Exhibit 4.5
CREDIT AGREEMENT
DATED AS OF NOVEMBER 25, 2003
AMONG
XXXXXXXXX DENTAL COMPANY,
AS THE COMPANY
THE SUBSIDIARY BORROWERS FROM TIME TO TIME PARTIES HERETO,
THE LENDERS FROM TIME TO TIME PARTIES HERETO,
BANK ONE, NA (MAIN OFFICE CHICAGO),
AS ADMINISTRATIVE AGENT
BANK OF AMERICA, N.A.,
AS SYNDICATION AGENT
AND
SUNTRUST BANK,
THE NORTHERN TRUST COMPANY, AND
U.S. BANK NATIONAL ASSOCIATION,
AS DOCUMENTATION AGENTS
================================================================================
BANC ONE CAPITAL MARKETS, INC. AND
BANC OF AMERICA SECURITIES LLC,
AS CO-LEAD ARRANGERS AND JOINT BOOK RUNNERS
================================================================================
SIDLEY XXXXXX XXXXX & XXXX LLP
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.......................................................1
1.1. Certain Defined Terms.............................................1
1.2. Plural Forms.....................................................21
ARTICLE II THE CREDITS......................................................21
2.1. Term Loan........................................................21
2.2. Revolving Loans..................................................22
2.3. Swing Line Loans.................................................22
2.4. Determination of Dollar Amounts; Required Payments;
Termination......................................................24
2.5. Commitment Fee; Reductions in Aggregate Revolving Loan
Commitment.......................................................25
2.6. Minimum Amount of Each Advance...................................25
2.7. Optional Principal Payments......................................25
2.8. Method of Selecting Types and Interest Periods for New
Advances.........................................................26
2.9. Conversion and Continuation of Outstanding Advances; No
Conversion or Continuation of Eurocurrency Advances After
Default..........................................................26
2.10. Method of Borrowing..............................................27
2.11. Changes in Interest Rate, etc....................................28
2.12. Rates Applicable After Default...................................28
2.13. Method of Payment; Non-availability of Original Currency.........28
2.14. Advances to be Made in euro......................................29
2.15. Noteless Agreement; Evidence of Indebtedness.....................29
2.16. Telephonic Notices...............................................30
2.17. Interest Payment Dates; Interest and Fee Basis...................31
2.18. Notification of Advances, Interest Rates, Prepayments and
Commitment Reduction.............................................31
2.19. Lending Installations............................................31
2.20. Non-Receipt of Funds by the Agent................................32
2.21. Market Disruption................................................32
2.22. Judgment Currency................................................33
2.23. Replacement of Lender............................................33
2.24. Facility LCs.....................................................34
2.25. Subsidiary Borrowers.............................................39
ARTICLE III YIELD PROTECTION; TAXES..........................................39
3.1. Yield Protection.................................................39
3.2. Changes in Capital Adequacy Regulations..........................40
3.3. Availability of Types of Advances................................41
3.4. Funding Indemnification..........................................41
3.5. Taxes............................................................41
3.6. Lender Statements; Survival of Indemnity.........................43
3.7. Alternative Lending Installation.................................43
ARTICLE IV CONDITIONS PRECEDENT.............................................44
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4.1. Effectiveness of Commitments.....................................44
4.2. Each Credit Extension............................................46
4.3. Initial Advance to Each New Subsidiary Borrower..................46
ARTICLE V REPRESENTATIONS AND WARRANTIES...................................47
5.1. Existence and Standing...........................................47
5.2. Authorization and Validity.......................................47
5.3. No Conflict; Government Consent..................................47
5.4. Financial Statements.............................................48
5.5. Material Adverse Change..........................................48
5.6. Taxes............................................................48
5.7. Litigation and Contingent Obligations............................48
5.8. Subsidiaries.....................................................49
5.9. ERISA............................................................49
5.10. Accuracy of Information..........................................49
5.11. Regulation U.....................................................49
5.12. Material Agreements..............................................49
5.13. Compliance With Laws.............................................50
5.14. Ownership of Properties..........................................50
5.15. Plan Assets; Prohibited Transactions.............................50
5.16. Environmental Matters............................................50
5.17. Investment Company Act...........................................50
5.18. Public Utility Holding Company Act...............................50
5.19. Insurance........................................................50
5.20. Solvency.........................................................51
5.21. No Default or Unmatured Default..................................51
5.22. Reportable Transaction...........................................51
5.23. Post-Retirement Benefits.........................................51
5.24. AbilityOne Acquisition...........................................51
ARTICLE VI COVENANTS........................................................51
6.1. Financial Reporting..............................................51
6.2. Use of Proceeds..................................................53
6.3. Notice of Default................................................53
6.4. Conduct of Business..............................................53
6.5. Taxes............................................................54
6.6. Insurance........................................................54
6.7. Compliance with Laws.............................................54
6.8. Maintenance of Properties........................................54
6.9. Inspection; Keeping of Books and Records.........................54
6.10. Dividends........................................................55
6.11. Merger...........................................................55
6.12. Sale of Assets...................................................55
6.13. Investments and Acquisitions.....................................56
6.14. Indebtedness.....................................................59
6.15. Liens............................................................60
6.16. Affiliates.......................................................62
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6.17. Financial Contracts..............................................63
6.18. Subsidiary Covenants.............................................63
6.19. Contingent Obligations...........................................63
6.20. Leverage Ratio...................................................63
6.21. Interest Expense Coverage Ratio..................................63
6.22. Minimum Consolidated Net Worth...................................64
6.23. Additional Subsidiary Guarantors.................................64
6.24. Foreign Subsidiary Investments...................................64
6.25. Subordinated Indebtedness........................................64
6.26. Sale of Accounts.................................................64
ARTICLE VII DEFAULTS.........................................................65
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES...................68
8.1. Acceleration.....................................................68
8.2. Amendments.......................................................69
8.3. Preservation of Rights...........................................70
ARTICLE IX GENERAL PROVISIONS...............................................70
9.1. Survival of Representations......................................70
9.2. Governmental Regulation..........................................70
9.3. Headings.........................................................70
9.4. Entire Agreement.................................................70
9.5. Several Obligations; Benefits of this Agreement..................70
9.6. Expenses; Indemnification........................................71
9.7. Numbers of Documents.............................................72
9.8. Accounting.......................................................72
9.9. Severability of Provisions.......................................72
9.10. Nonliability of Lenders..........................................72
9.11. Confidentiality..................................................73
9.12. Lenders Not Utilizing Plan Assets................................73
9.13. Nonreliance......................................................73
9.14. Disclosure.......................................................74
9.15. Performance of Obligations.......................................74
9.16. Relations Among Lenders..........................................74
9.17. USA Patriot Act Notification.....................................75
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A
NEW ACCOUNT......................................................75
ARTICLE X THE AGENT........................................................75
10.1. Appointment; Nature of Relationship..............................75
10.2. Powers...........................................................76
10.3. General Immunity.................................................76
10.4. No Responsibility for Loans, Recitals, etc.......................76
10.5. Action on Instructions of Lenders................................76
10.6. Employment of Agents and Counsel.................................76
10.7. Reliance on Documents; Counsel...................................77
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10.8. Agent's Reimbursement and Indemnification........................77
10.9. Notice of Default................................................77
10.10. Rights as a Lender...............................................78
10.11. Lender Credit Decision...........................................78
10.12. Successor Agent..................................................78
10.13. Agent and Arranger Fees..........................................79
10.14. Delegation to Affiliates.........................................79
10.15. No Duties Imposed on Syndication Agents, Documentation
Agents or Arrangers..............................................79
ARTICLE XI SETOFF; RATABLE PAYMENTS.........................................79
11.1. Setoff...........................................................79
11.2. Ratable Payments.................................................79
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS................80
12.1. Successors and Assigns; Designated Lenders.......................80
12.2. Participations...................................................82
12.3. Assignments......................................................83
12.4. Dissemination of Information.....................................85
12.5. Tax Certifications...............................................85
ARTICLE XIII NOTICES..........................................................85
13.1. Notices; Effectiveness; Electronic Communication.................85
13.2. Change of Address, Etc...........................................86
ARTICLE XIV COUNTERPARTS; INTEGRATION; EFFECTIVENESS; ELECTRONIC
EXECUTION........................................................86
14.1. Counterparts; Effectiveness......................................86
14.2. Electronic Execution of Assignments..............................86
ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL............................................................87
15.1 CHOICE OF LAW....................................................87
15.2 CONSENT TO JURISDICTION..........................................87
15.3 WAIVER OF JURY TRIAL.............................................87
ARTICLE XVI CO-BORROWER PROVISIONS...........................................87
16.1. Appointment......................................................87
16.2. Separate Actions.................................................88
16.3. Co-Borrower Obligations Absolute and Unconditional...............88
16.4. Waivers and Acknowledgements.....................................89
16.5. Contribution Among Borrowers.....................................90
16.6. Subrogation......................................................90
16.7. Subordination....................................................90
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SCHEDULES
---------
Commitment Schedule
Pricing Schedule
EXHIBITS
--------
Exhibit E-1 - Form of Promissory Note for Term Loan (if requested)
Exhibit E-2 - Form of Promissory Note for Revolving Loan (if requested)
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CREDIT AGREEMENT
This Credit Agreement, dated as of November 25, 2003, is entered into by
and among Xxxxxxxxx Dental Company, a Minnesota corporation, as the Company, the
Subsidiary Borrowers from time to time parties hereto, the Lenders and Bank One,
NA, a national banking association having its principal office in Chicago,
Illinois, as Administrative Agent. The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms. As used in this Agreement:
"AbilityOne" means AbilityOne Products Corp., a Delaware corporation.
"AbilityOne Acquisition" means the acquisition by the Company or a
Subsidiary or Subsidiaries of the Company of all of the capital stock of
AbilityOne on the terms and conditions set forth in the AbilityOne Acquisition
Agreement.
"AbilityOne Acquisition Agreement" means that certain Agreement and Plan of
Merger dated as of August 15, 2003 by and among the Company, RETEP, Inc.,
AbilityOne Products Corp., and AbilityOne II, L.L.C., as representative of the
company stockholders, as in effect on September 12, 2003 and without giving
effect to any subsequent amendment or modification thereto.
"AbilityOne Corporation" means AbilityOne Corporation, a Michigan
corporation.
"Accounting Changes" is defined in Section 9.8 hereof.
"Accounts" means the Company's or a Subsidiary's right to the payment of
money from the sale, lease or other disposition of goods or other assets by the
Company or a Subsidiary, a rendering of services by the Company or a Subsidiary,
a loan by the Company or a Subsidiary, the overpayment of taxes or other
liabilities of the Company, or otherwise, however such right to payment may be
evidenced, together with all other rights and interests (including all liens and
security interests) that the Company or Subsidiary may at any time have against
any account debtor or other party obligated thereon or against any of the
property of such account debtor or other party.
"Acquisition" means any transaction, or any series of related transactions,
consummated on or after the Closing Date, by which the Company or any of its
Subsidiaries (i) acquires any going concern business or all or substantially all
of the assets of any Person, or division thereof, whether through purchase of
assets, merger or otherwise or (ii) directly or indirectly acquires from one or
more Persons (in one transaction or as the most recent transaction in a series
of transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only
by reason of the happening of a contingency) or a majority (by percentage of
voting power) of the outstanding ownership interests of a partnership or limited
liability company of any Person.
"Advance" means a borrowing hereunder consisting of the aggregate amount of
the several Revolving Loans or Term Loans, as the case may be, (i) made by some
or all of the Lenders on the same Borrowing Date, or (ii) converted or continued
by the Lenders on the same date of conversion or continuation, consisting, in
either case, of the aggregate amount of the several Loans of the same Type and,
in the case of Eurocurrency Loans, in the same Agreed Currency and for the same
Interest Period. The term "Advance" shall include Swing Line Loans unless
otherwise expressly provided.
"Affected Lenders" is defined in Section 2.23.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of 10% or more of any class of voting securities (or other ownership
interests) of the controlled Person or possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of voting securities, by contract
or otherwise.
"Agent" means Bank One in its capacity as contractual representative of the
Lenders pursuant to Article X, and not in its individual capacity as a Lender,
as Administrative Agent, and any successor Agent appointed pursuant to Article
X.
"Aggregate Outstanding Revolving Credit Exposure" means, at any time, the
aggregate of the Outstanding Revolving Credit Exposure of all the Lenders.
"Aggregate Revolving Loan Commitment" means the aggregate of the Revolving
Loan Commitments of all the Lenders, as may be increased or reduced from time to
time pursuant to the terms hereof. The initial Aggregate Revolving Loan
Commitment is Two Hundred Million and 00/100 Dollars ($200,000,000).
"Agreed Currencies" means (i) Dollars, (ii) so long as such currencies
remain Eligible Currencies, British Pounds Sterling, Canadian Dollars and euro,
and (iii) any other Eligible Currency which the applicable Borrower requests the
Agent to include as an Agreed Currency hereunder and which is acceptable to all
of the Lenders. For the purposes of this definition, each of the specific
currencies referred to in clause (ii) (except for euro), above, shall mean and
be deemed to refer to the lawful currency of the jurisdiction referred to in
connection with such currency, e.g., "Canadian Dollars" means the lawful
currency of Canada.
"Agreement" means this Credit Agreement, as it may be amended, restated,
supplemented or otherwise modified and as in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect in the United States from time to time, applied in a
manner consistent with that used in preparing the financial statements of the
Company referred to in Section 5.4; provided, however, that except as provided
in Section 9.8, with respect to the calculation of the financial covenants
2
set forth in Sections 6.20, 6.21 and 6.22 (and the defined terms used in such
Sections), "Agreement Accounting Principles" means generally accepted accounting
principles as in effect in the United States as of the Closing Date, applied in
a manner consistent with that used in preparing the financial statements of the
Company referred to in Section 5.4 hereof.
"Alternate Base Rate" means, for any day, a fluctuating rate of interest
per annum equal to the higher of (i) the Prime Rate for such day and (ii) the
sum of (a) the Federal Funds Effective Rate for such day and (b) one-half of one
percent (0.5%) per annum.
"Applicable Fee Rate" means, with respect to the Commitment Fee at any
time, the percentage rate per annum which is applicable at such time with
respect to such fee as set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Approved Fund" means any Fund that is administered or managed by (i) a
Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Approximate Equivalent Amount" of any currency with respect to any amount
of Dollars shall mean the Equivalent Amount of such currency with respect to
such amount of Dollars on or as of such date, rounded up to the nearest amount
of such currency as determined by the Agent from time to time.
"Arrangers" means, collectively, Banc One Capital Markets, Inc., a Delaware
corporation, and its successors, and Banc of America Securities LLC, and its
successors, in their capacities as Co-Lead Arrangers and Joint Book Runners.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Assignment Agreement" is defined in Section 12.3.1.
"Assumption Letter" means a letter of a Domestic Subsidiary that is a
Wholly-Owned Subsidiary of the Company addressed to the Agent and the Lenders,
acknowledged by the Agent and consented to by each then existing Borrower, in
substantially the form of Exhibit H hereto, pursuant to which such Subsidiary
agrees to become a "Subsidiary Borrower" and agrees to be bound by the terms and
conditions hereof.
"Authorized Officer" means, for any Person, any of the chief executive
officer, president, chief operating officer, chief financial officer, treasurer
or assistant treasurer of such Person, acting singly.
"Available Aggregate Revolving Loan Commitment" means, at any time, the
Aggregate Revolving Loan Commitment then in effect minus the Aggregate
Outstanding Revolving Credit Exposure at such time.
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"Bank One" means Bank One, NA, a national banking association having its
principal office in Chicago, Illinois, in its individual capacity, and its
successors.
"Borrower" means any of the Company or any of the Subsidiary Borrowers, and
"Borrowers" shall mean the Company and the Subsidiary Borrowers.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurocurrency Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago, Illinois for the conduct of
substantially all of their commercial lending activities, interbank wire
transfers can be made on the Fedwire system and dealings in Dollars and the
other Agreed Currencies are carried on in the London interbank market (and, if
the Advances which are the subject of such borrowing, payment or rate selection
are denominated in euro, a day upon which such clearing system as is determined
by the Agent to be suitable for clearing or settlement of euro is open for
business) and (ii) for all other purposes, a day (other than a Saturday or
Sunday) on which banks generally are open in Chicago, Illinois for the conduct
of substantially all of their commercial lending activities and interbank wire
transfers can be made on the Fedwire system.
"Capitalized Lease" of a Person means any lease of Property by such Person
as lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalent Investments" means (i) short-term obligations of, or fully
guaranteed by, the United States of America, (ii) commercial paper rated A-1 or
better by S&P or P-1 or better by Xxxxx'x, (iii) demand deposit accounts
maintained in the ordinary course of business, (iv) certificates of deposit
issued by and time deposits with commercial banks (whether domestic or foreign)
having capital and surplus in excess of $100,000,000, and (v) money market funds
investing primarily in assets of the type described in clauses (i) and (ii) of
this definition; provided in each case that the same provides for payment of
both principal and interest (and not principal alone or interest alone) and is
not subject to any contingency regarding the payment of principal or interest.
"Change in Control" means (i) the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the SEC under the Securities Exchange Act of 1934) of 30% or more of
the outstanding shares of voting stock of the Company; (ii) other than pursuant
to a transaction otherwise permitted under this Agreement, the Company shall
cease to own, directly or indirectly and free and clear of all Liens or other
encumbrances, all of the outstanding shares of voting stock of the Subsidiary
Borrowers and the other Guarantors on a fully diluted basis; (iii) the majority
of the Board of Directors of any Borrower fails to consist of Continuing
Directors or (iv) any "Change of Control" (or similar
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term) under (and as defined in) the Note Purchase Agreement or the Senior Notes
shall have occurred.
"Closing Date" means November 25, 2003.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time, and any rule or regulation issued
thereunder.
"Collateral Shortfall Amount" is defined in Section 8.1.
"Commitment Fee" is defined in Section 2.5.1.
"Commitment Schedule" means the Schedule identifying each Lender's
Revolving Loan Commitment and Term Loan Commitment as of the Closing Date
attached hereto and identified as such.
"Company" means Xxxxxxxxx Dental Company, a Minnesota corporation, and its
permitted successors and assigns (including, without limitation, a debtor in
possession on its behalf).
"Computation Date" is defined in Section 2.4.1.
"Consolidated Adjusted EBITDA" means, as to any Person for any period, the
sum of Consolidated EBIT for such period plus consolidated depreciation and
amortization for such period. For Persons acquired by the Company or any
Subsidiary during the relevant measurement period, their EBITDA results will be
included in the calculation of Consolidated Adjusted EBITDA as if those Persons
were owned by the Company or such Subsidiary for the entire reporting period.
Consolidated Adjusted EBITDA will be calculated on a rolling four-quarter basis.
"Consolidated Adjusted Net Income" means, as to any Person for any period,
the Consolidated Net Income of such Person, provided that, for Persons acquired
by the Company or any Subsidiary during the relevant measurement period, their
Consolidated Net Income will be included in the calculation of Consolidated
Adjusted Net Income as if those Persons were owned by the Company or such
Subsidiary for the entire reporting period. Consolidated Adjusted Net Income
will be calculated on a rolling four-quarter basis.
"Consolidated EBIT" means, as to any Person and with reference to any
period, Consolidated Net Income plus, to the extent deducted from revenues in
determining Consolidated Net Income, (i) Consolidated Interest Expense, and (ii)
expense for federal, state, local and foreign income and franchise taxes paid or
accrued, all calculated for such Person and its Subsidiaries on a consolidated
basis.
"Consolidated Interest Expense" means, as to any Person and with reference
to any period, the interest expense of such Person and its Subsidiaries
calculated on a consolidated basis for such period including, without
limitation, such interest expense as may be attributable to capitalized leases,
receivables transaction financing costs, the discount or implied interest
5
component of off-balance sheet liabilities, all commissions, discounts and other
fees and charges owed with respect to Letters of Credit and net xxxx-to-market
exposure.
"Consolidated Net Income" means as to any Person and with reference to any
period, the net income (or loss) of such Person and its Subsidiaries calculated
on a consolidated basis for such period, excluding any non-cash charges or gains
which are unusual, non-recurring or extraordinary.
"Consolidated Net Worth" means, as of any date of determination, the
consolidated total stockholders' equity (including capital stock, additional
paid-in capital and retained earnings) of the Company and its Subsidiaries
determined in accordance with Agreement Accounting Principles.
"Consolidated Total Debt" means (i) all indebtedness of the Company and its
Subsidiaries, on a consolidated basis, reflected on a balance sheet prepared in
accordance with Agreement Accounting Principles, plus, without duplication (ii)
the face amount of all outstanding Letters of Credit in respect of which the
Company or any Subsidiary has any reimbursement obligation and the principal
amount of all Contingent Obligations of the Company and its Subsidiaries, plus
Capitalized Lease Obligations, plus obligations arising from the sale of
accounts receivable and other forms of off-balance sheet financing, including
Off-Balance Sheet Liabilities.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract, application for a Letter of Credit or the
obligations of any such Person as general partner of a partnership with respect
to the liabilities of the partnership.
"Continuing Director" means, with respect to any Person as of any date of
determination, any member of the board of directors of such Person who (i) was a
member of such board of directors on the Closing Date, or (ii) was nominated for
election or elected to such board of directors with the approval of the required
majority of the Continuing Directors who were members of such board at the time
of such nomination or election; provided that if any individual who is so
elected or nominated in connection with a merger, consolidation, acquisition or
similar transaction and who was not a Continuing Director prior thereto,
together with all other individuals so elected or nominated in connection with
such merger, consolidation, acquisition or similar transaction who were not
Continuing Directors prior thereto, constitute a majority of the members of the
board of directors of such Person, such individual shall not be a Continuing
Director.
"Controlled Group" means all members of a controlled group of corporations
or other business entities and all trades or businesses (whether or not
incorporated) under common control which, together with the Company or any of
its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
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"Conversion/Continuation Notice" is defined in Section 2.9.
"Credit Extension" means the making of an Advance or the issuance of a
Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an Advance or the
issuance date for a Facility LC.
"Credit Party" means, collectively, the Borrowers and each of the
Guarantors.
"Default" means an event described in Article VII.
"Designated Lender" means, with respect to each Designating Lender, each
Eligible Designee designated by such Designating Lender pursuant to Section
12.1.2.
"Designating Lender" means, with respect to each Designated Lender, the
Lender that designated such Designated Lender pursuant to Section 12.1.2.
"Designation Agreement" is defined in Section 12.1.2.
"Disqualified Stock" means any preferred or other capital stock that, by
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder thereof, in whole or in part, on or prior
to the date that is ninety-one (91) days after the later of (i) the Revolving
Loan Termination Date and (ii) the Term Loan Maturity Date.
"Dollar Amount" of any currency at any date shall mean (i) the amount of
such currency if such currency is Dollars or (ii) the Equivalent Amount if such
currency is any Eligible Currency other than Dollars.
"Dollar" and "$" means the lawful currency of the United States of America.
"Domestic Subsidiary" means any Subsidiary of any Person that is not a
Foreign Subsidiary.
"Eligible Currency" means any currency other than Dollars (i) that is
readily available, (ii) that is freely traded, (iii) in which deposits are
customarily offered to banks in the London interbank market, (iv) which is
convertible into Dollars in the international interbank market and (v) as to
which an Equivalent Amount may be readily calculated. If, after the designation
by the Lenders of any Eligible Currency as an Agreed Currency, (x) currency
control or other exchange regulations are imposed in the country in which such
currency is issued with the result that different types of such currency are
introduced, (y) such currency is, in the determination of the Agent, no longer
readily available or freely traded or (z) in the determination of the Agent, an
Equivalent Amount of such currency is not readily calculable, the Agent shall
promptly notify the Lenders and the Company, and such currency shall no longer
be an Agreed Currency until such time as all of the Lenders agree to reinstate
such currency as an Agreed Currency and promptly, but in any event within five
Business Days of receipt of such notice from the Agent,
7
the Borrowers shall repay all Loans in such affected currency or convert such
Loans into Loans in Dollars or another Agreed Currency, subject to the other
terms set forth in Article II.
"Eligible Designee" means a special purpose corporation, partnership,
trust, limited partnership or limited liability company that is administered by
the respective Designating Lender or an Affiliate of such Designating Lender and
(i) is organized under the laws of the United States of America or any state
thereof, (ii) is engaged primarily in making, purchasing or otherwise investing
in commercial loans in the ordinary course of its business and (iii) issues (or
the parent of which issues) commercial paper rated at least A-1 or the
equivalent thereof by S&P or P-1 or the equivalent thereof by Xxxxx'x.
"Environmental Laws" means any and all applicable federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
"Equivalent Amount" of any Eligible Currency with respect to any amount of
Dollars at any date shall mean the equivalent in such currency of such amount of
Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Agent for such other currency at 11:00 a.m.,
London time, on the date on or as of which such amount is to be determined.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rules or regulations promulgated thereunder.
"euro" means the euro referred to in Council Regulation (EC) No. 1103/97
dated June 17, 1997 passed by the Council of the European Union, or, if
different, the then lawful currency of the member states of the European Union
that participate in the third stage of Economic and Monetary Union.
"Eurocurrency Advance" means an Advance which, except as otherwise provided
in Section 2.12, bears interest at the applicable Eurocurrency Rate.
"Eurocurrency Loan" means a Revolving Loan which, except as otherwise
provided in Section 2.12, bears interest at the applicable Eurocurrency Rate.
"Eurocurrency Payment Office" of the Agent shall mean, for each of the
Agreed Currencies, the office, branch, affiliate or correspondent bank of the
Agent specified as the "Eurocurrency Payment Office" for such currency in
Schedule 1.1.1 hereto or such other office, branch, affiliate or correspondent
bank of the Agent as it may from time to time specify to the Borrowers and each
Lender as its Eurocurrency Payment Office.
"Eurocurrency Rate" means, with respect to a Eurocurrency Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurocurrency
Reference Rate applicable to
8
such Interest Period, divided by (b) one minus the Reserve Requirement
(expressed as a decimal) applicable to such Interest Period, if any, plus (ii)
the then Applicable Margin, changing as and when the Applicable Margin changes.
"Eurocurrency Reference Rate" means, with respect to a Eurocurrency Advance
for the relevant Interest Period, the applicable British Bankers' Association
LIBOR rate for deposits in the applicable Agreed Currency as reported by any
generally recognized financial information service as of 11:00 a.m. (London
time) two (2) Business Days prior to the first day of such Interest Period, and
having a maturity equal to such Interest Period, provided that, if no such
British Bankers' Association LIBOR rate is available to the Agent, the
applicable Eurocurrency Reference Rate for the relevant Interest Period shall
instead be the rate determined by the Agent to be the rate at which Bank One or
one of its affiliate banks offers to place deposits in the applicable Agreed
Currency with first-class banks in the London interbank market at approximately
11:00 a.m. (London time) two (2) Business Days prior to the first day of such
Interest Period, in the approximate amount of Bank One's relevant Eurocurrency
Loan and having a maturity equal to such Interest Period.
"Excluded Taxes" means, in the case of each Lender or applicable Lending
Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or any political
combination or subdivision or taxing authority thereof or (ii) the jurisdiction
in which the Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another document
is specifically referenced.
"Existing Credit Agreement" means that certain Bridge Credit Agreement,
dated as of September 12, 2003, by and among the Company, the lenders parties
thereto, and Banc One Mezzanine Corporation, as Administrative Agent, as the
same has been amended, restated, supplemented or otherwise modified from time to
time.
"Facility LC" is defined in Section 2.24.1.
"Facility LC Application" is defined in Section 2.24.3.
"Facility LC Collateral Account" is defined in Section 2.24.11.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Agent from three (3)
Federal funds brokers of recognized standing selected by the Agent in its sole
discretion.
9
"Floating Rate" means, for any day, a rate per annum equal to the sum of
(i) the Alternate Base Rate for such day, changing when and as the Alternate
Base Rate changes plus (ii) the then Applicable Margin, changing as and when the
Applicable Margin changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.12, bears interest at the Floating Rate.
"Floating Rate Loan" means a Loan which, except as otherwise provided in
Section 2.12, bears interest at the Floating Rate.
"Foreign Subsidiary" means (i) any Subsidiary of any Person that is not
organized under the laws of a jurisdiction located in the United States of
America and (ii) any Subsidiary of a Person described in clause (i) hereof that
is organized under the laws of a jurisdiction located in the United States of
America.
"Foreign Subsidiary Investment" means the sum, without duplication, of (i)
the aggregate outstanding principal amount of all intercompany loans made on or
after the Closing Date from any Credit Party to any Foreign Subsidiary; (ii) all
outstanding Investments made on or after the Closing Date by any Credit Party in
any Foreign Subsidiary; and (iii) an amount equal to the net benefit derived by
the Foreign Subsidiaries resulting from any non-arm's-length transactions, or
any other transfer of assets conducted, in each case entered into on or after
the Closing Date, between any Credit Party, on the one hand, and such Foreign
Subsidiaries, on the other hand, other than (a) transactions in the ordinary
course of business, (b) in respect of legal, accounting, reporting, listing and
similar administrative services provided by any Credit Party to any such Foreign
Subsidiary in the ordinary course of business consistent with past practice and
(c) the AbilityOne Acquisition.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Guarantor" means each of the Company's Material Domestic Subsidiaries
which become Guarantors in satisfaction of the provisions of Section 6.23, in
each case, together with their respective permitted successors and assigns.
"Guaranty" means the Guaranty, in substantially the form of Exhibit I,
entered into by each Guarantor in favor of the Agent for the benefit of the
Holders of Obligations, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"Holders of Obligations" means the holders of the Obligations and the Rate
Management Obligations and shall refer to (i) each Lender in respect of its
Loans, (ii) the LC Issuers in respect of Reimbursement Obligations, (iii) the
Agent, the Lenders and the LC Issuers in respect of all other present and future
obligations and liabilities of the Company or any of its Domestic Subsidiaries
of every type and description arising under or in connection with this Agreement
or any other Loan Document, (iv) each Person benefiting from indemnities made by
the Company or any Subsidiary hereunder or under other Loan Documents in respect
of the obligations and liabilities of the Company or such Subsidiary to such
Person, (v) each Lender, in respect of all Rate Management Obligations owing to
any Person in such Person's capacity as exchange party
10
or counterparty under any Rate Management Transaction so long as such Person is
(or, at the time such Person entered into such Rate Management Transaction, was)
a Lender or an affiliate of a Lender, and (vi) their respective permitted
successors, transferees and assigns.
"Indebtedness" of a Person means, at any time, without duplication, such
Person's (i) obligations for borrowed money, (ii) obligations representing the
deferred purchase price of Property or services (other than current accounts
payable arising in the ordinary course of such Person's business payable on
terms customary in the trade), (iii) obligations, whether or not assumed,
secured by Liens or payable out of the proceeds or production from Property now
or hereafter owned or acquired by such Person, (iv) obligations which are
evidenced by notes, bonds, debentures, acceptances, or other instruments, (v)
obligations to purchase securities or other Property arising out of or in
connection with the sale of the same or substantially similar securities or
Property, (vi) Capitalized Lease Obligations, (vii) Contingent Obligations of
such Person, (viii) reimbursement obligations under letters of credit, bankers'
acceptances, surety bonds and similar instruments (ix) Off-Balance Sheet
Liabilities, (x) obligations under Sale and Leaseback Transactions, (xi) Net
Xxxx-to-Market Exposure under Rate Management Transactions, (xii) Disqualified
Stock, and (xiii) any other obligation for borrowed money or other financial
accommodation which in accordance with Agreement Accounting Principles would be
shown as a liability on the consolidated balance sheet of such Person.
"Indemnification Letter" is defined in Section 2.1.1.
"Interest Expense Coverage Ratio" is defined in Section 6.21.
"Interest Period" means, with respect to a Eurocurrency Advance, a period
of one, two, three or six months, or, to the extent available to all of the
Lenders, nine or twelve months, commencing on a Business Day selected by the
applicable Borrower pursuant to this Agreement. Such Interest Period shall end
on but exclude the day which corresponds numerically to such date one, two,
three or six months, or if applicable nine or twelve months, thereafter,
provided, however, that if there is no such numerically corresponding day in
such next, second, third, sixth, ninth or twelfth succeeding month, such
Interest Period shall end on the last Business Day of such next, second, third,
sixth, ninth or twelfth succeeding month. If an Interest Period would otherwise
end on a day which is not a Business Day, such Interest Period shall end on the
next succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than commission,
travel, relocation and similar advances to directors, officers and employees
made in the ordinary course of business), extension of credit (other than
accounts receivable arising in the ordinary course of business on terms
customary in the trade) or contribution of capital by such Person; stocks,
bonds, mutual funds, partnership interests, notes, debentures or other
securities owned by such Person; any deposit accounts and certificates of
deposit owned by such Person; and structured notes, derivative financial
instruments and other similar instruments or contracts owned by such Person.
"LC Draft" means a draft drawn on an LC Issuer pursuant to a Facility LC.
11
"LC Fee" is defined in Section 2.24.4.
"LC Issuer" means Bank One (or any subsidiary or affiliate of Bank One
designated by Bank One) or any of the other Lenders, as applicable, in its
respective capacity as issuer of Facility LCs hereunder.
"LC Obligations" means, at any time, the sum, without duplication, of (i)
the aggregate undrawn amount under all Facility LCs outstanding at such time
plus (ii) the aggregate unpaid amount at such time of all Reimbursement
Obligations.
"LC Payment Date" is defined in Section 2.24.5.
"Lenders" means the lending institutions listed on the signature pages of
this Agreement and their respective successors and assigns. Unless otherwise
specified, the term "Lenders" includes the Swing Line Lender and the LC Issuers.
"Lending Installation" means, with respect to a Lender or the Agent, the
office, branch, subsidiary or affiliate of such Lender or the Agent with respect
to each Agreed Currency listed on the signature pages hereof or on the
administrative information sheets provided to the Agent in connection herewith
or on a Schedule or otherwise selected by such Lender or the Agent pursuant to
Section 2.19.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Leverage Ratio" means, as the end of any of the Company's fiscal quarters,
the ratio of Consolidated Total Debt as of the end of such fiscal quarter to
Consolidated Adjusted EBITDA for the four consecutive fiscal quarters then
ended; provided, that the Leverage Ratio shall be calculated, with respect to
Permitted Acquisitions, on a pro forma basis using historical financial
statements and containing reasonable adjustments satisfactory to the Agent,
broken down by fiscal quarter in the Company's reasonable judgment.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement, and, in the case of stock, stockholders agreements, voting trust
agreements and all similar arrangements).
"Loan" means, with respect to a Lender, such Lender's loan made pursuant to
Article II (or any conversion or continuation thereof), whether constituting a
Term Loan, Revolving Loan or a Swing Line Loan.
"Loan Documents" means this Agreement, each Assumption Letter, the Facility
LC Applications, the Guaranty, and all other documents, instruments, notes
(including any Notes issued pursuant to Section 2.15 (if requested)) and
agreements executed in connection herewith
12
or therewith or contemplated hereby or thereby, as the same may be amended,
restated or otherwise modified and in effect from time to time.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), operations or results of
operations, performance or prospects of the Company and its Subsidiaries taken
as a whole, (ii) the ability of the Company or any Subsidiary to perform its
obligations under the Loan Documents, (iii) the validity or enforceability of
any of the Loan Documents or (iv) the rights or remedies of the Agent, the LC
Issuers or the Lenders under any of the Loan Documents.
"Material Domestic Subsidiary" means (i) PDSI, Webster, Webster Management,
AbilityOne Corporation and AbilityOne, and (ii) any other Domestic Subsidiary of
the Company (other than an SPV) that meets one or both of the following
criteria: (i) such Domestic Subsidiary's total assets, determined on a
consolidated basis with its Subsidiaries is greater than or equal to fifteen
percent (15%) of the consolidated total assets of the Company and its
Subsidiaries; or (ii) such Domestic Subsidiary's Consolidated Adjusted Net
Income is greater than or equal to fifteen percent (15%) of the Company's
Consolidated Adjusted Net Income, in each case for the four consecutive fiscal
quarters most recently ended.
"Material Indebtedness" means any Indebtedness in an outstanding principal
amount of $10,000,000 or more in the aggregate (or the equivalent thereof in any
currency other than Dollars).
"Material Indebtedness Agreement" means any agreement under which any
Material Indebtedness was created or is governed or which provides for the
incurrence of Indebtedness in an amount which would constitute Material
Indebtedness (whether or not an amount of Indebtedness constituting Material
Indebtedness is outstanding thereunder).
"Modify" and "Modification" are defined in Section 2.24.1.
"Xxxxx'x" means Xxxxx'x Investors Services, Inc. and any successor thereto.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, which is covered by Title IV of ERISA and to which the
Company or any member of the Controlled Group is obligated to make
contributions.
"National Currency Unit" means the unit of currency (other than a euro
unit) of each member state of the European Union that participates in the third
stage of Economic and Monetary Union.
"Net Xxxx-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Management Transactions. "Unrealized
losses" means the fair market value of the cost to such Person of replacing such
Rate Management Transaction as of the date of determination (assuming the Rate
Management Transaction were to be terminated as of that date), and "unrealized
profits" means the fair market value of the gain to such Person of replacing
such Rate Management Transaction as of the date of determination (assuming such
Rate Management Transaction were to be terminated as of that date).
13
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" is defined in Section 2.15.
"Note Purchase Agreement" means, collectively, any one or more agreements
entered into by the Company with respect to the Company's issuance and private
placement of the Company's senior unsecured debt securities (the "Senior
Notes"), as such Note Purchase Agreement may be amended, modified or
supplemented from time to time in a manner that is not materially adverse to the
interests of the Lenders.
"Obligations" means all Loans, all Reimbursement Obligations, advances,
debts, liabilities, obligations, covenants and duties owing by any Borrower or
any Subsidiary to the Agent, any Lender, the Swing Line Lender, any LC Issuer,
the Arrangers, any affiliate of the Agent, any Lender, the Swing Line Lender,
any LC Issuer or the Arrangers, or any indemnitee under the provisions of
Section 9.6 or any other provisions of the Loan Documents, in each case of any
kind or nature, present or future, arising under this Agreement or any other
Loan Document, whether or not evidenced by any note, guaranty or other
instrument, whether or not for the payment of money, whether arising by reason
of an extension of credit, loan, foreign exchange risk, guaranty,
indemnification, or in any other manner, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired. The term includes, without
limitation, all interest, charges, expenses, fees, attorneys' fees and
disbursements, paralegals' fees (in each case whether or not allowed), and any
other sum chargeable to the Company or any Subsidiary under this Agreement or
any other Loan Document.
"Off-Balance Sheet Liability" of a Person means the principal component of
(i) any repurchase obligation or liability of such Person with respect to
accounts or notes receivable sold by such Person, (ii) any liability under any
Sale and Leaseback Transaction which is not a Capitalized Lease, (iii) any
liability under any so-called "synthetic lease" or "tax ownership operating
lease" transaction entered into by such Person, (iv) any Receivables Purchase
Facility or (v) any obligation arising with respect to any other transaction
which is the functional equivalent of or takes the place of borrowing but which
does not constitute a liability on the consolidated balance sheets of such
Person, but excluding from this clause (v) all Operating Leases.
"Off-Balance Sheet Trigger Event" is defined in Section 7.17.
"Operating Lease" of a Person means any lease of Property (other than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
"Other Taxes" is defined in Section 3.5(ii).
"Outstanding Revolving Credit Exposure" means, as to any Lender at any
time, the sum of (i) the aggregate principal amount of its Revolving Loans
outstanding at such time, plus (ii) an amount equal to its ratable obligation to
purchase participations in the aggregate principal amount of Swing Line Loans
outstanding at such time, plus (iii) an amount equal to its ratable obligation
to purchase participations in the LC Obligations at such time.
14
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each March, June, September and
December, the Revolving Loan Termination Date and the Term Loan Maturity Date.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"PDSI" means Xxxxxxxxx Dental Supply, Inc., a Minnesota corporation.
"Permitted Acquisition" is defined in Section 6.13.5.
"Permitted Purchase Money Debt" is defined in Section 6.14.5.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan, excluding any Multiemployer
Plan, which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code as to which the Company or any member of
the Controlled Group may have any liability.
"Pricing Schedule" means the Schedule identifying the Applicable Margin and
Applicable Fee Rate attached hereto and identified as such.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
"Property" of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person.
"Pro Rata Share" means, with respect to any Lender, the percentage obtained
by dividing (i) the sum of such Lender's Revolving Loan Commitment and Term
Loans at such time by (ii) the sum of the Aggregate Revolving Loan Commitment
and the aggregate amount of all of the Term Loans at such time; provided,
however, if all of the Revolving Loan Commitments are terminated pursuant to the
terms of this Agreement, then "Pro Rata Share" means the percentage obtained by
dividing (a) the sum of such Lender's Outstanding Revolving Credit Exposure and
Term Loans at such time by (b) the sum of the Aggregate Outstanding Revolving
Credit Exposure and the aggregate outstanding amount of all Term Loans at such
time.
"Purchase Price" means the total consideration and other amounts payable in
connection with any Acquisition, including, without limitation, any portion of
the consideration payable in cash, all Indebtedness, liabilities and contingent
obligations incurred or assumed in connection with such Acquisition and all
transaction costs and expenses incurred in connection with such Acquisition, but
exclusive of the value of any capital stock or other equity interests of the
Company or any Subsidiary issued as consideration for such Acquisition.
15
"Purchasers" is defined in Section 12.3.1.
"Rate Management Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Management Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management Transactions.
"Rate Management Transaction" means any transaction (including an agreement
with respect thereto) now existing or hereafter entered into by the Company or a
Subsidiary which is a rate swap, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or equity index
option, bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity prices or other
financial measures.
"Receivables Purchase Documents" means each of (i) that certain Receivables
Sale Agreement dated as of May 10, 2002, among the originators named therein and
PDC Funding Company, LLC, as buyer and that certain Receivables Purchase
Agreement dated as of May 10, 2002, among PDC Funding Company, LLC, the Company,
Preferred Receivables Funding Corporation, the financial institutions party
thereto and Bank One, as agent, as such agreements may be amended, restated,
extended or otherwise modified from time to time, (ii) that certain Third
Amended and Restated Contract Purchase Agreement, dated as of June 19, 2002,
among the Company, PDSI, Xxxxxxx, U.S. Bank National Association, individually
and as agent, and certain buyers identified therein, as such Third Amended and
Restated Contract Purchase Agreement may be amended, restated, extended or
otherwise modified from time to time and (iii) any comparable additional or
replacement facility made available to the Company or any Subsidiary, provided
that any such facility: (a) provides for the sale by the Company or such
Subsidiary of rights to payment; (b) evidences the intent of the parties that
for accounting and all other purposes, such sale is to be treated as a sale by
the Company or a Subsidiary, as the case may be, and a purchase by the
transferee (and not as a lending transaction); (c) provides for the delivery of
such true sale, non-consolidation and other opinions of outside counsel as are
then customary or required in connection with such a transaction; (d) the
parties to such transaction treat such transaction as a sale for all other
accounting purposes; and (e) such sale is without recourse to the Company or
such Subsidiary, except to the extent of normal and customary conditions and
rights of limited recourse that are consistent with the opinions referred to in
clause (c) and with the treatment of such sale as a true sale for accounting
purpose.
"Receivables Purchase Facility" means (i) the transactions contemplated by
the Receivables Purchase Documents and (ii) other sales (including licenses),
with limited recourse, or no recourse, by PDSI, Webster, Webster Management,
AbilityOne Corporation, or AbilityOne of Accounts derived from sales on contract
of furnishings and equipment (but not, however, (a) open account sales of
supplies or (b) Accounts derived from provisions of services).
16
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks, non-banks and non-broker lenders for the purpose
of purchasing or carrying margin stocks applicable to member banks of the
Federal Reserve System.
"Regulation X" means Regulation X of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"Reimbursement Obligations" means, at any time, with respect to any LC
Issuer, the aggregate of all obligations of the Borrowers then outstanding under
Section 2.24 to reimburse such LC Issuer for amounts paid by such LC Issuer in
respect of any one or more drawings under Facility LCs issued by such LC Issuer;
or, as the context may require, all such Reimbursement Obligations then
outstanding to reimburse all of the LC Issuers.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan
subject to Title IV of ERISA, excluding, however, such events as to which the
PBGC has by regulation waived the requirement of Section 4043(a) or (b) of ERISA
that it be notified within 30 days of the occurrence of such event, provided,
however, that a failure to meet the minimum funding standard of Section 412 of
the Code and of Section 302 of ERISA shall be a Reportable Event regardless of
the issuance of any such waiver of the notice requirement in accordance with
either Section 4043(a) or (b) of ERISA or Section 412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having more than 50% of
the Aggregate Revolving Loan Commitment (or, if all of the Revolving Loan
Commitments are terminated pursuant to the terms of this Agreement, the
Aggregate Outstanding Revolving Credit Exposure) and Term Loans at such time.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on
"Eurocurrency liabilities" (as defined in Regulation D).
"Revolving Loan" means, with respect to a Lender, such Lender's loan made
pursuant to its commitment to lend set forth in Section 2.2 (and any conversion
or continuation thereof).
"Revolving Loan Commitment" means, for each Lender, including without
limitation, each LC Issuer, such Lender's obligation to make Revolving Loans to,
and participate in Facility LCs issued upon the application of, the Borrowers in
an aggregate amount not exceeding the amount set forth for such Lender on the
Commitment Schedule or in any Assignment Agreement
17
delivered pursuant to Section 12.3, as such amount may be modified from time to
time pursuant to the terms hereof.
"Revolving Loan Pro Rata Share" means, with respect to any Lender, the
percentage obtained by dividing (i) such Lender's Revolving Loan Commitment at
such time by (ii) the Aggregate Revolving Loan Commitment at such time;
provided, however, if all of the Revolving Loan Commitments are terminated
pursuant to the terms of this Agreement, then "Revolving Loan Pro Rata Share"
means the percentage obtained by dividing (a) such Lender's Outstanding
Revolving Credit Exposure at such time by (b) the Aggregate Outstanding
Revolving Credit Exposure at such time.
"Revolving Loan Termination Date" means the earlier of (i) November 25,
2008, and (ii) the date of termination in whole of the Aggregate Revolving Loan
Commitment pursuant to Section 2.5.2 hereof or the Revolving Loan Commitments
pursuant to Section 8.1 hereof.
"S&P" means Standard and Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc., and any successor thereto.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless another
document is specifically referenced.
"SEC" means the United States Securities and Exchange Commission, and any
successor thereto.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Senior Notes" is defined in the definition of "Note Purchase Agreement".
"Single Employer Plan" means a Plan maintained by the Company or any member
of the Controlled Group for employees of the Company or any member of the
Controlled Group.
"Solvent" means, when used with respect to any Person, that at the time of
determination:
(i) the fair value of its assets (both at fair valuation and at present
fair saleable value) is equal to or in excess of the total amount of
its liabilities, including, without limitation, contingent
liabilities; and
(ii) it is then able and expects to be able to pay its debts as they
mature; and
(iii) it has capital sufficient to carry on its business as conducted and
as proposed to be conducted.
With respect to contingent liabilities (such as litigation, guarantees and
pension plan liabilities), such liabilities shall be computed at the amount
which, in light of all the facts and
18
circumstances existing at the time, represent the amount which can reasonably be
expected to become an actual or matured liability.
"SPV" means any special purpose entity established for the purpose of
purchasing receivables in connection with a receivables securitization
transaction permitted under the terms of this Agreement.
"Subordinated Indebtedness" of a Person means any Indebtedness of such
Person the payment of which is subordinated to payment of the Obligations to the
written satisfaction of the Required Lenders.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Company.
"Subsidiary Borrower" means each of the Company's Domestic Subsidiaries
that are Wholly-Owned Subsidiaries listed on the signature pages of this
Agreement, and any other Domestic Subsidiary that is a Wholly-Owned Subsidiary
of the Company duly designated by the Company pursuant to Section 2.25 to
request Credit Extensions hereunder, which Domestic Subsidiary shall have
delivered to the Agent an Assumption Letter in accordance with Section 2.25 and
such other documents as may be required pursuant to this Agreement, in each
case, together with its permitted successors and assigns, including a
debtor-in-possession on behalf of such Subsidiary Borrower. The initial
Subsidiary Borrowers are AbilityOne Corporation, AbilityOne, PDSI, Xxxxxxx and
Xxxxxxx Management.
"Substantial Portion" means, with respect to the Property of the Company
and its Subsidiaries, Property which represents more than 10% of the
consolidated assets of the Company and its Subsidiaries or property which is
responsible for more than 10% of the consolidated net sales or of the
Consolidated Net Income of the Company and its Subsidiaries, in each case, as
would be shown in the consolidated financial statements of the Company and its
Subsidiaries as at the end of the four fiscal quarter period ending with the
fiscal quarter immediately prior to the fiscal quarter in which such
determination is made (or if financial statements have not been delivered
hereunder for that fiscal quarter which ends the four fiscal quarter period,
then the financial statements delivered hereunder for the quarter ending
immediately prior to that quarter).
"Swing Line Borrowing Notice" is defined in Section 2.3.2.
"Swing Line Commitment" means the obligation of the Swing Line Lender to
make Swing Line Loans up to a maximum principal amount of $5,000,000 at any one
time outstanding.
19
"Swing Line Lender" means Bank One or such other Lender which may succeed
to its rights and obligations as Swing Line Lender pursuant to the terms of this
Agreement.
"Swing Line Loan" means a Loan made available to the Company by the Swing
Line Lender pursuant to Section 2.3.
"Taxes" means any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings, and any and all liabilities with respect to
the foregoing, but excluding Excluded Taxes and Other Taxes.
"Term Loan" is defined in Section 2.1.1.
"Term Loan Commitment" means, as to each Lender, its obligation to make
Term Loans to the Borrowers pursuant to Section 2.1 on the Closing Date in an
aggregate principal amount set forth for such Lender on the Commitment Schedule.
"Term Loan Maturity Date" means the earlier of (i) November 25, 2008 and
(ii) the Revolving Loan Termination Date.
"Term Loan Pro Rata Share" means, with respect to any Lender, the
percentage obtained by dividing (a) such Lender's Term Loan Commitment at such
time by (b) the aggregate Term Loan Commitments at such time.
"Transaction Documents" means the Loan Documents, the Note Purchase
Agreement, the Senior Notes and the documents executed and delivered by the
Company or any of its Subsidiaries in connection with the AbilityOne Acquisition
including, without limitation, the AbilityOne Acquisition Agreement.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating Rate
Advance or a Eurocurrency Advance and with respect to any Loan, its nature as a
Floating Rate Loan or a Eurocurrency Loan.
"Unfunded Liabilities" means the amount (if any) by which the present value
of all vested and unvested accrued benefits under each Single Employer Plan
subject to Title IV of ERISA exceeds the fair market value of all such Plan's
assets allocable to such benefits, all determined as of the then most recent
valuation date for such Plan for which a valuation report is available, using
PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"Xxxxxxx" means Xxxxxxx Veterinary Supply, Inc., a Minnesota corporation.
"Xxxxxxx Management" means Xxxxxxx Management, LP, a Minnesota limited
partnership.
20
"Weighted Average Life to Maturity" means when applied to any Indebtedness
at any date, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required scheduled payments
of principal, including payment at final maturity, in respect thereof, by (b)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
principal amount of such Indebtedness.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of the
outstanding voting securities (other than directors' qualifying shares) of which
shall at the time be owned or controlled, directly or indirectly, by such Person
or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and
one or more Wholly-Owned Subsidiaries of such Person, or (ii) any partnership,
limited liability company, association, joint venture or similar business
organization 100% of the ownership interests having ordinary voting power of
which shall at the time be so owned or controlled.
1.2. Plural Forms. The foregoing definitions shall be equally applicable
to both the singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. Term Loan.
2.1.1 Amounts of Term Loans. Subject to the terms and conditions
set forth in this Agreement and upon the satisfaction of the conditions
precedent set forth in Sections 4.1 and 4.2, each Lender severally and not
jointly agrees to make on the Closing Date, a term loan, in Dollars, to the
Borrowers in an aggregate amount up to such Lender's Term Loan Commitment
(each individually, a "Term Loan" and, collectively, the "Term Loans"). All
Term Loans shall be made by the Lenders on the Closing Date simultaneously
and proportionately to their respective Term Loan Pro Rata Shares, it being
understood that no Lender shall be responsible for any failure by any other
Lender to perform its obligation to make any Term Loan hereunder nor shall
the Term Loan Commitment of any Lender be increased or decreased as a
result of any such failure. Unless the Borrowers have delivered to the
Agent a written agreement pursuant to which the Borrowers agree to
indemnify the Agent and the Lenders in accordance with Section 3.4 of this
Agreement in the event any Eurocurrency Advance is not made on the Closing
Date for any reason (the "Indemnification Letter") on or before the third
(3rd) Business Day prior to the Closing Date and in form and substance
reasonably acceptable to the Agent, the Term Loans shall initially be
Floating Rate Loans and thereafter may be continued as Floating Rate Loans
or converted into Eurocurrency Loans in the manner provided in Section 2.8
and subject to the other conditions and limitations therein set forth and
set forth in this Article II.
2.1.2 Repayment of the Term Loans. The Term Loans shall be repaid
in twenty (20) equal consecutive quarterly installments of Five Million
Dollars ($5,000,000),
21
payable on the last day of each calendar quarter, commencing on March 31,
2004 and continuing thereafter until the Term Loan Maturity Date and the
Term Loans shall be permanently reduced by the amount of each installment
on the date payment thereof is made hereunder. Notwithstanding the
foregoing, the final installment payable on the Term Loan Maturity Date
shall be in the amount of the then outstanding principal balance of the
Term Loans. No installment of any Term Loan may be reborrowed once repaid.
2.2. Revolving Loans. From and including the Closing Date and prior to
the Revolving Loan Termination Date, upon the satisfaction of the conditions
precedent set forth in Sections 4.1, 4.2 and 4.3, as applicable, each Lender
severally and not jointly agrees, on the terms and conditions set forth in this
Agreement, to (i) make Revolving Loans to the Borrowers in Agreed Currencies
from time to time and (ii) participate in Facility LCs issued upon the request
of the Borrowers, in each case in Dollar Amounts not to exceed in the aggregate
such Lender's Revolving Loan Pro Rata Share of the Available Aggregate Revolving
Loan Commitment; provided that (i) at no time shall the Aggregate Outstanding
Revolving Credit Exposure hereunder exceed the Aggregate Revolving Loan
Commitment, (ii) all Floating Rate Loans shall be made in Dollars, and (iii) at
no time shall the aggregate outstanding Dollar Amount of all Revolving Loans
denominated in Agreed Currencies other than Dollars exceed $50,000,000. Unless
the Borrowers have delivered to the Agent an Indemnification Letter on or before
the third (3rd) Business Day prior to the Closing Date with respect to all
Revolving Loans requested to be made as Eurocurrency Advances on the Closing
Date or on or before the third (3rd) Business Day thereafter, the Revolving
Loans made on the Closing Date or on or before the third (3rd) Business Day
thereafter shall initially be Floating Rate Loans and thereafter may be
continued as Floating Rate Loans or converted into Eurocurrency Loans in the
manner provided in Section 2.8 and subject to the other conditions and
limitations therein set forth and set forth in this Article II and set forth in
the definition of Interest Period. Revolving Loans made after the third (3rd)
Business Day after the Closing Date shall be, at the option of the applicable
Borrower, selected in accordance with Section 2.8, either Floating Rate Loans or
Eurocurrency Loans. Each Advance under this Section 2.2 shall consist of
Revolving Loans made by each Lender ratably in proportion to such Lender's
respective Revolving Loan Pro Rata Share. The LC Issuers will issue Facility LCs
hereunder on the terms and conditions set forth in Section 2.24. Subject to the
terms of this Agreement, the Borrowers may borrow, repay and reborrow Revolving
Loans at any time prior to the Revolving Loan Termination Date. On the Revolving
Loan Termination Date, the commitment of each Lender to lend hereunder shall
automatically expire and the Borrowers shall repay in full the outstanding
principal balance of the Revolving Loans. Additionally, the Borrowers shall make
the mandatory prepayments prescribed in Section 2.4.
2.3. Swing Line Loans.
2.3.1 Amount of Swing Line Loans. Upon the satisfaction of the
conditions precedent set forth in Section 4.1 and Section 4.2, if
applicable, from and including the Closing Date and prior to the Revolving
Loan Termination Date, the Swing Line Lender agrees, on the terms and
conditions set forth in this Agreement, to make Swing Line Loans, in
Dollars, to the Company from time to time in an aggregate principal amount
not to exceed the Swing Line Commitment, provided that (i) the Aggregate
Outstanding Revolving Credit Exposure shall not at any time exceed the
Aggregate Revolving Loan
22
Commitment, and (ii) at no time shall the sum of (a) the Swing Line Loans
then outstanding, plus (b) the outstanding Revolving Loans made by the
Swing Line Lender pursuant to Section 2.2 (including its participation in
any Facility LCs), exceed the Swing Line Lender's Revolving Loan Commitment
at such time. Subject to the terms of this Agreement, the Company may
borrow, repay and reborrow Swing Line Loans at any time prior to the
Revolving Loan Termination Date.
2.3.2 Borrowing Notice. The Company shall deliver to the Agent
and the Swing Line Lender irrevocable notice (a "Swing Line Borrowing
Notice") not later than 12:00 noon (Chicago time) on the Borrowing Date of
each Swing Line Loan, specifying (i) the applicable Borrowing Date (which
date shall be a Business Day and which may be the same day as the date the
Swing Line Borrowing Notice was given), and (ii) the aggregate amount of
the requested Swing Line Loan which shall be an amount not less than
$100,000 (and increments of $100,000 if in excess thereof). The Swing Line
Loans shall bear interest at the Floating Rate or such other rate per annum
as shall be agreed to by the Swing Line Lender and the Company.
2.3.3 Making of Swing Line Loans. Promptly after receipt of a
Swing Line Borrowing Notice, the Agent shall notify each Lender by fax or
other similar form of transmission, of the requested Swing Line Loan. Not
later than 2:00 p.m. (Chicago time) on the applicable Borrowing Date, the
Swing Line Lender shall make available the Swing Line Loan, in funds
immediately available in Chicago, to the Agent at its address specified
pursuant to Article XIII. The Agent will promptly make the funds so
received from the Swing Line Lender available to the Company on the
Borrowing Date at the Agent's aforesaid address.
2.3.4 Repayment of Swing Line Loans. Each Swing Line Loan shall
be paid in full by the Company on or before the fifth (5th) Business Day
after the Borrowing Date for such Swing Line Loan. In addition, the Swing
Line Lender (i) may at any time in its sole discretion with respect to any
outstanding Swing Line Loan, or (ii) shall, on the fifth (5th) Business Day
after the Borrowing Date of any Swing Line Loan, require each Lender
(including the Swing Line Lender) to make a Revolving Loan in the amount of
such Lender's Revolving Loan Pro Rata Share of such Swing Line Loan
(including, without limitation, any interest accrued and unpaid thereon),
for the purpose of repaying such Swing Line Loan. Not later than 12:00 noon
(Chicago time) on the date of any notice received pursuant to this Section
2.3.4, each Lender shall make available its required Revolving Loan, in
funds immediately available in Chicago to the Agent at its address
specified pursuant to Article XIII. Revolving Loans made pursuant to this
Section 2.3.4 shall initially be Floating Rate Loans and thereafter may be
continued as Floating Rate Loans or converted into Eurocurrency Loans in
the manner provided in Section 2.9 and subject to the other conditions and
limitations set forth in this Article II. Unless a Lender shall have
notified the Swing Line Lender, prior to its making any Swing Line Loan,
that any applicable condition precedent set forth in Sections 4.1 or 4.2
had not then been satisfied, such Lender's obligation to make Revolving
Loans pursuant to this Section 2.3.4 to repay Swing Line Loans shall be
unconditional, continuing, irrevocable and absolute and shall not be
affected by any circumstances, including, without limitation, (a) any
set-off, counterclaim, recoupment, defense or other right which such
23
Lender may have against the Agent, the Swing Line Lender or any other
Person, (b) the occurrence or continuance of a Default or Unmatured
Default, (c) any adverse change in the condition (financial or otherwise)
of the Company, or (d) any other circumstances, happening or event
whatsoever. In the event that any Lender fails to make payment to the Agent
of any amount due under this Section 2.3.4, the Agent shall be entitled to
receive, retain and apply against such obligation the principal and
interest otherwise payable to such Lender hereunder until the Agent
receives such payment from such Lender or such obligation is otherwise
fully satisfied. In addition to the foregoing, if for any reason any Lender
fails to make payment to the Agent of any amount due under this Section
2.3.4, such Lender shall be deemed, at the option of the Agent, to have
unconditionally and irrevocably purchased from the Swing Line Lender,
without recourse or warranty, an undivided interest and participation in
the applicable Swing Line Loan in the amount of such Revolving Loan, and
such interest and participation may be recovered from such Lender together
with interest thereon at the Federal Funds Effective Rate for each day
during the period commencing on the date of demand and ending on the date
such amount is received. On the Revolving Loan Termination Date, the
Company shall repay in full the outstanding principal balance of the Swing
Line Loans.
2.4. Determination of Dollar Amounts; Required Payments; Termination.
2.4.1 Determination of Dollar Amounts. The Agent will determine
the Dollar Amount of: (a) each Advance as of the date three (3) Business
Days prior to the Borrowing Date or, if applicable, date of
conversion/continuation of such Advance, and (b) all outstanding Advances
on and as of the last Business Day of each calendar quarter and on any
other Business Day elected by the Agent in its discretion or upon
instruction by the Required Lenders. Each day upon or as of which the Agent
determines Dollar Amounts as described in the preceding clauses (a) and (b)
is herein described as a "Computation Date" with respect to each Advance
for which a Dollar Amount is determined on or as of such date. If at any
time the Dollar Amount of the sum of the aggregate principal amount of all
outstanding Advances (calculated, with respect to those Advances
denominated in Agreed Currencies other than Dollars, as of the most recent
Computation Date with respect to each such Advance) exceeds $50,000,000,
the Borrowers shall immediately repay Advances in an aggregate principal
amount sufficient to eliminate any such excess.
2.4.2 Required Payments; Terminations. Any outstanding Revolving
Loans shall be paid in full by the Borrowers on the Revolving Loan
Termination Date, any outstanding Term Loans shall be paid in full by the
Borrowers on the Term Loan Maturity Date, and all other unpaid Obligations
shall be paid in full by the Borrowers on the later of the Revolving Loan
Termination Date and the Term Loan Maturity Date. Notwithstanding the
termination of the Revolving Loan Commitments under this Agreement on the
Revolving Loan Termination Date, until all of the Obligations (other than
contingent indemnity obligations) shall have been fully paid and satisfied
and all financing arrangements among the Borrowers and the Lenders
hereunder and under the other Loan Documents shall have been terminated,
all of the rights and remedies under this Agreement and the other Loan
Documents shall survive.
24
2.4.3 Mandatory Prepayments of Aggregated Outstanding Revolving
Credit Exposure. If at any time and for any reason, the amount of the
Aggregate Outstanding Revolving Credit Exposure is greater than the
Aggregate Revolving Loan Commitment, the Borrowers shall immediately make a
mandatory prepayment of the Aggregate Outstanding Revolving Credit Exposure
in an amount equal to such excess.
2.5. Commitment Fee; Reductions in Aggregate Revolving Loan Commitment.
2.5.1 The Commitment Fee. The Company shall pay to the Agent, for
the account of the Lenders in accordance with their Revolving Loan Pro Rata
Shares, from and after the Closing Date until the date on which the
Aggregate Revolving Loan Commitment shall be terminated in whole, a
commitment fee (the "Commitment Fee") accruing at the rate of the then
Applicable Fee Rate on the daily average Available Aggregate Revolving Loan
Commitment (provided that, for purposes of determining the Commitment Fee,
all outstanding Swing Line Loans shall be excluded from the calculation of
the Available Aggregate Revolving Loan Commitment). All such Commitment
Fees payable hereunder shall be payable quarterly in arrears on each
Payment Date; provided, that if any Lender continues to have Outstanding
Revolving Credit Exposure after the termination of its Revolving Loan
Commitment, then the Commitment Fee shall continue to accrue and be due and
payable pursuant to the terms hereof until such Outstanding Revolving
Credit Exposure is reduced to zero.
2.5.2 Reductions in Aggregate Revolving Loan Commitment. The
Borrowers may permanently reduce the Aggregate Revolving Loan Commitment in
whole, or in part, ratably among the Lenders in a minimum amount of
$5,000,000 (and in multiples of $1,000,000 if in excess thereof)(or the
Approximate Equivalent Amount if denominated in an Agreed Currency other
than Dollars), upon at least three (3) Business Days' prior written notice
to the Agent, which notice shall specify the amount of any such reduction,
provided, however, that the amount of the Aggregate Revolving Loan
Commitment may not be reduced below the Dollar Amount of the Aggregate
Outstanding Revolving Credit Exposure. All accrued Commitment Fees shall be
payable on the effective date of any termination of the Revolving Loan
Commitments hereunder and on the final date upon which all Revolving Loans
are repaid. For purposes of calculating the Commitment Fee hereunder, the
principal amount of each Advance made in an Agreed Currency other than
Dollars shall be at any time the Dollar Amount of such Advance as
determined on the most recent Computation Date with respect to such
Advance.
2.6. Minimum Amount of Each Advance. Each Eurocurrency Advance shall be
in the minimum amount of $1,000,000 (and in multiples of $100,000 if in excess
thereof)(or the Approximate Equivalent Amounts if denominated in an Agreed
Currency other than Dollars), and each Floating Rate Advance (other than a Swing
Line Loan or an Advance to repay Swing Line Loans) shall be in the minimum
amount of $1,000,000 (and in multiples of $100,000 if in excess thereof),
provided, however, that any Floating Rate Advance may be in the amount of the
Available Aggregate Revolving Loan Commitment.
2.7. Optional Principal Payments. The Borrowers may from time to time
pay, without penalty or premium, all outstanding Floating Rate Advances (other
than Swing Line Loans), or
25
any portion of the outstanding Floating Rate Advances (other than Swing Line
Loans), in a minimum aggregate amount of $1,000,000 or any integral multiple of
$1,000,000 in excess thereof, upon one (1) Business Day's prior notice to the
Agent by 11:00 a.m. (Chicago time) on the date of any anticipated repayment. The
Company may at any time pay, without penalty or premium, all outstanding Swing
Line Loans, or, in a minimum amount of $100,000 and increments of $100,000 in
excess thereof, any portion of the outstanding Swing Line Loans, with notice to
the Agent and the Swing Line Lender by 11:00 a.m. (Chicago time) on the date of
repayment. The Borrowers may from time to time pay, subject to the payment of
any funding indemnification amounts required by Section 3.4 but without penalty
or premium, all outstanding Eurocurrency Advances, or, in a minimum aggregate
amount of $1,000,000 or any integral multiple of $1,000,000 in excess thereof
(or the Approximate Equivalent Amount if denominated in an Agreed Currency other
than Dollars), any portion of the outstanding Eurocurrency Advances upon three
(3) Business Days' prior notice to the Agent.
2.8. Method of Selecting Types and Interest Periods for New Advances. The
applicable Borrower shall select the Type of Advance and, in the case of each
Eurocurrency Advance, the Interest Period and Agreed Currency applicable thereto
from time to time; provided that there shall be no more than 10 Interest Periods
in effect with respect to all of the Loans at any time, unless such limit has
been waived by the Agent in its sole discretion. The applicable Borrower shall
give the Agent irrevocable notice (a "Borrowing Notice") not later than 11:00
a.m. (Chicago time) on the Borrowing Date of each Floating Rate Advance (other
than a Swing Line Loan), three (3) Business Days before the Borrowing Date for
each Eurocurrency Advance denominated in Dollars and four (4) Business Days
before the Borrowing Date for each Eurocurrency Advance denominated in an Agreed
Currency other than Dollars, specifying:
(a) the Borrowing Date, which shall be a Business Day, of such
Advance,
(b) the aggregate amount of such Advance,
(c) the Type of Advance selected, and
(d) in the case of each Eurocurrency Advance, the Interest Period
and Agreed Currency applicable thereto.
With respect to the Term Loans, the Borrowers may not select an Interest Period
that ends after the Term Loan Maturity Date. With respect to the Revolving
Loans, the Borrowers may not select an Interest Period that ends after the
Revolving Loan Termination Date.
2.9. Conversion and Continuation of Outstanding Advances; No Conversion
or Continuation of Eurocurrency Advances After Default. Floating Rate Advances
(other than Swing Line Advances) shall continue as Floating Rate Advances unless
and until such Floating Rate Advances are converted into Eurocurrency Advances
pursuant to this Section 2.9 or are repaid in accordance with Section 2.7. Each
Eurocurrency Advance shall continue as a Eurocurrency Advance until the end of
the then applicable Interest Period therefor, at which time:
2.9.1 each such Eurocurrency Advance denominated in Dollars shall
be automatically converted into a Floating Rate Advance unless (x) such
Eurocurrency
26
Advance is or was repaid in accordance with Section 2.7 or (y) the
applicable Borrower shall have given the Agent a Conversion/Continuation
Notice (as defined below) requesting that, at the end of such Interest
Period, such Eurocurrency Advance either continue as a Eurocurrency Advance
for the same or another Interest Period or be converted into a Floating
Rate Advance; and
2.9.2 each such Eurocurrency Advance denominated in an Agreed
Currency other than Dollars shall be automatically converted into a
Eurocurrency Advance in the same Agreed Currency with an Interest Period of
one month unless (x) such Eurocurrency Advance is or was repaid in
accordance with Section 2.7 or (y) the applicable Borrower shall have given
the Agent a Conversion/Continuation Notice (as defined below) requesting
that, at the end of such Interest Period, such Eurocurrency Advance
continue as a Eurocurrency Advance for the same or another Interest Period.
Subject to the terms of Section 2.6 and the payment of any funding
indemnification amounts required by Section 3.4, the applicable Borrower may
elect from time to time to convert all or any part of an Advance of any Type
(other than a Swing Line Advance) into any other Type or Types of Advances
denominated in the same or any other Agreed Currency; provided that (i) any
conversion of any Eurocurrency Advance shall be made on, and only on, the last
day of the Interest Period applicable thereto and (ii) Eurocurrency Advances
consisting of Term Loans may only be converted or continued in Dollars.
Notwithstanding anything to the contrary contained in this Section 2.9 during
the continuance of a Default or an Unmatured Default, the Agent may (or shall at
the direction of the Required Lenders), by notice to the Borrowers, declare that
no Advance may be made as, converted to or, following the expiration of any
Interest Periods then in effect, continued as a Eurocurrency Advance. The
applicable Borrower shall give the Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of an Advance or
continuation of a Eurocurrency Advance not later than 12:00 noon (Chicago time)
on the same Business Day, in the case of a conversion into a Floating Rate
Advance, three (3) Business Days, in the case of a conversion into or
continuation of a Eurocurrency Advance denominated in Dollars, or four (4)
Business Days, in the case of a conversion into or continuation of a
Eurocurrency Advance denominated in an Agreed Currency other than Dollars, prior
to the date of the requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation, and
(ii) the Agreed Currency, amount and Type(s) of Advance(s) into which
such Advance is to be converted or continued and, in the case of a
conversion into or continuation of a Eurocurrency Advance, the
duration of the Interest Period applicable thereto.
2.10. Method of Borrowing. On each Borrowing Date, each Lender shall make
available its Loan or Loans, if any, (i) if such Loan is denominated in Dollars,
not later than 12:00 noon, Chicago time, in Federal or other funds immediately
available to the Agent, in Chicago, Illinois at its address specified in or
pursuant to Article XIII and, (ii) if such Loan is denominated in an Agreed
Currency other than Dollars, not later than 12:00 noon, local time, in the city
of the Agent's Eurocurrency Payment Office for such currency, in such funds as
may
27
then be customary for the settlement of international transactions in such
currency in the city of and at the address of the Agent's Eurocurrency Payment
Office for such currency. Unless the Agent determines that any applicable
condition specified in Article IV has not been satisfied, the Agent will make
the funds so received from the Lenders available to the applicable Borrower at
the Agent's aforesaid address. Notwithstanding the foregoing provisions of this
Section 2.10, to the extent that a Revolving Loan made by a Lender matures on
the Borrowing Date of a requested Revolving Loan, such Lender shall apply the
proceeds of the Revolving Loan it is then making to the repayment of principal
of the maturing Revolving Loan.
2.11. Changes in Interest Rate, etc. Each Floating Rate Advance (other
than a Swing Line Advance) shall bear interest on the outstanding principal
amount thereof, for each day from and including the date such Advance is made or
is automatically converted from a Eurocurrency Advance into a Floating Rate
Advance pursuant to Section 2.9, to but excluding the date it is paid or is
converted into a Eurocurrency Advance pursuant to Section 2.9 hereof, at a rate
per annum equal to the Floating Rate for such day. Each Swing Line Loan shall
bear interest on the outstanding principal amount thereof, for each day from and
including the day such Swing Line Loan is made to but excluding the date it is
fully paid at a rate per annum equal to the Floating Rate for such day or at
such other rate per annum as shall be agreed to by the Swing Line Lender and the
Company. Changes in the rate of interest on that portion of any Advance
maintained as a Floating Rate Advance will take effect simultaneously with each
change in the Alternate Base Rate. Each Eurocurrency Advance shall bear interest
on the outstanding principal amount thereof from and including the first day of
the Interest Period applicable thereto to (but not including) the last day of
such Interest Period at the Eurocurrency Rate determined by the Agent as
applicable to such Eurocurrency Advance based upon the applicable Borrower's
selections under Sections 2.8 and 2.9 and otherwise in accordance with the terms
hereof. No Interest Period in respect of any Revolving Loan may end after the
Revolving Loan Termination Date. No Interest Period in respect of any Term Loan
may end after the Term Loan Maturity Date.
2.12. Rates Applicable After Default. During the continuance of a Default
the Required Lenders may, at their option, by notice to the Borrowers (which
notice may be revoked at the option of the Required Lenders notwithstanding any
provision of Section 8.2 requiring unanimous consent of the Lenders to changes
in interest rates), declare that (i) each Eurocurrency Advance shall bear
interest for the remainder of the applicable Interest Period at a rate per annum
equal to the Floating Rate in effect from time to time plus 2% per annum, (ii)
each Floating Rate Advance and each Swing Line Loan shall bear interest at a
rate per annum equal to the Floating Rate in effect from time to time plus 2%
per annum, and (iii) the LC Fee described in the first sentence of Section
2.24.4 shall be increased to a rate per annum equal to the Floating Rate in
effect from time to time plus 2% per annum; provided that, during the
continuance of a Default under Section 7.2, 7.3 (solely arising as a result of a
breach of any of Sections 6.20 through 6.22), 7.6 or 7.7, the interest rates set
forth in clauses (i) and (ii) above and the increase in the LC Fee set forth in
clause (iii) above shall be applicable to all Credit Extensions, Advances, fees
and other Obligations hereunder without any election or action on the part of
the Agent, any LC Issuer or any Lender.
2.13. Method of Payment; Non-availability of Original Currency.
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2.13.1 Method of Payment. Each Advance shall be repaid and each
payment of interest thereon shall be paid in the currency in which such
Advance was made or, where such currency has converted to euro, in euro.
All payments of the Obligations hereunder shall be made, without setoff,
deduction, or counterclaim, in immediately available funds to the Agent at
(except as set forth in the next sentence) the Agent's address specified
pursuant to Article XIII, or at any other Lending Installation of the Agent
specified in writing by the Agent to the Company, by 12:00 noon (local
time) on the date when due and shall (except with respect to repayments of
Swing Line Loans, and except in the case of Reimbursement Obligations for
which any LC Issuer has not been fully indemnified by the Lenders, or as
otherwise specifically required hereunder) be applied ratably by the Agent
among the Lenders. All payments to be made by the Borrowers hereunder in
any currency other than Dollars shall be made in such currency on the date
due in such funds as may then be customary for the settlement of
international transactions in such currency for the account of the Agent,
at its Eurocurrency Payment Office for such currency and shall be applied
ratably by the Agent among the Lenders. Each payment delivered to the Agent
for the account of any Lender shall be delivered promptly by the Agent to
such Lender in the same type of funds that the Agent received at, (a) with
respect to Floating Rate Loans and Eurocurrency Loans denominated in
Dollars, its address specified pursuant to Article XIII or at any Lending
Installation specified in a notice received by the Agent from such Lender
and (b) with respect to Eurocurrency Loans denominated in an Agreed
Currency other than Dollars, in the funds received from the Borrowers at
the address of the Agent's Eurocurrency Payment Office for such currency.
The Agent is hereby authorized to charge the account of any Borrower
maintained with Bank One for each payment of the Obligations as it becomes
due hereunder. Each reference to the Agent in this Section 2.13 shall also
be deemed to refer, and shall apply equally to the LC Issuers in the case
of payments required to be made by any Borrower to the LC Issuers pursuant
to Section 2.24.6.
2.13.2 Non-availability of Original Currency. Notwithstanding the
foregoing provisions of this Section, if, after the making of any Advance
in any currency other than Dollars, currency control or exchange
regulations are imposed in the country which issues such currency with the
result that the type of currency in which the Advance was made (the
"Original Currency") no longer exists or the applicable Borrower is not
able to make payment to the Agent for the account of the Lenders in such
Original Currency, then all payments to be made by the applicable Borrower
hereunder in such currency shall instead be made when due in Dollars in an
amount equal to the Dollar Amount (as of the date of repayment) of such
payment due, it being the intention of the parties hereto that the
applicable Borrower take all risks of the imposition of any such currency
control or exchange regulations.
2.14. Advances to be Made in euro. If any Advance made (or to be made)
would, but for the provisions of this Section 2.14, be capable of being made in
either euro or in a National Currency Unit, such Advance shall be made in euro.
2.15. Noteless Agreement; Evidence of Indebtedness.
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(i) 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 from time
to time, including the amounts of principal and interest payable and
paid to such Lender from time to time hereunder.
(ii) The Agent shall also maintain accounts in which it will record (a)
the date and the amount of each Loan made hereunder, the Agreed
Currency and Type thereof and the Interest Period (in the case of a
Eurocurrency Advance) with respect thereto, (b) the amount of any
principal or interest due and payable or to become due and payable
from the Borrowers to each Lender hereunder, (c) the original stated
amount of each Facility LC and the amount of LC Obligations
outstanding at any time, (d) the effective date and amount of each
Assignment Agreement delivered to and accepted by it and the parties
thereto pursuant to Section 12.3, (e) the amount of any sum received
by the Agent hereunder from the Borrowers and each Lender's share
thereof, and (f) all other appropriate debits and credits as
provided in this Agreement, including, without limitation, all fees,
charges, expenses and interest.
(iii) The entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be prima facie evidence of the
existence and amounts of the Obligations therein recorded; provided,
however, that the failure of the Agent or any Lender to maintain
such accounts or any error therein shall not in any manner affect
the obligation of the Borrowers to repay the Obligations in
accordance with their terms.
(iv) Any Lender may request that its Term Loans, Revolving Loans or, in
the case of the Swing Line Lender, the Swing Line Loans, be
evidenced by promissory notes (the "Notes") in substantially the
form of Exhibit E-1 or E-2, with appropriate changes for notes
evidencing Swing Line Loans. In such event, each Borrower shall
prepare, execute and deliver to such Lender such Note(s) payable to
the order of such Lender or its registered assigns. Thereafter, the
Loans evidenced by such Notes and interest thereon shall at all
times (prior to any assignment pursuant to Section 12.3) be
represented by one or more Notes payable to the order of the payee
named therein, except to the extent that any such Lender
subsequently returns any such Note(s) for cancellation and requests
that such Loans once again be evidenced as described in paragraphs
(i) and (ii) above.
2.16. Telephonic Notices. Each Borrower hereby authorizes the Lenders and
the Agent to extend, convert or continue Advances, effect selections of Agreed
Currencies and Types of Advances and to transfer funds based on telephonic
notices made by any person or persons the Agent or any Lender in good faith
believes to be acting on behalf of such Borrower, it being understood that the
foregoing authorization is specifically intended to allow Borrowing Notices and
Conversion/Continuation Notices to be given telephonically. Each Borrower agrees
to deliver promptly to the Agent a written confirmation, signed by an Authorized
Officer of such Borrower, if such confirmation is requested by the Agent or any
Lender, of each telephonic notice. If the written confirmation differs in any
material respect from the action taken by the
30
Agent and the Lenders, the records of the Agent and the Lenders shall govern
absent manifest error.
2.17. Interest Payment Dates; Interest and Fee Basis. Interest accrued on
each Floating Rate Advance shall be payable in arrears on each Payment Date,
commencing with the first such date to occur after the Closing Date, on any date
on which the Floating Rate Advance is prepaid, whether due to acceleration or
otherwise, and at maturity. Interest accrued on that portion of the outstanding
principal amount of any Floating Rate Advance converted into a Eurocurrency
Advance on a day other than a Payment Date shall be payable on the date of
conversion. Interest accrued on each Eurocurrency Advance shall be payable on
the last day of its applicable Interest Period, on any date on which the
Eurocurrency Advance is prepaid, whether by acceleration or otherwise, and at
maturity. Interest accrued on each Eurocurrency Advance having an Interest
Period longer than three (3) months shall also be payable on the last day of
each three-month interval during such Interest Period. Interest on Eurocurrency
Advances, Swing Line Loans, LC Fees and all other fees hereunder shall be
calculated for actual days elapsed on the basis of a 360-day year, except for
interest on Revolving Loans denominated in British Pounds Sterling which shall
be calculated for actual days elapsed on the basis of a 365-day year. Interest
on Floating Rate Advances shall be calculated for actual days elapsed on the
basis of a 365/366-day year. Interest shall be payable for the day an Advance is
made but not for the day of any payment on the amount paid if payment is
received prior to 12:00 noon (local time) at the place of payment. If any
payment of principal of or interest on an Advance, any fees or any other amounts
payable to the Agent or any Lender hereunder shall become due on a day which is
not a Business Day, such payment shall be made on the next succeeding Business
Day and, in the case of a principal payment, such extension of time shall be
included in computing interest, fees and commissions in connection with such
payment.
2.18. Notification of Advances, Interest Rates, Prepayments and Commitment
Reduction. Promptly after receipt thereof, the Agent will notify each Lender of
the contents of each Aggregate Revolving Loan Commitment reduction notice,
Borrowing Notice, Swing Line Borrowing Notice, Conversion/Continuation Notice,
and repayment notice received by it hereunder. Promptly after notice from the
applicable LC Issuer, the Agent will notify each Lender of the contents of each
request for issuance of a Facility LC hereunder. The Agent will notify the
Borrowers and each Lender of the interest rate applicable to each Eurocurrency
Advance promptly upon determination of such interest rate and will give the
Borrowers and each Lender prompt notice of each change in the Alternate Base
Rate.
2.19. Lending Installations.
2.19.1 Each Lender may book its Revolving Loans denominated in an
Agreed Currency other than Dollars at the appropriate Lending Installation
listed on the administrative information sheets provided to the Agent in
connection herewith or such other Lending Installation designated by such
Lender in accordance with the final sentence of this Section 2.19.1. All
terms of this Agreement shall apply to any such Lending Installation and
the Revolving Loans denominated in an Agreed Currency other than Dollars
and any Notes evidencing such Revolving Loans issued hereunder shall be
deemed held by each Lender for the benefit of any such Lending
Installation. Each Lender may, by written notice to the Agent and the
Borrowers in accordance with Article
31
XIII, designate replacement or additional Lending Installations through
which such Revolving Loans will be made by it and for whose account such
Revolving Loan payments are to be made.
2.19.2 Except for Revolving Loans denominated in an Agreed
Currency other than Dollars, each Lender may book its Loans and its
participation in any LC Obligations and the LC Issuers may book the
Facility LCs issued by it at any Lending Installation selected by such
Lender or LC Issuer, as applicable, and may change its Lending Installation
from time to time. All terms of this Agreement shall apply to any such
Lending Installation and the Loans, Facility LCs, participations in LC
Obligations and any Notes evidencing a Loan issued hereunder shall be
deemed held by each Lender or LC Issuer, as applicable, for the benefit of
any such Lending Installation. Each Lender and LC Issuer may, by written
notice to the Agent and the Borrowers in accordance with Article XIII,
designate replacement or additional Lending Installations through which
Loans will be made by it or Facility LCs will be issued by it and for whose
account Loan payments or payments with respect to Facility LCs are to be
made.
2.20. Non-Receipt of Funds by the Agent. Unless the applicable Borrower or
a Lender, as the case may be, notifies the Agent prior to the date on which it
is scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of any Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the applicable Borrower, as the case may be, has not in fact made
such payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three days and,
thereafter, the interest rate applicable to the relevant Loan or (y) in the case
of payment by any Borrower, the interest rate applicable to the relevant Loan.
2.21. Market Disruption. Notwithstanding the satisfaction of all
conditions referred to in Article II and Article IV with respect to any Advance
in any Agreed Currency other than Dollars, if there shall occur on or prior to
the date of such Advance any change in national or international financial,
political or economic conditions or currency exchange rates or exchange controls
which would in the reasonable opinion of the Agent or the Required Lenders make
it impracticable for the Eurocurrency Loans comprising such Advance to be
denominated in the Agreed Currency specified by the applicable Borrower, then
the Agent shall forthwith give notice thereof to such Borrower and the Lenders,
and such Loans shall not be denominated in such Agreed Currency but shall be
made on such Borrowing Date in Dollars, in an aggregate principal amount equal
to the Dollar Amount of the aggregate principal amount specified in the related
Borrowing Notice or Conversion/Continuation Notice, as the case may be, as
Floating Rate Loans, unless such Borrower notifies the Agent at least one
Business Day before such date that (i) it elects not to borrow on such date or
(ii) it elects to borrow on such date in a different Agreed Currency, provided
that (a) the denomination of such Loans in such different Agreed
32
Currency would in the opinion of the Agent and the Required Lenders be
practicable and (b) such borrowing shall be in an aggregate principal amount
equal to the Dollar Amount of the aggregate principal amount specified in the
related Borrowing Notice or Conversion/Continuation Notice, as the case may be.
2.22. Judgment Currency. If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due from any Borrower hereunder in the
currency expressed to be payable herein (the "specified currency") into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase the specified
currency with such other currency at the Agent's main Chicago office on the
Business Day preceding that on which final, non-appealable judgment is given.
The obligations of the Borrowers in respect of any sum due to any Lender or the
Agent hereunder shall, notwithstanding any judgment in a currency other than the
specified currency, be discharged only to the extent that on the Business Day
following receipt by such Lender or the Agent (as the case may be) of any sum
adjudged to be so due in such other currency such Lender or the Agent (as the
case may be) may in accordance with normal, reasonable banking procedures
purchase the specified currency with such other currency. If the amount of the
specified currency so purchased is less than the sum originally due to such
Lender or the Agent, as the case may be, in the specified currency, each
Borrower agrees, to the fullest extent that it may effectively do so, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Lender or the Agent, as the case may be, against such loss, and if the amount of
the specified currency so purchased exceeds (a) the sum originally due to any
Lender or the Agent, as the case may be, in the specified currency and (b) any
amounts shared with other Lenders as a result of allocations of such excess as a
disproportionate payment to such Lender under Section 12.2, such Lender or the
Agent, as the case may be, agrees to remit such excess to the applicable
Borrower.
2.23. Replacement of Lender. If any Borrower is required pursuant to
Section 3.1, 3.2 or 3.5 to make any additional payment to any Lender or if any
Lender's obligation to make or continue, or to convert Floating Rate Advances
into, Eurocurrency Advances shall be suspended pursuant to Section 3.3 (any
Lender so affected an "Affected Lender"), the Company may elect, if such amounts
continue to be charged or such suspension is still effective, to terminate or
replace the Revolving Loan Commitment and Term Loans of such Affected Lender,
provided that no Default or Unmatured Default shall have occurred and be
continuing at the time of such termination or replacement, and provided further
that, concurrently with such termination or replacement, (i) if the Affected
Lender is being replaced, another bank or other entity which is reasonably
satisfactory to the Company and the Agent shall agree, as of such date, to
purchase for cash the Outstanding Revolving Credit Exposure and Term Loans of
the Affected Lender pursuant to an Assignment Agreement substantially in the
form of Exhibit C and to become a Lender for all purposes under this Agreement
and to assume all obligations of the Affected Lender to be terminated as of such
date and to comply with the requirements of Section 12.3 applicable to
assignments, and (ii) the Borrowers shall pay to such Affected Lender in
immediately available funds on the day of such replacement (A) all interest,
fees and other amounts then accrued but unpaid to such Affected Lender by the
Borrowers hereunder to and including the date of termination, including without
limitation payments due to such Affected Lender under Sections 3.1, 3.2 and 3.5,
and (B) an amount, if any, equal to the payment which would have been due to
such Lender on the day of such replacement under Section 3.4 had the
33
Loans of such Affected Lender been prepaid on such date rather than sold to the
replacement Lender, in each case to the extent not paid by the purchasing Lender
and (iii) if the Affected Lender is being terminated, the Borrowers shall pay to
such Affected Lender all Obligations due to such Affected Lender (including the
amounts described in the immediately preceding clauses (i) and (ii) plus the
outstanding principal balance of such Affected Lender's Revolving Loans and Term
Loans).
2.24. Facility LCs.
2.24.1 Issuance; Transitional Facility LCs.
(a) Issuance. The LC Issuers hereby agree, on the terms
and conditions set forth in this Agreement, to issue commercial and
standby Letters of Credit in Dollars (each, together with the
Letters of Credit deemed issued by the LC Issuers hereunder pursuant
to Section 2.24.1(b), a "Facility LC") and to renew, extend,
increase, decrease or otherwise modify each Facility LC ("Modify,"
and each such action, a "Modification"), from time to time from and
including the Closing Date and prior to the Revolving Loan
Termination Date upon the request of the applicable Borrower;
provided that immediately after each such Facility LC is issued or
Modified, (i) the aggregate amount of the outstanding LC Obligations
shall not exceed $15,000,000 and (ii) the Aggregate Outstanding
Revolving Credit Exposure shall not exceed the Aggregate Revolving
Loan Commitment. No Facility LC shall have an expiry date later than
the earlier of (x) the fifth Business Day prior to the Revolving
Loan Termination Date and (y) one year after its issuance; provided
that any Facility LC with a one-year tenor may provide for the
renewal thereof for additional one year periods (which shall in no
event extend beyond the date referred to in clause (x) above).
(b) Transitional Provision. Schedule 2.24 contains a
schedule of certain Letters of Credit issued for the account of the
Borrowers prior to the Closing Date. Subject to the satisfaction of
the conditions contained in Sections 4.1 and 4.2, from and after the
Closing Date such Letters of Credit shall be deemed to be Facility
LCs issued pursuant to this Section 2.24.
2.24.2 Participations. On the Closing Date, with respect to the
Facility LCs identified on Schedule 2.24, and upon the issuance or
Modification by the applicable LC Issuer of a Facility LC in accordance
with this Section 2.24, such LC Issuer shall be deemed, without further
action by any party hereto, to have unconditionally and irrevocably sold to
each Lender, and each Lender shall be deemed, without further action by any
party hereto, to have unconditionally and irrevocably purchased from such
LC Issuer, a participation in such Facility LC (and each Modification
thereof) and the related LC Obligations in proportion to its Revolving Loan
Pro Rata Share.
2.24.3 Notice. The applicable Borrower shall give the applicable
LC Issuer notice prior to 10:00 a.m. (Chicago time) at least five Business
Days prior to the proposed date of issuance or Modification of each
Facility LC, specifying the beneficiary, the proposed date of issuance (or
Modification) and the expiry date of such Facility LC,
34
and describing the proposed terms of such Facility LC and the nature of the
transactions proposed to be supported thereby. The applicable LC Issuer
shall promptly notify the Agent, and, upon issuance only, the Agent shall
promptly notify each Lender, of the contents thereof and of the amount of
such Lender's participation in such Facility LC. The issuance or
Modification by any LC Issuer of any Facility LC shall, in addition to the
conditions precedent set forth in Article IV (the satisfaction of which
such LC Issuer shall have no duty to ascertain), be subject to the
conditions precedent that such Facility LC shall be satisfactory to such LC
Issuer and that the applicable Borrower shall have executed and delivered
such application agreement and/or such other instruments and agreements
relating to such Facility LC as such LC Issuer shall have reasonably
requested (each, a "Facility LC Application"). In the event of any conflict
between the terms of this Agreement and the terms of any Facility LC
Application, the terms of this Agreement shall control.
2.24.4 LC Fees. The Company shall pay to the Agent, for the
account of the Lenders ratably in accordance with their respective
Revolving Loan Pro Rata Shares, (i) with respect to each standby Facility
LC, a letter of credit fee at a per annum rate equal to the Applicable
Margin for Eurocurrency Loans in effect from time to time on the average
daily undrawn amount under such Facility LC, such fee to be payable in
arrears on each Payment Date, and (ii) with respect to each commercial
Facility LC, a one-time letter of credit fee in an amount to be agreed upon
between the Company and the applicable LC Issuer based upon the initial
stated amount (or, with respect to a Modification of any such commercial
Facility LC which increases the stated amount thereof, such increase in the
stated amount) thereof, such fee to be payable on the date of such issuance
or increase. The applicable Borrower shall also pay to each LC Issuer for
its own account (x) at the time of such LC Issuer's issuance of any standby
Facility LC, a fronting fee in an amount equal to 0.125% multiplied by the
face amount of such standby Facility LC, and (y) documentary and processing
charges in connection with the issuance, or Modification cancellation,
negotiation, or transfer of, and draws under Facility LCs in accordance
with the applicable LC Issuer's standard schedule for such charges as in
effect from time to time. Each fee described in this Section 2.24.4 shall
constitute an "LC Fee".
2.24.5 Administration; Reimbursement by Lenders. Upon receipt from
the beneficiary of any Facility LC of any demand for payment under such
Facility LC, the applicable LC Issuer shall notify the Agent and the Agent
shall promptly notify the applicable Borrower and each other Lender as to
the amount to be paid by such LC Issuer as a result of such demand and the
proposed payment date to such beneficiary (the "LC Payment Date");
provided, however, that the failure of such LC Issuer to so notify such
Borrower shall not in any manner affect the obligations of any Borrower to
reimburse such LC Issuer pursuant to Section 2.24.6. The responsibility of
each LC Issuer to the Borrowers and each Lender shall be only to determine
that the documents (including each demand for payment) delivered under each
Facility LC issued by such LC Issuer in connection with such presentment
shall be in conformity in all material respects with such Facility LC. Each
LC Issuer shall endeavor to exercise the same care in the issuance and
administration of the Facility LCs issued by such LC Issuer as it does with
respect to Letters of Credit in which no participations are granted, it
being understood that in the absence of any gross negligence or willful
misconduct by the applicable LC
35
Issuer, each Lender shall be unconditionally and irrevocably liable without
regard to the occurrence of any Default or any condition precedent
whatsoever, to reimburse such LC Issuer on demand for (i) such Lender's
Revolving Loan Pro Rata Share of the amount of each payment made by such LC
Issuer under each Facility LC issued by such LC Issuer to the extent such
amount is not reimbursed by the Borrowers pursuant to Section 2.24.6 below,
plus (ii) interest on the foregoing amount to be reimbursed by such Lender,
for each day from the date of the applicable LC Issuer's demand for such
reimbursement (or, if such demand is made after 11:00 a.m. (Chicago time)
on such date, from the next succeeding Business Day) to the date on which
such Lender pays the amount to be reimbursed by it, at a rate of interest
per annum equal to the Federal Funds Effective Rate for the first three
days and, thereafter, at a rate of interest equal to the rate applicable to
Floating Rate Advances.
2.24.6 Reimbursement by Borrowers. The Borrowers shall be
irrevocably and unconditionally obligated to reimburse the LC Issuers on or
before the applicable LC Payment Date for any amounts to be paid by any LC
Issuer upon any drawing under any Facility LC issued by such LC Issuer,
without presentment, demand, protest or other formalities of any kind;
provided that no Borrower nor any Lender shall hereby be precluded from
asserting any claim for direct (but not consequential) damages suffered by
any Borrower or such Lender to the extent, but only to the extent, caused
by (i) the willful misconduct or gross negligence of the applicable LC
Issuer in determining whether a request presented under any Facility LC
issued by it complied with the terms of such Facility LC or (ii) the
applicable LC Issuer's failure to pay under any Facility LC issued by it
after the presentation to it of a request strictly complying with the terms
and conditions of such Facility LC. All such amounts paid by any LC Issuer
and remaining unpaid by the Borrowers shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to (x) the rate
applicable to Floating Rate Advances for such day if such day falls on or
before the applicable LC Payment Date and (y) the sum of 2% plus the rate
applicable to Floating Rate Advances for such day if such day falls after
such LC Payment Date. Each LC Issuer will pay to each Lender ratably in
accordance with its Revolving Loan Pro Rata Share all amounts received by
it from the Borrowers for application in payment, in whole or in part, of
the Reimbursement Obligation in respect of any Facility LC issued by such
LC Issuer, but only to the extent such Lender has made payment to such LC
Issuer in respect of such Facility LC pursuant to Section 2.24.5. Subject
to the terms and conditions of this Agreement (including, without
limitation, the submission of a Borrowing Notice in compliance with Section
2.9 and the satisfaction of the applicable conditions precedent set forth
in Article IV), the Borrowers may request an Advance hereunder for the
purpose of satisfying any Reimbursement Obligation.
2.24.7 Obligations Absolute. The Borrowers' obligations under this
Section 2.24 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to
payment which any Borrower may have or have had against any LC Issuer, any
Lender or any beneficiary of a Facility LC. The Borrowers further agree
with the LC Issuers and the Lenders that the LC Issuers and the Lenders
shall not be responsible for, and the Borrowers' Reimbursement Obligation
in respect of any Facility LC shall not be affected by, among other things,
the validity or genuineness of documents or of any endorsements thereon,
even if such documents
36
should in fact prove to be in any or all respects invalid, fraudulent or
forged, or any dispute between or among any Borrower, any of their
respective Affiliates, the beneficiary of any Facility LC or any financing
institution or other party to whom any Facility LC may be transferred or
any claims or defenses whatsoever of any Borrower or of any of their
respective Affiliates against the beneficiary of any Facility LC or any
such transferee. No LC Issuer shall be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message
or advice, however transmitted, in connection with any Facility LC. Each
Borrower agrees that any action taken or omitted by any LC Issuer or any
Lender under or in connection with each Facility LC and the related drafts
and documents, if done without gross negligence or willful misconduct,
shall be binding upon such Borrower and shall not put any LC Issuer or any
Lender under any liability to any Borrower. Nothing in this Section 2.24.7
is intended to limit the right of any Borrower to make a claim against any
LC Issuer for damages as contemplated by the proviso to the first sentence
of Section 2.24.6.
2.24.8 Actions of LC Issuers. Each LC Issuer shall be entitled to
rely, and shall be fully protected in relying, upon any Facility LC, draft,
writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order
or other document believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel, independent accountants and other experts
selected by such LC Issuer. Each LC Issuer shall be fully justified in
failing or refusing to take any action under this Agreement unless it shall
first have received such advice or concurrence of the Required Lenders as
it reasonably deems appropriate or it shall first be indemnified to its
reasonable satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to
take any such action. Notwithstanding any other provision of this Section
2.24, each LC Issuer shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement in accordance with a request
of the Required Lenders, and such request and any action taken or failure
to act pursuant thereto shall be binding upon the Lenders and any future
holders of a participation in any Facility LC.
2.24.9 Indemnification. The Borrowers hereby agree to indemnify
and hold harmless each Lender, each LC Issuer and the Agent, and their
respective directors, officers, agents and employees from and against any
and all claims and damages, losses, liabilities, reasonable costs or
expenses which such Lender, such LC Issuer or the Agent may incur (or which
may be claimed against such Lender, such LC Issuer or the Agent by any
Person whatsoever) by reason of or in connection with the issuance,
execution and delivery or transfer of or payment or failure to pay under
any Facility LC or any actual or proposed use of any Facility LC,
including, without limitation, any claims, damages, losses, liabilities,
reasonable costs or expenses which any LC Issuer may incur by reason of or
in connection with (i) the failure of any other Lender to fulfill or comply
with its obligations to such LC Issuer hereunder (but nothing herein
contained shall affect any rights any Borrower may have against any
defaulting Lender) or (ii) by reason of or on account of such LC Issuer
issuing any Facility LC which specifies that the term "Beneficiary"
included therein includes any successor by operation of law of the named
Beneficiary, but which Facility LC does not require that any drawing by any
such
37
successor Beneficiary be accompanied by a copy of a legal document,
satisfactory to such LC Issuer, evidencing the appointment of such
successor Beneficiary; provided that no Borrower shall be required to
indemnify any Lender, any LC Issuer or the Agent for any claims, damages,
losses, liabilities, costs or expenses to the extent, but only to the
extent, caused by (x) the willful misconduct or gross negligence of the
applicable LC Issuer in determining whether a request presented under any
Facility LC issued by such LC Issuer complied with the terms of such
Facility LC or (y) any LC Issuer's failure to pay under any Facility LC
issued by such LC Issuer after the presentation to it of a request strictly
complying with the terms and conditions of such Facility LC. Nothing in
this Section 2.24.9 is intended to limit the obligations of any Borrower
under any other provision of this Agreement.
2.24.10 Lenders' Indemnification. Each Lender shall, ratably in
accordance with its Revolving Loan Pro Rata Share, indemnify each LC
Issuer, its affiliates and their respective directors, officers, agents and
employees (to the extent not reimbursed by any Borrower) against any cost,
expense (including reasonable counsel fees and disbursements), claim,
demand, action, loss or liability (except such as result from such
indemnitees' gross negligence or willful misconduct or the applicable LC
Issuer's failure to pay under any Facility LC issued by such LC Issuer
after the presentation to it of a request strictly complying with the terms
and conditions of such Facility LC) that such indemnitees may suffer or
incur in connection with this Section 2.24 or any action taken or omitted
by such indemnitees hereunder.
2.24.11 Facility LC Collateral Account. The Borrowers agree that
the Company will, on behalf of each of the Borrowers, upon the request of
the Agent or the Required Lenders and until the final expiration date of
any Facility LC and thereafter as long as any amount is payable to the LC
Issuers or the Lenders in respect of any Facility LC, maintain a special
collateral account pursuant to arrangements satisfactory to the Agent (the
"Facility LC Collateral Account") at the Agent's office at the address
specified pursuant to Article XIII, in the name of the Company but under
the sole dominion and control of the Agent, for the benefit of the Lenders
and in which no Borrower shall have any interest other than as set forth in
Section 8.1. Each Borrower hereby pledges, assigns and grants to the Agent,
on behalf of and for the ratable benefit of the Lenders and the LC Issuers,
a security interest in all of such Borrower's right, title and interest in
and to all funds which may from time to time be on deposit in the Facility
LC Collateral Account to secure the prompt and complete payment and
performance of the Obligations. The Agent will invest any funds on deposit
from time to time in the Facility LC Collateral Account in certificates of
deposit of Bank One having a maturity not exceeding 30 days. Nothing in
this Section 2.24.11 shall either obligate the Agent to require any
Borrower to deposit any funds in the Facility LC Collateral Account or
limit the right of the Agent to release any funds held in the Facility LC
Collateral Account in each case other than as required by Section 8.1.
2.24.12 Rights as a Lender. In its capacity as a Lender, each LC
Issuer shall have the same rights and obligations as any other Lender.
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2.25. Subsidiary Borrowers. The Company may at any time or from time to
time, with the consent of the Agent, add as a party to this Agreement any
Domestic Subsidiary that is a Wholly-Owned Subsidiary to be a Subsidiary
Borrower hereunder by the execution and delivery to the Agent and the Lenders of
(a) a duly completed Assumption Letter by such Domestic Subsidiary, with the
acknowledgement of the Agent and written consent of the Borrowers at the foot
thereof, (b) such opinions, agreements, documents, certificates or other items
as may be required by Section 4.3, such documents with respect to any additional
Subsidiary Borrowers to be substantially similar in form and substance to the
Loan Documents executed on or about the date hereof by the Subsidiary Borrowers
parties hereto as of the Closing Date. Upon such execution, delivery and consent
such Subsidiary shall for all purposes be a party hereto as a Subsidiary
Borrower as fully as if it had executed and delivered this Agreement. So long as
the principal of and interest on any Credit Extensions made to any Subsidiary
Borrower under this Agreement shall have been repaid or paid in full, all
Facility LCs issued for the account of such Subsidiary Borrower have expired or
been returned and terminated and all other obligations of such Subsidiary
Borrower under this Agreement shall have been fully performed, the Company may,
by not less than five (5) Business Days' prior notice to the Agent (which shall
promptly notify the Lenders thereof), terminate such Subsidiary Borrower's
status as a "Subsidiary Borrower" (it being understood and agreed that such
Subsidiary Borrower shall remain liable with respect to indemnification and
similar obligations incurred prior to such termination). The Agent shall give
the Lenders written notice of the addition of any Subsidiary Borrowers to this
Agreement.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. Yield Protection. If, on or after the Closing Date, the adoption of
any law or any governmental or quasi-governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law), or any change
in any such law, rule, regulation, policy, guideline or directive or in the
interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation or any LC Issuer with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
(i) subjects any Lender or any applicable Lending Installation or any LC
Issuer to any Taxes, or changes the basis of taxation of payments
(other than with respect to Excluded Taxes) to any Lender or any LC
Issuer in respect of its Revolving Loan Commitments, Loans, Facility
LCs or participations therein, or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended
by, any Lender or any applicable Lending Installation or any LC
Issuer (other than reserves and assessments taken into account in
determining the interest rate applicable to Eurocurrency Advances)
with respect to its Revolving Loan Commitment, Loans, Facility LCs
or participations therein, or
39
(iii) imposes any other condition the result of which is to increase the
cost to any Lender, any applicable Lending Installation or any LC
Issuer of making, funding or maintaining its Revolving Loan
Commitment, Loans or of issuing or participating in Facility LCs, or
reduces any amount receivable by any Lender or any applicable
Lending Installation or any LC Issuer in connection with its
Revolving Loan Commitment or Loans or Facility LCs (including
participations therein), or requires any Lender or any applicable
Lending Installation or any LC Issuer to make any payment calculated
by reference to the amount of Revolving Loan Commitment or Loans or
Facility LCs (including participations therein) held or interest or
LC Fees received by it, by an amount deemed material by such Lender
or such LC Issuer, as applicable,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or such LC Issuer of making or maintaining its
Loans (including, without limitation, any conversion of any Loan denominated in
an Agreed Currency other than euro into a Loan denominated in euro) or Revolving
Loan Commitment or of issuing or participating in Facility LCs, as applicable,
or to reduce the return received by such Lender or applicable Lending
Installation or LC Issuer in connection with such Loans, Revolving Loan
Commitment or Facility LCs (including participations therein), then, within 15
days of demand, accompanied by the written statement required by Section 3.6, by
such Lender or LC Issuer, the Borrowers shall pay such Lender or LC Issuer such
additional amount or amounts as will compensate such Lender or LC Issuer for
such increased cost or reduction in amount received.
3.2. Changes in Capital Adequacy Regulations. If a Lender or any LC
Issuer determines the amount of capital required or expected to be maintained by
such Lender or such LC Issuer, any Lending Installation of such Lender or such
LC Issuer or any corporation controlling such Lender or such LC Issuer is
increased as a result of a Change, then, within 15 days of demand, accompanied
by the written statement required by Section 3.6, by such Lender or such LC
Issuer, the Borrowers shall pay such Lender or such LC Issuer the amount
necessary to compensate for any shortfall in the rate of return on the portion
of such increased capital which such Lender or such LC Issuer determines is
attributable to this Agreement, its Outstanding Revolving Credit Exposure, its
Term Loans or its Revolving Loan Commitment or its commitment to issue Facility
LCs, as applicable, hereunder (after taking into account such Lender's or such
LC Issuer's policies as to capital adequacy). "Change" means (i) any change
after the Closing Date in the Risk-Based Capital Guidelines or (ii) any adoption
of, or change in, or change in the interpretation or administration of any other
law, governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
Closing Date which affects the amount of capital required or expected to be
maintained by any Lender or any LC Issuer or any Lending Installation or any
corporation controlling any Lender or any LC Issuer. "Risk-Based Capital
Guidelines" means (i) the risk-based capital guidelines in effect in the United
States on the Closing Date, including transition rules, and (ii) the
corresponding capital regulations promulgated by regulatory authorities outside
the United States implementing the July 1988 report of the Basle Committee on
Banking Regulation and Supervisory Practices Entitled "International Convergence
of Capital Measurements and Capital Standards," including transition rules, and
any amendments to such regulations adopted prior to the Closing Date.
40
3.3. Availability of Types of Advances. If (x) any Lender determines
that maintenance of its Eurocurrency Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or (y) the Required Lenders determine that (i) deposits
of a type, currency and maturity appropriate to match fund Eurocurrency Advances
are not available or (ii) the interest rate applicable to Eurocurrency Advances
does not accurately reflect the cost of making or maintaining Eurocurrency
Advances, or (iii) no reasonable basis exists for determining the Eurocurrency
Reference Rate, then the Agent shall suspend the availability of Eurocurrency
Advances and require any affected Eurocurrency Advances to be repaid or
converted to Floating Rate Advances on the respective last days of the then
current Interest Periods with respect to such Loans or within such earlier
period as required by law, subject to the payment of any funding indemnification
amounts required by Section 3.4.
3.4. Funding Indemnification. If any payment of a Eurocurrency Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Eurocurrency
Advance is not made or continued, or a Floating Rate Advance is not converted
into a Eurocurrency Advance, on the date specified by the applicable Borrower
for any reason other than default by the Lenders, or a Eurocurrency Advance is
not prepaid on the date specified by the applicable Borrower for any reason, the
Borrowers will, jointly and severally, indemnify each Lender for any reasonable
loss or cost incurred by it resulting therefrom, including, without limitation,
any reasonable loss or cost in liquidating or employing deposits acquired to
fund or maintain such Eurocurrency Advance.
3.5. Taxes. (i) All payments by the Borrowers to or for the account of
any Lender or any LC Issuer or the Agent hereunder or under any Note shall be
made free and clear of and without deduction for any and all Taxes. If any
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder to any Lender, any LC Issuer or the Agent, (a) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 3.5) such Lender, such LC Issuer or the Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (b) such Borrower shall make such deductions, (c) such
Borrower shall pay the full amount deducted to the relevant authority in
accordance with applicable law and (d) such Borrower shall furnish to the Agent
the original copy of a receipt evidencing payment thereof or, if a receipt
cannot be obtained with reasonable efforts, such other evidence of payment as is
reasonably acceptable to the Agent, in each case within 30 days after such
payment is made.
(ii) In addition, the Borrowers shall pay any present or future stamp or
documentary taxes and any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under
any Note or Facility LC Application or from the execution or
delivery of, or otherwise with respect to, this Agreement or any
Note or Facility LC Application or any other Loan Document ("Other
Taxes").
(iii) The Borrowers shall indemnify the Agent, each LC Issuer and each
Lender for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed on amounts
payable under this Section 3.5) paid by the
41
Agent, such LC Issuer or such Lender as a result of its Revolving
Loan Commitment, any Credit Extensions made by it hereunder, any
Facility LC issued or participated in by it hereunder, or otherwise
in connection with its participation in this Agreement and any
liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. Payments due under this
indemnification shall be made within 30 days of the date the Agent,
such LC Issuer or such Lender makes demand therefor pursuant to
Section 3.6.
(iv) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (each a "Non-U.S. Lender")
agrees that it will, not more than ten Business Days after the date
on which it becomes a party to this Agreement (but in any event
before a payment is due to it hereunder), (i) deliver to each of the
Company and the Agent two duly completed copies of United States
Internal Revenue Service Form W-8BEN or W-8ECI or successor forms,
certifying in either case that such Non-U.S. Lender is entitled to
receive payments under this Agreement or under any Note or Facility
LC Application without deduction or withholding of any United States
federal income taxes, or (ii) in the case of a Non-U.S. Lender that
is fiscally transparent, deliver to the Agent a United States
Internal Revenue Service Form W-8IMY or successor form together with
the applicable accompanying duly completed copies of United States
Internal Revenue Service applicable Forms W-8 or W-9 or successor
forms, as the case may be, and certify that it is entitled to an
exemption from United States withholding tax. Each Non-U.S. Lender
further undertakes to deliver to each of the Company and the Agent
renewals or additional copies of such form (or any successor form)
(x) on or before the date that such form expires or becomes
obsolete, (y) after the occurrence of any event requiring a change
in the most recent forms so delivered by it, and (z) from time to
time upon reasonable request by the Company or the Agent. All forms
or amendments described in the preceding sentence shall certify that
such Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income
taxes, unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which
any such delivery would otherwise be required which renders all such
forms inapplicable or which would prevent such Lender from duly
completing and delivering any such form or amendment with respect to
it and such Lender advises the Company and the Agent that it is not
capable of receiving payments without any deduction or withholding
of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to provide
the Company with an appropriate form pursuant to clause (iv) above
(unless such failure is due to a change in treaty, law or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, occurring subsequent to the
date on which a form originally was required to be provided), such
Non-U.S. Lender shall not be entitled to indemnification under this
Section 3.5 with respect to Taxes imposed by the United States;
provided that, should a Non-U.S. Lender which is otherwise exempt
from or subject to a reduced rate of withholding tax become subject
to Taxes because of its failure to deliver a form
42
required under clause (iv) above, the Company shall take such steps
as such Non-U.S. Lender shall reasonably request to assist such
Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any
Note pursuant to the law of any relevant jurisdiction or any treaty
shall deliver to the Company (with a copy to the Agent), at the time
or times prescribed by applicable law, such properly completed and
executed documentation prescribed by applicable law as will permit
such payments to be made without withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other governmental
authority of the United States or any other country or any political
subdivision thereof asserts a claim that the Agent did not properly
withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered or properly
completed, because such Lender failed to notify the Agent of a
change in circumstances which rendered its exemption from
withholding ineffective, or for any other reason), such Lender shall
indemnify the Agent fully for all amounts paid, directly or
indirectly, by the Agent as tax, withholding therefor, or otherwise,
including penalties and interest, and including taxes imposed by any
jurisdiction on amounts payable to the Agent under this subsection,
together with all costs and expenses related thereto (including
attorneys fees of attorneys for the Agent, which attorneys may be
employees of the Agent). The obligations of the Lenders under this
Section 3.5(vii) shall survive the payment of the Obligations and
termination of this Agreement.
3.6. Lender Statements; Survival of Indemnity. Each Lender shall deliver
a written statement of such Lender to the Company (with a copy to the Agent) as
to the amount due, if any, under Section 3.1, 3.2, 3.4 or 3.5. Such written
statement shall set forth in reasonable detail the calculations upon which such
Lender determined such amount and shall be final, conclusive and binding on the
Borrowers in the absence of manifest error. Determination of amounts payable
under such Sections in connection with a Eurocurrency Loan shall be calculated
as though each Lender funded its Eurocurrency Loan through the purchase of a
deposit of the type, currency and maturity corresponding to the deposit used as
a reference in determining the Eurocurrency Rate applicable to such Loan,
whether in fact that is the case or not. Unless otherwise provided herein, the
amount specified in the written statement of any Lender shall be payable on
demand after receipt by the Company of such written statement. The obligations
of the Borrowers under Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of
the Obligations and termination of this Agreement.
3.7. Alternative Lending Installation. To the extent reasonably possible,
each Lender shall designate an alternate Lending Installation with respect to
its Eurocurrency Loans to reduce any liability of the Borrowers to such Lender
under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of Eurocurrency
Advances under Section 3.3, so long as such designation is not, in the judgment
of such Lender, reasonably disadvantageous to such Lender. A Lender's
designation of an alternative Lending Installation shall not affect any
Borrower's rights under Section 2.23 to replace a Lender.
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ARTICLE IV
CONDITIONS PRECEDENT
4.1. Effectiveness of Commitments. This Agreement shall not become
effective, nor shall any Lender be required to make any Credit Extension
hereunder, unless on or before November 30, 2003 the following conditions
precedent have been satisfied and the Company has furnished to the Agent with
sufficient copies for the Lenders:
4.1.1 Copies of the articles or certificate of incorporation (or
the equivalent thereof) of each Credit Party, in each case, together with
all amendments thereto, and a certificate of good standing, each certified
by the appropriate governmental officer in its jurisdiction of organization
and accompanied by a certification by the Secretary or Assistant Secretary
of such Credit Party that there have been no changes in the matters
certified by such governmental officer since the date of such governmental
officer's certification.
4.1.2 Copies, certified by the Secretary or Assistant Secretary
(or the equivalent thereof) of each Credit Party, in each case, of its
by-laws and of its Board of Directors' resolutions and of resolutions or
actions of any other body authorizing the execution of the Loan Documents
to which such Credit Party is a party.
4.1.3 An incumbency certificate, executed by the Secretary or
Assistant Secretary (or the equivalent thereof) of each Credit Party which
shall identify by name and title and bear the signatures of the Authorized
Officers and any other officers of each such Credit Party authorized to
sign the Loan Documents to which it is a party, upon which certificate the
Agent and the Lenders shall be entitled to rely until informed of any
change in writing by the applicable Credit Party.
4.1.4 A certificate reasonably acceptable to the Agent signed by
the chief financial officer of the Company, stating that on the Closing
Date (a) no Default or Unmatured Default has occurred and is continuing,
(b) all of the representations and warranties in Article V shall be true
and correct (or in the case of representations and warranties applicable to
AbilityOne prior to the date of the AbilityOne Acquisition, true and
correct to the best of such officer's knowledge) as of such date and (c) no
material adverse change in the business, Property, condition (financial or
otherwise), operations or results of operations, performance or prospects
of the Company and its Subsidiaries (including for the period commencing on
September 12, 2003, AbilityOne and its Subsidiaries) taken as a whole has
occurred since April 26, 2003 and, to the best of such officer's knowledge,
of AbilityOne and its Subsidiaries taken as a whole has occurred since
December 31, 2002.
4.1.5 An initial compliance certificate, dated as of the Closing
Date and reflecting calculations as of July 26, 2003, in substantially the
form of Exhibit B hereto.
44
4.1.6 Written opinions of Xxxxxxx Xxxxxx, counsel to the Credit
Parties, in form and substance reasonably satisfactory to the Agent and
addressed to the Lenders in substantially the forms of Exhibit A hereto.
4.1.7 Duly executed originals of this Agreement from each of the
Credit Parties parties thereto and duly executed originals of any Note(s)
requested by a Lender pursuant to Section 2.15 payable to the order of each
such requesting Lender, and copies of the AbilityOne Acquisition Agreement.
4.1.8 Written money transfer instructions, in substantially the
form of Exhibit D, addressed to the Agent and signed by an Authorized
Officer of the Company, together with such other related money transfer
authorizations as the Agent may have reasonably requested.
4.1.9 The Agent shall have determined that (i) there is an
absence of any material adverse change or disruption in primary or
secondary loan syndication markets, financial markets or in capital markets
generally that would likely impair syndication of the Loans hereunder, and
(ii) the Company has fully cooperated with the Agent's syndication efforts,
including, without limitation, by providing the Agent with information
regarding the Company's and its Subsidiaries' operations and prospects and
such other information as the Agent deems necessary to successfully
syndicate the Loans hereunder.
4.1.10 Evidence satisfactory to the Agent that the Existing Credit
Agreement shall have been or shall simultaneously on the Closing Date be
terminated (except for those provisions that expressly survive the
termination thereof), all loans outstanding and other amounts owed to the
lenders or agents thereunder shall have been, or shall simultaneously with
the initial Advance hereunder, be paid in full, and all liens and security
interests granted in connection therewith shall have been or shall
simultaneously on the initial Borrowing Date be terminated.
4.1.11 Evidence satisfactory to the Agent that (i) the issuance of
Indebtedness by the Company under the Note Purchase Agreement and the
Senior Notes has been approved by all necessary corporate action of the
Company's directors, (ii) the Note Purchase Agreement and the issuance of
the Senior Notes shall close contemporaneously with the initial funding
under this Agreement, and (iii) the Company shall have received cash
proceeds from the issuance of the Senior Notes in an aggregate principal
amount not less than $350,000,000; and the Agent shall have received copies
of the duly executed Note Purchase Agreement and the Senior Notes in form
and substance satisfactory to the Agent and its counsel.
4.1.12 Evidence satisfactory to the Agent that the Company has
paid to the Agent and the Arrangers the fees agreed to in the fee letter
dated October 2, 2003, among the Agent, the Arrangers and the Company.
4.1.13 Such other documents as any Lender or its counsel may have
reasonably requested, including, without limitation, those documents set
forth in Exhibit G hereto.
45
4.2. Each Credit Extension. The Lenders shall not (except as otherwise
set forth in Section 2.3.4 with respect to Revolving Loans extended for the
purpose of repaying Swing Line Loans) be required to make any Credit Extension
unless on the applicable Credit Extension Date:
4.2.1 There exists no Default or Unmatured Default.
4.2.2 The representations and warranties contained in Article V
are true and correct as of such Credit Extension Date except to the extent
any such representation or warranty is stated to relate solely to an
earlier date, in which case such representation or warranty shall have been
true and correct on and as of such earlier date.
4.2.3 All legal matters incident to the making of such Credit
Extension shall be satisfactory to the Lenders and their counsel.
Each Borrowing Notice, request for issuance of a Facility LC or Swing Line
Borrowing Notice, as the case may be, or request for Modification of a Facility
LC, with respect to each such Credit Extension shall constitute a representation
and warranty by the applicable Borrower that the conditions contained in
Sections 4.2.1, 4.2.2 and 4.2.3 have been satisfied.
4.3. Initial Advance to Each New Subsidiary Borrower. The Lenders shall
not be required to make a Credit Extension hereunder to a new Subsidiary
Borrower added after the Closing Date unless (a) the conditions contained in
Section 4.2 have been satisfied and (b) the Company has furnished or caused to
be furnished to the Agent with sufficient copies for the Lenders:
4.3.1 The Assumption Letter executed and delivered by such
Subsidiary Borrower and containing the acknowledgment of the Agent and the
written consent of the Borrowers, as contemplated by Section 2.25.
4.3.2 Copies of the articles or certificate of incorporation (or
the equivalent thereof) of such Subsidiary Borrower, together with all
amendments thereto, and a certificate of good standing, each certified by
the appropriate governmental officer in its jurisdiction of organization
and accompanied by a certification by the Secretary or Assistant Secretary
of such Subsidiary Borrower that there have been no changes in the matters
certified by such governmental officer since the date of such governmental
officer's certification.
4.3.3 Copies, certified by the Secretary or Assistant Secretary
(or the equivalent thereof) of such Subsidiary Borrower of its by-laws and
of its Board of Directors' resolutions and of resolutions or actions of any
other body authorizing the execution of the Loan Documents to which such
Subsidiary Borrower is a party.
4.3.4 An incumbency certificate, executed by the Secretary or
Assistant Secretary (or the equivalent thereof) of such Subsidiary Borrower
which shall identify by name and title and bear the signatures of the
Authorized Officers and any other officers of such Subsidiary Borrower
authorized to sign the Loan Documents to which it is a party, upon which
certificate the Agent and the Lenders shall be entitled to rely until
informed of any change in writing by such Subsidiary Borrower.
46
4.3.5 An opinion of counsel to such Subsidiary Borrower,
substantially in the form of Exhibit E hereto.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to each Lender, LC Issuer and the
Agent as of each of (i) the Closing Date and (ii) each other date as required by
Section 4.2:
5.1. Existence and Standing. Each of the Company and its Subsidiaries is
a corporation, partnership (in the case of Subsidiaries only) or limited
liability company duly and properly incorporated or organized, as the case may
be, validly existing and (to the extent such concept applies to such entity) in
good standing under the laws of its jurisdiction of incorporation or
organization, (ii) has all requisite corporate, partnership or limited liability
company power and authority, as the case may be, to own, operate and encumber
its Property and (iii) is qualified to do business and is in good standing (to
the extent such concept applies to such entity) in all jurisdictions where the
nature of the business conducted by it makes such qualification necessary and
where failure to so qualify would reasonably be expected to have a Material
Adverse Effect.
5.2. Authorization and Validity. Each Credit Party has the requisite
corporate, partnership or limited liability company power and authority and
legal right to execute and deliver the Transaction Documents to which it is a
party and to perform its obligations thereunder. The execution and delivery by
each Credit Party of the Transaction Documents to which it is a party and the
performance of its obligations thereunder have been duly authorized by proper
corporate, partnership or limited liability company, as the case may be,
proceedings, and the Transaction Documents to which each Credit Party is a party
constitute legal, valid and binding obligations of such Credit Party enforceable
against such Credit Party in accordance with their terms, except as
enforceability may be limited by (i) bankruptcy, insolvency, fraudulent
conveyances, reorganization or similar laws relating to or affecting the
enforcement of creditors' rights generally; (ii) general equitable principles
(whether considered in a proceeding in equity or at law); and (iii) requirements
of reasonableness, good faith and fair dealing.
5.3. No Conflict; Government Consent. Neither the execution and delivery
by any Credit Party of the Transaction Documents to which it is a party, nor the
consummation by such Credit Party of the transactions therein contemplated, nor
compliance by such Credit Party with the provisions thereof will violate (i) any
applicable law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on such Credit Party or (ii) such Credit Party's articles or
certificate of incorporation, partnership agreement, certificate of partnership,
articles or certificate of organization, by-laws, or operating agreement or
other management agreement, as the case may be, or (iii) the provisions of any
indenture, instrument or agreement to which such Credit Party is a party or is
subject, or by which it, or its Property, is bound, or conflict with, or
constitute a default under, or result in, or require, the creation or imposition
of any Lien in, of or on the Property of such Credit Party pursuant to the terms
of, any such indenture, instrument or agreement. No order, consent,
adjudication, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, or other action in respect of
any governmental or public body or authority, or any subdivision thereof, which
has not been
47
obtained by any Credit Party, is required to be obtained by such Credit Party in
connection with the execution and delivery of the Transaction Documents, the
borrowings under this Agreement, the payment and performance by the Credit
Parties of the Obligations or the legality, validity, binding effect or
enforceability of any of the Transaction Documents.
5.4. Financial Statements. The April 26, 2003 consolidated financial
statements of the Company and its Subsidiaries (other than AbilityOne and its
Subsidiaries) and, to the best of the Company's knowledge, the December 31, 2002
consolidated financial statements of AbilityOne and its Subsidiaries, in each
case heretofore delivered to the Agent and the Lenders, were prepared in
accordance with generally accepted accounting principles in effect on the date
such statements were prepared and fairly present the consolidated financial
condition and operations of the Company and its Subsidiaries (other than
AbilityOne and its Subsidiaries) and, to the best of the Company's knowledge,
AbilityOne and its Subsidiaries, as applicable, at such date and the
consolidated results of their operations for the period then ended.
5.5. Material Adverse Change. Since April 26, 2003, there has been no
change in the business, Property, condition (financial or otherwise), operations
or results of operations, performance or prospects of the Company and its
Subsidiaries (including for the period commencing on September 12, 2003,
AbilityOne and its Subsidiaries) taken as a whole which could reasonably be
expected to have a Material Adverse Effect. To the best of the Company's
knowledge, since December 31, 2002, there has been no change in the business,
Property, condition (financial or otherwise), operations or results of
operations, performance or prospects of AbilityOne and its Subsidiaries taken as
a whole which could reasonably be expected to have a Material Adverse Effect.
5.6. Taxes. The Company and the Subsidiaries have filed all United States
federal tax returns and all other tax returns which are required to be filed and
have paid all taxes due pursuant to said returns or pursuant to any assessment
received by the Company or any Subsidiaries, except in respect of such taxes, if
any, as are being contested in good faith and as to which adequate reserves have
been provided in accordance with Agreement Accounting Principles and as to which
no Lien exists (except as permitted by Section 6.15.1) and as to which the
failure to file such return or pay such taxes could not reasonably be expected
to have a Material Adverse Effect. The United States income tax returns of the
Company and the Subsidiaries (other than those that became Subsidiaries after
April 25, 1998) have been audited by the Internal Revenue Service through the
fiscal year ended April 25, 1998. No liens have been filed and no claims are
being asserted with respect to such taxes. The charges, accruals and reserves on
the books of the Company and the Subsidiaries in respect of any taxes or other
governmental charges are adequate.
5.7. Litigation and Contingent Obligations. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened against or affecting the
Company or any Subsidiaries which could reasonably be expected to have a
Material Adverse Effect or which seeks to prevent, enjoin or delay the making of
any Loans. Other than any liability incident to any litigation, arbitration or
proceeding which could not reasonably be expected to have a Material Adverse
Effect, the Company and its Subsidiaries has no material contingent obligations
required to be reflected on
48
the Company's consolidated balance sheet in accordance with generally accepted
accounting principles and not provided for or disclosed in the financial
statements referred to in Section 5.4.
5.8. Subsidiaries. Schedule 5.8 contains an accurate list of all
Subsidiaries of the Company as of the Closing Date, setting forth their
respective jurisdictions of organization and the percentage of their respective
capital stock or other ownership interests owned by the Company or other
Subsidiaries. All of the issued and outstanding shares of capital stock or other
ownership interests of such Subsidiaries have been (to the extent such concepts
are relevant with respect to such ownership interests) duly authorized and
issued and are fully paid and non-assessable.
5.9. ERISA. The Unfunded Liabilities of all Single Employer Plans do not
in the aggregate exceed $10,000,000. Neither the Company nor any other member of
the Controlled Group has incurred, or is reasonably expected to incur, pursuant
to Section 4201 of ERISA, any withdrawal liability to Multiemployer Plans. Each
Plan complies in all material respects with all applicable requirements of law
and regulations. No Reportable Event has occurred with respect to any Plan.
Neither the Company nor any other member of the Controlled Group has withdrawn
from any Multiemployer Plan within the meaning of Title IV of ERISA or initiated
steps to do so, and, to the knowledge of the Company, no steps have been taken
to reorganize or terminate, within the meaning of Title IV of ERISA, any
Multiemployer Plan.
5.10. Accuracy of Information. The information, exhibits or reports
furnished by the Company or any Subsidiary to the Agent or to any Lender in
connection with the negotiation of, or compliance with, the Transaction
Documents do not contain any material misstatement of fact or omit to state a
material fact or any fact necessary to make the statements contained therein, in
light of the circumstances under which they were made, not misleading. The
projected and pro-forma financial information furnished by or on behalf of any
Credit Party to the Agent or any Lender in connection with the negotiation of,
or compliance with, the Transaction Documents, were prepared in good faith based
upon assumptions believed to be reasonable at the time.
5.11. Regulation U. Neither the Company nor any Subsidiary is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose, whether immediate, incidental or ultimate of buying or
carrying margin stock (as defined in Regulation U), and after applying the
proceeds of each Credit Extension, margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of the Company and the
Subsidiaries which are subject to any limitation on sale, pledge, or any other
restriction hereunder.
5.12. Material Agreements. Neither the Company nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Company nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement or instrument to which it is a party,
which default could reasonably be expected to have a Material Adverse Effect or
(ii) any agreement or instrument evidencing or governing Indebtedness.
49
5.13. Compliance With Laws. The Company and the Subsidiaries have complied
in all material respects with all applicable statutes, rules, regulations,
orders and restrictions of any domestic or foreign government or any
instrumentality or agency thereof having jurisdiction over the conduct of their
respective businesses or the ownership of their respective Property except for
any failure to comply with any of the foregoing which could not reasonably be
expected to have a Material Adverse Effect.
5.14. Ownership of Properties. The Company and the Subsidiaries have good
title, free of all Liens other than those permitted by Section 6.15, to all of
the assets reflected in the Company's most recent consolidated financial
statements provided to the Agent, as owned by the Company and the Subsidiaries
except (i) assets sold or otherwise transferred as permitted under Section 6.12
and (ii) to the extent the failure to hold such title could not reasonably be
expected to have a Material Adverse Effect.
5.15. Plan Assets; Prohibited Transactions. None of the Credit Parties is
an entity deemed to hold "plan assets" within the meaning of 29 C.F.R. Section
2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan (within the meaning of Section
4975 of the Code), and assuming the accuracy of the representations and
warranties made in Section 9.12 and in any assignment made pursuant to Section
12.3.3, neither the execution of this Agreement nor the making of Loans
hereunder gives rise to a prohibited transaction within the meaning of Section
406 of ERISA or Section 4975 of the Code.
5.16. Environmental Matters. In the ordinary course of its business, the
officers of the Company and the Subsidiaries consider the effect of
Environmental Laws on the business of the Company and the Subsidiaries, in the
course of which they identify and evaluate potential risks and liabilities
accruing to the Company or any Subsidiary due to Environmental Laws. On the
basis of this consideration, the Company has concluded that Environmental Laws
cannot reasonably be expected to have a Material Adverse Effect. Neither the
Company nor any Subsidiary has received any notice to the effect that its
operations are not in material compliance with any of the requirements of
applicable Environmental Laws or are the subject of any federal or state
investigation evaluating whether any remedial action is needed to respond to a
release of any toxic or hazardous waste or substance into the environment, which
non-compliance or remedial action could reasonably be expected to have a
Material Adverse Effect.
5.17. Investment Company Act. Neither the Company nor any Subsidiary is an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
5.18. Public Utility Holding Company Act. Neither the Company nor any
Subsidiary is a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended.
5.19. Insurance. The Company maintains, and has caused each Subsidiary to
maintain, with financially sound and reputable insurance companies insurance on
all their Property in such
50
amounts, subject to such deductibles and self-insurance retentions and covering
such properties and properties and risks as is consistent with sound business
practice.
5.20. Solvency. After giving effect to (i) the Credit Extensions to be
made on the Closing Date or such other date as Credit Extensions requested
hereunder are made, (ii) the other transactions contemplated by this Agreement
and the other Transaction Documents, and (iii) the payment and accrual of all
transaction costs with respect to the foregoing, the Company and its
Subsidiaries taken as a whole are Solvent.
5.21. No Default or Unmatured Default. No Default or Unmatured Default has
occurred and is continuing.
5.22. Reportable Transaction. No Borrower intends to treat the Advances
and related transactions as being a "reportable transaction" (within the meaning
of the Treasury Regulation Section 1.6011-4). In the event any Borrower
determines to take any action inconsistent with such intention, it will promptly
notify the Agent thereof. Each Borrower acknowledges that one or more of the
Lenders may treat its Advances as part of a transaction that is subject to
Treasury Regulation Section 1.6011-4 or Section 301.6112-1, and the Agent and
such Lender or Lenders, as applicable, may file such IRS forms or maintain such
lists and other records as they may determine is required by such Treasury
Regulations.
5.23. Post-Retirement Benefits. The present value of the expected cost of
post-retirement medical and insurance benefits payable by the Company and its
Subsidiaries to its employees and former employees, as estimated by the Company
in accordance with procedures and assumptions deemed reasonable by the Required
Lenders is zero.
5.24. AbilityOne Acquisition. (i) No material breach, default or waiver of
any term or provision of the AbilityOne Acquisition Agreement by the Company or
any of its Subsidiaries, which are parties thereto, or, to the best of the
Company's knowledge, the other parties thereto, has occurred (except for such
breaches, defaults and waivers, if any, consented to in writing by the Agent);
and (ii) the Company owns, directly or indirectly, not less than one hundred
percent of the capital stock of AbilityOne.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Financial Reporting. The Company will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance
with generally accepted accounting principles, and furnish to the Lenders:
6.1.1 Within 90 days after the close of each of the Company's
fiscal years, commencing with the fiscal year ending April 24, 2004,
financial statements prepared in accordance with Agreement Accounting
Principles on a consolidated basis, for itself and its Subsidiaries,
including balance sheets as of the end of such period, statements of
51
income and statements of cash flows, accompanied by (a) an audit report,
unqualified as to scope, of a nationally recognized firm of independent
public accountants or other independent public accountants reasonably
acceptable to the Required Lenders; (b) any management letter prepared by
said accountants, and (c) a certificate of said accountants that, in the
course of their examination necessary for their certification of the
foregoing, they have obtained no knowledge of any Default or Unmatured
Default, or if, in the opinion of such accountants, any Default or
Unmatured Default shall exist, stating the nature and status thereof.
6.1.2 Within 45 days after the close of the first three quarterly
periods of each of the Company's fiscal years, commencing with the fiscal
quarter ending October 25, 2003, for the Company and its Subsidiaries,
consolidated unaudited balance sheets as at the close of each such period
and consolidated statements of income and a statement of cash flows for the
period from the beginning of such fiscal year to the end of such quarter,
all certified as to fairness of presentation, compliance with Agreement
Accounting Principles and consistency by its chief financial officer or
treasurer.
6.1.3 Together with the financial statements required under
Sections 6.1.1 and 6.1.2, a compliance certificate in substantially the
form of Exhibit B signed by its chief financial officer or treasurer
showing the calculations necessary to determine compliance with this
Agreement, which certificate shall also state that no Default or Unmatured
Default exists, or if any Default or Unmatured Default exists, stating the
nature and status thereof, and a certificate executed and delivered by the
chief executive officer or chief financial officer stating that the Company
and each of its respective principal officers are in compliance with all
requirements of Section 302 and Section 906 of the Xxxxxxxx-Xxxxx Act of
2002 and all rules and regulations related thereto.
6.1.4 Within 120 days after the close of each of the Company's
fiscal years, a copy of the plan and forecast (including a projected
balance sheet, income statements and funds flow statements, and any
narrative prepared with respect thereto) of the Company and its
Subsidiaries for the upcoming fiscal year prepared in such detail as shall
be reasonably satisfactory to the Agent.
6.1.5 Within 270 days after the close of each fiscal year of the
Company, if applicable, a copy of the actuarial report showing the Unfunded
Liabilities of each Single Employer Plan as of the valuation date occurring
in such fiscal year, certified by an actuary enrolled under ERISA.
6.1.6 As soon as possible and in any event within 10 days after
any Borrower knows that any Reportable Event has occurred with respect to
any Plan, a statement, signed by the chief financial officer or treasurer
of the Company, describing said Reportable Event and the action which the
Company proposes to take with respect thereto.
6.1.7 As soon as possible and in any event within 10 days after
receipt by the Company or any Subsidiary, a copy of (a) any notice or claim
to the effect that the Company or any Subsidiary is or may be liable to any
Person as a result of the release by
52
the Company, any Subsidiary, or any other Person of any toxic or hazardous
waste or substance into the environment, and (b) any notice alleging any
violation of any Environmental Law by the Company or any Subsidiary, which,
in either case, could reasonably be expected to have a Material Adverse
Effect.
6.1.8 Promptly upon the furnishing thereof to the shareholders of
the Company, copies of all financial statements, reports and proxy
statements so furnished.
6.1.9 Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other regular
reports which the Company or any Subsidiary files with the SEC, including,
without limitation, all certifications and other filings required by
Section 302 and Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 and all rules
and regulations related thereto.
6.1.10 Prior to the execution thereof, draft copies of all
material amendments to the Note Purchase Agreement and the Senior Notes.
6.1.11 Such other information (including non-financial
information) as the Agent or any Lender may from time to time reasonably
request.
6.2. Use of Proceeds. Each Borrower will use (i) the proceeds of the Term
Loans solely for repayment of a portion of the Indebtedness outstanding under
the Existing Credit Agreement, and (ii) the proceeds of the Revolving Loans for
general corporate purposes including, without limitation, for working capital,
Permitted Acquisitions, repayment of Indebtedness outstanding under the Existing
Credit Agreement and to pay fees and expenses incurred in connection with this
Agreement). The Borrowers shall use the proceeds of Credit Extensions in
compliance with all applicable legal and regulatory requirements and any such
use shall not result in a violation of any such requirements, including, without
limitation, Regulation U and X, the Securities Act of 1933, as amended, and the
Securities Exchange Act of 1934, as amended, and the regulations promulgated
thereunder.
6.3. Notice of Default. Within five (5) Business Days after an Authorized
Officer of any Borrower becomes aware thereof, such Borrower will, and the
Company will cause each other Subsidiary to, give notice in writing to the
Lenders of the occurrence of (i) any Default or Unmatured Default, (ii) the
occurrence of any Off-Balance Sheet Trigger Event or any material default under
or with respect to any Material Indebtedness or any material service agreement
to which the Company or any Subsidiary is a party (together with copies of all
default notices, if any, pertaining thereto) and (iii) any other development,
financial or otherwise, which could reasonably be expected to have a Material
Adverse Effect.
6.4. Conduct of Business. Each Borrower will, and the Company will cause
each other Subsidiary to, carry on and conduct its business in substantially the
same manner and in substantially the same fields of enterprise as conducted by
the Company or its Subsidiaries as of the Closing Date, and do all things
necessary to remain duly incorporated or organized, validly existing and (to the
extent such concept applies to such entity) in good standing as a domestic
corporation, partnership or limited liability company in its jurisdiction of
incorporation or organization, as the case may be, as in effect on the Closing
Date, and, except to the extent
53
failure to do so could not reasonably be expected to have a Material Adverse
Effect, maintain all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
6.5. Taxes. Each Borrower will, and the Company will cause each other
Subsidiary to, timely file complete and correct United States federal and
applicable foreign, state and local tax returns required by law and pay when due
all taxes, assessments and governmental charges and levies upon it or its
income, profits or Property, except (i) those which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves
have been set aside in accordance with Agreement Accounting Principles and (ii)
those taxes, assessments, charges and levies which by reason of the amount
involved or the remedies available to the applicable taxing authority could not
reasonably be expected to have a Material Adverse Effect.
6.6. Insurance. Each Borrower will, and the Company will cause each other
Subsidiary to, maintain with financially sound and reputable insurance companies
insurance on all their Property in such amounts, subject to such deductibles and
self-insurance retentions, and covering such properties and risks as is
consistent with sound business practice, and the Company will furnish to any
Lender upon request full information as to the insurance carried.
6.7. Compliance with Laws. Each Borrower will, and the Company will cause
each other Subsidiary to, comply with all laws, rules, regulations, orders,
writs, judgments, injunctions, decrees or awards to which it may be subject
including, without limitation, all Environmental Laws and Section 302 and
Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, except where the failure to do
so, individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
6.8. Maintenance of Properties. Subject to Section 6.12, each Borrower
will, and the Company will cause each other Subsidiary to, do all things
necessary to maintain, preserve, protect and keep its Property used in the
operation of its business in good repair, working order and condition (ordinary
wear and tear excepted), and make all necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith may be
properly conducted at all times, except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
6.9. Inspection; Keeping of Books and Records. Each Borrower will, and
the Company will cause each other Subsidiary to, permit the Agent and the
Lenders, by their respective representatives and agents, to inspect any of the
Property, books and financial records of the Company and each Subsidiary, to
examine and make copies of the books of accounts and other financial records of
the Company and each Subsidiary, and to discuss the affairs, finances and
accounts of the Company and each Subsidiary with, and to be advised as to the
same by, their respective officers at such reasonable times and intervals as the
Agent or any Lender may designate. Each Borrower shall keep and maintain, and
the Company shall cause each of the other Subsidiaries to keep and maintain, in
all material respects, complete, accurate and proper books of record and account
in which entries in conformity with Agreement Accounting Principles shall be
made of all dealings and transactions in relation to their respective businesses
and activities. If a Default has occurred and is continuing, the Company, upon
the Agent's request, shall turn over copies of any such records to the Agent or
its representatives.
54
6.10. Dividends. No Borrower will, nor will the Company permit any other
Subsidiary to, declare or pay any dividend or make any distribution on its
capital stock (other than dividends payable in its own capital stock) or redeem,
repurchase or otherwise acquire or retire any of its capital stock at any time
outstanding, except that (i) any Subsidiary of the Company may declare and pay
dividends or make distributions to any Borrower or to a Guarantor and (ii) the
Company may declare and pay dividends on its capital stock, and may repurchase
shares of its capital stock pursuant to the share repurchase program described
in note 11 to its audited financial statements for the year ended April 26,
2003, provided that no Default or Unmatured Default shall exist before or after
giving effect to such dividends or be created as a result thereof.
6.11. Merger. No Borrower will, nor will the Company permit any other
Subsidiary to, merge or consolidate with or into any other Person, except that:
6.11.1 (x) A Subsidiary Borrower may merge into (i) the Company,
provided the Company shall be the continuing or surviving corporation, or
(ii) another Subsidiary Borrower or any other Person that becomes a
Subsidiary Borrower promptly upon the completion of the applicable merger
or consolidation, and (y) a Guarantor may merge into (i) any Borrower,
provided such Borrower shall be the continuing or surviving corporation, or
(ii) another Guarantor or any other Person that becomes a Guarantor
promptly upon the completion of the applicable merger or consolidation.
6.11.2 A Subsidiary that is not a Guarantor or Subsidiary Borrower
and not required to be a Guarantor may merge or consolidate with or into
the Company or any Wholly-Owned Subsidiary.
6.11.3 Any Subsidiary of the Company may consummate any merger or
consolidation in connection with any Permitted Acquisition.
6.12. Sale of Assets. No Borrower will, nor will the Company permit any
other Subsidiary to, lease, sell, transfer or otherwise dispose of its Property
to any other Person, except:
6.12.1 Sales of inventory in the ordinary course of business.
6.12.2 A disposition of assets (i) by the Company or any
Subsidiary to any Credit Party, (ii) by a Subsidiary that is not a Credit
Party and not required to be a Guarantor to any other Subsidiary and (iii)
subject to Section 6.24, by any Credit Party to any Foreign Subsidiary.
6.12.3 A disposition of obsolete property or property no longer
used in the business of the Company or any Subsidiary.
6.12.4 So long as no Default or Unmatured Default has occurred, a
disposition of assets for an aggregate purchase price of up to $350,000,000
outstanding at any time pursuant to, and in accordance with, the
Receivables Purchase Facilities.
55
6.12.5 The license or sublicense of software, trademarks, and
other intellectual property in the ordinary course of business which do not
materially interfere with the business of the Company or any Subsidiary.
6.12.6 Consignment arrangements (as consignor or consignee) or
similar arrangements for the sale of goods in the ordinary course of
business and consistent with the past practices of the Company and the
Subsidiaries.
6.12.7 So long as no Default or Unmatured Default shall have
occurred and is continuing or would result therefrom, leases, sales or
other dispositions of its Property that (i) are for consideration
consisting at least seventy-five percent (75%) of cash, (ii) are for not
less than fair market value, and (iii) together with all other Property of
the Company and the Subsidiaries previously leased, sold or disposed of
(other than dispositions otherwise permitted by this Section 6.12) as
permitted by this Section 6.12.7 during the twelve-month period ending with
the month in which any such lease, sale or other disposition occurs, do not
constitute in the aggregate a Substantial Portion of the Property of the
Company and its Subsidiaries.
6.13. Investments and Acquisitions. No Borrower will, nor will the Company
permit any other Subsidiary to, make or suffer to exist any Investments
(including without limitation, loans and advances to, and other Investments in,
Subsidiaries), or to create any Subsidiary or to become or remain a partner in
any partnership or joint venture, or to make any Acquisition of any Person,
except:
6.13.1 Subject to Section 6.24, cash and Cash Equivalent
Investments and other Investments that comply with the Company's investment
policy as in effect on the Closing Date, a copy of which the Company has
provided to the Agent.
6.13.2 Existing Investments in Subsidiaries and other Investments
in existence on the Closing Date and described in Schedule 6.13 and any
renewal or extension of any such Investments that does not increase the
amount of the Investment being renewed or extended as determined as of such
date of renewal or extension.
6.13.3 Investments in trade receivables or received in connection
with the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with, customers
and suppliers arising in the ordinary course of business.
6.13.4 Investments consisting of intercompany loans permitted
under Section 6.14.6.
6.13.5 All Acquisitions meeting the following requirements or
otherwise approved by the Required Lenders (each such Acquisition
constituting a "Permitted Acquisition"):
(i) as of the date of the consummation of such Acquisition, no Default
or Unmatured Default shall have occurred and be continuing or would
result from such
56
Acquisition, and the representation and warranty contained in
Section 5.11 shall be true both before and after giving effect to
such Acquisition;
(ii) such Acquisition is consummated on a non-hostile basis pursuant to a
negotiated acquisition agreement approved by the board of directors
or other applicable governing body of the seller or entity to be
acquired, and no material challenge to such Acquisition (excluding
the exercise of appraisal rights) shall be pending or threatened in
writing by any shareholder or director of the seller or entity to be
acquired;
(iii) the business to be acquired in such Acquisition is similar or
related to one or more of the lines of business in which the Company
and the Subsidiaries are engaged on the Closing Date;
(iv) as of the date of the consummation of such Acquisition, all material
governmental and corporate approvals required in connection
therewith shall have been obtained;
(v) the Purchase Price for each such Acquisition together with the
Purchase Price of all other Permitted Acquisitions shall not exceed
an amount equal to $100,000,000 in any twelve-month period
(excluding from the calculation thereof during the twelve-month
period immediately following the AbilityOne Acquisition, the
Purchase Price of the AbilityOne Acquisition);
(vi) with respect to each Permitted Acquisition with respect to which the
Purchase Price shall be greater than $30,000,000, not less than
fifteen (15) days prior to the consummation of such Permitted
Acquisition, the Company shall have delivered to the Agent a pro
forma consolidated balance sheet, income statement and cash flow
statement of the Company and the Subsidiaries (the "Acquisition Pro
Forma"), based on the Company's most recent financial statements
delivered pursuant to Section 6.1.1 and using historical financial
statements for the acquired entity provided by the seller(s) or
which shall be complete and shall fairly present, in all material
respects, the financial condition and results of operations and cash
flows of the Company and its Subsidiaries in accordance with
Agreement Accounting Principles, but taking into account such
Permitted Acquisition and the repayment of any Indebtedness in
connection with such Permitted Acquisition, and such Acquisition Pro
Forma shall reflect that, on a pro forma basis, the Company would
have been in compliance with the financial covenants set forth in
Sections 6.20, 6.21 and 6.22 for the four fiscal quarter period
reflected in the compliance certificate most recently delivered to
the Agent pursuant to Section 6.1.3 prior to the consummation of
such Permitted Acquisition (giving effect to such Permitted
Acquisition as if made on the first day of such period); and
(vii) prior to (or, with respect to clause (A) below, concurrently with)
the consummation of each such Permitted Acquisition, the Company
shall deliver to the Agent a documentation, information and
certification package in form and substance acceptable to the Agent,
including, without limitation;
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(A) to the extent required under Section 6.23, a supplement to the
Guaranty if the Permitted Acquisition is an Acquisition of
equities and the target company will not be merged with the
Company or any other Borrower;
(B) the financial statements of the target entity together with any
pro forma financial statements, projections, forecasts and
budgets prepared by the Company in connection therewith;
(C) a copy of the acquisition agreement for such Acquisition,
together with drafts of the material schedules thereto;
(D) a copy of all documents, instruments and agreements with
respect to any Indebtedness to be incurred or assumed in
connection with such Acquisition; and
(E) such other documents or information as shall be reasonably
requested by the Agent or any Lender.
6.13.6 Investments constituting promissory notes and other
non-cash consideration received in connection with any transfer of assets
permitted under Section 6.12.7.
6.13.7 Customer advances in the ordinary course of business.
6.13.8 Extensions of customer or trade credit in the ordinary
course of business consistent with the Company's and the Subsidiaries' past
practices.
6.13.9 Investments constituting Rate Management Transactions
permitted under Section 6.17.
6.13.10 Subject to Section 6.24, the creation or formation of new
Subsidiaries (as opposed to the Acquisition of new Subsidiaries), so long
as all applicable requirements under Section 6.23 shall have been, or
concurrently therewith are, satisfied.
6.13.11 Investments constituting expenditures for any purchase or
other acquisition of any asset which would be classified as a fixed or
capital asset on a consolidated balance sheet of the Company and its
Subsidiaries prepared in accordance with Agreement Accounting Principles to
the extent otherwise permitted under this Agreement.
6.13.12 Investments by (i) the Company and its Subsidiaries in any
Credit Party, (ii) any Subsidiary which is not a Credit Party and is not
required to be a Guarantor in any other Subsidiary which is not a Credit
Party and is not required to be a Guarantor and (iii) subject to Section
6.24, any Credit Party in any Foreign Subsidiary.
6.13.13 Deposits made in the ordinary course of business and
referred to in Sections 6.15.4, 6.15.6 and 6.15.7.
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6.13.14 (a) cash Investments constituting the initial
capitalization of an SPV in connection with the consummation of any
Receivables Purchase Facility permitted under this Agreement in an
aggregate amount (calculated based on aggregate of the initial cash
capitalization amount of each such SPV) not to exceed $10,000,000, and (b)
other Investments in connection with any Receivables Purchase Facility
permitted under this Agreement (including intercompany Indebtedness
permitted under Section 6.14.4(b)).
6.13.15 Additional Investments in an amount not to exceed
$10,000,000 at any one time outstanding.
6.14. Indebtedness. No Borrower will, nor will the Company permit any
other Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
6.14.1 The Obligations.
6.14.2 Indebtedness existing on the Closing Date and described in
Schedule 6.14, and any replacement, renewal, refinancing or extension of
any such Indebtedness that (i) does not exceed the aggregate principal
amount (plus accrued interest and any applicable premium and associated
fees and expenses) of the Indebtedness being replaced, renewed, refinanced
or extended, (ii) does not have a Weighted Average Life to Maturity at the
time of such replacement, renewal, refinancing or extension that is less
than the Weighted Average Life to Maturity of the Indebtedness being
replaced, renewed, refinanced or extended and (iii) does not rank at the
time of such replacement, renewal, refinancing or extension senior to the
Indebtedness being replaced, renewed, refinanced or extended.
6.14.3 Indebtedness arising under Rate Management Transactions
permitted under Section 6.17;
6.14.4 (a) Amounts owing under the Receivables Purchase
Facilities, the principal amount of which shall not exceed $350,000,000 in
the aggregate at any time and (b) subordinated intercompany Indebtedness
owing to the Company or any Subsidiary of the Company by any SPV in
connection with a Receivables Purchase Facility permitted hereunder.
6.14.5 Secured or unsecured purchase money Indebtedness (including
Capitalized Leases) incurred by the Company or any Subsidiary after the
Closing Date to finance the acquisition of assets used in its business, if
(1) at the time of such incurrence, no Default or Unmatured Default has
occurred and is continuing or would result from such incurrence, (2) such
Indebtedness does not exceed the lower of the fair market value or the cost
of the applicable fixed assets on the date acquired, (3) such Indebtedness
does not exceed $10,000,000 in the aggregate outstanding at any time, and
(4) any Lien securing such Indebtedness is permitted under Section 6.15
(such Indebtedness being referred to herein as "Permitted Purchase Money
Indebtedness").
6.14.6 Indebtedness arising from intercompany loans and advances
made by (i) the Company or any Subsidiary to any Credit Party, (ii) any
Subsidiary that is not a Credit Party to any other Subsidiary that is not a
Credit Party or (iii) subject to Section
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6.24, any Credit Party to any Foreign Subsidiary; provided that all such
Indebtedness shall be expressly subordinated to the Obligations.
6.14.7 Indebtedness incurred or assumed by the Company or any
Subsidiary in connection with a Permitted Acquisition but not created in
contemplation of such event.
6.14.8 Indebtedness constituting Contingent Obligations otherwise
permitted by Section 6.19.
6.14.9 Indebtedness under (i) performance bonds and surety bonds
and (ii) bank overdrafts outstanding for not more than two (2) Business
Days, in each case incurred in the ordinary course of business.
6.14.10 To the extent the same constitutes Indebtedness,
obligations in respect of earn-out arrangements permitted pursuant to a
Permitted Acquisition.
6.14.11 Unsecured Indebtedness arising under the Note Purchase
Agreement and the Senior Notes, the outstanding principal amount of which
shall not exceed $350,000,000 in the aggregate at any time.
6.14.12 Additional Indebtedness in an aggregate principal amount in
Dollars not to exceed $10,000,000 at any time.
6.15. Liens. No Borrower will, nor will the Company permit any other
Subsidiary to, create, incur, or suffer to exist any Lien in, of or on the
Property of the Company or any Subsidiary, except:
6.15.1 Liens, if any, securing Obligations.
6.15.2 Liens for taxes, assessments or governmental charges or
levies on its Property if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good
faith and by appropriate proceedings and for which adequate reserves in
accordance with Agreement Accounting Principles shall have been set aside
on its books.
6.15.3 Liens imposed by law, such as landlords', wage earners',
carriers', warehousemen's and mechanics' liens and other similar liens
arising in the ordinary course of business which secure payment of
obligations not more than 45 days past due or which are being contested in
good faith by appropriate proceedings and for which adequate reserves in
accordance with Agreement Accounting Principles shall have been set aside
on its books.
6.15.4 Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other
social security or retirement benefits, or similar legislation.
6.15.5 Liens existing on the Closing Date and described in
Schedule 6.15.
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6.15.6 Deposits securing liability to insurance carriers under
insurance or self-insurance arrangements.
6.15.7 Deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business.
6.15.8 Easements, reservations, rights-of-way, restrictions,
survey exceptions and other similar encumbrances as to real property of the
Company and the Subsidiaries which customarily exist on properties of
corporations engaged in similar activities and similarly situated and which
are not material in amount and that do not materially interfere with the
conduct of the business of the Company or such Subsidiary conducted at the
property subject thereto.
6.15.9 Liens arising by reason of any judgment, decree or order of
any court or other governmental authority, but only to the extent and for
an amount and for a period not resulting in a Default under Section 7.8.
6.15.10 Liens on receivables and related assets (including, without
limitation, (i) any interest in the equipment or inventory (including
returned or repossessed goods), if any, the sale, financing or lease of
which gave rise to the receivables, together with insurance related
thereto, (ii) all security interests purporting to secure payment of the
receivables, (iii) all guaranties, insurance, letters of credit or other
agreements supporting or securing payment of the receivables, (iv) all
contracts associated with the receivables, (v) all collection accounts and
lockbox accounts into which receivables payments are made, (vi) all records
relating to the receivables, and (vii) all proceeds of the foregoing)
arising in connection with a Receivables Purchase Facility permitted under
Section 6.14.4.
6.15.11 Liens existing on any specific fixed asset of any
Subsidiary of the Company at the time such Subsidiary becomes a Subsidiary
and not created in contemplation of such event.
6.15.12 Liens on any specific fixed asset securing Indebtedness
incurred or assumed for the purpose of financing or refinancing all or any
part of the cost of acquiring or constructing such asset; provided that
such Lien attaches to such asset concurrently with or within six (6) months
after the acquisition or completion or construction thereof.
6.15.13 Liens existing on any specific fixed asset of any
Subsidiary of the Company at the time such Subsidiary is merged or
consolidated with or into the Company or any Subsidiary and not created in
contemplation of such event.
6.15.14 Liens existing on any specific fixed asset prior to the
acquisition thereof by the Company or any Subsidiary and not created in
contemplation thereof; provided that such Liens do not encumber any other
property or assets, other than improvements thereon and proceeds thereof.
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6.15.15 Liens arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted under Sections
6.15.5 and 6.15.11 through 6.15.14; provided that (i) such Indebtedness is
not secured by any additional assets, other than improvements thereon and
proceeds thereof, and (ii) the amount of such Indebtedness secured by any
such Lien is not increased.
6.15.16 Liens securing Permitted Purchase Money Indebtedness;
provided that such Liens shall not apply to any property of the Company or
any Subsidiary other than that purchased with the proceeds of such
Permitted Purchase Money Indebtedness, other than improvements thereon and
proceeds thereof.
6.15.17 Liens in respect of Capitalized Lease Obligations to the
extent permitted hereunder and Liens arising under any equipment, furniture
or fixtures leases or Property consignments to the Company or any
Subsidiary otherwise permitted under the Loan Documents.
6.15.18 Licenses, leases or subleases granted to others in the
ordinary course of business consistent with the Company's and the
Subsidiaries' past practices that do not materially interfere with the
conduct of the business of the Company and the Subsidiaries taken as a
whole.
6.15.19 Statutory and contractual landlords' Liens under leases to
which the Company or any Subsidiary is a party.
6.15.20 Liens in favor of a banking institution arising as a matter
of applicable law encumbering deposits (including the right of set-off)
held by such banking institutions incurred in the ordinary course of
business and which are within the general parameters customary in the
banking industry.
6.15.21 Liens in favor of customs and revenue authorities arising
as a matter of applicable law to secure the payment of customs' duties in
connection with the importation of goods.
6.15.22 Any interest or title of a lessor, sublessor, licensee or
licensor under any lease or license agreement permitted by this Agreement.
6.15.23 Liens not otherwise permitted under this Section 6.15 to
the extent attaching to Properties and assets with an aggregate fair market
value not in excess of, and securing liabilities not in excess of,
$10,000,000, in the aggregate at any one time outstanding.
6.16. Affiliates. No Borrower will enter into, directly or indirectly, nor
will the Company permit any other Subsidiary to enter into, directly or
indirectly, any transaction (including, without limitation, the purchase or sale
of any Property or service) with, or make any payment or transfer to, any
Affiliate (other than the Borrowers and the Guarantors) except (a) in the
ordinary course of business and pursuant to the reasonable requirements of such
Borrower's or such Subsidiary's business and upon fair and reasonable terms no
less favorable to such Borrower or such Subsidiary than such Borrower or such
Subsidiary would obtain in a
62
comparable arm's-length transaction and (b) in connection with any Receivables
Purchase Facility permitted under Section 6.14.4.
6.17. Financial Contracts. No Borrower will, nor will the Company permit
any other Subsidiary to, enter into or remain liable upon any Rate Management
Transactions except for those entered into (i) by the Company and its
Subsidiaries in the ordinary course of business for bona fide hedging purposes
and not for speculative purposes and (ii) by any SPV in connection with a
Receivables Purchase Facility permitted hereunder.
6.18. Subsidiary Covenants. No Borrower will, and the Company will not
permit any other Subsidiary (other than any SPV) to, create or otherwise cause
to become effective any consensual encumbrance or restriction of any kind on the
ability of any Subsidiary (other than any SPV) (i) to pay dividends or make any
other distribution on its stock, (ii) to pay any Indebtedness or other
obligation owed to the Company or any Subsidiary, (iii) to make loans or
advances or other Investments in the Company or any Subsidiary, or (iv) to sell,
transfer or otherwise convey any of its property to the Company or any
Subsidiary, except for such encumbrances or restrictions existing under or by
reason of (a) this Agreement, the other Loan Documents, the Note Purchase
Agreement and the Receivables Purchase Documents, (b) customary provisions
restricting subletting or assignment of any lease governing any leasehold
interest of the Company or any of its Subsidiaries, (c) customary provisions
restricting assignment of any licensing agreement or other contract entered into
by Company and its Subsidiaries in the ordinary course of business, (d)
restrictions on the transfer of any asset pending the close of the sale of such
asset and (e) restrictions on the transfer of any assets subject to a Lien
permitted by Section 6.15.
6.19. Contingent Obligations. No Borrower will, nor will the Company
permit any other Subsidiary to, make or suffer to exist any Contingent
Obligation (including, without limitation, any Contingent Obligation with
respect to the obligations of a Subsidiary), except Contingent Obligations
arising with respect to (i) this Agreement and the other Loan Documents,
including, without limitation, Reimbursement Obligations (ii) customary
indemnification obligations in favor of purchasers in connection with asset
dispositions permitted hereunder, (iii) customary indemnification obligations
under such Person's charter and bylaws (or equivalent formation documents), (iv)
indemnities in favor of the Persons issuing title insurance policies insuring
the title to any property, (v) guarantees of (a) real property leases of the
Company and its Subsidiaries and (b) personal property Operating Leases of the
Company and its Subsidiaries, in each case entered into in the ordinary course
of business by the Company or any of the Subsidiaries, (vi) the Receivables
Purchase Facility and (vii) other Contingent Obligations constituting guarantees
of Indebtedness of the Company or any of its Subsidiaries permitted under
Section 6.14, provided that to the extent such Indebtedness is subordinated to
the Obligations each such Contingent Obligation shall be subordinated to the
Obligations on terms reasonably acceptable to the Agent.
6.20. Leverage Ratio. The Company will maintain, as of the end of each
fiscal quarter, a Leverage Ratio of not greater than 3.25 to 1.00.
6.21. Interest Expense Coverage Ratio. The Company will not permit the
ratio (the "Interest Expense Coverage Ratio"), determined as of the end of each
of its fiscal quarters for the
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then most-recently ended four fiscal quarters of (i) Consolidated EBIT during
such period to (ii) Consolidated Interest Expense during such period, all
calculated for the Company and its Subsidiaries on a consolidated basis, to be
less than 3.00 to 1.00.
6.22. Minimum Consolidated Net Worth. The Company will at all times
maintain Consolidated Net Worth of not less than the sum of (i) $500,000,000,
plus (ii) 50% of the cumulative positive quarterly Consolidated Net Income for
all fiscal quarters of the Company following the fiscal quarter of the Company
ending July 26, 2003 (without taking into account any net loss in any such
fiscal quarter), plus (iii) 100% of the amount, if any, by which stockholder's
equity of the Company is, in accordance with Agreement Accounting Principles,
increased for all fiscal quarters of the Company following the fiscal quarter of
the Company ending July 26, 2003 as a result of (A) the issuance of any capital
stock of the Company or (B) any Acquisition (including the AbilityOne
Acquisition).
6.23. Additional Subsidiary Guarantors. The Company shall execute or shall
cause to be executed on the date any Person becomes a Material Domestic
Subsidiary of the Company (other than an SPV or a Subsidiary Borrower), the
Guaranty (or a supplement to the Guaranty) pursuant to which such Material
Domestic Subsidiary shall become a Guarantor, and shall deliver or cause to be
delivered to the Agent all appropriate corporate resolutions and other
documentation (including opinions of counsel) in each case in form and substance
reasonably satisfactory to the Agent. If at any time (a) the aggregate assets of
all of the Company's Domestic Subsidiaries that are not Subsidiary Borrowers or
Guarantors under the Guaranty exceeds twenty percent (20%) of the consolidated
total assets of the Company and its Subsidiaries, or (b) the aggregate
Consolidated Adjusted Net Income for the four consecutive fiscal quarters most
recently ended of all of the Company's Domestic Subsidiaries that are not
Subsidiary Borrowers or Guarantors under the Guaranty exceeds twenty percent
(20%) of the Company's Consolidated Adjusted Net Income for such period, the
Company will, within 30 days after its senior management becomes aware (or
reasonably should have become aware) of such event, cause to be executed and
delivered to the Agent a supplement to the Guaranty (together with such other
documents, opinions and information as the Agent may require) with respect to
additional Domestic Subsidiaries to the extent necessary so that, after giving
effect thereto, the threshold levels in clauses (a) and (b) above are not
exceeded.
6.24. Foreign Subsidiary Investments. No Borrower will, nor will the
Company permit any other Credit Party to, enter into or suffer to exist Foreign
Subsidiary Investments at any time in an aggregate amount greater than
$50,000,000.
6.25. Subordinated Indebtedness. No Borrower will, nor with the Company
permit any other Subsidiary to, make any amendment or modification to the
indenture, note or other agreement evidencing or governing any Subordinated
Indebtedness, or directly or indirectly voluntarily prepay, defease or in
substance defease, purchase, redeem, retire or otherwise acquire, any
Subordinated Indebtedness.
6.26. Sale of Accounts. No Borrower will, nor will the Company permit any
other Subsidiary to, sell or otherwise dispose of any notes receivable or
accounts receivable, with or without recourse except to the extent permitted by
Section 6.12.4.
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ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
7.1 Any representation or warranty made or deemed made by or on behalf
of the Company or any Subsidiary to the Lenders or the Agent under or in
connection with this Agreement, any Credit Extension, or any certificate or
information delivered in connection with this Agreement or any other Transaction
Document shall be false in any material respect on the date as of which made or
deemed made.
7.2 Nonpayment of (i) principal of any Loan when due, (ii) any
Reimbursement Obligation within one Business Day after the same becomes due or
(iii) interest upon any Loan, any Commitment Fee, LC Facility Fee or other
Obligations under any of the Loan Documents within five (5) days after such
interest, fee or other Obligation becomes due.
7.3 The breach by any Borrower of any of the terms or provisions of any
of Sections 6.1 through 6.3 or any of Sections 6.10 through 6.26.
7.4 The breach by any Borrower (other than a breach which constitutes a
Default under another Section of this Article VII) or any other Credit Party of
any of the terms or provisions of this Agreement or any other Loan Document to
which it is a party which is not remedied within five (5) days after the earlier
to occur of (i) written notice from the Agent or any Lender to the Company or
(ii) an Authorized Officer of any Borrower otherwise become aware of any such
breach.
7.5 Failure of the Company or any Subsidiary to pay when due any
Material Indebtedness (beyond the applicable grace period with respect thereto,
if any); or the default by the Company or any Subsidiary in the performance
(beyond the applicable grace period with respect thereto, if any) of any term,
provision or condition contained in any Material Indebtedness Agreement, or any
other event shall occur or condition exist, the effect of which default, event
or condition is to cause, or to permit the holder(s) of such Material
Indebtedness or the lender(s) under any Material Indebtedness Agreement to
cause, such Material Indebtedness to become due prior to its stated maturity or
any commitment to lend under any Material Indebtedness Agreement to be
terminated prior to its stated expiration date; or any Material Indebtedness of
the Company or any Subsidiary shall be declared to be due and payable or
required to be prepaid or repurchased (other than by a regularly scheduled
payment) prior to the stated maturity thereof; or the Company or any Subsidiary
shall not pay, or admit in writing its inability to pay, its debts generally as
they become due.
7.6 The Company or any Subsidiary shall (i) have an order for relief
entered with respect to it under the Federal bankruptcy laws as now or hereafter
in effect, (ii) make an assignment for the benefit of creditors, (iii) apply
for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
Substantial Portion of its Property, (iv) institute any proceeding seeking an
order for relief under the Federal bankruptcy laws as now or hereafter in effect
or seeking to adjudicate it a bankrupt or
65
insolvent, or seeking dissolution, winding up, liquidation, reorganization,
arrangement, adjustment or composition of it or its debts under any law relating
to bankruptcy, insolvency or reorganization or relief of debtors or fail to file
an answer or other pleading denying the material allegations of any such
proceeding filed against it, (v) take any corporate or partnership action to
authorize or effect any of the foregoing actions set forth in this Section 7.6
or (vi) fail to contest in good faith any appointment or proceeding described in
Section 7.7.
7.7 Without the application, approval or consent of the Company or any
Subsidiary, a receiver, trustee, examiner, liquidator or similar official shall
be appointed for the Company or any Subsidiary or any Substantial Portion of its
Property, or a proceeding described in Section 7.6(iv) shall be instituted
against the Company or any Subsidiary and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period
of 30 consecutive days.
7.8 Any court, government or governmental agency shall condemn, seize or
otherwise appropriate, or take custody or control of, all or any portion of the
Property of the Company and the Subsidiaries which, when taken together with all
other Property of the Company and the Subsidiaries so condemned, seized,
appropriated, or taken custody or control of, during the twelve-month period
ending with the month in which any such action occurs, constitutes a Substantial
Portion.
7.9 The Company or any Subsidiary shall fail within 30 days to pay, bond
or otherwise discharge one or more (i) judgments or orders for the payment of
money in excess of $5,000,000 (or the equivalent thereof in currencies other
than Dollars) in the aggregate, or (ii) nonmonetary judgments or orders which,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, which judgment(s), in any such case, is/are not (a)
stayed on appeal or otherwise being appropriately contested in good faith or (b)
paid in full by third-party insurers under the Company's or any Subsidiary's
insurance policies.
7.10 The Unfunded Liabilities of all Single Employer Plans shall exceed
$10,000,000 in the aggregate, or any Reportable Event shall occur in connection
with any Plan.
7.11 Nonpayment by the Company or any Subsidiary of any Rate Management
Obligation, in an outstanding principal amount of $5,000,000 or more, when due
or the breach by the Company or any Subsidiary of any term, provision or
condition contained in any Rate Management Transaction or any transaction of the
type described in the definition of "Rate Management Transactions," whether or
not any Lender or Affiliate of a Lender is a party thereto.
7.12 Any Change in Control shall occur.
7.13 The Company or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that it has incurred,
pursuant to Section 4201 of ERISA, withdrawal liability to such Multiemployer
Plan in an amount which, when aggregated with all other amounts required to be
paid to Multiemployer Plans by the Company or any other member of the Controlled
Group as withdrawal liability (determined as of the date of such notification),
exceeds $10,000,000 or requires payments exceeding $10,000,000 per annum.
66
7.14 The Company or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of Title IV
of ERISA, if as a result of such reorganization or termination the aggregate
annual contributions of the Company and the other members of the Controlled
Group (taken as a whole) to all Multiemployer Plans which are then in
reorganization or being terminated have been or will be increased, in the
aggregate, over the amounts contributed to such Multiemployer Plans for the
respective plan years of such Multiemployer Plans immediately preceding the plan
year in which the reorganization or termination occurs by an amount exceeding
$10,000,000.
7.15 The Company or any Subsidiary shall (i) be the subject of any
proceeding or investigation pertaining to the release by the Company or any
Subsidiary or any other Person of any toxic or hazardous waste or substance into
the environment, or (ii) violate any Environmental Law, which, in the case of an
event described in clause (i) or clause (ii), has resulted in liability to the
Company or any Subsidiary in an amount equal to $10,000,000 or more, which
liability is not paid, bonded or otherwise discharged within 60 days or which is
not stayed on appeal and being appropriately contested in good faith.
7.16 Any Loan Document shall fail to remain in full force or effect
against the Company or any Subsidiary or any action shall be taken or shall fail
to be taken to discontinue or to assert the invalidity or unenforceability of,
or which results in the discontinuation or invalidity or unenforceability of,
any Loan Document.
7.17 An event (such event, an "Off-Balance Sheet Trigger Event") shall
occur which (i) permits the investors or purchasers in respect of Off-Balance
Sheet Liabilities of the Company or any Affiliate of the Company to require the
amortization or liquidation of such Off-Balance Sheet Liabilities as a result of
the non-payment of any Off-Balance Sheet Liability having an aggregate
outstanding principal amount (or similar outstanding liability) greater than or
equal to $5,000,000 and (x) such Off-Balance Sheet Trigger Event shall not be
remedied or waived within the later to occur of the tenth day after the
occurrence thereof or the expiry date of any grace period related thereto under
the agreement evidencing such Off-Balance Sheet Liabilities, or (y) such
investors shall require the amortization or liquidation of such Off-Balance
Sheet Liabilities as a result of such Off-Balance Sheet Trigger Event, (ii)
results in the termination of reinvestments of collections or proceeds of
receivables and related assets under the agreements evidencing such Off-Balance
Sheet Liabilities, or (iii) causes or otherwise permits the replacement or
substitution of the Company or any Affiliate thereof as the servicer under the
agreements evidencing such Off-Balance Sheet Liabilities; provided, however,
that this Section 7.17 shall not apply on any date with respect to (a) any
voluntary request by the Company or an Affiliate thereof for an above-described
amortization, liquidation, or termination of reinvestments so long as the
aforementioned investors or purchasers cannot independently require on such date
such amortization, liquidation or termination of reinvestments or (b) any
scheduled amortization or liquidation at the stated maturity of the facility
evidencing such Off-Balance Sheet Liabilities.
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ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. (i) If any Default described in Section 7.6 or 7.7
occurs with respect to any Credit Party, the obligations of the Lenders to make
Loans hereunder and the obligation and power of the LC Issuers to issue Facility
LCs shall automatically terminate and the Obligations shall immediately become
due and payable without any election or action on the part of the Agent, any LC
Issuer or any Lender, and the Borrowers will be and become thereby
unconditionally obligated, without any further notice, act or demand, to pay the
Agent an amount in immediately available funds, which funds shall be held in the
Facility LC Collateral Account, equal to (x) the amount of the LC Obligations at
such time minus (y) the amount on deposit in the Facility LC Collateral Account
at such time which is free and clear of all rights and claims of third parties
and has not been applied against the Obligations (the "Collateral Shortfall
Amount"). Without prejudice to the provisions of Section 4.2, if any other
Default occurs, the Required Lenders (or the Agent with the consent of the
Required Lenders) may (a) terminate or suspend the obligations of the Lenders to
make Loans hereunder and the obligation and power of the LC Issuers to issue
Facility LCs, or declare the Obligations to be due and payable, or both,
whereupon the Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which each Borrower
hereby expressly waives and (b) upon notice to the Borrowers and in addition to
the continuing right to demand payment of all amounts payable under this
Agreement, make demand on the Borrowers to pay, and the Borrowers will forthwith
upon such demand and without any further notice or act pay to the Agent the
Collateral Shortfall Amount which funds shall be deposited in the Facility LC
Collateral Account.
(ii) If at any time while any Default is continuing, the Agent determines
that the Collateral Shortfall Amount at such time is greater than
zero, the Agent may make demand on the Borrowers to pay, and the
Borrowers will, forthwith upon such demand and without any further
notice or act, pay to the Agent the Collateral Shortfall Amount,
which funds shall be deposited in the Facility LC Collateral
Account.
(iii) The Agent may at any time or from time to time after funds are
deposited in the Facility LC Collateral Account, apply such funds to
the payment of the Obligations and any other amounts as shall from
time to time have become due and payable by the Borrowers to the
Lenders or the LC Issuers under the Loan Documents.
(iv) At any time while any Default is continuing, no Borrower nor any
Person claiming on behalf of or through any Borrower shall have any
right to withdraw any of the funds held in the Facility LC
Collateral Account. After all of the Obligations have been
indefeasibly paid in full and the Aggregate Revolving Loan
Commitment has been terminated, any funds remaining in the Facility
LC Collateral Account shall be returned by the Agent to the Company
or paid to whomever may be legally entitled thereto at such time.
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(v) If, after acceleration of the maturity of the Obligations or
termination of the obligations of the Lenders to make Loans and the
obligations and power of the LC Issuers to issue Facility LCs
hereunder as a result of any Default (other than any Default as
described in Section 7.6 or 7.7 with respect to any Credit Party)
and before any judgment or decree for the payment of the Obligations
due shall have been obtained or entered, the Required Lenders (in
their sole discretion) shall so direct, the Agent shall, by notice
to the Borrowers, rescind and annul such acceleration and/or
termination.
8.2. Amendments. Subject to the provisions of this Section 8.2, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrowers may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrowers hereunder or thereunder
or waiving any Default hereunder or thereunder; provided, however, that no such
supplemental agreement shall, without the consent of each Lender affected
thereby:
8.2.1 Extend the Revolving Loan Termination Date, extend the
final maturity of any Revolving Loan or extend the expiry date of any
Facility LC to a date after the Revolving Loan Termination Date, extend the
final maturity date of any Term Loan to a date after the Term Loan Maturity
Date, or postpone any regularly scheduled payment of principal of any Loan
or forgive all or any portion of the principal amount thereof, or any
Reimbursement Obligation related thereto, or reduce the rate or extend the
time of payment of interest or fees thereon or Reimbursement Obligations
related thereto (other than a waiver of the application of the default rate
of interest or LC Fees pursuant to Section 2.12 hereof, which shall only
require the approval of the Required Lenders).
8.2.2 Reduce the percentage specified in the definition of
Required Lenders or any other percentage of Lenders specified to be the
applicable percentage in this Agreement to act on specified matters or
amend the definition of "Pro Rata Share", "Revolving Loan Pro Rata Share"
or "Term Loan Pro Rata Share".
8.2.3 Increase the amount of the Revolving Loan Commitment of any
Lender hereunder or the commitment to issue Facility LCs, or permit any
Borrower to assign its rights or obligations under this Agreement.
8.2.4 Amend this Section 8.2.
8.2.5 Other than in connection with a transaction permitted under
this Agreement, release (i) any Borrower from its obligations under Article
XVI or (ii) any Guarantor that remains a Material Domestic Subsidiary from
its obligations under the Guaranty.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent. The Agent may waive payment
of the fee required under Section 12.3.3 without obtaining the consent of any
other party to this Agreement. No amendment of any provision of this Agreement
relating to the Swing Line Lender or any Swing Line Loan shall be effective
without the written consent of the Swing Line Lender. No
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amendment of any provisions of this Agreement relating to any LC Issuer shall be
effective without the written consent of such LC Issuer.
8.3. Preservation of Rights. No delay or omission of the Lenders, the LC
Issuers or the Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Credit Extension notwithstanding the existence of a
Default or Unmatured Default or the inability of a Borrower to satisfy the
conditions precedent to such Credit Extension shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by, or by the Agent with the consent of, the requisite number of Lenders
required pursuant to Section 8.2, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Agent, the LC
Issuers and the Lenders until all of the Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and warranties of
the Borrowers contained in this Agreement shall survive the making of the Credit
Extensions herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, neither any LC Issuer nor any Lender shall be
obligated to extend credit to any Borrower in violation of any limitation or
prohibition provided by any applicable statute or regulation.
9.3. Headings. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
9.4. Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrowers, the Agent, the LC Issuers and the Lenders and
supersede all prior agreements and understandings among the Borrowers, the
Agent, the LC Issuers and the Lenders relating to the subject matter thereof
other than those contained in the fee letter described in Section 10.13 which
shall survive and remain in full force and effect during the term of this
Agreement.
9.5. Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors
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and assigns, provided, however, that the parties hereto expressly agree that the
Arrangers shall enjoy the benefits of the provisions of Sections 9.6, 9.10 and
10.11 to the extent specifically set forth therein and shall have the right to
enforce such provisions on its own behalf and in its own name to the same extent
as if it were a party to this Agreement.
9.6. Expenses; Indemnification.
(i) The Borrowers shall reimburse the Agent and the Arrangers for any
reasonable costs, internal charges and out-of-pocket expenses
(including outside attorneys' and paralegals' fees and expenses
of and fees for other advisors and professionals engaged by the
Agent or the Arrangers and, unless a Default shall be continuing,
with the consent of the Company) paid or incurred by the Agent or
the Arrangers in connection with the investigation, preparation,
negotiation, documentation, execution, delivery, syndication,
distribution (including, without limitation, via the internet),
review, amendment, modification and administration of the
Transaction Documents. Each Borrower also agrees to reimburse the
Agent, the Arrangers, the LC Issuers and the Lenders for any
costs, internal charges and out-of-pocket expenses (including
outside attorneys' and paralegals' fees and expenses of outside
attorneys and paralegals for the Agent, the Arrangers, the LC
Issuers and the Lenders) paid or incurred by the Agent, the
Arrangers, any LC Issuer or any Lender in connection with the
collection and enforcement of the Loan Documents. Expenses being
reimbursed by the Borrowers under this Section include, without
limitation, costs and expenses incurred in connection with the
Reports described in the following sentence. Each Borrower
acknowledges that from time to time Bank One may prepare and may
distribute to the Lenders (but shall have no obligation or duty
to prepare or to distribute to the Lenders) certain audit reports
(the "Reports") pertaining to such Borrower's assets for internal
use by Bank One from information furnished to it by or on behalf
of such Borrower, after Bank One has exercised its rights of
inspection pursuant to this Agreement.
(ii) Each Borrower hereby further agrees to indemnify the Agent, the
Arrangers, each LC Issuer, each Lender, their respective
affiliates, and each of their directors, officers and employees
against all losses, claims, damages, penalties, judgments,
liabilities and expenses (including, without limitation, all
expenses of litigation or preparation therefor whether or not the
Agent, the Arrangers, any LC Issuer, any Lender or any affiliate
is a party thereto, and all outside attorneys' and paralegals'
fees and expenses of outside attorneys and paralegals of the
party seeking indemnification) which any of them may pay or incur
arising out of or relating to this Agreement, the other
Transaction Documents, the AbilityOne Acquisition and the other
transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Credit
Extension hereunder except to the extent that they are determined
in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from the gross negligence or
willful misconduct of the party seeking indemnification. The
obligations of the Borrowers under this Section 9.6 shall survive
the termination of this Agreement.
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9.7. Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Agent with sufficient
counterparts so that the Agent may furnish one to each of the Lenders, to the
extent that the Agent deems necessary.
9.8. Accounting. Except as provided to the contrary herein, all
accounting terms used in the calculation of any financial covenant or test shall
be interpreted and all accounting determinations hereunder in the calculation of
any financial covenant or test shall be made in accordance with Agreement
Accounting Principles. If any changes in generally accepted accounting
principles are hereafter required or permitted and are adopted by the Company or
any Subsidiary with the agreement of its independent certified public
accountants and such changes result in a change in the method of calculation of
any of the financial covenants, tests, restrictions or standards herein or in
the related definitions or terms used therein ("Accounting Changes"), the
parties hereto agree, at the Company's request, to enter into negotiations, in
good faith, in order to amend such provisions in a credit neutral manner so as
to reflect equitably such changes with the desired result that the criteria for
evaluating the Company's and its Subsidiaries' financial condition shall be the
same after such changes as if such changes had not been made; provided, however,
until such provisions are amended in a manner reasonably satisfactory to the
Agent and the Required Lenders, no Accounting Change shall be given effect in
such calculations. In the event such amendment is entered into, all references
in this Agreement to Agreement Accounting Principles shall mean generally
accepted accounting principles, including the Accounting Change, as of the date
of such amendment. Notwithstanding the foregoing, all financial statements to be
delivered by the Borrowers pursuant to Section 6.1 shall be prepared in
accordance with generally accepted accounting principles in effect at such time.
9.9. Severability of Provisions. Any provision in any Loan Document that
is held to be inoperative, unenforceable, or invalid in any jurisdiction shall,
as to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
9.10. Nonliability of Lenders. The relationship between the Borrowers on
the one hand and the Lenders, the LC Issuers and the Agent on the other hand
shall be solely that of borrower and lender. Neither the Agent (except to the
limited extent as provided by Section 12.3.4 relating to maintaining the
Register), the Arrangers, the LC Issuers, nor any Lender shall have any
fiduciary responsibilities to any Borrower or any other Credit Party. Neither
the Agent, the Arrangers, the LC Issuers nor any Lender undertakes any
responsibility to any Borrower or any other Credit Party to review or inform any
Credit Party of any matter in connection with any phase of any Credit Party's
business or operations. Each Borrower agrees that neither the Agent, the
Arrangers, the LC Issuers, nor any Lender shall have liability to any Borrower
(whether sounding in tort, contract or otherwise) for losses suffered by any
Borrower in connection with, arising out of, or in any way related to, the
transactions contemplated and the relationship established by the Loan
Documents, or any act, omission or event occurring in connection therewith,
unless it is determined in a final non-appealable judgment by a court of
competent jurisdiction that such losses resulted from the gross negligence or
willful misconduct of the party from which recovery is sought. Neither the
Agent, the Arrangers, the LC Issuers nor any Lender shall have any liability
with respect to, and each Borrower hereby waives, releases and agrees
72
not to xxx for, any special, indirect, consequential or punitive damages
suffered by the Company or any Subsidiary in connection with, arising out of, or
in any way related to the Loan Documents or the transactions contemplated
thereby.
9.11. Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from any Borrower pursuant to this Agreement in
confidence in accordance with its respective customary practices (but in any
event in accordance with reasonable confidentiality practices), except for
disclosure (i) to its Affiliates and to other Lenders and their respective
Affiliates, for use solely in connection with the transactions contemplated
hereby, (ii) to legal counsel, accountants, and other professional advisors to
such Lender or to a Transferee who are expected to be involved in the evaluation
of such information in connection with the transactions contemplated hereby, in
each case which have been informed as to the confidential nature of such
information, (iii) to regulatory officials having jurisdiction over it, (iv) to
any Person as required by law, regulation, or legal process, (v) of information
that presently or hereafter becomes available to such Lender on a
non-confidential basis from a source other than any Borrower and other than as a
result of disclosure not otherwise permitted by this Section 9.11, (vi) to any
Person in connection with any legal proceeding to which such Lender is a party,
(vii) to such Lender's direct or indirect contractual counterparties in credit
derivative transactions or to legal counsel, accountants and other professional
advisors to such counterparties, in each case which have been informed as to the
confidential nature of such information, (viii) permitted by Section 12.4 and
(ix) to rating agencies if requested or required by such agencies in connection
with a rating relating to the Credit Extensions hereunder. Without limiting
Section 9.4, each Borrower agrees that the terms of this Section 9.11 shall set
forth the entire agreement between the Borrowers and each Lender (including the
Agent) with respect to any confidential information previously or hereafter
received by such Lender in connection with this Agreement or any other Loan
Document, and this Section 9.11 shall supersede any and all prior
confidentiality agreements entered into by such Lender with respect to such
confidential information. Notwithstanding anything herein to the contrary,
confidential information shall not include, and each party hereto (and each
employee, representative or other agent of any party hereto) may disclose to any
and all Persons, without limitation of any kind, the U.S. federal income tax
treatment and U.S. federal income tax structure of the transactions contemplated
hereby and all materials of any kind (including opinions or other tax analyses)
that are or have been provided to such party relating to such tax treatment or
tax structure, and it is hereby confirmed that each party hereto has been
authorized to make such disclosures since the commencement of discussions
regarding the transactions contemplated hereby.
9.12. Lenders Not Utilizing Plan Assets. Each Lender and Designated Lender
represents and warrants that none of the consideration used by such Lender or
Designated Lender to make its Loans constitutes for any purpose of ERISA or
Section 4975 of the Code assets of any "plan" as defined in Section 3(3) of
ERISA or Section 4975 of the Code and the rights and interests of such Lender or
Designated Lender in and under the Loan Documents shall not constitute such
"plan assets" under ERISA.
9.13. Nonreliance. Each Lender hereby represents that it is not relying on
or looking to any margin stock (as defined in Regulation U) as collateral in the
extension or maintenance of the credit provided for herein.
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9.14. Disclosure. Each Borrower and each Lender, including the LC Issuers,
hereby acknowledge and agree that each Lender and/or its Affiliates from time to
time may hold investments in, make other loans to or have other relationships
with the Borrowers and their Affiliates.
9.15. Performance of Obligations. Each Borrower agrees that the Agent may,
but shall have no obligation to (i) at any time, pay or discharge taxes, liens,
security interests or other encumbrances levied or placed on or threatened
against any collateral for the Obligations and (ii) after the occurrence and
during the continuance of a Default make any other payment or perform any act
required of the Company or any Subsidiary under any Loan Document or take any
other action which the Agent in its discretion deems necessary or desirable to
protect or preserve the collateral, if any, for the Obligations, including,
without limitation, any action to (x) effect any repairs or obtain any insurance
called for by the terms of any of the Loan Documents and to pay all or any part
of the premiums therefor and the costs thereof and (y) pay any rents payable by
the Company or any Subsidiary which are more than 30 days past due, or as to
which the landlord has given notice of termination, under any lease. The Agent
shall use its best efforts to give the Company notice of any action taken under
this Section 9.15 prior to the taking of such action or promptly thereafter
provided the failure to give such notice shall not affect any Borrower's
obligations in respect thereof. Each Borrower, jointly and severally, agrees to
pay the Agent, upon demand, the principal amount of all funds advanced by the
Agent under this Section 9.15, together with interest thereon at the rate from
time to time applicable to Floating Rate Loans from the date of such advance
until the outstanding principal balance thereof is paid in full. If the
Borrowers fail to make payment in respect of any such advance under this Section
9.15 within one (1) Business Day after the date the Company receives written
demand therefor from the Agent, the Agent shall promptly notify each Lender and
each Lender agrees that it shall thereupon make available to the Agent, in
Dollars in immediately available funds, the amount equal to such Lender's Pro
Rata Share of such advance. If such funds are not made available to the Agent by
such Lender within one (1) Business Day after the Agent's demand therefor, the
Agent will be entitled to recover any such amount from such Lender together with
interest thereon at the Federal Funds Effective Rate for each day during the
period commencing on the date of such demand and ending on the date such amount
is received. The failure of any Lender to make available to the Agent its Pro
Rata Share of any such unreimbursed advance under this Section 9.15 shall
neither relieve any other Lender of its obligation hereunder to make available
to the Agent such other Lender's Pro Rata Share of such advance on the date such
payment is to be made nor increase the obligation of any other Lender to make
such payment to the Agent. All outstanding principal of, and interest on,
advances made under this Section 9.15 shall constitute Obligations until paid in
full by the Borrowers.
9.16. Relations Among Lenders.
9.16.1 No Action Without Consent. Except with respect to the
exercise of setoff rights of any Lender, including the LC Issuers, in
accordance with Section 11.1, the proceeds of which are applied in
accordance with this Agreement, each Lender agrees that it will not take
any action, nor institute any actions or proceedings, against any Borrower
or any other obligor hereunder or with respect to any Loan Document,
without the prior written consent of the Required Lenders or, as may be
provided in this Agreement or the other Loan Documents, with the consent of
the Agent.
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9.16.2 Not Partners; No Liability. The Lenders, including the LC
Issuers, are not partners or co-venturers, and no Lender shall be liable
for the acts or omissions of, or (except as otherwise set forth herein in
case of the Agent) authorized to act for, any other Lender. The Agent shall
have the exclusive right on behalf of the Lenders to enforce the payment of
the principal of and interest on any Loan or any Facility LC after the date
such principal or interest has become due and payable pursuant to the terms
of this Agreement.
9.17. USA Patriot Act Notification. The following notification is provided
to the Borrowers pursuant to Section 326 of the USA Patriot Act of 2001, 31
U.S.C. Section 5318:
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To
help the government fight the funding of terrorism and money laundering
activities, Federal law requires all financial institutions to obtain,
verify, and record information that identifies each person or entity that
opens an account, including any deposit account, treasury management
account, loan, other extension of credit, or other financial services
product. What this means for the Borrowers: When a Borrower opens an
account, the Agent and the Lenders will ask for such Borrower's name, tax
identification number, business address, and other information that will
allow the Agent and the Lenders to identify such Borrower. The Agent and
the Lenders may also ask to see such Borrower's legal organizational
documents or other identifying documents.
ARTICLE X
THE AGENT
10.1. Appointment; Nature of Relationship. Bank One is hereby appointed by
each of the Lenders as its contractual representative (herein referred to as the
"Agent") hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Agent to act as the contractual representative of
such Lender with the rights and duties expressly set forth herein and in the
other Loan Documents. The Agent agrees to act as such contractual representative
upon the express conditions contained in this Article X. Notwithstanding the use
of the defined term "Agent," it is expressly understood and agreed that the
Agent shall not have any fiduciary responsibilities to any of the Holders of
Obligations (including, without limitation, the Lenders) by reason of this
Agreement or any other Loan Document and that the Agent is merely acting as the
contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Agent (i) does not
hereby assume any fiduciary duties to any of the Holders of Obligations, (ii) is
a "representative" of the Holders of Obligations within the meaning of the term
"secured party" as defined in the Illinois Uniform Commercial Code and (iii) is
acting as an independent contractor, the rights and duties of which are limited
to those expressly set forth in this Agreement and the other Loan Documents.
Each of the Lenders, for itself and on behalf of its Affiliates as Holders of
Obligations, hereby agrees to assert no claim against the Agent on any agency
theory or any other theory of liability for breach of fiduciary duty, all of
which claims each Holder of Obligations hereby waives.
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10.2. Powers. The Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The
Agent shall have no implied duties or fiduciary duties to the Lenders, or any
obligation to the Lenders to take any action thereunder except any action
specifically provided by the Loan Documents to be taken by the Agent.
10.3. General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to any Borrower, any Subsidiary,
any Lender or any Holder of Obligations for any action taken or omitted to be
taken by it or them hereunder or under any other Loan Document or in connection
herewith or therewith except to the extent such action or inaction is determined
in a final, non-appealable judgment by a court of competent jurisdiction to have
arisen from the gross negligence or willful misconduct of such Person.
10.4. No Responsibility for Loans, Recitals, etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into, or verify (a) any statement, warranty
or representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Agent; (d) the existence
or possible existence of any Default or Unmatured Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith; (f) the
value sufficiency, creation, perfection or priority of any Lien in any
collateral security; or (g) the financial condition of the Company, any
Subsidiary or any guarantor of any of the Obligations or of any of the
Company's, such Subsidiary's or any such guarantor's respective Subsidiaries.
The Agent shall have no duty to disclose to the Lenders information that is not
required to be furnished by any Borrower to the Agent at such time, but is
voluntarily furnished by such Borrower to the Agent (either in its capacity as
Agent or in its individual capacity).
10.5. Action on Instructions of Lenders. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders (or all of the Lenders in the event that and to the extent that
this Agreement expressly requires such approval), and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders. The Lenders hereby acknowledge that the Agent shall be under no duty to
take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement or any other Loan Document unless it shall be
requested in writing to do so by the Required Lenders (or all of the Lenders in
the event that and to the extent that this Agreement expressly requires such
approval). The Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
10.6. Employment of Agents and Counsel. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities
76
received by it or its authorized agents, for the default or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. The Agent
shall be entitled to advice of counsel concerning the contractual arrangement
between the Agent and the Lenders and all matters pertaining to the Agent's
duties hereunder and under any other Loan Document.
10.7. Reliance on Documents; Counsel. The Agent shall be entitled to rely
upon any Note, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex, electronic mail message, statement, paper or document believed
by it to be genuine and correct and to have been signed or sent by the proper
person or persons, and, in respect to legal matters, upon the opinion of counsel
selected by the Agent, which counsel may be employees of the Agent. For purposes
of determining compliance with the conditions specified in Sections 4.1, 4.2 and
4.3, each Lender that has signed this Agreement (or otherwise become party
hereto pursuant to an Assignment Agreement) shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Agent shall have received notice from such
Lender prior to the applicable date specifying its objection thereto.
10.8. Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to the Lenders' Pro Rata
Shares of the Aggregate Revolving Loan Commitment (or, if the Aggregate
Revolving Loan Commitment has been terminated, of the Aggregate Outstanding
Revolving Credit Exposure) plus the Term Loans (i) for any amounts not
reimbursed by the Borrowers for which the Agent is entitled to reimbursement by
any Credit Party under the Loan Documents, (ii) for any other expenses incurred
by the Agent on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents
(including, without limitation, for any expenses incurred by the Agent in
connection with any dispute between the Agent and any Lender or between two or
more of the Lenders) and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the
transactions contemplated thereby (including, without limitation, for any such
amounts incurred by or asserted against the Agent in connection with any dispute
between the Agent and any Lender or between two or more of the Lenders), or the
enforcement of any of the terms of the Loan Documents or of any such other
documents, provided that (i) no Lender shall be liable for any of the foregoing
to the extent any of the foregoing is found in a final, non-appealable judgment
by a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of the Agent and (ii) any indemnification required
pursuant to Section 3.5(vii) shall, notwithstanding the provisions of this
Section 10.8, be paid by the relevant Lender in accordance with the provisions
thereof. The obligations of the Lenders under this Section 10.8 shall survive
payment of the Obligations and termination of this Agreement.
10.9. Notice of Default. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Unmatured Default hereunder unless
the Agent has received written notice from a Lender or the Company referring to
this Agreement describing such Default or Unmatured Default and stating that
such notice is a "notice of default". In the event that the Agent receives such
a notice, the Agent shall give prompt notice thereof to the Lenders.
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10.10. Rights as a Lender. In the event the Agent is a Lender, the Agent
shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Revolving Loan Commitment and its Credit Extensions
as any Lender and may exercise the same as though it were not the Agent, and the
term "Lender" or "Lenders" shall, at any time when the Agent is a Lender, unless
the context otherwise indicates, include the Agent in its individual capacity.
The Agent and its Affiliates may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Company or any Subsidiary in which the Company or such Subsidiary is
not restricted hereby from engaging with any other Person. The Agent, in its
individual capacity, is not obligated to remain a Lender.
10.11. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arrangers or any other
Lender and based on the financial statements prepared by the Company and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, the Arrangers or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
10.12. Successor Agent. The Agent may resign at any time by giving written
notice thereof to the Lenders and the Company, such resignation to be effective
upon the appointment of a successor Agent or, if no successor Agent has been
appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. The Agent may be removed at any time with or without cause
by written notice received by the Agent from the Required Lenders, such removal
to be effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint, on
behalf of the Borrowers and the Lenders, a successor Agent. If no successor
Agent shall have been so appointed by the Required Lenders within thirty days
after the resigning Agent's giving notice of its intention to resign, then the
resigning Agent may appoint, on behalf of the Borrowers and the Lenders, a
successor Agent. Notwithstanding the two immediately preceding sentences: (x)
subject to clause (y) of this sentence, the consent of the Borrowers shall be
required prior to the appointment of a successor Agent unless such successor
Agent is a Lender or an Affiliate of a Lender, provided that the consent of the
Borrowers shall not be required if a Default has occurred and is continuing, and
(y) the Agent may at any time without the consent of any Borrower or any Lender,
appoint any of its Affiliates which is a commercial bank as a successor Agent
hereunder. If the Agent has resigned or been removed and no successor Agent has
been appointed, the Lenders may perform all the duties of the Agent hereunder
and the Borrowers shall make all payments in respect of the Obligations to the
applicable Lender and for all other purposes shall deal directly with the
Lenders. No successor Agent shall be deemed to be appointed hereunder until such
successor Agent has accepted the appointment. Any such successor Agent shall be
a commercial bank having capital and retained earnings of at least $100,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning or removed Agent. Upon
the effectiveness of the resignation or removal of the Agent, the resigning or
removed Agent shall be discharged from its
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duties and obligations hereunder and under the Loan Documents. After the
effectiveness of the resignation or removal of an Agent, the provisions of this
Article X shall continue in effect for the benefit of such Agent in respect of
any actions taken or omitted to be taken by it while it was acting as the Agent
hereunder and under the other Loan Documents. In the event that there is a
successor to the Agent by merger, or the Agent assigns its duties and
obligations to an Affiliate pursuant to this Section 10.12, then the term "Prime
Rate" as used in this Agreement shall mean the prime rate, base rate or other
analogous rate of the new Agent.
10.13. Agent and Arranger Fees. The Company agrees to pay to the Agent and
the Arrangers, for their respective accounts, the fees agreed to by the Company,
the Agent, Bank of America, N.A. and the Arrangers pursuant to that certain
letter agreement dated October 2, 2003, or as otherwise agreed from time to
time.
10.14. Delegation to Affiliates. The Borrowers and the Lenders agree that
the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under Articles IX and X.
10.15. No Duties Imposed on Syndication Agents, Documentation Agents or
Arrangers. None of the Persons identified on the cover page to this Agreement,
the signature pages to this Agreement or otherwise in this Agreement as a
"Syndication Agent," "Documentation Agent" or "Arranger" shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than, if such Person is a Lender, those applicable to all Lenders as such.
Without limiting the foregoing, none of the Persons identified on the cover page
to this Agreement, the signature pages to this Agreement or otherwise in this
Agreement as a "Syndication Agent," "Documentation Agent" or "Arranger" shall
have or be deemed to have any fiduciary duty to or fiduciary relationship with
any Holder of Obligations. Each of the Holders of Obligations acknowledges that
it has not relied, and will not rely, on any of the Persons so identified in
deciding to enter into this Agreement or in taking or not taking action
hereunder.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if any Borrower becomes insolvent, however
evidenced, or any other Default occurs and continues, any and all deposits
(including all account balances, whether provisional or final and whether or not
collected or available) and any other Indebtedness at any time held or owing by
any Lender or any Affiliate of any Lender to or for the credit or account of
such Borrower or any Subsidiary may be offset and applied toward the payment of
the Obligations owing to such Lender, whether or not the Obligations, or any
part thereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Outstanding Revolving Credit Exposure or its Term
Loans (other than payments received pursuant to Section 3.1, 3.2, 3.4 or 3.5) in
a greater proportion than that
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received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a participation in the Aggregate Outstanding Revolving Credit Exposure
and Term Loans held by the other Lenders so that after such purchase each Lender
will hold its Pro Rata Share of the Aggregate Outstanding Revolving Credit
Exposure and outstanding principal balance of all Term Loans. If any Lender,
whether in connection with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its Obligations or such
amounts which may be subject to setoff, such Lender agrees, promptly upon
demand, to take such action necessary such that all Lenders share in the
benefits of such collateral ratably in proportion to their respective Pro Rata
Shares of the Aggregate Outstanding Revolving Credit Exposure and Term Loans. In
case any such payment is disturbed by legal process, or otherwise, appropriate
further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns; Designated Lenders.
12.1.1 Successors and Assigns. The terms and provisions of the
Loan Documents shall be binding upon and inure to the benefit of the
Borrowers, the Agent and the Lenders and their respective successors and
assigns permitted hereby, except that (i) no Borrower shall have any right
to assign its rights or obligations under the Loan Documents without the
prior written consent of each Lender, (ii) any assignment by any Lender
must be made in compliance with Section 12.3, and (iii) any transfer by
Participants must be made in compliance with Section 12.2. Any attempted
assignment or transfer by any party not made in compliance with this
Section 12.1 shall be null and void, unless such attempted assignment or
transfer is treated as a participation in accordance with Section 12.3.2.
The parties to this Agreement acknowledge that clause (ii) of this Section
12.1 relates only to absolute assignments and this Section 12.1 does not
prohibit assignments creating security interests, including, without
limitation, (x) any pledge or assignment by any Lender of all or any
portion of its rights under this Agreement and any Note to a Federal
Reserve Bank, (y) in the case of a Lender which is a Fund, any pledge or
assignment of all or any portion of its rights under this Agreement and any
Note to its trustee in support of its obligations to its trustee or (z) any
pledge or assignment by any Lender of all or any portion of its rights
under this Agreement and any Note to direct or indirect contractual
counterparties in credit derivative transactions relating to the Loans;
provided, however, that no such pledge or assignment creating a security
interest shall release the transferor Lender from its obligations hereunder
unless and until the parties thereto have complied with the provisions of
Section 12.3. The Agent may treat the Person which made any Loan or which
holds any Note as the owner thereof for all purposes hereof unless and
until such Person complies with Section 12.3; provided, however, that the
Agent may in its discretion (but shall not be required to) follow
instructions from the Person which made any Loan or which holds any Note to
direct payments relating to such Loan or Note to another Person. Any
assignee of the rights to any Loan or any Note agrees by acceptance of such
assignment to be bound by all the terms and provisions of the Loan
Documents. Any request, authority or consent of any Person, who at the time
of making such request or giving such authority or consent is
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the owner of the rights to any Loan (whether or not a Note has been issued
in evidence thereof), shall be conclusive and binding on any subsequent
holder or assignee of the rights to such Loan.
12.1.2 Designated Lenders.
(i) Subject to the terms and conditions set forth in this Section
12.1.2, any Lender may from time to time elect to designate an
Eligible Designee to provide all or any part of the Loans to be made
by such Lender pursuant to this Agreement; provided that the
designation of an Eligible Designee by any Lender for purposes of
this Section 12.1.2 shall be subject to the approval of the Agent
(which consent shall not be unreasonably withheld or delayed). Upon
the execution by the parties to each such designation of an
agreement in the form of Exhibit F hereto (a "Designation
Agreement") and the acceptance thereof by the Agent, the Eligible
Designee shall become a Designated Lender for purposes of this
Agreement. The Designating Lender shall thereafter have the right to
permit the Designated Lender to provide all or a portion of the
Loans to be made by the Designating Lender pursuant to the terms of
this Agreement and the making of the Loans or portion thereof shall
satisfy the obligations of the Designating Lender to the same
extent, and as if, such Loan was made by the Designating Lender. As
to any Loan made by it, each Designated Lender shall have all the
rights a Lender making such Loan would have under this Agreement and
otherwise; provided, (x) that all voting rights under this Agreement
shall be exercised solely by the Designating Lender, (y) each
Designating Lender shall remain solely responsible to the other
parties hereto for its obligations under this Agreement, including
the obligations of a Lender in respect of Loans made by its
Designated Lender and (z) no Designated Lender shall be entitled to
reimbursement under Article III hereof for any amount which would
exceed the amount that would have been payable by the Borrowers to
the Lender from which the Designated Lender obtained any interests
hereunder. No additional Notes shall be required with respect to
Loans provided by a Designated Lender; provided, however, to the
extent any Designated Lender shall advance funds, the Designating
Lender shall be deemed to hold the Notes in its possession as an
agent for such Designated Lender to the extent of the Loan funded by
such Designated Lender. Such Designating Lender shall act as
administrative agent for its Designated Lender and give and receive
notices and communications hereunder. Any payments for the account
of any Designated Lender shall be paid to its Designating Lender as
administrative agent for such Designated Lender and no Borrower nor
the Agent shall be responsible for any Designating Lender's
application of such payments. In addition, any Designated Lender may
(1) with notice to, but without the consent of any Borrower or the
Agent, assign all or portions of its interests in any Loans to its
Designating Lender or to any financial institution consented to by
the Agent providing liquidity and/or credit facilities to or for the
account of such Designated Lender and (2) subject to advising any
such Person that such information is to be treated as confidential
in accordance with Section 9.11, disclose on a confidential basis
any non-public information relating to its Loans to any rating
agency, commercial paper dealer or
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provider of any guarantee, surety or credit or liquidity enhancement
to such Designated Lender.
(ii) Each party to this Agreement hereby agrees that it shall not
institute against, or join any other Person in instituting against,
any Designated Lender any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceedings under any
federal or state bankruptcy or similar law for one year and a day
after the payment in full of all outstanding senior indebtedness of
any Designated Lender; provided that the Designating Lender for each
Designated Lender hereby agrees to indemnify, save and hold harmless
each other party hereto for any loss, cost, damage and expense
arising out of its inability to institute any such proceeding
against such Designated Lender. This Section 12.1.2 shall survive
the termination of this Agreement.
12.2. Participations.
12.2.1 Permitted Participants; Effect. Any Lender may at any time
sell to one or more banks or other entities ("Participants") participating
interests in any Outstanding Revolving Credit Exposure of such Lender, any
Term Loans of such Lender, any Note held by such Lender, any Revolving Loan
Commitment of such Lender or any other interest of such Lender under the
Loan Documents. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan
Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, such Lender shall remain the owner of its Outstanding
Revolving Credit Exposure and its Term Loans and the holder of any Note
issued to it in evidence thereof for all purposes under the Loan Documents,
all amounts payable by the Borrowers under this Agreement shall be
determined as if such Lender had not sold such participating interests, and
the Borrowers and the Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under
the Loan Documents.
12.2.2 Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other than
any amendment, modification or waiver with respect to any Credit Extension
or Revolving Loan Commitment in which such Participant has an interest
which would require consent of all of the Lenders pursuant to the terms of
Section 8.2.
12.2.3 Benefit of Certain Provisions. Each Borrower agrees that
each Participant shall be deemed to have the right of setoff provided in
Section 11.1 in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the Loan
Documents, provided that each Lender shall retain the right of setoff
provided in Section 11.1 with respect to the amount of participating
interests sold to each Participant. The Lenders agree to share with each
Participant, and each Participant, by exercising the right of setoff
provided in Section 11.1, agrees to share with each Lender, any amount
received pursuant to the exercise of its right of setoff, such amounts to
be shared in
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accordance with Section 11.2 as if each Participant were a Lender. Each
Borrower further agrees that each Participant shall be entitled to the
benefits of Sections 3.1, 3.2, 3.4 and 3.5 to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to Section
12.3, provided that (i) a Participant shall not be entitled to receive any
greater payment under Section 3.1, 3.2 or 3.5 than the Lender who sold the
participating interest to such Participant would have received had it
retained such interest for its own account, unless the sale of such
interest to such Participant is made with the prior written consent of the
Borrowers, and (ii) any Participant not incorporated under the laws of the
United States of America or any State thereof agrees to comply with the
provisions of Section 3.5 to the same extent as if it were a Lender.
12.3. Assignments.
12.3.1 Permitted Assignments. Any Lender may at any time assign to
one or more banks or other entities ("Purchasers") all or any part of its
rights and obligations under the Loan Documents. Such assignment shall be
evidenced by an agreement substantially in the form of Exhibit C or in such
other form as may be agreed to by the parties thereto (each such agreement,
an "Assignment Agreement"). Each such assignment with respect to a
Purchaser which is not a Lender or an Affiliate of a Lender or an Approved
Fund shall, unless otherwise consented to in writing by the Company, on
behalf of the Borrowers, and the Agent, either be in an amount equal to the
entire applicable Outstanding Revolving Credit Exposure and/or Term Loans,
as applicable, of the assigning Lender or (unless each of the Agent and,
prior to the occurrence and continuance of a Default, the Company, on
behalf of the Borrowers, otherwise consents) be in an aggregate amount not
less than $5,000,000. The amount of the assignment shall be based on the
Outstanding Revolving Credit Exposure and/or Term Loans, as applicable,
subject to the assignment, determined as of the date of such assignment or
as of the "Trade Date," if the "Trade Date" is specified in the Assignment
Agreement.
12.3.2 Consents. The consent of the Company shall be required
prior to an assignment becoming effective unless the Purchaser is a Lender,
an Affiliate of a Lender or an Approved Fund (other than a Lender or
Affiliate of a Lender or an Approved Fund that becomes a Lender solely by
means of the settlement of a credit derivative), provided that the consent
of the Company shall not be required if (i) a Default or Unmatured Default
has occurred and is continuing or (ii) if such assignment is in connection
with the physical settlement of any Lender's obligations to direct or
indirect contractual counterparties in credit derivative transactions
relating to the Loans; provided, that the assignment without the Company's
consent pursuant to clause (ii) shall not increase the Borrowers' liability
under Section 3.5. The consent of the Agent shall be required prior to an
assignment becoming effective unless the Purchaser is a Lender, an
Affiliate of a Lender or an Approved Fund (other than a Lender or Affiliate
of a Lender or an Approved Fund that becomes a Lender solely by means of
the settlement of a credit derivative). Any consent required under this
Section 12.3.2 shall not be unreasonably withheld or delayed.
12.3.3 Effect; Effective Date. Upon (i) delivery to the Agent of
an Assignment Agreement, together with any consents required by Sections
12.3.1 and 12.3.2, and (ii)
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payment of a $3,500 fee to the Agent by the assigning Lender or the
Purchaser for processing such assignment (unless such fee is waived by the
Agent or unless such assignment is made to such assigning Lender's
Affiliate), such assignment shall become effective on the effective date
specified in such assignment. The Assignment Agreement shall contain a
representation and warranty by the Purchaser to the effect that none of the
funds, money, assets or other consideration used to make the purchase and
assumption of the Revolving Loan Commitment and Outstanding Revolving
Credit Exposure and/or Term Loans, as applicable, under the applicable
Assignment Agreement constitutes "plan assets" as defined under ERISA and
that the rights, benefits and interests of the Purchaser in and under the
Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser shall for all purposes be
a Lender party to this Agreement and any other Loan Document executed by or
on behalf of the Lenders and shall have all the rights, benefits and
obligations of a Lender under the Loan Documents, to the same extent as if
it were an original party thereto, and the transferor Lender shall be
released with respect to the Revolving Loan Commitment and Outstanding
Revolving Credit Exposure and/or Term Loans, as applicable, assigned to
such Purchaser without any further consent or action by the Company, the
Lenders or the Agent. In the case of an assignment covering all of the
assigning Lender's rights, benefits and obligations under this Agreement,
such Lender shall cease to be a Lender hereunder but shall continue to be
entitled to the benefits of, and subject to, those provisions of this
Agreement and the other Loan Documents which survive payment of the
Obligations and termination of the Loan Documents. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that
does not comply with this Section 12.3 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 Section 12.2. Upon the consummation of
any assignment to a Purchaser pursuant to this Section 12.3.3, the
transferor Lender, the Agent and the Borrowers shall, if the transferor
Lender or the Purchaser desires that its Loans be evidenced by Notes, make
appropriate arrangements so that, upon cancellation and surrender to the
Company of the Notes (if any) held by the transferor Lender, new Notes or,
as appropriate, replacement Notes are issued to such transferor Lender, if
applicable, and new Notes or, as appropriate, replacement Notes, are issued
to such Purchaser, in each case in principal amounts reflecting their
respective Revolving Loan Commitments (or, if the Revolving Loan
Termination Date has occurred, their respective Outstanding Revolving
Credit Exposure) or Term Loans, as applicable, as adjusted pursuant to such
assignment.
12.3.4 Register. The Agent, acting solely for this purpose as an
agent of the Borrowers (and each Borrower hereby designates the Agent to
act in such capacity), shall maintain at one of its offices in Chicago,
Illinois a copy of each Assignment and Assumption delivered to it and a
register (the "Register") for the recordation of the names and addresses of
the Lenders, and the Revolving Loan Commitments of, and principal amounts
of and interest on the Loans owing to, each Lender pursuant to the terms
hereof from time to time and whether such Lender is an original Lender or
assignee of another Lender pursuant to an assignment under this Section
13.3. The entries in the Register shall be conclusive, and the Borrowers,
the Agent and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The
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Register shall be available for inspection by any Borrower and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.
12.4. Dissemination of Information. Each Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Company and the Subsidiaries; provided
that each Transferee and prospective Transferee agrees to be bound by Section
9.11 of this Agreement.
12.5. Tax Certifications. If any interest in any Loan Document is
transferred to any Transferee which is not organized under the laws of the
United States or any State thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to comply with
the provisions of Section 3.5(iv).
ARTICLE XIII
NOTICES
13.1. Notices; Effectiveness; Electronic Communication.
13.1.1 Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in Section 13.1.2), 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
telecopier as follows:
(i) if to any Borrower, at the Company's address or telecopier number
set forth on the signature page hereof;
(ii) if to the Agent or the Swing Line Lender or if the LC Issuer is Bank
One, at its address or telecopier number set forth on the signature
page hereof;
(iii) if to a Lender or to any LC Issuer other than Bank One, to it at its
address (or telecopier number) set forth in its administrative
questionnaire delivered to the Agent.
Notices sent by hand or overnight courier service, or mailed by certified
or registered mail, shall be deemed to have been given when received;
notices sent by telecopier shall be deemed to have been given when sent
(except that, if not given during normal business hours for the recipient,
shall be deemed to have been given at the opening of business on the next
Business Day for the recipient). Notices delivered through electronic
communications to the extent provided in Section 13.1.2, shall be effective
as provided in Section 13.1.2.
13.1.2 Electronic Communications. Notices and other communications
to the Lenders may be delivered or furnished by electronic communication
(including e-mail and internet or intranet websites) pursuant to procedures
approved by the Agent or as
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otherwise determined by the Agent, provided that the foregoing shall not
apply to notices to any Lender pursuant to Article II if such Lender has
notified the Agent that it is incapable of receiving notices under such
Article by electronic communication. The Agent or the Company, on behalf of
each Borrower, may, in its respective discretion, agree to accept notices
and other communications to it hereunder by electronic communications
pursuant to procedures approved by it or as it otherwise determines,
provided that such determination or approval may be limited to particular
notices or communications.
Unless the Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender's
receipt of an acknowledgement from the intended recipient (such as by the
"return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other
communication is not given during the normal business hours of the
recipient, such notice or communication shall be deemed to have been given
at the opening of business on the next Business Day for the recipient, and
(ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient
at its e-mail address as described in the foregoing clause (i) of
notification that such notice or communication is available and identifying
the website address therefor.
13.2. Change of Address, Etc. Any party hereto may change its address or
telecopier number for notices and other communications hereunder by notice to
the other parties hereto.
ARTICLE XIV
COUNTERPARTS; INTEGRATION; EFFECTIVENESS; ELECTRONIC EXECUTION
14.1. Counterparts; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. Except as provided in Article IV, this
Agreement shall become effective when it shall have been executed by the Agent
and when the Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the 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.
14.2. Electronic Execution of Assignments. The words "execution,"
"signed," "signature," and words of like import in any assignment and assumption
agreement shall be deemed to include electronic signatures or the keeping of
records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as
provided for in any applicable law, including the Federal Electronic Signatures
in Global and National Commerce Act, or any other state laws based on the
Uniform Electronic Transactions Act.
86
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS, INCLUDING 735 ILCS SECTION 105/5-1 ET SEQ.
BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS, OF THE STATE OF
ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2. CONSENT TO JURISDICTION. EACH BORROWER HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND EACH BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE AGENT, ANY LC ISSUER, ANY LENDER OR ANY HOLDER OF OBLIGATIONS
TO BRING PROCEEDINGS AGAINST ANY BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY BORROWER AGAINST THE AGENT, ANY LC
ISSUER, ANY LENDER OR HOLDER OF OBLIGATIONS OR ANY AFFILIATE OF THE AGENT, ANY
LC ISSUER, ANY LENDER OR HOLDER OF OBLIGATIONS INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT SITTING IN CHICAGO, ILLINOIS.
15.3. WAIVER OF JURY TRIAL. EACH BORROWER, THE AGENT, EACH LC ISSUER, EACH
LENDER AND EACH HOLDER OF OBLIGATIONS HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
ARTICLE XVI
CO-BORROWER PROVISIONS
16.1. Appointment. Each of the Borrowers hereby irrevocably designates,
appoints and authorizes each other Borrower as its agent and attorney-in-fact to
take actions under this Agreement and the other Loan Documents, together with
such powers as are reasonably
87
incidental thereto. The Agent and the Lenders shall be entitled to rely, and
shall be fully protected in relying, upon any communication from or to any
Borrower as having been delivered by or to all Borrowers. Any action taken by
one Borrower under this Agreement and the other Loan Documents shall be binding
upon each other Borrower. Each Borrower agrees that it is jointly and severally
liable to the Agent and the Lenders for the payment of (i) the Obligations and
(ii) all Rate Management Obligations owing to any Holder of Obligations
(collectively, the "Co-Borrower Obligations") and that such liability is
independent of the Obligations and Rate Management Obligations of each other
Borrower and whether such Obligations and/or Rate Management Obligations become
unenforceable against any other Borrower.
16.2. Separate Actions. A separate action or actions may be brought and
prosecuted against any Borrower whether such action is brought against any other
Borrower or whether any other Borrower is joined in such action or actions. Each
Borrower authorizes the Agent and the Lenders to release the other Borrowers
without in any manner or to any extent affecting the liability of such Borrower
hereunder or under the Loan Documents. Each Borrower waives any defense arising
by reason of any disability or other defense of any other Borrower, or the
cessation for any reason whatsoever of the liability of any other Borrower with
respect to any of the Co-Borrower Obligations, or any claim that such Borrower's
liability hereunder exceeds or is more burdensome than the liability of any
other Borrower.
16.3. Co-Borrower Obligations Absolute and Unconditional. Each Borrower
hereby agrees that its Co-Borrower Obligations hereunder and under the Loan
Documents shall be unconditional, irrespective of:
(a) the validity, enforceability, avoidance or subordination of any
of the Co-Borrower Obligations or any of the Loan Documents as to any other
Borrower;
(b) the absence of any attempt by, or on behalf of, the Agent or
any Lender to collect, or to take any other action to enforce, all or any part
of the Co-Borrower Obligations whether from or against any other Borrower or any
other Person liable for such Co-Borrower Obligations;
(c) the election of any remedy available under the Loan Documents
or applicable law by, or on behalf of, the Agent or any Lender with respect to
all or any part of the Co-Borrower Obligations;
(d) the waiver, consent, extension, forbearance or granting of any
indulgence by, or on behalf of, the Agent or any Lender with respect to any
provision of any of the Loan Documents;
(e) the failure of the Agent or any Lender to take any steps to
perfect and maintain its security interest in, or to preserve its rights to, any
security or collateral for the Co-Borrower Obligations;
(f) the election by, or on behalf of, the Agent or any Lender, in
any proceeding described in Section 8.01(f), involving any other Borrower of any
right which is comparable to the rights set forth in Section 1111(b)(2) of the
Bankruptcy Code;
88
(g) any borrowing or grant of a security interest by any other
Borrower or any receiver or assignee following the occurrence of any event
described in Section 8.01(f), pursuant to any provision of applicable law
comparable to Section 364 of the Bankruptcy Code;
(h) the disallowance, under any provision of applicable law
comparable to Section 502 of the Bankruptcy Code, of all or any portion of the
claims against any other Borrower held by any Lender or any Agent, for repayment
of all or any part of the Co-Borrower Obligations;
(i) the insolvency of any other Borrower; and
(j) any other circumstance which might otherwise constitute a legal
or equitable discharge or defense of such Borrower (other than payment in full
in cash of the Co-Borrower Obligations and the termination of the Commitments).
16.4. Waivers and Acknowledgements.
16.4.1 Except as otherwise expressly provided under any provision
of the Loan Documents or as required by any mandatory provision of
applicable law, each Borrower hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of receivership,
insolvency or bankruptcy of any Borrower or any other Person, protest or
notice with respect to the Co-Borrower Obligations, all setoffs and
counterclaims and all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor and
notices of acceptance of this Agreement and the other Loan Documents, the
benefits of all statutes of limitation, and all other demands whatsoever
(and shall not require that the same be made on any other Borrower as a
condition precedent to such other Borrower's Co-Borrower Obligations
hereunder), and covenants that this Agreement (and the joint and several
liability of each Borrower under Section 11.01) will not be discharged,
except by payment in full in cash of the Co-Borrower Obligations and the
termination of the Commitments. Each Borrower further waives all notices of
the existence, creation or incurrence of new or additional Indebtedness,
arising either from additional loans extended to any other Borrower or
otherwise, and also waives all notices that the principal amount, or any
portion thereof, and/or any interest on any instrument or document
evidencing all or any part of the Co-Borrower Obligations is due, notices
of any and all proceedings to collect from the maker, any endorser or any
other guarantor of all or any part of the Co-Borrower Obligations, or from
any other Person, and, to the extent permitted by law, notices of exchange,
sale, surrender or other handling of any security or collateral given to
the Agent or any Lender to secure payment of all or any part of the
Co-Borrower Obligations.
16.4.2 The Agent and/or the Lenders are hereby authorized, without
notice or demand and without affecting the liability of the Borrowers
hereunder, from time to time, (i) to accept partial payments on all or any
part of the Co-Borrower Obligations; (ii) to take and hold security or
collateral for the payment of all or any part of the Co-Borrower
Obligations, this Agreement, or any other guaranties of all or any part of
the Co-Borrower Obligations or other liabilities of the Borrowers, and
(iii) to settle, release,
89
exchange, enforce, waive, compromise or collect or otherwise liquidate all
or any part of the Co-Borrower Obligations, this Agreement, any guaranty of
all or any part of the Co-Borrower Obligations, and any security or
collateral for the Co-Borrower Obligations or for any such guaranty,
irrespective of the effect on the contribution or subrogation rights of the
Borrowers. Any of the foregoing may be done in any manner, without
affecting or impairing the obligations of each Borrower hereunder.
16.5. Contribution Among Borrowers. The Borrowers agree as between
themselves and without limiting any liability of any Borrower hereunder to the
Agent or the Lenders, that to the extent any payment of the Co-Borrower
Obligations of the Borrowers is required to be made under this Agreement, to the
extent that any Borrower shall make a payment under this Agreement (a "Borrower
Payment") which, taking into account all other Borrower Payments then previously
or concurrently made by any other Borrower, exceeds the amount which otherwise
would have been paid by or attributable to such Borrower if each Borrower had
paid the aggregate Co-Borrower Obligations satisfied by such Borrower Payment in
the same proportion as such Borrower's "Allocable Amount" (as defined below) (as
determined immediately prior to such Borrower Payment) bore to the aggregate
Allocable Amounts of each of the Borrowers as determined immediately prior to
the making of such Borrower Payment, then, following payment in full in cash of
the Co-Borrower Obligations, such Borrower shall be entitled to receive
contribution and indemnification payments from, and be reimbursed by, each other
Borrower for the amount of such excess, pro rata based upon their respective
Allocable Amounts in effect immediately prior to such Borrower Payment. As of
any date of determination, the "Allocable Amount" of any Borrower shall be equal
to the maximum amount of the claim which could then be recovered from such
Borrower under this Agreement without rendering such claim voidable or avoidable
under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable
state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or
similar statute or common law.
16.6. Subrogation. Until the Co-Borrower Obligations shall have been paid
in full in cash and the Commitments shall have been terminated, each Borrower
hereby agrees that it (i) shall have no right of subrogation with respect to
such Co-Borrower Obligations (under contract, Section 509 of the Bankruptcy Code
or any comparable provision of any other applicable law, or otherwise) or any
other right of indemnity, reimbursement or contribution, and (ii) hereby waives
any right to enforce any remedy which the Agent or any Lender may now have or
may hereafter have against any other Borrower, any endorser or any other
Guarantor of all or any part of the Co-Borrower Obligations or any other Person,
and each Borrower hereby waives any benefit of, and any right to participate in,
any security or collateral given to the Agent and the Lenders to secure the
payment or performance of all or any part of the Co-Borrower Obligations or any
other liability of any other Borrower to the Agent and the Lenders.
16.7. Subordination. Each Borrower agrees that any and all claims of such
Borrower against the other Borrowers, the Guarantors or any endorser or other
guarantor of all or any part of the Co-Borrower Obligations, or against any of
their respective properties, shall be subordinated to all of the Co-Borrower
Obligations. Notwithstanding any right of any Borrower to ask for, demand, xxx
for, take or receive any payment from any other Borrower, all rights and Liens
of such Borrower, whether now or hereafter arising and howsoever existing, in
any assets of such other Borrower (whether constituting part of any collateral
or otherwise) shall be and
90
hereby are subordinated to the rights of the Agent or the Lenders in those
assets. Such Borrower shall have no right to possession of any such asset or to
foreclose upon any such asset, whether by judicial action or otherwise, unless
and until all of the Co-Borrower Obligations shall have been paid in full in
cash and the Commitments shall have been terminated. If all or any part of the
assets of any Borrower, or the proceeds thereof, are subject to any
distribution, division or application to the creditors of such Borrower, whether
partial or complete, voluntary or involuntary, and whether by reason of
liquidation, bankruptcy, arrangement, receivership, assignment for the benefit
of creditors or any other action or proceeding, or if the business of any
Borrower is dissolved or if substantially all of the assets of any Borrower are
sold, then, and in any such event, any payment or distribution of any kind or
character, either in cash, securities or other property, which shall be payable
or deliverable upon or with respect to any Indebtedness of any Borrower to any
other Borrower ("Inter-Borrower Debt") shall be paid or delivered directly to
the Agent for application to the Co-Borrower Obligations, due or to become due,
until such Co-Borrower Obligations shall have been paid in full in cash. Each
Borrower irrevocably authorizes and empowers the Agent and each of the Lenders
to demand, xxx for, collect and receive every such payment or distribution and
give acquittance therefor and to make and present for and on behalf of such
Borrower such proofs of claim and take such other action, in the Agent's or such
Lender's own name or in the name of such Borrower or otherwise, as the Agent or
any Lender may deem reasonably necessary or reasonably advisable for the
enforcement of this Agreement. After the occurrence and during the continuance
of a Default or an Unmatured Default, each Lender may vote, with respect to the
Co-Borrower Obligations owed to it, such proofs of claim in any such proceeding,
receive and collect any and all dividends or other payments or disbursements
made thereon in whatever form the same may be paid or issued and apply the same
on account of any of the Co-Borrower Obligations. Except as permitted under
Sections 7.02(d) and (e), should any payment, distribution, security or
instrument or proceeds thereof be received by any Borrower upon or with respect
to the Inter-Borrower Debt prior to the payment in full in cash of all of the
Co-Borrower Obligations and the termination of the Commitments, such Borrower
shall receive and hold the same in trust, as trustee, for the benefit of the
Agent and the Lenders and shall forthwith deliver the same to the Agent in
precisely the form received (accompanied by the endorsement or assignment of
such Borrower where necessary), for application to the Co-Borrower Obligations,
due or not due, and, until so delivered, the same shall be held in trust by such
Borrower as the property of the Agent and the Lenders. After the occurrence and
during the continuance of a Default or an Unmatured Default, if any Borrower
fails to make any such endorsement or assignment to the Agent or the Lenders,
the Agent or the Lenders (or any of their respective officers or employees) are
hereby irrevocably authorized to make the same. Each Borrower agrees that until
the Co-Borrower Obligations have been paid in full in cash and the Commitments
have been terminated, such Borrower will not assign or transfer to any Person
any claim such Borrower has or may have against any other Borrower (other than
in favor of the Agent pursuant to the Loan Documents).
The remainder of this page is intentionally blank
91
IN WITNESS WHEREOF, the initial Borrowers, the Lenders, the LC Issuers and
the Agent have executed this Agreement as of the date first above written.
XXXXXXXXX DENTAL COMPANY,
as a Borrower
By: /s/ R. Xxxxxxx Xxxxxxxxx
Print Name: R. Xxxxxxx Xxxxxxxxx
Title: Executive Vice President,
Chief Financial Officer
and Treasurer
0000 Xxxxxxx Xxxxxxx Xxxx
Xx. Xxxx, XX 00000
Attention: R. Xxxxxxx Xxxxxxxxx
Executive Vice President,
Chief Financial Officer,
and Treasurer
Telephone: (000) 000-0000
FAX: (000) 000-0000
SIGNATURE PAGE TO
XXXXXXXXX DENTAL COMPANY CREDIT AGREEMENT
ABILITYONE CORPORATION,
as a Borrower
By: /s/ R. Xxxxxxx Xxxxxxxxx
Print Name: R. Xxxxxxx Xxxxxxxxx
Title: Vice President and Treasurer
0000 Xxxxxxx Xxxxxxx Xxxx
Xx. Xxxx, XX 00000
Attention: R. Xxxxxxx Xxxxxxxxx
Vice President and Treasurer
Telephone: (000) 000-0000
FAX: (000) 000-0000
SIGNATURE PAGE TO
XXXXXXXXX DENTAL COMPANY CREDIT AGREEMENT
ABILITYONE PRODUCTS CORP.,
as a Borrower
By: /s/ R. Xxxxxxx Xxxxxxxxx
Print Name: R. Xxxxxxx Xxxxxxxxx
Title: Vice President and Treasurer
0000 Xxxxxxx Xxxxxxx Xxxx
Xx. Xxxx, XX 00000
Attention: R. Xxxxxxx Xxxxxxxxx
Vice President and Treasurer
Telephone: (000) 000-0000
FAX: (000) 000-0000
SIGNATURE PAGE TO
XXXXXXXXX DENTAL COMPANY CREDIT AGREEMENT
XXXXXXXXX DENTAL SUPPLY, INC.,
as a Borrower
By: /s/ R. Xxxxxxx Xxxxxxxxx
Print Name: R. Xxxxxxx Xxxxxxxxx
Title: Vice President and Treasurer
0000 Xxxxxxx Xxxxxxx Xxxx
Xx. Xxxx, XX 00000
Attention: R. Xxxxxxx Xxxxxxxxx
Vice President and Treasurer
Telephone: (000) 000-0000
FAX: (000) 000-0000
SIGNATURE PAGE TO
XXXXXXXXX DENTAL COMPANY CREDIT AGREEMENT
XXXXXXX VETERINARY SUPPLY, INC.,
as a Borrower
By: /s/ R. Xxxxxxx Xxxxxxxxx
Print Name: R. Xxxxxxx Xxxxxxxxx
Title: Vice President and Treasurer
0000 Xxxxxxx Xxxxxxx Xxxx
Xx. Xxxx, XX 00000
Attention: R. Xxxxxxx Xxxxxxxxx
Vice President and Treasurer
Telephone: (000) 000-0000
FAX: (000) 000-0000
SIGNATURE PAGE TO
XXXXXXXXX DENTAL COMPANY CREDIT AGREEMENT
XXXXXXX MANAGEMENT, LP,
as a Borrower
By: XXXXXXX VETERINARY SUPPLY, INC.
Its General Partner
By: /s/ R. Xxxxxxx Xxxxxxxxx
Print Name: R. Xxxxxxx Xxxxxxxxx
Title: Vice President and Treasurer
0000 Xxxxxxx Xxxxxxx Xxxx
Xx. Xxxx, XX 00000
Attention: R. Xxxxxxx Xxxxxxxxx
Vice President and Treasurer
Telephone: (000) 000-0000
FAX: (000) 000-0000
SIGNATURE PAGE TO
XXXXXXXXX DENTAL COMPANY CREDIT AGREEMENT
BANK ONE, NA (MAIN BRANCH CHICAGO),
individually, as an LC Issuer and the
Swing Line Lender, and as
Administrative Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
Print Name: Xxxxxxx X. Xxxxxxxx
Title: Director, Capital Markets
Bank One, NA
000 X. Xxxxxxxxx Xxxxxx, XX0-0000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone: (414) 765 - 3111
FAX: (414) 765 - 2625
SIGNATURE PAGE TO
XXXXXXXXX DENTAL COMPANY CREDIT AGREEMENT
BANK OF AMERICA, N.A.,
individually, as a Lender and as
Syndication Agent
By: /s/ Xxxxxx X. Xxxxxx
Print Name: Xxxxxx X. Xxxxxx
Title: Managing Director
000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00 Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Del Sordo
Telephone: (000) 000-0000
FAX: (000) 000-0000
SIGNATURE PAGE TO
XXXXXXXXX DENTAL COMPANY CREDIT AGREEMENT
XXXXXX TRUST & SAVINGS BANK,
as a Lender
By: /s/ Xxxxxxx Xxxxxx
Print Name: Xxxxxxx Xxxxxx
Title: Managing Director
000 Xxxx Xxxxxx Xxxxxx,
00/xx/ Xxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
SIGNATURE PAGE TO
XXXXXXXXX DENTAL COMPANY CREDIT AGREEMENT
KEY BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxxxxxxx Xxxxxxxx
Print Name: Xxxxxxxxxxx Xxxxxxxx
Title: Senior Vice President
0000 XX Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Attention: Xxxxxxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
SIGNATURE PAGE TO
XXXXXXXXX DENTAL COMPANY CREDIT AGREEMENT
NATIONAL CITY BANK OF MICHIGAN/ILLINOIS,
as a Lender
By: /s/ Xxxxxxxxx X. Xxxxxx
Print Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
Xxx Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
SIGNATURE PAGE TO
XXXXXXXXX DENTAL COMPANY CREDIT AGREEMENT
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxxxx
Print Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
000 Xxxxx Xxxxxx, X0-XXXX-0-0
Xxxxxxxxxx, Xxxxxxxxxxxx
00000-0000
Attention: Xxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
SIGNATURE PAGE TO
XXXXXXXXX DENTAL COMPANY CREDIT AGREEMENT
SUNTRUST BANK,
as a Documentation Agent and as a Lender
By: /s/ W. Xxxxxx Xxxxxxx
Print Name: W. Xxxxxx Xxxxxxx
Title: Director
Mail Code NA1907
000 0/xx/ Xxxxxx Xxxxx,
0/xx/ Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: W. Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
SIGNATURE PAGE TO
XXXXXXXXX DENTAL COMPANY CREDIT AGREEMENT
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH,
as a Lender
By: /s/ Xxxxxxx XxXxx
Print Name: Xxxxxxx XxXxx
Title: Vice President & Manager
000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx XxXxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
SIGNATURE PAGE TO
XXXXXXXXX DENTAL COMPANY CREDIT AGREEMENT
THE NORTHERN TRUST COMPANY,
as a Documentation Agent and as a Lender
By: /s/ Xxxx X. Xxxxx
Print Name: Xxxx X. Xxxxx
Title: Vice President
00 Xxxxx XxXxxxx, Xxxxx X0
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
SIGNATURE PAGE TO
XXXXXXXXX DENTAL COMPANY CREDIT AGREEMENT
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By: /s/ Xxxxxxxxx Xxxxx
Print Name: Xxxxxxxxx Xxxxx
Title: Vice President
000 X. Xxxxxxxx Xx., X00-000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx (credit
contact)
Telephone: (000) 000-0000
FAX: (000) 000-0000
Attention: Xxxxxxx Xxxxx (operations
contact)
Telephone: (000) 000-0000
FAX: (000) 000-0000/51
SIGNATURE PAGE TO
XXXXXXXXX DENTAL COMPANY CREDIT AGREEMENT
U.S. BANK NATIONAL ASSOCIATION,
as a Documentation Agent and as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
Print Name: Xxxxx X. Xxxxxxxx
Title: Vice President
U.S. Bancorp Center
BC-MN-H03N
000 Xxxxxxxx Xxxx, 00/xx/ Xxxxx
Xxxxxxxxxxx, XX 00000
Attention:
Telephone: (000) 000-0000
FAX: (000) 000-0000
SIGNATURE PAGE TO
XXXXXXXXX DENTAL COMPANY CREDIT AGREEMENT
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxx X. Xxxxxx
Print Name: Xxxxx X. Xxxxxx
Title: VP & Senior Banker
By: /s/ Xxxxxxxx X. Xxxxxxx
Print Name: Xxxxxxxx X. Xxxxxxx
Title: VP & Loan Team Member
Xxxxx Fargo Bank
MAC N 9305-031
Sixth and Marquette
Xxxxxxxxxxx XX 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
FAX: (000) 000-0000
SIGNATURE PAGE TO
XXXXXXXXX DENTAL COMPANY CREDIT AGREEMENT
COMMITMENT SCHEDULE
Revolving Loan Commitments
Amount of % of Aggregate
Revolving Revolving
Lender Loan Commitment Loan Commitment
---------------------------------------- ---------------- ---------------
Bank One, NA (Main Office Chicago) $ 23,333,333.35 11.666,666,66%
Bank of America, N.A. $ 23,333,333.34 11.666,666,65%
Xxxxxx Trust & Savings Bank $ 13,333,333.33 6.666,666,67%
Key Bank National Association $ 13,333,333.33 6.666,666,67%
National City Bank of Michigan/Illinois $ 13,333,333.33 6.666,666,67%
PNC Bank, National Association $ 13,333,333.33 6.666,666,67%
SunTrust Bank $ 20,000,000.00 10.000,000,00%
The Bank of Tokyo-Mitsubishi, Ltd.,
Chicago Branch $ 13,333,333.33 6.666,666,67%
The Northern Trust Company $ 20,000,000.00 10.000,000,00%
Union Bank of California, N.A. $ 13,333,333.33 6.666,666,67%
U.S. Bank National Association $ 20,000,000.00 10.000,000,00%
Xxxxx Fargo Bank, National Association $ 13,333,333.33 6.666,666,67%
-------------------------------------------------------------------------------
TOTAL $ 200,000,000.00 100%
Term Loan Commitments
% of Aggregate
Amount of Term Term Loan
Lender Loan Commitment Commitment
---------------------------------------- ---------------- ---------------
Bank One, NA (Main Office Chicago) $ 11,666,666.65 11.666,666,65%
Bank of America, N.A. $ 11,666,666.66 11.666,666,66%
Xxxxxx Trust & Savings Bank $ 6,666,666.67 6.666,666,67%
Key Bank National Association $ 6,666,666.67 6.666,666,67%
National City Bank of Michigan/Illinois $ 6,666,666.67 6.666,666,67%
PNC Bank, National Association $ 6,666,666.67 6.666,666,67%
SunTrust Bank $ 10,000,000.00 10.000,000,00%
The Bank of Tokyo-Mitsubishi, Ltd.,
Chicago Branch $ 6,666,666.67 6.666,666,67%
The Northern Trust Company $ 10,000,000.00 10.000,000,00%
Union Bank of California, N.A. $ 6,666,666.67 6.666,666,67%
U.S. Bank National Association $ 10,000,000.00 10.000,000,00%
Xxxxx Fargo Bank, National Association $ 6,666,666.67 6.666,666,67%
-------------------------------------------------------------------------------
TOTAL: $ 100,000,000.00 100%
PRICING SCHEDULE
====================================================================
Applicable Level I Level II Level III Level IV
Margin Status Status Status Status
--------------------------------------------------------------------
Eurocurrency Rate 0.625% 0.750% 1.000% 1.375%
--------------------------------------------------------------------
Floating Rate 0.00% 0.00% 0.00% 0.00%
====================================================================
====================================================================
Applicable Fee Level I Level II Level III Level IV
Rate Status Status Status Status
--------------------------------------------------------------------
Commitment Fee 0.175% 0.200% 0.250% 0.300%
--------------------------------------------------------------------
====================================================================
The Applicable Margin and Applicable Fee Rate shall be determined
based upon Level III until the delivery of the Financials for the fiscal period
ending October 25, 2003.
For the purposes of this Schedule, the following terms have the following
meanings, subject to the final paragraph of this Schedule:
"Financials" means the annual or quarterly financial statements of the
Company delivered pursuant to Section 6.1.1 or 6.1.2.
"Level I Status" exists at any date if, as of the last day of the fiscal
quarter of the Company referred to in the most recent Financials, the Leverage
Ratio is less than or equal to 2.00 to 1.00.
"Level II Status" exists at any date if, as of the last day of the fiscal
quarter of the Company referred to in the most recent Financials, (i) the
Company has not qualified for Level I Status and (ii) the Leverage Ratio is less
than or equal to 2.50 to 1.00.
"Level III Status" exists at any date if, as of the last day of the fiscal
quarter of the Company referred to in the most recent Financials, (i) the
Company has not qualified for Level I Status or Level II Status and (ii) the
Leverage Ratio is less than or equal to 3.00 to 1.00.
"Level IV Status" exists at any date if the Company has not qualified for
Level I Status, Level II Status or Level III Status.
"Status" means Level I Status, Level II Status, Level III Status or Level
IV Status.
The Applicable Margin and Applicable Fee Rate shall be determined in accordance
with the foregoing table based on the Company's Status as reflected in the then
most recent Financials. Adjustments, if any, to the Applicable Margin or
Applicable Fee Rate shall be effective five Business Days after the Agent has
received the applicable Financials. If the Company fails to
deliver the Financials to the Agent at the time required pursuant to Section
6.1, then the Applicable Margin and Applicable Fee Rate shall be the highest
Applicable Margin and Applicable Fee Rate set forth in the foregoing table until
five days after such Financials are so delivered.
EXHIBIT E-1
FORM OF TERM LOAN NOTE
________ __, 20__
XXXXXXXXX DENTAL COMPANY, a Minnesota corporation, ABILITYONE CORPORATION,
a Michigan corporation, ABILITYONE PRODUCTS CORP., a Delaware corporation,
XXXXXXXXX DENTAL SUPPLY, INC., a Minnesota corporation, XXXXXXX VETERINARY
SUPPLY, INC., a Minnesota corporation and XXXXXXX MANAGEMENT, LP, a Minnesota
limited partnership (the "Borrowers"), jointly and severally, promise to pay to
the order of [LENDER] or its registered assigns (the "Lender") the aggregate
unpaid principal amount of the Term Loan made by the Lender to the Borrowers
pursuant to Article II of the Agreement (as hereinafter defined), in immediately
available funds at the main office of Bank One, NA in Chicago, Illinois, as
Administrative Agent (the "Agent"), together with interest on the unpaid
principal amount hereof at the rates and on the dates set forth in the
Agreement. The Borrowers shall pay, in Dollars, the principal of and accrued and
unpaid interest on the Term Loan in full on the Term Loan Maturity Date. The
principal indebtedness evidenced hereby shall be payable in installments as set
forth in Section 2.1 of the Agreement with a final installment payable on the
Term Loan Maturity Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of the Term Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to the
benefits of, the Credit Agreement, dated as of November 25, 2003 (which, as it
may be amended, restated, supplemented or otherwise modified and in effect from
time to time, is herein called the "Agreement"), among the Borrowers, the
Lenders, and the Agent, to which Agreement reference is hereby made for a
statement of the terms and conditions governing this Note, including the terms
and conditions under which this Note may be prepaid or its maturity date
accelerated. [This Note is guaranteed pursuant to the Guaranty, as more
specifically described in the Agreement, and reference is made thereto for a
statement of the terms and provisions thereof.] Capitalized terms used herein
and not otherwise defined herein are used with the meanings attributed to them
in the Agreement.
This Note shall be governed by, and construed in accordance with, the
internal law, including 735 ILCS Sections 105/5-1 et seq. but otherwise without
regard to the conflict of law provisions, of the State of Illinois, but giving
effect to federal laws applicable to national banks.
XXXXXXXXX DENTAL COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ABILITYONE CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ABILITYONE PRODUCTS CORP.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXXXX DENTAL SUPPLY, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXX VETERINARY SUPPLY, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXX MANAGEMENT, LP,
By XXXXXXX VETERINARY SUPPLY, INC.
Its General Manager
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SCHEDULE OF TERM LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF THE BORROWERS,
DATED [DATE], 20__
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Term Loan Period Paid Balance
----------------------------------------------------------
EXHIBIT E-2
FORM OF REVOLVING LOAN NOTE
________ __, 20__
XXXXXXXXX DENTAL COMPANY, a Minnesota corporation, ABILITYONE CORPORATION,
a Michigan corporation, ABILITYONE PRODUCTS CORP., a Delaware corporation,
XXXXXXXXX DENTAL SUPPLY, INC., a Minnesota corporation, XXXXXXX VETERINARY
SUPPLY, INC., a Minnesota corporation and XXXXXXX MANAGEMENT, LP, a Minnesota
limited partnership (the "Borrowers"), jointly and severally, promise to pay to
the order of [LENDER] or its registered assigns (the "Lender") the aggregate
unpaid principal amount of all Revolving Loans made by the Lender to the
Borrowers pursuant to Article II of the Agreement (as hereinafter defined), in
immediately available funds at the place specified pursuant to Article II of the
Agreement, together with interest on the unpaid principal amount hereof at the
rates and on the dates set forth in the Agreement. The Borrowers shall pay, in
the applicable Agreed Currency, the principal of and accrued and unpaid interest
on the Revolving Loans in full on the Revolving Loan Termination Date and shall
make such mandatory payments as are required to be made under the terms of
Article II of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date, currency, amount, and Interest Period, in the case of Eurocurrency
Rate Loans, of each Revolving Loan and the date, currency and amount of each
principal payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to the
benefits of, the Credit Agreement, dated as of November 25, 2003 (which, as it
may be amended, restated, supplemented or otherwise modified and in effect from
time to time, is herein called the "Agreement"), among the Borrowers, the
Lenders, and Bank One, NA (Main Office Chicago) as Administrative Agent (the
"Agent"), to which Agreement reference is hereby made for a statement of the
terms and conditions governing this Note, including the terms and conditions
under which this Note may be prepaid or its maturity date accelerated. [This
Note is guaranteed pursuant to the Guaranty, as more specifically described in
the Agreement, and reference is made thereto for a statement of the terms and
provisions thereof.] Capitalized terms used herein and not otherwise defined
herein are used with the meanings attributed to them in the Agreement.
This Note shall be governed by, and construed in accordance with, the
internal law, including 735 ILCS Sections 105/5-1 et seq. but otherwise without
regard to the conflict of law provisions, of the State of Illinois, but giving
effect to federal laws applicable to national banks.
XXXXXXXXX DENTAL COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ABILITYONE CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ABILITYONE PRODUCTS CORP.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXXXX DENTAL SUPPLY, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXX VETERINARY SUPPLY, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXXXX MANAGEMENT, LP,
By XXXXXXX VETERINARY SUPPLY, INC.
Its General Manager
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page for Revolving Loan Note
SCHEDULE OF REVOLVING LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF THE BORROWERS,
DATED [DATE], 20__
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Currency Revolving Loan Period Paid Balance
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