (i) when used in connection with a Eurodollar
Loan, the term "Business Day" shall also exclude any day on which banks are not
open for dealings in dollar deposits in the London interbank market and (ii)
when used in connection with a Eurocurrency Loan, "Business Day" shall also
exclude any day on which commercial banks are not open for foreign exchange
business in London.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
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"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof) other than
the Xxxx Group, of shares representing more than 25% of the aggregate ordinary
voting power represented by the issued and outstanding capital stock of the
Domestic Borrower if the Xxxx Group shall not have direct beneficial ownership
of shares representing at least 25% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Domestic
Borrower; (b) occupation of a majority of the seats (other than vacant seats) on
the board of directors of the Domestic Borrower by Persons who were neither (i)
nominated by the board of directors of the Domestic Borrower nor (ii) appointed
by directors so nominated; or (c) the acquisition of direct or indirect Control
of the Domestic Borrower by any Person or group other than the Xxxx Group.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or the Issuing
Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender
or by such Lender's or the Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Competitive Loans or Swingline Loans.
"Co-Agent" means Fleet Bank, in its capacity as Co-Agent hereunder.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans and to acquire participations in Letters of
Credit and Swingline Loans hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender's Revolving Credit Exposure hereunder,
as such commitment may be (a) reduced from time to time pursuant to Section 2.09
and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04. The initial amount of each Lender's
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Commitment, as applicable.
The initial aggregate amount of the Lenders' Commitments is $75,000,000.
"Competitive Bid" means an offer by a Lender to make a Competitive Loan
in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive Bid, the
Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request by a Borrower for Competitive
Bids in accordance with Section 2.04.
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"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Consolidated Assets" means, as of the date of determination thereof,
all assets of the Domestic Borrower and its consolidated Subsidiaries that
would, in accordance with GAAP, be classified on a consolidated balance sheet of
the Domestic Borrower and its consolidated Subsidiaries as assets.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Document" means each of this (i) Agreement, each Note, each
application and other agreement in respect of any Letter of Credit, in each case
as supplemented, modified, or amended from time to time, and (ii) each
instrument or agreement supplementing, modifying or amending, or waiving any
provision of, any Credit Document.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Denomination Date" shall mean, in relation to any Eurocurrency
Borrowing, the date that is three Business Days before the date of such
Borrowing.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"dollars" or "$" refers to lawful money of the United States of
America.
"Domestic Borrower" means Volt Information Sciences, Inc., a New York
corporation.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Domestic Borrower or any Subsidiary directly
or indirectly resulting from or based upon (a) violation of any Environmental
Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
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"Equivalent Dollar Amount" shall mean, with respect to an amount of the
Alternative Currency on any date, the amount of dollars that may be purchased
with such amount of such Alternative Currency at the Spot Exchange Rate on such
date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with a Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by a Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by a Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by a
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by a Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from a Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurocurrency", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are denominated in
the Alternative Currency and bearing interest at a rate determined by reference
to the Adjusted LIBO Rate.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate (or, in the
case of a Competitive Loan, the LIBO Rate).
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of any Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which a Borrower is located and (c) in the case of
a Foreign Lender (other than an assignee pursuant to a
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request by a Borrower under Section 2.19(b)), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office) or
is attributable to such Foreign Lender's failure to comply with Section 2.17(e),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from a Borrower with respect to such withholding tax
pursuant to Section 2.17(a).
"Existing Letter of Credit" means each letter of credit outstanding on
the Effective Date and listed on Schedule 2.06 hereto.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Domestic Borrower.
"Fixed Rate" means, with respect to any Competitive Loan (other than a
Eurodollar Competitive Loan), the fixed rate of interest per annum specified by
the Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed
Rate.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Domestic Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
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Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Election Request" means a request by a Borrower to convert or
continue a Revolving Borrowing in accordance with Section 2.08.
"Interest Payment Date" means (a) with respect to any ABR Loan (other
than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan or Eurocurrency Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Eurodollar Borrowing or a
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Eurocurrency Borrowing with an Interest Period of more than three months'
duration each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration, after the first day of such Interest
Period, (c) with respect to any Fixed Rate Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Fixed Rate Borrowing with an Interest Period of more than 90 days' duration
(unless otherwise specified in the applicable Competitive Bid Request), each day
prior to the last day of such Interest Period that occurs at intervals of 90
days' duration after the first day of such Interest Period, and any other dates
that are specified in the applicable Competitive Bid Request as Interest Payment
Dates with respect to such Borrowing and (d) with respect to any Swingline Loan,
the day that such Loan is required to be repaid.
"Interest Period" means (a) with respect to any Eurocurrency Borrowing
or Eurodollar Borrowing, the period commencing on the date of such Borrowing and
ending on the numerically corresponding day in the calendar month that is one,
two, three or six months thereafter, and (b) with respect to any Fixed Rate
Borrowing, the period (which shall not be less than 7 days nor more than 360
days) commencing on the date of such Borrowing and ending on the date specified
in the applicable Competitive Bid Request; provided, that (i) if any Interest
Period would end on a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless, in the case of a
Eurocurrency Borrowing or Eurodollar Borrowing only, such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (ii) any Interest Period
pertaining to a Eurodollar Borrowing or Eurocurrency Borrowing that commences on
the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall be
the date on which such Borrowing is made and, in the case of a Revolving
Borrowing, thereafter shall be the effective date of the most recent conversion
or continuation of such Borrowing.
"Issuing Bank" means The Chase Manhattan Bank, in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.06(i). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to
a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Domestic Borrower at such time. The LC Exposure of any Lender at any time
shall be its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person
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that ceases to be a party hereto pursuant to an Assignment and Acceptance.
Unless the context otherwise requires, the term "Lenders" includes the Swingline
Lender.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement and each Existing Letter of Credit.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute pages of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period as the rate for dollar deposits with a
maturity comparable to such Interest Period. The "LIBO Rate" with respect to any
Eurocurrency Borrowing or, in the event that the rate set forth above is at any
time not available for any reason with respect to any Eurodollar Borrowing for
the applicable Interest Period, such Eurodollar Borrowing, shall be the rate at
which deposits of an amount for which the Equivalent Dollar Amount is $5,000,000
for a maturity comparable to such Interest Period in the currency in which such
Borrowing is denominated are offered to the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, (i) two Business Days prior to
the commencement of such Interest Period with respect to a Eurodollar Borrowing
or (ii) on the Quotation Date for such Interest Period with respect to a
Eurocurrency Borrowing.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loans" means the loans made by the Lenders to the Borrowers pursuant
to this Agreement, including all Loans outstanding under the Original Credit
Agreement on the Effective Date.
"Margin" means, with respect to any Competitive Loan bearing interest
at a rate based on the LIBO Rate, the marginal rate of interest, if any, to be
added to or subtracted from the LIBO Rate to determine the rate of interest
applicable to such Loan, as specified by the Lender making such Loan in its
related Competitive Bid.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or otherwise, of
the Domestic Borrower and the Subsidiaries taken as a whole, (b) the ability of
the Domestic Borrower to perform any of its obligations under this Agreement or
any other Credit Document or (c) the rights of or benefits available to the
Lenders under this Agreement or any other Credit Document.
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"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of the Domestic Borrower and its Subsidiaries in an aggregate
principal amount exceeding $4,000,000. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of the Domestic Borrower
or any Subsidiary in respect of any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements in accordance
with GAAP) that the Domestic Borrower or such Subsidiary would be required to
pay if such Hedging Agreement were terminated at such time.
"Material Subsidiary" means any Subsidiary Borrower and any Subsidiary
which, at any date of determination thereof, has total assets having a fair
market value (without deduction for any Liens) of $500,000 or more.
"Maturity Date" means January 2, 2002.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Note" means each promissory note executed and delivered by any
Borrower to a Lender as set forth in Section 2.10(e).
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with
Section 5.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business; and
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(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do
not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of the Domestic
Borrower or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
denominated in dollars and in each case maturing within three years
from the date of acquisition thereof;
(b) investments in commercial paper denominated in dollars and
maturing within 270 days from the date of acquisition thereof and
having, at such date of acquisition, a credit rating of at least A-2
from S&P and at least P-2 from Moody's;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within one year from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $500,000,000 and which is rated
at least A-2 by S&P and P-2 by Moody's in the note or commercial paper
rating category; and
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which a Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
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"Quotation Date" means, with respect to a Eurocurrency Borrowing, the
day on which quotations would ordinarily be quoted by prime banks in the London
Interbank Market for deposits in the Alternative Currency for delivery on the
first day of the applicable Interest Period, as determined by the Administrative
Agent; provided that if there is more than one such day, the latest of such days
shall be the Quotation Date.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing more than 50% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time; provided
that, for purposes of declaring the Loans to be due and payable pursuant to
Article VII, and for all purposes after the Loans become due and payable
pursuant to Article VII or the Commitments expire or terminate, the outstanding
Competitive Loans of the Lenders shall be included in their respective Revolving
Credit Exposures in determining the Required Lenders.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any shares of any class
of capital stock of the Domestic Borrower or any Subsidiary, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such shares of capital stock of
the Domestic Borrower or any option, warrant or other right to acquire any such
shares of capital stock of the Domestic Borrower.
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans denominated in dollars, plus the Equivalent Dollar Amount of the
outstanding principal amount of such Lender's Eurocurrency Loans, plus such
Lender's LC Exposure and Swingline Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"Xxxx Group" means Xxxxxxx Xxxx, Xxxxxx Xxxx and their respective
spouses and descendants.
"S&P" means Standard & Poor's.
"Senior Note" has the meaning set forth in Section 4.01(e).
"Senior Note Purchase Agreement" has the meaning set forth in Section
4.01(e).
"Specified Ratio" means, at any time, the ratio of Consolidated Debt to
the sum of (i) Consolidated Debt and (ii) Consolidated Net Worth (in each case
based on the financial information most recently furnished pursuant to Section
5.01). For purposes of this definition,
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the terms "Consolidated Debt" and "Consolidated Net Worth" shall have the
meanings given thereto in the Senior Note Purchase Agreement.
"Spot Exchange Rate" shall mean, on any day, with respect to the
Alternative Currency, the spot rate at which dollars are offered on such day by
The Chase Manhattan Bank in London for such Alternative Currency at
approximately 11:00 A.M. (London time).
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject (a) with
respect to the Base CD Rate, for new negotiable nonpersonal time deposits in
dollars of over $100,000 with maturities approximately equal to three months and
(b) with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to such Regulation D.
Eurocurrency Loans and Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"Sterling" or "(pound)" shall mean the lawful money of the United
Kingdom.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Domestic Borrower.
"Subsidiary Borrower" shall mean any Subsidiary of the Domestic
Borrower which becomes a Borrower pursuant to Section 2.20.
"Swingline Exposure" means, at any time, the aggregate principal amount
of all Swingline Loans outstanding at such time. The Swingline Exposure of any
Lender at any time shall be its Applicable Percentage of the total Swingline
Exposure at such time.
"Swingline Lender" means The Chase Manhattan Bank, in its capacity as
lender of Swingline Loans hereunder.
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"Swingline Loan" means a Loan made pursuant to Section 2.05.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Three-Month Secondary CD Rate" means, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day is not a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not so reported on such day or such
next preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 a.m., New York City time, on such day (or, if
such day is not a Business Day, on the next preceding Business Day) by the
Administrative Agent from three negotiable certificate of deposit dealers of
recognized standing selected by it.
"Transactions" means the execution, delivery and performance by the
Borrowers of this Agreement, the borrowing of Loans, the use of the proceeds
thereof and the issuance of Letters of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing, refers to (i)
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate, the Alternate
Base Rate or, in the case of a Competitive Loan or Borrowing, the LIBO Rate or a
Fixed Rate and (ii) the currency in which such Loan or the Loans comprising such
Borrowing are denominated.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings.
For purposes of this Agreement, Loans may be classified and referred to
by Class (e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by
Class and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Revolving Borrowing") or by Type
(e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar
Revolving Borrowing").
SECTION 1.03. Terms Generally.
The definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be
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construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP.
Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Borrowers notify the
Administrative Agent that the Borrowers request an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof in
GAAP or in the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrowers that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
Article II
The Credits
SECTION 2.01. Commitments.
Subject to the terms and conditions set forth herein, each Lender
agrees to make Revolving Loans to the Borrowers from time to time during the
Availability Period in an aggregate principal amount that will not result in (a)
such Lender's Revolving Credit Exposure exceeding such Lender's Commitment, (b)
the sum of the total Revolving Credit Exposures plus the aggregate principal
amount of outstanding Competitive Loans exceeding the total Commitments or (c)
the aggregate principal amount of Loans outstanding to the Subsidiary Borrowers
in the aggregate exceeding $10,000,000. Within the foregoing limits and subject
to the terms and conditions set forth herein, the Borrowers may borrow, prepay
and reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings.
(a) Each Revolving Loan shall be made as part of a Borrowing consisting
of Revolving Loans made by the Lenders ratably in accordance with their
respective Commitments. Each Competitive Loan shall be made in accordance with
the procedures set forth in Section 2.04. The failure of any Lender to make any
Loan required to be made by it shall not relieve any
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other Lender of its obligations hereunder; provided that the Commitments and
Competitive Bids of the Lenders are several and no Lender shall be responsible
for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.14, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans, Eurodollar Loans or Eurocurrency Loans, as the
applicable Borrower may request in accordance herewith, and (ii) each
Competitive Borrowing shall be comprised entirely of Eurodollar Loans or Fixed
Rate Loans as the applicable Borrower may request in accordance herewith;
provided that the Equivalent Dollar Amount of the aggregate principal amount of
Eurocurrency Loans outstanding at the time of any Borrowing shall not exceed
$10,000,000. Each Swingline Loan shall be an ABR Loan. Each Lender at its option
may make any Eurodollar Loan or Eurocurrency Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of the Borrowers to
repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $500,000 and not less than $2,000,000. At the commencement
of each Interest Period for any Eurocurrency Revolving Borrowing, such Borrowing
shall be in an aggregate amount which is an integral multiple of pound
sterling 500,000 Pound Sterling and not less than pound sterling 1,000,000 Pound
Sterling . At the time that each ABR Revolving Borrowing is made, such Borrowing
shall be in an aggregate amount that is an integral multiple of $500,000 and not
less than $1,000,000; provided that an ABR Revolving Borrowing may be in an
aggregate amount that is equal to the entire unused balance of the total
Commitments or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.06(e) or the repayment of a
Competitive Loan as contemplated by Section 2.10(a). For purposes of this
Section, any Eurocurrency Revolving Borrowing shall be deemed to be in an amount
equal to the Equivalent Dollar Amount of such Eurocurrency Revolving Borrowing
determined as of its Denomination Date. Each Competitive Borrowing shall be in
an aggregate amount that is an integral multiple of $500,000 and not less than
$2,000,000. Each Swingline Loan shall be in an amount that is an integral
multiple of $10,000 and not less than $250,000. Borrowings of more than one Type
and Class may be outstanding at the same time; provided that there shall not at
any time be more than a total of eight (8) Eurodollar Revolving Borrowings and
Eurocurrency Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrowers shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings.
To request a Revolving Borrowing, the applicable Borrower shall notify
the Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing, (b) in the case of a
Eurocurrency Borrowing, not later than 11:00 a.m., London time, three Business
Days before the date of the proposed Borrowing, or (c) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, on the Business Day of
the proposed
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Borrowing; provided that any such notice of an ABR Revolving Borrowing to
finance the reimbursement of an LC Disbursement as contemplated by Section
2.06(e) may be given not later than 10:00 a.m., New York City time, on the date
of the proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the applicable Borrower. Each such telephonic
and written Borrowing Request shall specify the following information in
compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing, which in
the case of a Eurocurrency Borrowing shall be expressed in the
Alternative Currency;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing, a
Eurodollar Borrowing or a Eurocurrency Borrowing ;
(iv) in the case of a Eurodollar Borrowing or a Eurocurrency
Borrowing, the initial Interest Period to be applicable thereto, which
shall be a period contemplated by the definition of the term "Interest
Period"; and
(v) the location and number of such Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.07.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing or
Eurocurrency Revolving Borrowing, then the applicable Borrower shall be deemed
to have selected an Interest Period of one month's duration. Promptly following
(i) receipt of a Borrowing Request in accordance with this Section or (ii) the
time at which the Administrative Agent is deemed to have received a Borrowing
Request in accordance with Section 2.10(a), as applicable, the Administrative
Agent shall advise each Lender of the details thereof and of the amount of such
Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Competitive Bid Procedure.
(a) Subject to the terms and conditions set forth herein, from time to
time during the Availability Period the Domestic Borrower may request
Competitive Bids and may (but shall not have any obligation to) accept
Competitive Bids and borrow Competitive Loans; provided that the sum of the
total Revolving Credit Exposures plus the aggregate principal amount of
outstanding Competitive Loans at any time shall not exceed the total
Commitments. To request Competitive Bids, the Domestic Borrower shall notify the
Administrative Agent of such request by telephone, in the case of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, four Business Days
before the date of the proposed Borrowing and, in the case of a Fixed Rate
Borrowing, not later than 10:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing; provided that the Domestic Borrower
may submit up to (but not more than) three Competitive Bid Requests on the same
day, but a Competitive Bid Request
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shall not be made within five Business Days after the date of any previous
Competitive Bid Request, unless any and all such previous Competitive Bid
Requests shall have been withdrawn or all Competitive Bids received in response
thereto rejected. Each such telephonic Competitive Bid Request shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Competitive Bid Request in a form approved by the Administrative Agent
and signed by the Domestic Borrower. Each such telephonic and written
Competitive Bid Request shall specify the following information in compliance
with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing
or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing,
which shall be a period contemplated by the definition of the term
"Interest Period"; and
(v) the location and number of the Domestic Borrower's account
to which funds are to be disbursed, which shall comply with the
requirements of Section 2.07.
If the Domestic Borrower makes two or three telephonic Competitive Bid Requests
on any day, it may, for convenience confirm such Requests in one combined
written Competitive Bid Request (rather than separate written Competitive Bid
Requests) so long as such combined Competitive Bid Request is in a form approved
by the Administrative Agent, is signed by the Domestic Borrower and includes the
information described in clauses (i) through (v) above for each Borrowing of
Competitive Loans requested in such composite Request. Promptly following
receipt of a Competitive Bid Request in accordance with this Section, the
Administrative Agent shall notify the Lenders of the details thereof by
telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to the Domestic Borrower in response to a Competitive Bid
Request. Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurodollar Competitive Borrowing, not later than 9:30
a.m., New York City time, three Business Days before the proposed date of such
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than
9:30 a.m., New York City time, on the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall so notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be a minimum of $2,000,000 and an integral multiple of
$500,000 and which may equal the entire principal amount of the Competitive
Borrowing requested by the Domestic Borrower) of the Competitive Loan or Loans
that the Lender is willing to make, (ii) the Competitive Bid Rate or Rates at
which the Lender is prepared to make such Loan or Loans (expressed as a
percentage rate per annum in the form of a decimal to no
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more than four decimal places) and (iii) the Interest Period applicable to each
such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the Domestic
Borrower by telecopy of the Competitive Bid Rate and the principal amount
specified in each Competitive Bid and the identity of the Lender that shall have
made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Domestic
Borrower may accept or reject any Competitive Bid. The Domestic Borrower shall
notify the Administrative Agent by telephone, confirmed by telecopy in a form
approved by the Administrative Agent, whether and to what extent it has decided
to accept or reject each Competitive Bid, in the case of a Eurodollar
Competitive Borrowing, not later than 10:30 a.m., New York City time, three
Business Days before the date of the proposed Competitive Borrowing, and in the
case of a Fixed Rate Borrowing, not later than 10:30 a.m., New York City time,
on the proposed date of the Competitive Borrowing; provided that (i) the failure
of the Domestic Borrower to give such notice shall be deemed to be a rejection
of each Competitive Bid, (ii) the Domestic Borrower shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if the Domestic
Borrower rejects a Competitive Bid made at a lower Competitive Bid Rate, (iii)
the aggregate amount of the Competitive Bids accepted by the Domestic Borrower
shall not exceed the aggregate amount of the requested Competitive Borrowing
specified in the related Competitive Bid Request, (iv) to the extent necessary
to comply with clause (iii) above, the Domestic Borrower may accept Competitive
Bids at the same Competitive Bid Rate in part, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata
in accordance with the amount of each such Competitive Bid, and (v) except
pursuant to clause (iv) above, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal amount
of $2,000,000 and an integral multiple of $500,000; provided further that if a
Competitive Loan must be in an amount less than $2,000,000 because of the
provisions of clause (iv) above, such Competitive Loan may be for a minimum of
$500,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $500,000 in a manner determined by the Domestic
Borrower. A notice given by the Domestic Borrower pursuant to this paragraph
shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender
by telecopy whether or not its Competitive Bid has been accepted (and, if so,
the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive Bid
in its capacity as a Lender, it shall submit such Competitive Bid directly to
the Domestic Borrower at least one quarter of an hour earlier than the time by
which the other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) of this Section.
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(g) The Domestic Borrower shall pay the Administrative Agent for its
own account the sum of $2,500 for each Competitive Bid Request. Amounts owing
under this paragraph shall be payable quarterly in arrears on the last day of
each March, June, September and December.
SECTION 2.05. Swingline Loans.
(a) Subject to the terms and conditions set forth herein, the Swingline
Lender agrees to make Swingline Loans to the Domestic Borrower from time to time
during the Availability Period, in an aggregate principal amount at any time
outstanding that will not result in (i) the aggregate principal amount of
outstanding Swingline Loans exceeding $5,000,000 or (ii) the sum of the total
Revolving Credit Exposures plus the aggregate principal amount of outstanding
Competitive Loans exceeding the total Commitments. Within the foregoing limits
and subject to the terms and conditions set forth herein, the Domestic Borrower
may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Domestic Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan, and
the maturity date thereof, which shall be a Business Day occurring subsequent to
the date of such Swingline Loan but not later than the earlier of (i) the date
that is thirty (30) days from the date of such Swingline Loan or (ii) the
Maturity Date (provided that Swingline Loans are subject to earlier mandatory
repayment as provided in the proviso of Section 2.10(a)). The Administrative
Agent will promptly advise the Swingline Lender of any such notice received from
the Domestic Borrower. The Swingline Lender shall make each Swingline Loan
available to the Domestic Borrower by means of a credit to the general deposit
account of the Domestic Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.06(e), by remittance to the Issuing Bank) by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Lenders to acquire participations on such Business Day
in all or a portion of the Swingline Loans outstanding. Such notice shall
specify the aggregate amount of Swingline Loans in which Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Lender, specifying in such notice such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lender,
such Lender's Applicable Percentage of such Swingline Loan or Loans. Each Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as
provided in Section 2.07 with respect to Loans made by such Lender (and
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Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the
Lenders), and the Administrative Agent shall promptly pay to the Swingline
Lender the amounts so received by it from the Lenders. The Administrative Agent
shall notify the Domestic Borrower of any participations in any Swingline Loan
acquired pursuant to this paragraph, and thereafter payments in respect of such
Swingline Loan shall be made to the Administrative Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender from the Domestic
Borrower (or other party on behalf of the Domestic Borrower) in respect of a
Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale
of participations therein shall be promptly remitted to the Administrative
Agent; any such amounts received by the Administrative Agent shall be promptly
remitted by the Administrative Agent to the Lenders that shall have made their
payments pursuant to this paragraph and to the Swingline Lender, as their
interests may appear. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the Domestic Borrower of any
default in the payment thereof.
SECTION 2.06. Letters of Credit.
(a) General.
Subject to the terms and conditions set forth herein, the Domestic
Borrower may request the issuance of Letters of Credit for its own account, in a
form reasonably acceptable to the Administrative Agent and the Issuing Bank, at
any time and from time to time during the Availability Period (other than the
last five Business Days thereof). In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by the Domestic
Borrower to, or entered into by the Domestic Borrower with, the Issuing Bank
relating to any Letter of Credit, the terms and conditions of this Agreement
shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Domestic Borrower
shall hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, the date of issuance, amendment, renewal or extension, the
date on which such Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section), the amount of such Letter of Credit, the name
and address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. If requested
by the Issuing Bank, the Domestic Borrower also shall submit a letter of credit
application on the Issuing Bank's standard form in connection with any request
for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Domestic Borrower shall be deemed to represent and warrant
that), after giving effect to such issuance, amendment, renewal or extension (i)
the LC Exposure shall not exceed $25,000,000 and (ii) the sum of the total
Revolving Credit Exposures plus the aggregate principal amount of outstanding
Competitive Loans shall not exceed the total Commitments. The Issuing Bank shall
give the Domestic Borrower and the Administrative
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Agent reasonably prompt notice of the issuance of each Letter of Credit (or the
amendment, renewal or extension of an outstanding Letter of Credit) and the
Administrative Agent, in turn, shall give reasonably prompt notice thereof to
the Lenders.
(c) Expiration Date.
Each Letter of Credit shall expire at or prior to the close of business
on the earlier of (i) the date one year after the date of the issuance of such
Letter of Credit (or, in the case of any renewal or extension thereof as
provided in the following sentence, one year after such renewal or extension)
and (ii) the date that is five Business Days prior to the Maturity Date. Subject
to clause (ii) of the preceding sentence, any Letter of Credit with a one year
tenor may provide for the automatic renewal thereof for additional one year
periods (or each shorter period ending prior to the date set forth in clause
(ii) of the preceding sentence) unless at least 30 days prior to the then
current stated expiration date of such Letter of Credit the Issuing Bank sends
the beneficiary of such Letter of Credit notice of the Issuing Bank's election
not to renew such Letter of Credit for any additional period (which notice of
nonrenewal shall not be sent without the Domestic Borrower's consent unless a
Default or Event of Default shall have occurred and be continuing).
(d) Participations.
By the issuance of a Letter of Credit (or an amendment to a Letter of
Credit increasing the amount thereof) and without any further action on the part
of the Issuing Bank or the Lenders, the Issuing Bank hereby grants to each
Lender, and each Lender hereby acquires from the Issuing Bank, a participation
in such Letter of Credit equal to such Lender's Applicable Percentage of the
aggregate amount available to be drawn under such Letter of Credit. In addition,
the Issuing Bank hereby grants to each Lender, and each Lender hereby acquires
from the Issuing Bank, a participation in each Existing Letter of Credit equal
to such Lender's Applicable Percentage of the stated amount of each Existing
Letter of Credit, effective on the Effective Date. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for the account of the Issuing Bank,
such Lender's Applicable Percentage of each LC Disbursement made by the Issuing
Bank and not reimbursed by the Domestic Borrower on the date due as provided in
paragraph (e) of this Section, or of any reimbursement payment required to be
refunded to the Domestic Borrower for any reason. Each Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement.
If the Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Domestic Borrower shall reimburse such LC Disbursement by
paying to the Administrative Agent an amount equal to such LC Disbursement not
later than 12:00 noon, New York City time, on the date that such LC Disbursement
is made, if the Domestic Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City time, on such date, or, if
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such notice has not been received by the Domestic Borrower prior to such time on
such date, then not later than 12:00 noon, New York City time, on (i) the
Business Day that the Domestic Borrower receives such notice, if such notice is
received prior to 10:00 a.m., New York City time, on the day of receipt, or (ii)
the Business Day immediately following the day that the Domestic Borrower
receives such notice, if such notice is not received prior to such time on the
day of receipt; provided that, if such LC Disbursement is not less than
$1,000,000, the Domestic Borrower may, subject to the conditions to borrowing
set forth herein, request in accordance with Section 2.03 or 2.05 that such
payment be financed with an ABR Revolving Borrowing or Swingline Loan in an
equivalent amount and, to the extent so financed, the Domestic Borrower's
obligation to make such payment shall be discharged and replaced by the
resulting ABR Revolving Loans or Swingline Loan. If the Domestic Borrower fails
to make such payment when due, the Administrative Agent shall notify each Lender
of the applicable LC Disbursement, the payment then due from the Domestic
Borrower in respect thereof and such Lender's Applicable Percentage thereof.
Promptly following receipt of such notice, each Lender shall pay to the
Administrative Agent its Applicable Percentage of the payment then due from the
Domestic Borrower, in the same manner as provided in Section 2.07 with respect
to Loans made by such Lender (and Section 2.07 shall apply, mutatis mutandis, to
the payment obligations of the Lenders), and the Administrative Agent shall
promptly pay to the Issuing Bank the amounts so received by it from the Lenders.
Promptly following receipt by the Administrative Agent of any payment from the
Domestic Borrower pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the Issuing Bank or, to the extent that Lenders have
made payments pursuant to this paragraph to reimburse the Issuing Bank, then to
such Lenders and the Issuing Bank as their interests may appear. Any payment
made by a Lender pursuant to this paragraph to reimburse the Issuing Bank for
any LC Disbursement (other than the funding of ABR Revolving Loans or a
Swingline Loan as contemplated above) shall not constitute a Loan and shall not
relieve the Domestic Borrower of its obligation to reimburse such LC
Disbursement.
(f) Obligations Absolute.
The Domestic Borrower's obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement under any and all circumstances whatsoever and irrespective of
(i) any lack of validity or enforceability of any Letter of Credit or this
Agreement, or any term or provision therein, (ii) any draft or other document
presented under a Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or inaccurate in any
respect, (iii) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the terms of
such Letter of Credit, or (iv) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Domestic Borrower's obligations
hereunder. Neither the Administrative Agent, the Lenders nor the Issuing Bank,
nor any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to in the preceding sentence), or any error,
omission, interruption, loss or delay in transmission or
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delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from
causes beyond the control of the Issuing Bank; provided that the foregoing shall
not be construed to excuse the Issuing Bank from liability to the Domestic
Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Domestic Borrower
to the extent permitted by applicable law) suffered by the Domestic Borrower
that are caused by the Issuing Bank's failure to exercise care when determining
whether drafts and other documents presented under a Letter of Credit comply
with the terms thereof. The parties hereto expressly agree that, in the absence
of gross negligence or wilful misconduct on the part of the Issuing Bank (as
finally determined by a court of competent jurisdiction), the Issuing Bank shall
be deemed to have exercised care in each such determination. In furtherance of
the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) Disbursement Procedures.
The Issuing Bank shall, promptly following its receipt thereof, examine
all documents purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank shall promptly notify the Administrative Agent and the
Domestic Borrower by telephone (confirmed by telecopy) of such demand for
payment and whether the Issuing Bank has made or will make an LC Disbursement
thereunder; provided that any failure to give or delay in giving such notice
shall not relieve the Domestic Borrower of its obligation to reimburse the
Issuing Bank and the Lenders with respect to any such LC Disbursement.
(h) Interim Interest.
If the Issuing Bank shall make any LC Disbursement, then, unless the
Domestic Borrower shall reimburse such LC Disbursement in full on the date such
LC Disbursement is made, the unpaid amount thereof shall bear interest, for each
day from and including the date such LC Disbursement is made to but excluding
the date that the Domestic Borrower reimburses such LC Disbursement, at the rate
per annum then applicable to ABR Revolving Loans; provided that, if the Domestic
Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph
(e) of this Section, then Section 2.13(d) shall apply. Interest accrued pursuant
to this paragraph shall be for the account of the Issuing Bank, except that
interest accrued on and after the date of payment by any Lender pursuant to
paragraph (e) of this Section to reimburse the Issuing Bank shall be for the
account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Bank.
The Issuing Bank may be replaced at any time by written agreement among
the Domestic Borrower, the Administrative Agent, the replaced Issuing Bank and
the successor Issuing Bank. The Administrative Agent shall notify the Lenders of
any such replacement of the Issuing Bank.
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At the time any such replacement shall become effective, the Domestic Borrower
shall pay all unpaid fees accrued for the account of the replaced Issuing Bank
pursuant to Section 2.12(b). From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of the Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the term "Issuing
Bank" shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require. After the replacement of an Issuing Bank hereunder, the replaced
Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement with respect to
Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(j) Cash Collateralization.
If any Event of Default shall occur and be continuing, on the Business
Day that the Domestic Borrower receives notice from the Administrative Agent or
the Required Lenders (or, if the maturity of the Loans has been accelerated,
Lenders with LC Exposure representing greater than 50% of the total LC Exposure)
demanding the deposit of cash collateral pursuant to this paragraph, the
Domestic Borrower shall deposit in an account with the Administrative Agent, in
the name of the Administrative Agent and for the benefit of the Lenders, an
amount in cash equal to the LC Exposure as of such date plus any accrued and
unpaid interest thereon; provided that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become
immediately due and payable, without demand or other notice of any kind, upon
the occurrence of any Event of Default described in clause (h) or (i) of Article
VII. Such deposit shall be held by the Administrative Agent as collateral for
the payment and performance of the obligations of the Borrowers under this
Agreement. The Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any
interest earned on the investment of such deposits, which investments shall be
made at the option and sole discretion of the Administrative Agent and at the
Borrowers' risk and expense, such deposits shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys in
such account shall be applied by the Administrative Agent to reimburse the
Issuing Bank for LC Disbursements for which it has not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Domestic Borrower for the LC Exposure at such
time or, if the maturity of the Loans has been accelerated (but subject to the
consent of Lenders with LC Exposure representing greater than 50% of the total
LC Exposure), be applied to satisfy other obligations of the Borrowers under
this Agreement. If the Domestic Borrower is required to provide an amount of
cash collateral hereunder as a result of the occurrence of an Event of Default,
such amount (to the extent not applied as aforesaid) shall be returned to the
Domestic Borrower within three Business Days after all Events of Default have
been cured or waived.
SECTION 2.07. Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available to the account
of the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders not later than 12:00 noon, New York City time, or, in the
case of funds in the Alternative Currency, 12:00 noon,
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London time; provided that Swingline Loans shall be made as provided in Section
2.05. The Administrative Agent will make such Loans available to the applicable
Borrower by promptly crediting the amounts so received, in like funds, to an
account of such Borrower maintained with the Administrative Agent in New York
City or London, as the case may be, and designated by such Borrower in the
applicable Borrowing Request or Competitive Bid Request; provided that (i) ABR
Revolving Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.06(e) shall be remitted by the Administrative Agent to the
Issuing Bank and (ii) ABR Revolving Loans made to finance the repayment of the
principal amount of a Competitive Loan as provided in Section 2.10(a) shall be
remitted by the Administrative Agent to the Lender of such Competitive Loan.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the applicable
Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Administrative Agent,
then the applicable Lender and the applicable Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is made
available to such Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation or (ii) in
the case of a Borrower, the interest rate applicable to ABR Loans. If such
Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
SECTION 2.08. Interest Elections.
(a) Each Revolving Borrowing initially shall be of the Type specified
in the applicable Borrowing Request and, in the case of a Eurodollar Revolving
Borrowing or a Eurocurrency Revolving Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. Thereafter, the applicable
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Revolving Borrowing or a
Eurocurrency Revolving Borrowing, may elect Interest Periods therefor, all as
provided in this Section. The Borrowers may elect different options with respect
to different portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. This Section shall not apply to Competitive Borrowings or
Swingline Borrowings, which may not be converted or continued, but which may, in
accordance with the other terms and conditions of this Agreement, be refinanced
by Revolving Borrowings.
(b) To make an election pursuant to this Section, the applicable
Borrower shall notify the Administrative Agent of such election by telephone by
the time that a Borrowing Request would be required under Section 2.03 if such
Borrower were requesting a Revolving Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each
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such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Interest Election Request in a form approved by the Administrative Agent
and signed by such Borrower.
(c) Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing, a Eurodollar Borrowing or a Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing or a
Eurocurrency Borrowing, the Interest Period to be applicable thereto
after giving effect to such election, which shall be a period
contemplated by the definition of the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing or a
Eurocurrency Borrowing but does not specify an Interest Period, then (if a
Eurocurrency Borrowing or a Eurodollar Borrowing, as the case may be, is
available at such time pursuant to the terms hereof) the applicable Borrower
shall be deemed to have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If a Borrower fails to deliver a timely Interest Election Request
with respect to a Eurodollar Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
the Administrative Agent has received notice from a Borrower or any Lender that
an Event of Default has occurred and is continuing, then, so long as an Event of
Default is continuing (i) no outstanding Revolving Borrowing may be converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Revolving Borrowing and each Eurocurrency Revolving Borrowing shall be converted
to an ABR Borrowing at the end of the Interest Period applicable thereto.
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SECTION 2.09. Termination and Reduction of Commitments; Discretionary
Extension.
(a) Unless previously terminated, the Commitments shall terminate on
the Maturity Date.
(b) The Borrowers may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $500,000 and not less than
$500,000 and (ii) the Borrowers shall not terminate or reduce the Commitments
if, after giving effect to any concurrent prepayment of the Loans in accordance
with Section 2.11, the sum of the Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans would exceed the total
Commitments.
(c) The Borrowers shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (b) of this Section at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrowers pursuant
to this Section shall be irrevocable. Any termination or reduction of the
Commitments shall be permanent. Each reduction of the Commitments shall be made
ratably among the Lenders in accordance with their respective Commitments.
(d) Subject to the conditions and procedures of this paragraph (d), the
Domestic Borrower may at any time not earlier than January 2 nor later than
January 31 of each year (commencing January 2, 2000) prior to the Maturity Date,
but only on one such occasion in each calendar year, request that the Maturity
Date be extended for a one-year period, and if each of the Lenders and the
Issuing Bank agrees to such request, the Maturity Date shall be so extended. Any
such extension of the Maturity Date shall be effected only pursuant to the
following procedures:
(i) Not earlier than January 2 nor later than January 31, the
Domestic Borrower shall deliver to the Administrative Agent a notice
dated the date such notice is given, substantially in the form of
Exhibit 2.09(d) hereto, of its request to extend the Maturity Date by
one year. The Administrative Agent shall promptly (but in any event
within two Business Days) send copies of such notice to each Lender and
the Issuing Bank. Each Lender and the Issuing Bank, each acting in its
sole and absolute discretion, shall, by written notice to the
Administrative Agent (which shall notify the Domestic Borrower) given
not later than 5:00 p.m., New York City time, on the date (the "Consent
Date") 30 days after the date of the Domestic Borrower's request,
advise the Administrative Agent whether or not such Lender or the
Issuing Bank agrees to such extension; provided that each Lender or the
Issuing Bank that determines not to extend the Maturity Date (a
"Non-extending Lender") shall notify the Administrative Agent (which
shall notify the other Lenders, the Issuing Bank and the Domestic
Borrower) of such fact promptly after such determination (but in any
event no later than the Consent Date) and any Lender or the Issuing
Bank that does not advise the Administrative Agent on or before the
Consent Date shall be deemed to be a Non-extending Lender. The
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election of any Lender or the Issuing Bank to agree to such extension
shall not obligate any other Lender or the Issuing Bank to so agree.
(ii) If, for any reason, the Domestic Borrower is unable to
obtain the agreement of all of the Lenders and the Issuing Bank to any
such extension, the Maturity Date shall not be extended as requested by
the Domestic Borrower (and the procedure set forth in this Section
2.09(d) shall not be available in any subsequent calendar year).
(iii) If (and only if) each Lender and the Issuing Bank shall
have agreed to such extension, then, on the date (the "Extension Date")
that is 30 days after the Consent Date, the Maturity Date shall be
extended by one year (except that, if the date one year after the
Maturity Date is not a Business Day, such Maturity Date as so extended
shall be the next preceding Business Day).
(iv) Notwithstanding the foregoing, the extension of the
Maturity Date shall not be effective with respect to any Lender or the
Issuing Bank unless:
(A) no Default shall have occurred and be continuing
on and as of each of the date of the notice requesting such extension
and the Extension Date; and
(B) each of the representations and warranties made
by the Domestic Borrower in this Agreement and the other Credit
Documents shall be true and complete on and as of each of the date of
the notice requesting such extension and the Extension Date with the
same force and effect as if made on and as of such date (or, if any
such representation or warranty is expressly stated to have been made
as of a specific date, as of such specific date).
(v) The Administrative Agent shall give prompt written notice
to the Domestic Borrower, the Issuing Bank and each Lender confirming
any extended Maturity Date.
(e)
SECTION 2.10. Repayment of Loans; Refinancing of Competitive Loans; Evidence
of Debt.
(a) The Domestic Borrower and each Subsidiary Borrower hereby jointly
and severally and unconditionally promise to pay to the Administrative Agent for
the account of each Lender on the Maturity Date the then unpaid principal amount
of each Revolving Loan made to such Subsidiary Borrower. The Domestic Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender on the Maturity Date the then unpaid principal amount of
each Revolving Loan made to the Domestic Borrower, (ii) to the Administrative
Agent for the account of each Lender the then unpaid principal amount of each
Competitive Loan on the last day of the Interest Period applicable to such Loan
and (iii) to the Swingline Lender the then unpaid principal amount of each
Swingline Loan on the maturity date thereof requested in accordance with Section
2.05; provided that on each date that a Revolving
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Borrowing or Competitive Borrowing is made, the Domestic Borrower shall repay
all Swingline Loans then outstanding. Unless the Administrative Agent shall have
received notice from the Domestic Borrower prior to 10:00 a.m., New York City
time, on the last day of the Interest Period applicable to a Competitive Loan
that such Borrower will repay the principal amount of such Competitive Loan with
its own funds and does not wish to request an ABR Revolving Borrowing to
refinance the principal amount of such Competitive Loan, then the Domestic
Borrower shall be deemed to have submitted a Borrowing Request pursuant to
Section 2.03 for an ABR Revolving Borrowing in the principal amount of such
Competitive Loan to finance the repayment of the principal amount of such
Competitive Loan on the last day of the Interest Period applicable to such
Competitive Loan, and the Administrative Agent shall promptly advise each Lender
of the details of such deemed Borrowing Request and of the amount of such
Lender's ABR Revolving Loan to be made as part of the deemed requested
Borrowing.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrowers to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof,
the Borrower thereof and the Interest Period applicable thereto, (ii) the amount
of any principal or interest due and payable or to become due and payable from
the Borrowers to each Lender hereunder and (iii) the amount of any sum received
by the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrowers to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrowers shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.11. Prepayment of Loans.
(a) The Borrowers shall have the right at any time and from time to
time to prepay any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (b) of this Section; provided that the Domestic
Borrower shall not have the right to prepay any Competitive Loan without the
prior consent of the Lender thereof.
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(b) The applicable Borrower shall notify the Administrative Agent (and,
in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment, (ii) in the
case of prepayment of a Eurocurrency Revolving Borrowing, not later than 11:00
a.m., London time, three Business Days before the date of prepayment, (iii) in
the case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m.,
New York City time, one Business Day before the date of prepayment or (iv) in
the case of prepayment of a Swingline Loan, not later than 12:00 noon, New York
City time, on the date of prepayment. Each such notice shall be irrevocable and
shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid. Promptly following receipt of any such notice
relating to a Revolving Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Revolving
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Revolving Borrowing of the same Type as provided in Section 2.02.
Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.13.
SECTION 2.12. Fees.
(a) The Domestic Borrower agrees to pay to the Administrative Agent for
the account of each Lender a facility fee, which shall accrue at the Applicable
Rate on the daily amount of the Commitment of such Lender (whether used or
unused) during the period from and including the Effective Date to but excluding
the date on which such Commitment terminates; provided that, if such Lender
continues to have any Revolving Credit Exposure after its Commitment terminates,
then such facility fee shall continue to accrue on the daily amount of such
Lender's Revolving Credit Exposure from and including the date on which its
Commitment terminates to but excluding the date on which such Lender ceases to
have any Revolving Credit Exposure. Accrued facility fees shall be payable in
arrears on the last day of March, June, September and December of each year and
on the date on which the Commitments terminate, commencing on the first such
date to occur after the date hereof; provided that any facility fees accruing
after the date on which the Commitments terminate shall be payable on demand.
All facility fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(b) The Domestic Borrower agrees to pay (i) to the Administrative Agent
for the account of each Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate as would apply to interest on Eurodollar Revolving Loans on the average
daily amount of such Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date on which
such Lender's Commitment terminates and the date on which such Lender ceases to
have any LC Exposure, and (ii) to the Issuing Bank a fronting fee, which shall
accrue at the rate of 0.125% per annum on the average daily amount of the LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date of termination of the Commitments and the date
on which there
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ceases to be any LC Exposure, as well as the Issuing Bank's standard fees with
respect to the issuance, amendment, renewal or extension of any Letter of Credit
or processing of drawings thereunder. Participation fees and fronting fees
accrued through and including the last day of March, June, September and
December of each year shall be payable on such last day, commencing on the first
such date to occur after the Effective Date; provided that all such fees shall
be payable on the date on which the Commitments terminate and any such fees
accruing after the date on which the Commitments terminate shall be payable on
demand. Any other fees payable to the Issuing Bank pursuant to this paragraph
shall be payable within 10 days after demand. All participation fees and
fronting fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
(c) The Borrowers jointly and severally agree to pay on the Effective
Date to the Administrative Agent an amendment fee of $75,000 to be distributed
to the Lenders pro-rata in accordance with the Commitments.
(d) The Borrowers agree to pay to the Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed upon
among the Borrowers and the Administrative Agent.
(e) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
facility fees and participation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances.
SECTION 2.13. Interest.
(a) The Loans comprising each ABR Borrowing (including each Swingline
Loan) shall bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing and Eurocurrency
Borrowing shall bear interest (i) in the case of a Eurodollar Revolving Loan or
a Eurocurrency Loan, at the Adjusted LIBO Rate for the Interest Period in effect
for such Borrowing plus the Applicable Rate, or (ii) in the case of a Eurodollar
Competitive Loan, at the LIBO Rate for the Interest Period in effect for such
Borrowing plus (or minus, as applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by any Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% per
annum plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section or (ii) in the case of any other amount, 2%
per annum plus the rate applicable to ABR Loans as provided in paragraph (a) of
this Section.
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(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Commitments; provided that (i) interest accrued pursuant to
paragraph (d) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Revolving Loan or Eurocurrency Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(f) All interest hereunder shall be computed on the basis of a year of
360 days (365 days in the case of Eurocurrency Loan), and in each case shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate
or LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest.
If prior to the commencement of any Interest Period for a Eurodollar
Borrowing or a Eurocurrency Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders (or, in
the case of a Eurodollar Competitive Loan, the Lender that is required to make
such Loan) that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such
Interest Period will not adequately and fairly reflect the cost to such Lenders
(or Lender) of making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrowers and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing or a
Eurocurrency Borrowing shall be ineffective, (ii) if any Borrowing Request
requests a Eurodollar Revolving Borrowing or a Eurocurrency Revolving Borrowing
, such Borrowing shall be made as an ABR Borrowing and (iii) any request by the
Domestic Borrower for a Eurodollar Competitive Borrowing shall be ineffective;
provided that (A) if the circumstances giving rise to such notice do not affect
all the Lenders, then requests by the Domestic Borrower for Eurodollar
Competitive Borrowings may be made to Lenders that are not affected thereby and
(B) if the circumstances giving rise to such notice affect only one Type of
Borrowings, then the other Type of Borrowings shall be permitted.
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SECTION 2.15. Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing
Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurocurrency Loans or Eurodollar Loans or Fixed Rate Loans made by such
Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan, Eurocurrency Loan or Fixed
Rate Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or the Issuing Bank of participating in,
issuing or maintaining any Letter of Credit or to reduce the amount of any sum
received or receivable by such Lender or the Issuing Bank hereunder (whether of
principal, interest or otherwise), then the Borrowers will pay to such Lender or
the Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the Issuing Bank's capital or on the capital of
such Lender's or the Issuing Bank's holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit held
by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level
below that which such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's or the Issuing Bank's policies and the policies
of such Lender's or the Issuing Bank's holding company with respect to capital
adequacy), then from time to time the Borrowers will pay to such Lender or the
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrowers and shall be conclusive absent
manifest error. The Borrowers shall pay such Lender or the Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
that the Borrowers shall not be required to compensate a Lender pursuant to this
Section for any increased costs or reductions incurred more than 90 days prior
to the date that such Lender notifies the Borrowers of the
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Change in Law giving rise to such increased costs or reductions and of such
Lender's intention to claim compensation therefor; provided further that, if the
Change in Law giving rise to such increased costs or reductions is retroactive,
then the 90-day period referred to above shall be extended to include the period
of retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this Section, a Lender
shall not be entitled to compensation pursuant to this Section in respect of any
Competitive Loan if the Change in Law that would otherwise entitle it to such
compensation shall have been publicly announced prior to submission of the
Competitive Bid pursuant to which such Loan was made.
SECTION 2.16. Break Funding Payments.
In the event of (a) the payment of any principal of any Eurodollar
Loan, Eurocurrency Loan or Fixed Rate Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan or Eurocurrency Loan other
than on the last day of the Interest Period applicable thereto, (c) the failure
to borrow, convert, continue or prepay any Revolving Loan on the date specified
in any notice delivered pursuant hereto, (d) the failure to borrow any
Competitive Loan after accepting the Competitive Bid to make such Loan, or (e)
the assignment of any Eurodollar Loan, Eurocurrency Loan or Fixed Rate Loan
other than on the last day of the Interest Period applicable thereto as a result
of a request by the Borrowers pursuant to Section 2.19, then, in any such event,
the Borrowers shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan or a Eurocurrency
Loan, , such loss, cost or expense to any Lender shall be deemed to include an
amount determined by such Lender to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO Rate that would have been applicable to
such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period for
such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period from other banks in the eurodollar market. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Borrowers and shall be conclusive absent manifest error. The Borrowers shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
SECTION 2.17. Taxes.
(a) Any and all payments by or on account of any obligation of any
Borrower hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if a Borrower shall be required
to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the
sum payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, Lender or Issuing Bank (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made,
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(ii) such Borrower shall make such deductions and (iii) such Borrower shall pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrowers shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender or the Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of any Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrowers by a Lender or the Issuing Bank,
or by the Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrowers to a Governmental Authority, the Borrowers shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which a
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to such Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by such Borrower as will permit such payments to be
made without withholding or at a reduced rate.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) Each Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or
otherwise) prior to 12:00 noon, local time, at the place of payment, on the date
when due, in the currency in which such Loan was made and in federal funds or
such other immediately available funds as may be customary for the settlement of
international transactions in the relevant currency at such place, without
set-off or counterclaim. Any amounts received after such time on any date may,
in the discretion of the Administrative Agent, be deemed to have been received
on the next succeeding Business Day for purposes of calculating interest
thereon. All such payments shall be made to the Administrative Agent to such
account as the Administrative Agent shall have specified and, unless and until
otherwise specified, all such payments payable in dollars shall be made to the
Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
except payments to be made directly to the Issuing Bank or Swingline Lender as
expressly provided herein and except that
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payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly
to the Persons entitled thereto. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in
LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in LC Disbursements and Swingline Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and
participations in LC Disbursements and Swingline Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrowers pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to
the Borrowers or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). Each Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrowers rights of set-off and counterclaim with respect
to such participation as fully as if such Lender were a direct creditor of the
Borrowers in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the
Borrowers prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
applicable Borrower will not make such payment, the Administrative Agent may
assume that the applicable Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the
Lenders or the Issuing Bank, as the case may be, the amount due. In such event,
if the Borrowers
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have not in fact made such payment, then each of the Lenders or the Issuing
Bank, as the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by
it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b) or 2.18(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.15, or if the
Borrowers are required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrowers
hereby agree to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if the
Borrowers are required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrowers may, at their sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement
(other than any outstanding Competitive Loans held by it) to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) the Borrowers shall have received
the prior written consent of the Administrative Agent (and, if a Commitment is
being assigned, the Issuing Bank and Swingline Lender), which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans (other than Competitive
Loans) and participations in LC Disbursements and Swingline Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrowers (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation under
Section 2.15 or payments required to be made pursuant to Section 2.17, such
assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrowers to require such assignment and delegation cease to
apply.
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SECTION 2.20. Subsidiary Borrowers.
With the written consent of the Administrative Agent in its sole
discretion, one or more Subsidiaries of the Domestic Borrower of which the
Domestic Borrower directly or indirectly owns securities or other ownership
interests representing more than 75% of the equity and more than 75% of the
ordinary voting power may become a borrower (each, a "Subsidiary Borrower")
under this Agreement, and shall thereafter be, subject to the terms and
conditions set forth herein, entitled to borrow Revolving Loans. As a condition
to becoming a Subsidiary Borrower, such Subsidiary shall (i) execute and deliver
to the Administrative Agent an instrument substantially in the form of Exhibit
2.20 hereto, and shall execute and/or deliver such other certificates,
instruments, resolutions, documents and opinions in respect of such Subsidiary
as were required to be delivered pursuant to Article IV hereof by the Domestic
Borrower as a condition to effectiveness of this Agreement or as the
Administrative Agent may otherwise require in its sole discretion.
Article III
Representations and Warranties
Each of the Domestic Borrower (and, from and after such time as a
Subsidiary Borrower becomes a party hereto pursuant to Section 2.20, such
Subsidiary Borrower) represents and warrants to (and where applicable covenants
with) the Lenders, the Issuing Bank, and the Administrative Agent that:
SECTION 3.01. Organization; Powers.
Each of the Domestic Borrower and its Subsidiaries is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
SECTION 3.02. Authorization; Enforceability.
The Transactions are within the Borrowers' corporate powers and have
been duly authorized by all necessary corporate and, if required, stockholder
action. This Agreement has been duly executed and delivered by the Borrowers and
constitutes a legal, valid and binding obligation of the Borrowers, enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts.
The Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect, (b)
will not violate any applicable law or regulation or the charter,
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by-laws or other organizational documents of the Domestic Borrowers or any of
its Subsidiaries or any order of any Governmental Authority, (c) will not
violate or result in a default under any indenture, agreement or other
instrument binding upon the Domestic Borrowers or any of its Subsidiaries or its
assets, or give rise to a right thereunder to require any payment to be made by
the Domestic Borrower or any of its Subsidiaries, and (d) will not result in the
creation or imposition of any Lien on any asset of the Domestic Borrower or any
of its Subsidiaries.
SECTION 3.04. Financial Condition; No Material Adverse Change.
(a) The Domestic Borrower has heretofore furnished to the Lenders its
consolidated balance sheet and statements of income, stockholders equity and
cash flows (i) as of and for the fiscal year ended [October 31, 1997], reported
on by Ernst & Young LLP, independent public accountants, and (ii) as of and for
the fiscal quarter and the portion of the fiscal year ended [July 31, 1998],
certified by a Financial Officer. Such financial statements present fairly, in
all material respects, the financial position and results of operations and cash
flows of the Domestic Borrower and its consolidated Subsidiaries as of such
dates and for such periods in accordance with GAAP, subject to year-end audit
adjustments and the absence of footnotes in the case of the statements referred
to in clause (ii) above.
(b) Since [October 31, 1997], there has been no material adverse change
in the business, assets, operations, prospects or condition, financial or
otherwise, of the Domestic Borrower and its Subsidiaries, taken as a whole. The
Domestic Borrower and its Subsidiaries have no liabilities, contingent or
otherwise, that are required under GAAP to be, but have not been, disclosed in
the financial statements referred to in paragraph (a) of this Section.
(c) Schedule 3.04 sets forth a list of all Indebtedness described in
Section 6.01(b), (e) or (f) as of the Effective Date.
SECTION 3.05. Properties.
(a) Each of the Domestic Borrower and its Subsidiaries has good title
to, or valid leasehold interests in, all its real and personal property material
to its business, except for minor defects in title that do not interfere with
its ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes. All material assets of the Domestic
Borrower and of its Subsidiaries are free and clear of any Liens, except such as
are permitted by Section 6.02. Neither the Domestic Borrower nor any Subsidiary
is a party to any contract, agreement, lease or instrument (other than a Credit
Document) the performance of which, either unconditionally or upon the happening
of an event, will result in or require the creation of a Lien, on any of its
property or assets, except as permitted by Section 6.02.
(b) Each of the Domestic Borrower and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Domestic Borrower and its Subsidiaries does not infringe upon the rights of any
other Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
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SECTION 3.06. Litigation and Environmental Matters.
(a) There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to the knowledge of the
Borrowers, threatened against or affecting the Domestic Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect (other
than the Disclosed Matters) or (ii) that involve this Agreement, any other
Credit Document or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Domestic Borrower
nor any of its Subsidiaries (i) has failed to comply with any Environmental Law
or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received notice of any claim with respect to
any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and Agreements; No Default.
Each of the Domestic Borrower and its Subsidiaries is in compliance
with all laws, regulations and orders of any Governmental Authority applicable
to it or its property and all indentures, agreements and other instruments
binding upon it or its property, except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect. The Domestic Borrower is current in all required disclosure and
otherwise in compliance in all material respects with applicable federal and
state securities laws and/or rules and regulations of the Securities and
Exchange Commission, and with applicable state securities laws and/or rules and
regulations of state securities authorities and of any stock exchanges or other
self regulatory organizations having jurisdiction of the Domestic Borrower
and/or its securities. No Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status; Federal Reserve
Regulations.
(a) Neither the Domestic Borrower nor any of its Subsidiaries is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
(b) Neither the Domestic Borrower nor any Subsidiary 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). No part of the proceeds of any Loan or of
any drawing under any Letter of Credit will be used, directly or
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indirectly and whether immediately, incidentally or ultimately, for any purpose
which entails a violation of or which is inconsistent with, the provisions of
the regulations of the Board, including Regulation G, T, U or X thereof.
SECTION 3.09. Taxes.
Each of the Domestic Borrower and its Subsidiaries has timely filed or
caused to be filed all Tax returns and reports required to have been filed and
has paid or caused to be paid all Taxes required to have been paid by it, except
Taxes that are being contested in good faith by appropriate proceedings and for
which the Domestic Borrower or such Subsidiary, as applicable, has set aside on
its books adequate reserves in accordance with GAAP.
SECTION 3.10. ERISA.
No ERISA Event has occurred or is reasonably expected to occur that,
when taken together with all other such ERISA Events for which liability is
reasonably expected to occur, could reasonably be expected to result in a
Material Adverse Effect. The present value of all accumulated benefit
obligations under each Plan (based on the assumptions used for purposes of
Statement of Financial Accounting Standards No. 87) did not, as of the date of
the most recent financial statements reflecting such amounts, exceed by more
than $500,000 the fair market value of the assets of such Plan, and the present
value of all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $500,000 the fair market value of
the assets of all such underfunded Plans. Neither any Borrower nor any ERISA
Affiliate sponsors any employee welfare benefit plan (as defined in ERISA
Section 3(1) ("Employee Welfare Benefit Plan")) which provides any post-retiree
welfare benefits directly or through the purchase of insurance.
SECTION 3.11. Subsidiaries; Joint Ventures.
Schedule 3.11 sets forth as of the Effective Date a list of all
Subsidiaries, all investments in Persons in which the Domestic Borrower or its
Subsidiaries own twenty percent (20%) or more of the voting securities or
interests of such Persons, and all joint ventures and partnerships to which the
Domestic Borrowers or any Subsidiary is a party, the respective jurisdictions of
organization thereof, and the percentages of interest of the Domestic Borrower
and any Subsidiary therein. Except as disclosed on Schedule 3.11, the Domestic
Borrower has no Subsidiaries or investments as described above in, or joint
ventures or partnerships with, any Person as of the Effective Date.
SECTION 3.12. Use of Proceeds.
The proceeds of the Loans and the Letters of Credit will be used to
refinance existing Indebtedness and for general corporate purposes of the
Borrowers, all in accordance with the terms and provisions hereof. No Letter of
Credit shall have as its beneficiary any employee or be used directly to pay any
compensation, indemnification, workers' compensation claim or other direct or
indirect remuneration, or any loan or advance to, any employee, officer, or
director of the Domestic Borrower or any Subsidiary.
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SECTION 3.13. Labor Matters.
There are no material strikes or other material labor disputes or
grievances pending or, to the knowledge of the Borrowers, threatened, against
the Domestic Borrower or any Subsidiary. Except as set forth on Schedule 3.13
hereto, neither the Domestic Borrower nor any Subsidiary is a party to any
collective bargaining agreement covering more than 250 employees in the
aggregate at any time.
SECTION 3.14. Solvency.
After giving effect to the Loans and the Letters of Credit (a) the fair
salable value of the assets of the Domestic Borrower and its Subsidiaries, on a
consolidated basis, will exceed the amount that will be required to be paid on
or in respect of the existing debts and other liabilities (including contingent
liabilities) of the Domestic Borrower and its Subsidiaries, on a consolidated
basis, as they mature, (b) the assets of the Domestic Borrower and its
Subsidiaries, on a consolidated basis, will not constitute unreasonably small
capital to carry out their businesses as conducted or as proposed to be
conducted, including the capital needs of the Domestic Borrower and its
Subsidiaries, on a consolidated basis (taking into account the particular
capital requirements of the businesses conducted by such entities and the
projected capital requirements and capital availability of such businesses) and
(c) the Borrowers do not intend to, and do not believe that they will, incur
debts beyond their ability to pay such debts as they mature (taking into account
the timing and amounts of cash to be received by it and the amounts to be
payable on or in respect of its obligations).
SECTION 3.15. Disclosure.
The Domestic Borrower has disclosed to the Lenders and the Issuing Bank
all agreements, instruments and corporate or other restrictions to which it or
any of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the reports, financial statements, certificates
or other information furnished by or on behalf of the Borrowers to the
Administrative Agent and the Issuing Bank or any Lender in connection with the
negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Borrowers represent only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.16. Year 2000.
Any reprogramming required to permit the proper functioning, in and
following the year 2000, of the Domestic Borrower's and each Subsidiary's
computer systems and computer controlled equipment, the continued operation of
which materially affects the Domestic Borrower's and each Subsidiary's core
business activities (collectively, the "Systems") and the testing of all
Systems, as so reprogrammed, will be completed by June 30, 1999. The cost to the
Domestic Borrower and each Subsidiary of such reprogramming and testing and of
the
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reasonably foreseeable consequences of year 2000 to the Domestic Borrower and
each Subsidiary (including, without limitation, reprogramming errors and the
failure of others' systems or equipment) will not result in a Default or a
Material Adverse Effect. Except for such of the reprogramming referred to in the
preceding sentence as may be necessary, the Systems of the Domestic Borrower and
its Subsidiaries are and, with ordinary course upgrading and maintenance, will
continue for the term of this Agreement to be, sufficient to permit the Domestic
Borrower and each Subsidiary to conduct its business without Material Adverse
Effect.
SECTION 3.17. Receivable Program.
The accounts receivable securitization program described in Note C to
the consolidated financial statements of the Domestic Borrower for the fiscal
year ended November 1, 1996 has been terminated.
Article IV
Conditions
SECTION 4.01. Effective Date.
This Agreement shall become effective on the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on behalf of
such party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent, the Co-Agent, the Issuing Bank
and the Lenders and dated the Effective Date) of Xxxxxx X. Xxxxxxxxx, General
Counsel of the Domestic Borrower, substantially in the form of Exhibit 4.01(b),
and covering such other matters relating to the Domestic Borrower, this
Agreement or the Transactions as the Required Lenders and the Issuing Bank shall
reasonably request. The Domestic Borrower hereby requests such counsel to
deliver such opinion.
(c) The Administrative Agent shall have received (i) a certificate of
the Secretary or an Assistant Secretary of the Domestic Borrower certifying that
there have been no amendments or other changes to the Domestic Borrower's
Certificate of Incorporation or by-laws since July 2, 1997; (ii) a good standing
certificate in respect of the Domestic Borrower from the Secretary of State of
its jurisdiction of organization (long-form, listing all charter papers on file
in his or her office), dated as of a recent date prior to the Effective Date;
(iii) a certificate as to tax status of the Domestic Borrower from appropriate
taxing authorities in its jurisdiction of organization, as of a recent date
prior to the Effective Date; (iv) a true copy, certified as of the Effective
Date by the Secretary or an Assistant Secretary of the Domestic Borrower, of the
resolutions of its Board of Directors authorizing the execution, delivery and
performance of this Agreement and the other
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Credit Documents to which it is a party, which shall be satisfactory to the
Administrative Agent in form, scope and substance; and (v) certificates signed
by the Secretary or an Assistant Secretary of the Domestic Borrower, dated as of
the Effective Date, as to the incumbency and specimen signatures of the officers
of the Domestic Borrower authorized to sign this Agreement and the other Credit
Documents and each certificate or other document or instrument to be delivered
by the Domestic Borrower pursuant hereto or thereto, and certification by one of
such officers of the Domestic Borrower as to the incumbency and specimen
signature of such respective Secretary or Assistant Secretary. The
Administrative Agent shall have received such other documents and certificates
as the Administrative Agent or its counsel may reasonably request relating to
the organization, existence and good standing of the Domestic Borrower, the
authorization of the Transactions and any other legal matters relating to the
Domestic Borrower, this Agreement or the Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received the financial
statements described in Section 3.04.
(e) Each Lender shall have received a copy (which may be a conformed
copy) of the Note Purchase Agreement dated as of August 28, 1996 (such Note
Purchase Agreement, excluding any and all amendments or supplements thereto, is
referred to herein as the "Senior Note Purchase Agreement") governing the
Domestic Borrower's $50,000,000 7.92% Senior Notes due August 28, 2004 (the
"Senior Notes"), including all amendments and supplements thereto.
(f) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the President, a Vice President or a Financial
Officer of the Domestic Borrower, confirming compliance with the conditions set
forth in paragraphs (a) and (b) of Section 4.02.
(g) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Borrowers hereunder.
(h) The Domestic Borrower shall have paid (i) all interest and fees
accrued to but excluding the Effective Date under the Original Credit Agreement
or any fee letter referred to therein or related thereto, and (ii) any and all
LC Disbursements under the Original Credit Agreement.
The Administrative Agent shall notify the Domestic Borrower, the Issuing Bank,
and the Lenders of the Effective Date, and such notice shall be conclusive and
binding.
SECTION 4.02. Each Credit Event.
The obligation of each Lender to make a Loan on the occasion of any
Borrowing, and of the Issuing Bank to issue, amend, renew or extend any Letter
of Credit, is subject to the satisfaction of the following conditions:
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(a) The representations and warranties of the Borrowers set forth in
this Agreement shall be true and correct on and as of the date of such Borrowing
or the date of issuance, amendment, renewal or extension of such Letter of
Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by each
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
Article V
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal
of and interest on each Loan and all fees payable hereunder shall have been paid
in full and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, the Domestic Borrower (and, from and
after such time as a Subsidiary Borrower becomes a party hereto pursuant to
Section 2.20, such Subsidiary Borrower) covenants and agrees with the Lenders,
the Issuing Bank, and the Administrative Agent that:
SECTION 5.01. Financial Statements and Other Information.
The Borrowers will furnish to the Administrative Agent, the Issuing
Bank, and each Lender:
(a) within 100 days after the end of each fiscal year of the Domestic
Borrower, its audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end of and for such
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by Ernst & Young LLP or other independent
public accountants of recognized national standing (without a "going concern" or
like qualification or exception and without any qualification or exception as to
the scope of such audit) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition and
results of operations of the Domestic Borrower and its consolidated Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied;
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year of the Domestic Borrower, its consolidated balance
sheet and related statements of operations, stockholders' equity and cash flows
as of the end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial condition
and results of operations of the Domestic Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of
footnotes;
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(c) concurrently with any delivery of financial statements under clause
(a) or (b) above, a certificate of a Financial Officer of the Domestic Borrower
(i) certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or proposed to be
taken with respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Section 6.10 and (iii) stating whether any change
in GAAP or in the application thereof has occurred since the date of the audited
financial statements referred to in Section 3.04 and, if any such change has
occurred, specifying the effect of such change on the financial statements
accompanying such certificate;
(d) concurrently with any delivery of financial statements under clause
(a) above, a certificate of the accounting firm that reported on such financial
statements stating whether they obtained knowledge during the course of their
examination of such financial statements of any Default (which certificate may
be limited to the extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by the
Domestic Borrower or any Subsidiary with the Securities and Exchange Commission,
or any Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the
Domestic Borrower to its shareholders generally, as the case may be;
(f) concurrently with the information furnished under clause (a) above,
a list of all Subsidiaries of the Domestic Borrower; and
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Domestic Borrower or any Subsidiary, or compliance with the terms of this
Agreement, as the Administrative Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Certain Events.
The Borrowers will furnish to the Administrative Agent, the Issuing
Bank, and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Domestic Borrower or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
liability of the Domestic Borrower and its Subsidiaries in an aggregate amount
exceeding $1,000,000;
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(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect; and
(e) the formation or acquisition of any material Subsidiary or the
acquisition of any material assets or business.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Domestic Borrower setting
forth the details of the event or development requiring such notice and any
action taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business.
Each Borrower will, and will cause each of its Subsidiaries to, do or
cause to be done all things necessary to preserve, renew and keep in full force
and effect its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation or dissolution
permitted under Section 6.03.
SECTION 5.04. Payment of Obligations.
Each Borrower will, and will cause each of its Subsidiaries to, pay its
obligations, including Tax liabilities, that, if not paid, could result in a
Material Adverse Effect before the same shall become delinquent or in default,
except where (a) the validity or amount thereof is being contested in good faith
by appropriate proceedings, (b) such Borrower or such Subsidiary has set aside
on its books adequate reserves with respect thereto in accordance with GAAP, (c)
the failure to make payment pending such contest could not reasonably be
expected to result in a Material Adverse Effect, and (d) the same shall be paid
or discharged or fully and adequately bonded before it might become a lien or
charge upon any material property or asset of any Borrower or any Subsidiary.
SECTION 5.05. Maintenance of Properties; Insurance.
Each Borrower will, and will cause each of its Subsidiaries to, keep
and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted. Each Borrower
shall, and shall cause each of its Subsidiaries to, keep its properties
(including, without limitation, fixed assets) adequately insured at all times in
the same manner and to the same extent, and carry such other insurance (with
insurance companies rated no lower than "A" by A.M. Best & Co., Inc., or
otherwise approved by the Administrative Agent) including, without limitation,
business interruption insurance, insurance against fire, public liability
insurance, and insurance against lack of fidelity by employees, against such
risks and in such amounts, and having such deductible amounts as are customary,
with companies in the same or similar businesses operating in the same or
similar locations, and which is no less than is required by law.
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SECTION 5.06. Books and Records; Inspection Rights.
Each Borrower will, and will cause each of its Subsidiaries to, keep
proper books of record and account in which full, true and correct entries are
made of all dealings and transactions in relation to its business and
activities. Each Borrower will, and will cause each of its Subsidiaries to,
permit any representatives designated by the Administrative Agent, the Issuing
Bank, or any Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably requested.
SECTION 5.07. Compliance with Laws.
Each Borrower will, and will cause each of its Subsidiaries to, comply
with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 5.08. Use of Proceeds and Letters of Credit.
The proceeds of the Loans, and the Letters of Credit, will be used only
for the purposes set forth in Section 3.12. No part of the proceeds of any Loan
or of any drawing under any Letter of Credit will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations U and X.
SECTION 5.09. Further Assurances.
Each Borrower shall, and shall cause each of its Subsidiaries to,
execute any and all further documents, agreements, and instruments, and take all
further actions, that the Administrative Agent, the Issuing Bank, or any Lender
shall reasonably request in order to effectuate the transactions contemplated by
this Agreement and the other Credit Documents, including such further documents,
agreements, instruments and actions to grant, preserve, protect and perfect the
rights of the Lenders, the Issuing Bank and the Administrative Agent purported
to be created hereunder (including liens in any cash collateral deposited
hereunder), and under the other Credit Documents.
Article VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, the Domestic Borrower (and, from and after such time
as a Subsidiary Borrower becomes a party hereto pursuant to Section 2.20, such
Subsidiary Borrower) covenants and agrees with the Lenders, the Issuing Bank,
and the Administrative Agent that:
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SECTION 6.01. Indebtedness.
The Domestic Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness created hereunder;
(b) unsecured Indebtedness of the Domestic Borrower of up to
$50,000,000 in aggregate principal amount outstanding at any one time evidenced
by the Borrower's Senior Notes;
(c) advances from customers received in the ordinary course of
business;
(d) performance guaranties, trade guarantees, and bid guarantees of the
performance of contractual obligations of wholly owned Subsidiaries of the
Domestic Borrower; provided that such guarantees and contractual obligations
arise in the ordinary course of business and that such contractual obligations
are not for borrowed money;
(e) other Indebtedness of Subsidiaries of the Domestic Borrower in an
aggregate principal amount not exceeding $27,000,000 at any time outstanding;
provided that there would not be any Default after giving effect to the
incurrence of any Indebtedness permitted under this paragraph; and
(f) unsecured Indebtedness of the Domestic Borrower not having any
priority superior in any respect to the Indebtedness of the Domestic Borrower
hereunder.
SECTION 6.02. Liens.
The Domestic Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or asset now
owned or hereafter acquired by it, or assign or sell any income or revenues
(including accounts receivable) or rights in respect of any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Domestic Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 6.02; provided
that (i) such Lien shall not apply to any other property or asset of the
Domestic Borrower or any Subsidiary and (ii) such Lien shall secure only those
obligations which it secures on the date hereof; and
(c) Liens securing Indebtedness permitted under clause (e) of Section
6.01.
SECTION 6.03. Fundamental Changes.
(a) The Domestic Borrower will not, and will not permit any Subsidiary
to, merge into or consolidate with any other Person, or permit any other Person
to merge into or consolidate with it, or liquidate or dissolve, except that, if
at the time thereof and immediately after giving effect thereto no Default shall
have occurred and be continuing (i) any Subsidiary
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may merge into the Domestic Borrower in a transaction in which the Domestic
Borrower is the surviving corporation, (ii) any Subsidiary (other than a
Subsidiary Borrower) may merge into any Subsidiary in a transaction in which the
surviving entity is a Subsidiary (provided that the Domestic Borrower's
proportionate interest in the assets and business of the merged subsidiary has
not diminished), (iii) any Subsidiary may sell, transfer, lease or otherwise
dispose of its assets to the Domestic Borrower or to another Subsidiary
(provided that the Domestic Borrower's proportionate interest in the assets
sold, transferred, leased, or disposed of has not diminished) and (iv) any
Subsidiary (other than a Subsidiary Borrower) may liquidate or dissolve if the
Domestic Borrower determines in good faith that such liquidation or dissolution
is in the best interests of the Domestic Borrower and is not materially
disadvantageous to the Lenders.
(b) Except (i) for sales of inventory in the ordinary course of
business and the disposition of obsolete, surplus, or otherwise unusable
equipment and (ii) for sales of accounts receivable by the Domestic Borrower and
any Subsidiaries to Volt Information Sciences Funding, Inc., the Domestic
Borrower will not, and will not permit any Subsidiaries to, sell, transfer,
lease or otherwise dispose of (in one transaction or in a series of
transactions) stock of any Subsidiary (whether owned on the Effective Date or
thereafter acquired), or assets (whether owned on the Effective Date or
thereafter acquired) representing (i) in any fiscal year, 15% of Consolidated
Assets as of the end of the most recently completed fiscal year, or (ii) on a
cumulative basis commencing on the July 2, 1997, 30% of Consolidated Assets as
of the end of the most recently completed fiscal year; provided, that there
shall be excluded from such annual and cumulative amounts, for the purposes of
this sentence, the amount of the proceeds of any such disposition that within
180 days from the date thereof are applied to the acquisition by the Domestic
Borrower or a Subsidiary thereof of operating assets used in the ordinary course
of its business. Without limiting the foregoing, neither the Domestic Borrower
nor any Subsidiary shall sell, assign, discount or otherwise dispose of notes,
accounts receivable or other rights to receive payment, with or without
recourse, except (i) for collections and credits in the ordinary course of
business and (ii) for sales of accounts receivables by the Domestic Borrower and
any Subsidiaries to Volt Information Sciences Funding, Inc.
(c) The Domestic Borrower will not, and will not permit any of its
Subsidiaries to, engage in any business other than businesses of the type
conducted by the Domestic Borrower and its Subsidiaries on the date of execution
of this Agreement and businesses reasonably related thereto except to an extent
not material to the Domestic Borrower and its Subsidiaries taken as a whole.
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions.
The Domestic Borrower will not, and will not permit any of its
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a wholly owned Subsidiary prior to such merger) any
capital stock, evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other Person, or
purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person constituting a business unit, except:
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(a) Permitted Investments;
(b) investments by the Domestic Borrower existing on the date hereof in
the capital stock of its Subsidiaries;
(c) loans or advances to employees not exceeding $1,000,000 in the
aggregate at any one time outstanding;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) purchases or acquisitions (including pursuant to any merger with
any Person that was not a wholly owned Subsidiary prior to such merger) of any
capital stock or ownership interests of any Person or of any assets of any other
Person constituting a business unit; provided that, in any case described in
this paragraph, (i) at the time thereof and after giving effect thereto no
Default shall have occurred and be continuing, (ii) at the time thereof the fair
market value, net of any liabilities incurred or assumed by the Domestic
Borrower or any Subsidiary in connection with such transaction, of the
consideration received by the Domestic Borrower or any Subsidiaries in
connection with such transaction shall equal or exceed the fair market value of
the consideration received by the other parties thereto, and (iii) if the
purchase price thereof exceeds $5,000,000 (including the face amount of any
assumed Indebtedness and the fair market value of any noncash consideration),
then the Domestic Borrower shall, within five days after the closing of such
purchase or acquisition, provide to the Administrative Agent, the Issuing Bank
and each Lender, a copy of the purchase or acquisition agreement(s) and a
certificate of a Financial Officer of the Domestic Borrower briefly describing
the purchase or acquisition and covering the matters described in Section
5.01(c); and
(f) other investments not exceeding, in the aggregate, $10,000,000.
SECTION 6.05. Hedging Agreements.
The Domestic Borrower will not, and will not permit any of its
Subsidiaries to, enter into any Hedging Agreement, other than Hedging Agreements
entered into in the ordinary course of business to hedge or mitigate risks to
which the Domestic Borrower or any Subsidiary is exposed in the conduct of its
business or the management of its liabilities.
SECTION 6.06. Restricted Payments.
The Domestic Borrower will not, and will not permit any of its
Subsidiaries to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, except Subsidiaries may declare and pay
dividends ratably with respect to their capital stock and, if at the time
thereof and after giving effect thereto no Default shall have occurred and be
continuing, (a) the Domestic Borrower may declare and pay dividends with respect
to its capital stock, (b) the Domestic Borrower may purchase, redeem, retire,
acquire, cancel or terminate any shares of its capital stock or any option,
warrant or other right to acquire any such shares, and (c) the Domestic Borrower
may make Restricted Payments pursuant to and in accordance with stock option
plans or other benefit plans for management or employees of the Domestic
Borrower and its Subsidiaries.
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SECTION 6.07. Transactions with Affiliates.
The Domestic Borrower will not, and will not permit any of its
Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise
engage in any other transactions with, any of its Affiliates, except (a) in the
ordinary course of business at prices and on terms and conditions not less
favorable to the Domestic Borrower or such Subsidiary than could be obtained on
an arm's-length basis from unrelated third parties, (b) transactions between or
among the Domestic Borrower and its wholly owned Subsidiaries not involving any
other Affiliate, (c) any Restricted Payment permitted by Section 6.06, and (d)
existing employment agreements with Xxxxxxx Xxxx or Xxxxxx Xxxx (or replacement
of employment agreements with such individuals on terms not materially less
favorable to the Domestic Borrower or its Subsidiaries).
SECTION 6.08. Restrictive Agreements.
The Domestic Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly, enter into, incur or permit to exist
any agreement or other arrangement that prohibits, restricts or imposes any
condition upon the ability of any Subsidiary to pay dividends or other
distributions with respect to any shares of its capital stock or to make or
repay loans or advances to the Domestic Borrower or any other Subsidiary or to
Guarantee Indebtedness of the Domestic Borrower or any other Subsidiary;
provided that (i) the foregoing shall not apply to restrictions and conditions
imposed by law or by this Agreement, (ii) the foregoing shall not apply to
restrictions and conditions existing on the date hereof identified on Schedule
6.08 (but shall apply to any extension or renewal of, or any amendment or
modification expanding the scope of, any such restriction or condition), and
(iii) the foregoing shall not apply to customary restrictions and conditions
contained in agreements relating to the sale of a Subsidiary pending such sale,
provided such restrictions and conditions apply only to the Subsidiary that is
to be sold and such sale is permitted hereunder.
SECTION 6.09. Priority of Obligations.
The Borrowers will not permit or suffer any present or future unsecured
Indebtedness of the Borrowers to have any priority superior in any respect to
the Indebtedness of the Borrowers hereunder.
SECTION 6.10. Certain Financial Covenants.
(a) The Domestic Borrower will not permit or suffer Consolidated Net
Worth at any time to be less than the sum of (i) $110,000,000 and (ii) 50% of
the Consolidated Net Income for each completed fiscal year (if greater than zero
for such year) of the Domestic Borrower commencing with the fiscal year
commencing immediately after the fiscal year ended November 1, 1996.
(b) The Domestic Borrower will not permit or suffer the ratio, as of
the last day of any fiscal quarter of the Domestic Borrower, of (i) Consolidated
Income Available for Fixed Charges for the period of four consecutive fiscal
quarters of the Domestic Borrower ending on
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such date to (ii) Fixed Charges for such period of four consecutive fiscal
quarters of the Domestic Borrower, to be less than 2.25 to 1.00.
(c) The Domestic Borrower will not permit or suffer the ratio, as of
the last day of any fiscal quarter of the Domestic Borrower, of (i) Consolidated
Income Available for Fixed Charges for the period of four consecutive fiscal
quarters of the Domestic Borrower ending on such date to (ii) the sum of (x)
Fixed Charges for such period of four consecutive fiscal quarters of the
Domestic Borrower and (y) the current portion of long term debt of the Domestic
Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP at
such date, to be less than 1.50 to 1.00.
(d) The Domestic Borrower will not permit or suffer Consolidated Debt
at any time to exceed 50% of Consolidated Total Capitalization at such time.
For purposes of this Section 6.10, the terms "Consolidated Net Worth",
"Consolidated Net Income", "Consolidated Income Available for Fixed Charges",
"Fixed Charges", "Consolidated Debt", and "Consolidated Total Capitalization"
shall have the meanings given thereto in the Senior Note Purchase Agreement.
SECTION 6.11. Accounting, Fiscal Year.
The Domestic Borrower will not change the accounting policies of the
Domestic Borrower or any Subsidiary in any way that could have a material effect
on the presentation of financial reports, or change the fiscal year of the
Domestic Borrower or any Subsidiary from that in effect on the Effective Date
except that the Domestic Borrower may change its fiscal year once if (i) in
connection with such change the Domestic Borrower provides the Administrative
Agent, each Lender, and the Issuing Bank with restated financial statements and
compliance certificates (including reasonably detailed computations showing
compliance with the financial covenants contained in Section 6.10) all in form,
scope and substance acceptable to the Administrative Agent, in its sole
discretion, which restated financial statements shall present information as if
such change in fiscal year had been made one calendar year earlier, and (ii) no
Default exists or would exist after giving effect to such change and
restatement. By way of illustration, if commencing January 1, 1998 there is no
Default and the Domestic Borrower changes its fiscal year to the calendar year,
then the Domestic Borrower must provide restated financial statements and
compliance certificates for calendar year 1997 as if such calendar year had been
the Domestic Borrower's fiscal year (and there shall not result any Default
under such restated 1997 calendar year financial statements or under the current
calendar year financial statements). Notwithstanding the foregoing, accounting
policies may change to accord with a change in generally accepted accounting
principles; provided further, that in the event of any such change, all
financial reports required hereunder that are thereby affected shall thereafter
be presented in two formats, one of which shall reflect such change and the
other of which shall reflect the original accounting policy, the covenants
contained in Sections 6.10 continuing to be calculated on the basis of such
original accounting policy.
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SECTION 6.12. Equal and Ratable Lien; Equitable Lien.
If notwithstanding the prohibition contained in Section 6.02, the
Domestic Borrower shall, or shall permit any of its Subsidiaries to, directly or
indirectly create, incur, assume or permit to exist any Lien securing
Indebtedness for borrowed money, other than those Liens permitted by the
provisions of clauses (a) through (c) of Section 6.02, it will make or cause to
be made effective provision whereby the Loans and other obligations of the
Borrowers hereunder will be secured equally and ratably with any and all other
obligations thereby secured, such security to be pursuant to agreements
reasonably satisfactory to the Required Lenders, the Issuing Bank and the
Administrative Agent and, in any such case, the Loans and other obligations of
the Borrowers hereunder shall have the benefit, to the fullest extent that, and
with such priority as, the holders of the Loans and other obligations of the
Borrowers hereunder may be entitled under applicable law, of an equitable Lien
on such property. Such violation of Section 6.02 will constitute an Event of
Default, whether or not provision is made for an equal and ratable Lien pursuant
to this Section 6.12.
Article VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) a Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
(b) a Borrower shall fail to pay any interest on any Loan or any fee or
any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement, within two Business Days after the same
shall become due and payable;
(c) any representation or warranty made or deemed made by or on behalf
of a Borrower or any Subsidiary in or in connection with this Agreement or any
amendment or modification hereof or waiver hereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection with this Agreement or any amendment or modification hereof or waiver
hereunder, shall prove to have been incorrect in any material respect when made
or deemed made;
(d) a Borrower shall fail to observe or perform any covenant, condition
or agreement contained in Section 5.02, 5.03 (with respect to the Borrowers'
existence) or 5.08 or in Article VI;
(e) a Borrower shall fail to observe or perform any covenant, condition
or agreement contained in this Agreement (other than those specified in clause
(a), (b) or (d) of this Article), and such failure if capable of being remedied,
shall continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrowers (which notice will be given at the request
of any Lender or the Issuing Bank);
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(f) a Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of any
Material Indebtedness, when and as the same shall become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Indebtedness or any trustee or agent on its or
their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of a Borrower or any Material Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for a Borrower or any Material Subsidiary or for a substantial
part of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or ordering any
of the foregoing shall be entered;
(i) a Borrower or any Material Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation, reorganization
or other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for a Borrower or any Material Subsidiary or for
a substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) a Borrower or any Material Subsidiary shall become unable, admit in
writing or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $1,000,000 shall be rendered against a Borrower, any
Subsidiary or any combination thereof and the same shall remain undischarged for
a period of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to attach or
levy upon any assets of a Borrower or any Subsidiary to enforce any such
judgment(s) for the payment of money in an aggregate amount in excess of
$1,000,000;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of the Domestic
Borrower and its Subsidiaries in an aggregate amount exceeding (i) $500,000 in
any year or (ii) $1,000,000 for all periods;
(m) a Change in Control shall occur; or
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(n) any Credit Document shall cease to be, or it shall be asserted by
or on behalf of a Borrower or any successor thereto that any Credit Document is
not, in full force and effect and enforceable in accordance with its terms;
then, and in every such event (other than an event with respect to a Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrowers, take one or
more of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrowers accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrowers, and (iii) require
cash collateral as contemplated by Section 2.06(j); and in case of any event
with respect to a Borrower described in clause (h) or (i) of this Article, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrowers accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrowers.
Article VIII
The Administrative Agent
(a) Each of the Lenders and the Issuing Bank hereby irrevocably
appoints the Administrative Agent and the Co-Agent as its agent and authorizes
the Administrative Agent and the Co-Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent and the
Co-Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
(b) Any bank serving as the Administrative Agent or as the Co-Agent
hereunder shall have the same rights and powers in its capacity as a Lender or
Issuing Bank as any other Lender or Issuing Bank and may exercise the same as
though it were not the Administrative Agent or the Co-Agent, and such bank and
its Affiliates may accept deposits from, lend money to and generally engage in
any kind of business with the Borrowers or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent or the Co-Agent hereunder.
(c) The Administrative Agent and the Co-Agent shall not have any duties
or obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) the Administrative Agent and the Co-Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent and the
Co-Agent shall not have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated hereby that the Administrative Agent is required to exercise in
writing by the
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Issuing Bank or by the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary under the circumstances as provided in Section
9.02), and (c) except as expressly set forth herein, the Administrative Agent
and the Co-Agent shall not have any duty to disclose, and shall not be liable
for the failure to disclose, any information relating to the Borrowers or any of
the Subsidiaries that is communicated to or obtained by any bank serving as
Administrative Agent or the Co-Agent or any of its respective Affiliates in any
capacity. The Administrative Agent shall not be liable for any action taken or
not taken by it with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own gross
negligence or wilful misconduct. The Administrative Agent shall be deemed not to
have knowledge of any Default unless and until written notice thereof is given
to the Administrative Agent by a Borrower or a Lender, and the Administrative
Agent shall not be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with this
Agreement or any other Credit Document, (ii) the contents of any certificate,
report or other document delivered hereunder or in connection herewith or
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other Credit Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
(d) The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent and the Co-Agent may
consult with legal counsel (who may be counsel for the Borrowers), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
(e) The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
(f) Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Bank and the Borrowers.
Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Borrowers, to appoint a successor to the Administrative
Agent. If no successor shall have been so appointed by the Required Lenders and
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shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint
a successor Administrative Agent which shall be a bank with an office in New
York, New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrowers to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed among the Borrowers
and such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent. The Co-Agent
may resign at any time by notifying the Administrative Agent, the Lenders, the
Issuing Bank and the Borrowers.
(g) Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or the Co-Agent or any other Lender or
the Issuing Bank and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or the Co-Agent or any other Lender or
the Issuing Bank and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement, any related agreement or
any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices.
Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
(a) if to a Borrower, to such Borrower [c/o Volt Information
Sciences, Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention of Xxxxx X. Xxxxxxx, Senior Vice President and
Chief Financial Officer (Telecopy No. (000) 000-0000), with a copy to
Volt Information Sciences, Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000, Attention of Xxxxxx X. Xxxxxxxxx, General Counsel
(Telecopy No. (000) 000-0000)];
(b) if to the Administrative Agent, to The Chase Manhattan
Bank, Agent Bank Services Group, Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention of Xxxxx Xxxxxx (Telecopy No. (212)
552-5658), with a copy to The Chase Manhattan
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Bank, 000 Xxxxxxx Xxxxxx, Xxx Xxxx 00000, Attention of Xxxxx Xxxxxxxxx
(Telecopy No. (000) 000-0000);
(c) if to the Co-Agent, to it at Fleet Bank, N.A., 1185 Avenue
of the Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxxx Xxxxx
(Telecopy No. (000) 000-0000);
(d) if to the Issuing Bank, to it at The Chase Manhattan Bank,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxx
Xxxxxxxxx (Telecopy No. (000) 000-0000);
(e) if to the Swingline Lender, to it at The Chase Manhattan
Bank, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxx
Xxxxxxxxx (Telecopy No. (000) 000-0000); and
(f) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments.
(a) No failure or delay by the Administrative Agent, the Co-Agent, the
Issuing Bank or any Lender in exercising any right or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Co-Agent, the Issuing Bank and the Lenders hereunder
are cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or consent to any
departure by a Borrower therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) of this Section, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. Without limiting the generality of the foregoing, the making of
a Loan or issuance of a Letter of Credit shall not be construed as a waiver of
any Default, regardless of whether the Administrative Agent, any Lender or the
Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrowers and the Required Lenders or by the Borrowers and
the Administrative Agent with the consent of the Required Lenders; provided that
no such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of
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payment of the principal amount of any Loan or LC Disbursement, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.18(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, or (v)
change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent, the Co-Agent,
the Issuing Bank or the Swingline Lender hereunder without the prior written
consent of the Administrative Agent, the Co-Agent, the Issuing Bank or the
Swingline Lender, as the case may be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver.
(a) The Borrowers shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by the Administrative Agent, the Issuing Bank or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, the
Issuing Bank or any Lender, in connection with the enforcement or protection of
its rights in connection with this Agreement or any other Credit Document,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.
(b) The Borrowers shall indemnify the Administrative Agent, the
Co-Agent, the Issuing Bank and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an "Indemnitee") against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of the Original Credit Agreement or this Agreement or any
agreement or instrument contemplated thereby or hereby, the performance by the
parties thereto or hereto of their respective obligations thereunder or
hereunder or the consummation of the Transactions or any other transactions
contemplated thereby or hereby, (ii) any Loan or Letter of Credit or the use of
the proceeds therefrom (including any refusal by the Issuing Bank to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by a Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to a Borrower or
any of its Subsidiaries, or (iv)
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any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses resulted from
the gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent that a Borrower fails to pay any amount required to
be paid by it to the Administrative Agent, the Co-Agent, the Issuing Bank or the
Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent, the Co-Agent, the Issuing
Bank or the Swingline Lender, as the case may be, such Lender's Applicable
Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent, the Co-Agent, the Issuing Bank or the Swingline Lender in
its capacity as such.
(d) To the extent permitted by applicable law, no party hereto shall
assert against any other party hereto, and each party hereto hereby waives, any
claim against any other party hereto, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement
or any agreement or instrument contemplated hereby, the Transactions, any Loan
or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later than
ten days after written demand therefor.
SECTION 9.04. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit), except that a Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
the Issuing Bank and of each Lender (and any attempted assignment or transfer by
a Borrower without such consent shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans at the time owing to it); provided that (i) except
in the case of an assignment to a Lender or an Affiliate of a Lender, each of
the Domestic Borrower and the Administrative Agent (and, in the case of an
assignment of all or a portion of a Commitment or any Lender's obligations in
respect of its LC Exposure or Swingline Exposure, the Issuing Bank and the
Swingline Lender) must give their prior written consent to such assignment
(which consent shall not be unreasonably
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withheld), (ii) except in the case of an assignment to a Lender or an Affiliate
of a Lender or an assignment of the entire remaining amount of the assigning
Lender's Commitment, the amount of the Commitment of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000 unless each of the Domestic Borrower
and the Administrative Agent otherwise consent, (iii) each partial assignment
shall be made as an assignment of a proportionate part of all the assigning
Lender's rights and obligations under this Agreement, except that this clause
(iii) shall not apply to rights in respect of outstanding Competitive Loans,
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500, and (v) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; and provided further that any consent of the Domestic Borrower
otherwise required under this paragraph shall not be required if an Event of
Default under clause (h) or (i) of Article VII has occurred and is continuing.
Subject to acceptance and recording thereof pursuant to paragraph (d) of this
Section, from and after the effective date specified in each Assignment and
Acceptance the assignee thereunder shall be a party hereto and, to the extent of
the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.15,
2.16, 2.17 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrowers, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrowers, the Administrative Agent,
the Issuing Bank and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers, the Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be
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effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrowers, the
Administrative Agent, the Issuing Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrowers, the
Administrative Agent, the Issuing Bank and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (f) of this Section, the Borrowers agree that each
Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 9.08 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.18(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.15 or 2.17 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Domestic
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.17 unless
the Domestic Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrowers, to comply with
Section 2.17(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. Survival.
All covenants, agreements, representations and warranties made by the
Borrowers herein and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of this Agreement and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its
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behalf and notwithstanding that the Administrative Agent, the Issuing Bank or
any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness.
This Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single
contract. This Agreement and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability.
Any provision of this Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity, illegality or unenforceability without
affecting the validity, legality and enforceability of the remaining provisions
hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.08. Right of Setoff.
If an Event of Default shall have occurred and be continuing, each
Lender, the Issuing Bank, and each of its respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender, the Issuing Bank, or Affiliate to or for the credit or the
account of any Borrower against any of and all the obligations of such Borrower
now or hereafter existing under this Agreement held by such Lender, or by the
Issuing Bank, irrespective of whether or not such Lender or the Issuing Bank
shall have made any demand under this Agreement and although such obligations
may be unmatured. The rights of each Lender and of the Issuing Bank under
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this Section are in addition to other rights and remedies (including other
rights of setoff) which such Lender or the Issuing Bank may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process;
Judgement Currency.
(a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each party hereto hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each party hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party hereto may otherwise have to
bring any action or proceeding relating to this Agreement against any other
party hereto or its properties in the courts of any jurisdiction.
(c) Each party hereto hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each party hereto hereby irrevocably waives,
to the fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
(e) If for the purpose of obtaining judgment in any court it is
necessary to convert a sum due hereunder in one currency into another currency,
the parties hereto agree, to the fullest extent that they may effectively do so
under applicable law, that the rate of exchange used shall be the spot rate at
which in accordance with normal banking procedures the first currency could be
purchased in New York City with such other currency by the Person obtaining such
judgment on the Business Day preceding that on which final judgment is given.
The parties agree, to the fullest extent that they may effectively do so under
applicable law, that the obligations of each Borrower to make payments in any
currency of the principal of and interest on the Loans and any other amounts due
from such Borrower hereunder to the Administrative Agent as provided in Section
2.18 (i) shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment (whether or not entered in accordance with Section
9.09(e)), in any currency other than the relevant currency, except to the extent
that such tender or recovery shall result in the actual receipt by the
Administrative Agent at its relevant office as provided in Section 2.18 on
behalf of the Lenders of the full amount of the relevant currency expressed to
be payable in
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respect of the principal of and interest on the Loans and all other amounts due
hereunder (it being assumed for purposes of this clause (i) that the
Administrative Agent will convert any amount tendered or recovered), (ii) shall
be enforceable as an alternative or additional cause of action for the purpose
of recovering in the relevant currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the relevant currency so
expressed to be payable and (iii) shall not be affected by an unrelated judgment
being obtained for any other sum due under this Agreement.
SECTION 9.10. WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings.
Article and Section (and subsection) headings and the Table of Contents
used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality.
Each of the Administrative Agent, the Issuing Bank and the Lenders
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of any Borrower
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis
from a source other than a Borrower. For
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the purposes of this Section, "Information" means all information received from
any Borrower relating to any Borrower or its business, other than any such
information that is available to the Administrative Agent, the Issuing Bank or
any Lender on a nonconfidential basis prior to disclosure by a Borrower;
provided that, in the case of information received from a Borrower after the
date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
SECTION 9.13. Interest Rate Limitation.
Notwithstanding anything herein to the contrary, if at any time the
interest rate applicable to any Loan or other amount due hereunder, together
with all fees, charges and other amounts which are treated as interest on such
Loan or other amount under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by the party holding such Loan or other
amount in accordance with applicable law, the rate of interest payable in
respect of such Loan or other amount hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to the
extent lawful, the interest and Charges that would have been payable in respect
of such Loan or other amount but were not payable as a result of the operation
of this Section shall be cumulated and the interest and Charges payable to such
party in respect of other Loans or amounts or periods shall be increased (but
not above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such party.
SECTION 9.14. European Economic and Monetary Union.
(a) Definitions. In this Section 9.14 and in each other provision of
this Agreement to which reference is made in this Section 9.14 expressly or
impliedly, the following terms have the meanings given to them in this Section
9.14:
"commencement of the third stage of EMU" means the date of commencement
of the third stage of EMU (at the date of this Agreement expected to be January
1, 1999) or the date on which circumstances arise which (in the opinion of the
Administrative Agent) have substantially the same effect and result in
substantially the same consequences as commencement of the third stage of EMU as
contemplated by the Treaty on European Union.
"EMU" means economic and monetary union as contemplated in the Treaty
on European Union.
"EMU legislation" means legislative measures of the European Council
for the introduction of, changeover to or operation of a single or unified
European currency (whether known as the euro or otherwise), being in part the
implementation of the third stage of EMU;
"euro" means the single currency of participating member states of the
EMU;
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"euro unit" means the currency unit of the euro;
"national currency unit" means the unit of currency (other than a euro
unit) of a participating member state;
"participating member state" means each state so described in any EMU
legislation; and
"Treaty on European Union" means the Treaty of Rome of March 25, 1957,
as amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty (which was
signed at Maastricht on February 7, 1992, and came into force on November 1,
1993), as amended from time to time.
(b) Effectiveness of Provisions. The provisions of subsections (c) to
(j) below (inclusive) shall be effective at and from the commencement of the
third stage of EMU, provided, that if and to the extent that any such provision
relates to any state (or the currency of such state) that is not a participating
member state on the commencement of the third stage of EMU, such provision shall
become effective in relation to such state (and the currency of such state) at
and from the date on which such state becomes a participating member state.
(c) Redenomination and Alternative Currencies. Each obligation under
this Agreement of a party to this Agreement which has been denominated in the
national currency unit of a participating member state shall be redenominated
into the euro unit in accordance with EMU legislation, provided, that if and to
the extent that any EMU legislation provides that following the commencement of
the third stage of EMU an amount denominated either in the euro or in the
national currency unit of a participating member state and payable within that
participating member state by crediting an account of the creditor can be paid
by the debtor either in the euro unit or in the national currency unit, each
party to this Agreement shall be entitled to pay or repay any such amount either
in the euro unit or in such national currency unit.
(d) Loans. Any Loan in the currency of a participating member state
shall be made in the euro unit.
(e) Business Days. With respect to any amount denominated or to be
denominated in the euro or a national currency unit, any reference to a
"Business Day" shall be construed as a reference to a day (other than a Saturday
or Sunday) on which banks are generally open for business in
(i) London and New York City and
(ii) Frankfurt am Main, Germany (or such principal financial
center or centers in such participating member state or states as the
Administrative Agent may from time to time nominate for this purpose).
(f) Payments to the Administrative Agent. Sections 2.10 and 2.18 shall
be construed so that, in relation to the payment of any amount of euro units or
national currency units, such amount shall be made available to the
Administrative Agent in immediately available, freely transferable, cleared
funds to such account with such bank in Frankfurt am Main, Germany (or such
other principal financial center in such participating member state as the
Administrative
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Agent may from time to time nominate for this purpose) as the Administrative
Agent shall from time to time nominate for this purpose.
(g) Payments by the Administrative Agent to the Lenders. Any amount
payable by the Administrative Agent to the Lenders under this Agreement in the
currency of a participating member state shall be paid in the euro unit.
(h) Payments by the Administrative Agent Generally. With respect to the
payment of any amount denominated in the euro or in a national currency unit,
the Administrative Agent shall not be liable to the Borrowers or any of the
Lenders in any way whatsoever for any delay, or the consequences of any delay,
in the crediting to any account of any amount required by this Agreement to be
paid by the Administrative Agent if the Administrative Agent shall have taken
all relevant steps to achieve, on the date required by this Agreement, the
payment of such amount in immediately available, freely transferable, cleared
funds (in the euro unit or, as the case may be, in a national currency unit) to
the account with the bank in the principal financial center in the participating
member state which the Borrowers or, as the case may be, any Lender shall have
specified for such purpose. In this subsection (h), "all relevant steps" means
all such steps as may be prescribed from time to time by the regulations or
operating procedures or such clearing or settlement system as the Administrative
Agent may from time to time determine for the purpose of clearing or settling
payments of the euro.
(i) Basis of Accrual. If the basis of accrual of interest or fees
expressed in this Agreement with respect to the currency of any state that
becomes a participating state shall be inconsistent with any convention or
practice in the London interbank market or, as the case may be, the Paris
interbank market for the basis of accrual of interest or fees in respect of the
euro, such convention or practice shall replace such expressed basis effective
as of and from the date on which such state becomes a participating member
state; provided, that if any Loan in the currency of such state is outstanding
immediately prior to such date, such replacement shall take effect, with respect
to such Loan, at the end of the then current Interest Period.
(j) Rounding and Other Consequential Changes. Without prejudice and in
addition to any method of conversion or rounding prescribed by any EMU
legislation and without prejudice to the respective liabilities for indebtedness
of each Borrower to the Lenders and the Lenders to the Borrowers under or
pursuant to this Agreement:
(i) each reference in this Agreement to a minimum amount (or
an integral multiple thereof) in a national currency unit to be paid to
or by the Administrative Agent shall be replaced by a reference to such
reasonably comparable and convenient amount (or an integral multiple
thereof) in the euro unit as the Administrative Agent may from time to
time specify; and
(ii) except as expressly provided in this subsection 9.14,
each provision of this Agreement shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to
time specify to be necessary or appropriate to reflect the introduction
of or changeover to the euro in participating member states.
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(k) Increased Costs. The Borrowers shall from time to time, at the
request of the Administrative Agent, pay to the Administrative Agent for the
account of each Lender the amount of any cost or increased cost incurred by, or
of any reduction in any amount payable to or in the effective return on its
capital to, or of interest or other return foregone by, such Lender or any
holding company of such Lender as a result of the introduction of, changeover to
or operation of the euro in any participating member state to the extent such
introduction, changeover or operation relates to such Lender's obligations
hereunder; provided that the Borrowers shall not be required to pay to any
Lender any amounts under this paragraph for any period prior to the date on
which such Lender gives notice to the Borrowers that such amounts are payable
unless such Lender gives notice within 180 days after it becomes aware or should
have been aware of the event giving rise to such payment obligation.
SECTION 9.15. Multiple Borrowers.
The Domestic Borrower shall be jointly and severally liable with each
Subsidiary Borrower in respect of the principal of, and interest on, all Loans
made to such Subsidiary Borrower hereunder. No Subsidiary Borrower shall be
liable for the repayment of the principal of, and interest on, Loans made to the
Domestic Borrower or to another Subsidiary Borrower. Except as expressly set
forth above in this Section 9.15 with respect to principal and interest on Loans
to the Domestic Borrower, each Borrower agrees that the representations and
warranties made by, and the liabilities, obligations, and covenants of and
applicable to, any or all of the Borrowers under this Agreement, shall be in
every case (whether or not specifically so stated in each such case herein)
joint and several in all circumstances. Every notice by or to any Borrower shall
be deemed also to constitute simultaneous notice by or to the other Borrower,
every act or omission by any Borrower shall be binding upon the other Borrower,
and the Administrative Agent, the Issuing Bank and the Lenders are fully
authorized by each Borrower to act and rely also upon the representations and
warranties, covenants, notices, acts, and omissions of the other Borrower.
Without limiting the generality of the foregoing, each Borrower agrees that the
obligations of such Borrower hereunder and under the other Loan Documents shall
be enforceable against such Borrower notwithstanding that this Agreement or any
other Loan Document may be unenforceable in any respect against the other
Borrower.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
VOLT INFORMATION SCIENCES, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
FLEET BANK, N.A.,
individually and as Co-Agent
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
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MELLON FINANCIAL SERVICE CORP.
ATTORNEY IN FACT FOR
MELLON BANK, N.A.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
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