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Exhibit 10.11
REVOLVING CREDIT AGREEMENT
DATED AS OF SEPTEMBER 30, 2003
AMONG
XXXXXXXX & COMPANY
AND
XXXXXXXX & COMPANY INTERNATIONAL, INC.
AS BORROWERS
THE LENDERS FROM TIME TO TIME PARTY HERETO
AND
BANK OF AMERICA, N.A.
AS SYNDICATION AGENT
AND
SUNTRUST BANK
AS ADMINISTRATIVE AGENT
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SUNTRUST XXXXXXXX XXXXXXXX
(A DIVISION OF SUNTRUST CAPITAL MARKETS, INC.)
AS LEAD ARRANGER
TABLE OF CONTENTS
PAGE
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ARTICLE I. DEFINITIONS; CONSTRUCTION............................... 1
SECTION 1.1. DEFINITIONS............................................. 1
SECTION 1.2. CLASSIFICATIONS OF LOANS AND BORROWINGS................. 21
SECTION 1.3. ACCOUNTING TERMS AND DETERMINATION...................... 22
SECTION 1.4. TERMS GENERALLY; RULES OF INTERPRETATION................ 22
ARTICLE II. AMOUNT AND TERMS OF THE COMMITMENTS..................... 23
SECTION 2.1. GENERAL DESCRIPTION OF FACILITIES....................... 23
SECTION 2.2. REVOLVING LOANS......................................... 23
SECTION 2.3. PROCEDURE FOR REVOLVING BORROWINGS...................... 23
SECTION 2.4. SWINGLINE COMMITMENT.................................... 24
SECTION 2.5. PROCEDURE FOR SWINGLINE BORROWING; ETC.................. 24
SECTION 2.6. MULTI-CURRENCY OPTIONS.................................. 25
SECTION 2.7. EUROPEAN ECONOMIC AND MONETARY UNION.................... 28
SECTION 2.8. [RESERVED].............................................. 30
SECTION 2.9. FUNDING OF BORROWINGS................................... 30
SECTION 2.10. INTEREST ELECTIONS; CONVERSIONS; CONTINUATIONS.......... 31
SECTION 2.11. TERMINATION OF COMMITMENTS.............................. 32
SECTION 2.12. REPAYMENT OF LOANS...................................... 32
SECTION 2.13. EVIDENCE OF INDEBTEDNESS................................ 33
SECTION 2.14. OPTIONAL AND MANDATORY PREPAYMENTS...................... 33
SECTION 2.15. INTEREST ON LOANS....................................... 34
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SECTION 2.16. FEES.................................................... 35
SECTION 2.17. EFFECTIVE DATE FOR ADJUSTMENT TO APPLICABLE PERCENTAGE
AND APPLICABLE MARGIN................................ 36
SECTION 2.18. COMPUTATION OF INTEREST AND FEES........................ 36
SECTION 2.19. INABILITY TO DETERMINE INTEREST RATES................... 36
SECTION 2.20. ILLEGALITY.............................................. 37
SECTION 2.21. INCREASED COSTS......................................... 37
SECTION 2.22. FUNDING INDEMNITY....................................... 39
SECTION 2.23. TAXES................................................... 39
SECTION 2.24. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS............................................. 42
SECTION 2.25. MITIGATION OF OBLIGATIONS; REPLACEMENT OF LENDERS....... 43
SECTION 2.26. LETTERS OF CREDIT....................................... 44
SECTION 2.27. BORROWERS' REPRESENTATIVE............................... 48
SECTION 2.28. JOINT AND SEVERAL LIABILITY............................. 49
ARTICLE III. CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT..... 50
SECTION 3.1. CONDITIONS TO EFFECTIVENESS............................. 50
SECTION 3.2. EACH CREDIT EVENT....................................... 52
SECTION 3.3. DELIVERY OF DOCUMENTS................................... 53
ARTICLE IV. REPRESENTATIONS AND WARRANTIES.......................... 53
SECTION 4.1. EXISTENCE; POWER........................................ 53
SECTION 4.2. ORGANIZATIONAL POWER; AUTHORIZATION..................... 53
SECTION 4.3. GOVERNMENTAL AND THIRD PARTY APPROVALS; NO CONFLICTS.... 54
SECTION 4.4. FINANCIAL STATEMENTS.................................... 54
SECTION 4.5. LITIGATION AND ENVIRONMENTAL MATTERS.................... 54
SECTION 4.6. COMPLIANCE WITH LAWS AND AGREEMENTS..................... 55
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SECTION 4.7. INVESTMENT COMPANY ACT, ETC............................. 55
SECTION 4.8. TAXES................................................... 55
SECTION 4.9. MARGIN REGULATIONS...................................... 55
SECTION 4.10. ERISA................................................... 55
SECTION 4.11. OWNERSHIP OF PROPERTY................................... 56
SECTION 4.12. DISCLOSURE.............................................. 56
SECTION 4.13. LABOR RELATIONS......................................... 56
SECTION 4.14. SUBSIDIARIES............................................ 56
SECTION 4.15. SOLVENCY................................................ 56
SECTION 4.16. INDEBTEDNESS AT FUNDING DATE............................ 56
SECTION 4.17. DORMANT COMPANIES....................................... 57
SECTION 4.18. NOTE PURCHASE AGREEMENT................................. 57
ARTICLE V. AFFIRMATIVE COVENANTS................................... 57
SECTION 5.1. FINANCIAL STATEMENTS AND OTHER INFORMATION.............. 57
SECTION 5.2 NOTICES OF MATERIAL EVENTS.............................. 59
SECTION 5.3. EXISTENCE............................................... 59
SECTION 5.4. COMPLIANCE WITH LAWS, ETC............................... 59
SECTION 5.5. PAYMENT OF OBLIGATIONS.................................. 60
SECTION 5.6. BOOKS AND RECORDS....................................... 60
SECTION 5.7. VISITATION, INSPECTION, ETC............................. 60
SECTION 5.8. MAINTENANCE OF PROPERTIES; INSURANCE.................... 60
SECTION 5.9. USE OF PROCEEDS AND LETTERS OF CREDIT................... 60
SECTION 5.10. ADDITIONAL SUBSIDIARIES; DORMANT COMPANIES.............. 61
SECTION 5.11. AMENDMENT TO PRIVATE PLACEMENT LOAN DOCUMENTS........... 62
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SECTION 5.12. POST CLOSING REQUIREMENTS............................... 63
ARTICLE VI FINANCIAL COVENANTS..................................... 63
SECTION 6.1. LEVERAGE RATIO.......................................... 63
SECTION 6.2. FIXED CHARGE COVERAGE RATIO............................. 64
SECTION 6.3. MINIMUM NET WORTH....................................... 64
ARTICLE VII NEGATIVE COVENANTS...................................... 64
SECTION 7.1. INDEBTEDNESS............................................ 65
SECTION 7.2. NEGATIVE PLEDGE......................................... 66
SECTION 7.3. FUNDAMENTAL CHANGES; LINE OF BUSINESS................... 66
SECTION 7.4. INVESTMENTS, LOANS, ACQUISITIONS, ETC................... 67
SECTION 7.5. RESTRICTED PAYMENTS..................................... 68
SECTION 7.6. SALE OF ASSETS.......................................... 69
SECTION 7.7. TRANSACTIONS WITH AFFILIATES............................ 69
SECTION 7.8. RESTRICTIVE AGREEMENTS.................................. 70
SECTION 7.9. SALE AND LEASEBACK TRANSACTIONS......................... 70
SECTION 7.10. HEDGING AGREEMENTS...................................... 70
SECTION 7.11. AMENDMENT TO ORGANIZATIONAL DOCUMENTS................... 70
SECTION 7.12. ACCOUNTING CHANGES; CHANGE OF FISCAL YEAR............... 71
SECTION 7.13. MINIMUM CASH............................................ 71
SECTION 7.14. NO LIMITATION ON PREPAYMENTS OR AMENDMENTS TO LOAN
DOCUMENTS............................................ 71
ARTICLE VIII EVENTS OF DEFAULT....................................... 71
SECTION 8.1. EVENTS OF DEFAULT....................................... 71
ARTICLE IX THE ADMINISTRATIVE AGENT................................ 74
SECTION 9.1. APPOINTMENT OF ADMINISTRATIVE AGENT..................... 74
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SECTION 9.2. NATURE OF DUTIES OF ADMINISTRATIVE AGENT................ 74
SECTION 9.3. LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT............ 75
SECTION 9.4. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT.............. 75
SECTION 9.5. RELIANCE BY ADMINISTRATIVE AGENT........................ 75
SECTION 9.6. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY..... 76
SECTION 9.7. SUCCESSOR ADMINISTRATIVE AGENT.......................... 76
ARTICLE X MISCELLANEOUS........................................... 77
SECTION 10.1. NOTICES................................................. 77
SECTION 10.2. WAIVER; AMENDMENTS...................................... 78
SECTION 10.3. EXPENSES; INDEMNIFICATION............................... 79
SECTION 10.4. SUCCESSORS AND ASSIGNS.................................. 80
SECTION 10.5. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS.............................................. 83
SECTION 10.6. WAIVER OF JURY TRIAL.................................... 84
SECTION 10.7. RIGHT OF SETOFF......................................... 84
SECTION 10.8. COUNTERPARTS; INTEGRATION............................... 84
SECTION 10.9. SURVIVAL................................................ 84
SECTION 10.10. SEVERABILITY............................................ 85
SECTION 10.12. INTEREST RATE LIMITATION................................ 85
SECTION 10.12. CONFIDENTIALITY......................................... 85
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Schedules
Schedule I -- Applicable Margin and Applicable Percentage
Schedule II -- Investment Guidelines of Xxxxxxxx
Schedule 1.1 -- Foreign Currency Payment Accounts
Schedule 4.5(a) -- Litigation
Schedule 4.5(b) -- Environmental Matters
Schedule 4.14 -- Subsidiaries
Schedule 4.16 -- Indebtedness
Schedule 4.17 -- dormant Companies
Schedule 7.1 -- Funding Date Indebtedness
Schedule 7.2 -- Existing Liens
Schedule 7.4 -- Existing Investments
Schedule 7.8 -- Restrictive Agreements
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Exhibits
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Pledge Agreement
Exhibit C -- Form of Revolving Credit Note
Exhibit D -- Form of Subsidiary Guaranty Agreement
Exhibit E -- Form of Swingline Note
Exhibit F -- Form of Opinion of Counsel to Loan Parties
Exhibit 2.3 -- Notice of Revolving Borrowing
Exhibit 2.5 -- Notice of Swingline Borrowing
Exhibit 2.10 -- Form of Continuation/Conversion
Exhibit 2.21 -- Mandatory Costs Rate
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REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this "Agreement") is made and entered
into as of September 30, 2003 by and among XXXXXXXX & COMPANY, a Georgia
corporation ("Crawford"), XXXXXXXX & COMPANY INTERNATIONAL, INC., a Georgia
corporation ("International"; Crawford and International are each referred to
herein individually as a "Borrower", and collectively, the "Borrowers"), the
several banks and other financial institutions from time to time party hereto
(the "Lenders"), BANK OF AMERICA, N.A., as Syndication Agent, and SUNTRUST BANK,
in its capacity as Administrative Agent for the Lenders (the "Administrative
Agent").
WITNESSETH:
WHEREAS, the Borrowers have requested that the Lenders establish a
$70,000,000 revolving credit facility in favor of the Borrowers; and
WHEREAS, to the extent of their respective Commitments and on a
several (and not joint) basis, the Lenders are willing to establish the
requested revolving credit facility on the terms and conditions herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrowers, the Lenders and the Administrative
Agent agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1. DEFINITIONS. In addition to the other terms defined
herein, the following terms used herein shall have the meanings herein specified
(to be equally applicable to both the singular and plural forms of the terms
defined):
"ACQUISITION" shall mean any acquisition, whether by stock or other
equity purchase, asset purchase, merger, consolidation or otherwise of a Person,
all or substantially all of the assets of a Person or a business line or
division of a Person.
"ADJUSTED LIBOR" shall mean, with respect to each Interest Period for
a Eurocurrency Borrowing, the rate per annum obtained by multiplying (i) LIBOR
for such Interest Period by (ii) the Statutory Reserve Rate.
"ADMINISTRATIVE AGENT" shall have the meaning assigned to such term in
the opening paragraph hereof.
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"ADMINISTRATIVE QUESTIONNAIRE" shall mean, with respect to each
Lender, an administrative questionnaire in the form provided by the
Administrative Agent and submitted to the Administrative Agent duly completed by
such Lender.
"AFFILIATE" shall mean, as to any Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person.
"ALTERNATE LENDING OFFICE" means as to each Lender, such office,
branch, affiliate or correspondent of such Lender as such Lender may from time
to time designate by notice to Borrowers and the Administrative Agent as such
Lender's office for making or receiving payments of Revolving Loans denominated
in a Foreign Currency.
"AGGREGATE REVOLVING COMMITMENTS" shall mean the sum of the Revolving
Commitments of all Lenders at any time outstanding. On the Closing Date, the
Aggregate Revolving Commitments equal $70,000,000.
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or an Affiliate of such
Lender) designated for such Type of Loan in the Administrative Questionnaire
submitted by such Lender or such other office of such Lender (or an Affiliate of
such Lender) as such Lender may from time to time specify to the Administrative
Agent and the Borrower as the office by which its Loans of such Type are to be
made and maintained.
"APPLICABLE MARGIN" shall mean, as of any date, with respect to all
Eurocurrency Loans outstanding on any date, the percentage per annum determined
by reference to the applicable Leverage Ratio in effect on such date as set
forth on Schedule I attached hereto, as adjusted and otherwise determined from
time to time in accordance with Section 2.17.
"APPLICABLE PERCENTAGE" shall mean, at any date, with respect to the
commitment fee or the letter of credit fee, as the case may be, the percentage
per annum determined by reference to the applicable Leverage Ratio in effect on
such date as set forth on Schedule I attached hereto, as adjusted and otherwise
determined from time to time in accordance with Section 2.17.
"APPLICABLE PLEDGE AMOUNT" shall mean, in respect of the amount of
capital stock or other equity interest of any Foreign Subsidiary to be pledged
to the Administrative Agent, for the benefit of the Lenders, pursuant to a
Pledge Agreement, the lesser of (i) 65% of all outstanding capital stock or
other equity interest of such Foreign Subsidiary and (ii) the total amount of
all outstanding capital stock or other equity interest of such Foreign
Subsidiary owned by the Borrowers and their other Subsidiaries.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.4(b)) and accepted by the Administrative
Agent, in the form of Exhibit A attached hereto or any other form approved by
the Administrative Agent.
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"AVAILABILITY PERIOD" shall mean the period from the Funding Date to
the Commitment Termination Date.
"BASE RATE" shall mean the higher of (i) the per annum rate which the
Administrative Agent publicly announces from time to time to be its prime
lending rate, as in effect from time to time, and (ii) the Federal Funds Rate,
as in effect from time to time, plus one-half of one percent (0.50%). The
Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Base Rate hereunder shall be effective on the effective date of
any change in the Administrative Agent's prime lending rate.
"BORROWER" and "BORROWERS" shall have the meanings given such terms in
the introductory paragraph hereof.
"BORROWING" shall mean a borrowing consisting of (i) Loans of the same
Class and Type, made, converted or continued on the same date and in the case of
Eurocurrency Loans, as to which a single Interest Period is in effect, or (ii) a
Swingline Loan.
"BUSINESS DAY" shall mean any day other than a Saturday or Sunday or
other day on which banks are not authorized or required to close in Atlanta,
Georgia or New York, New York and, if the applicable Business Day relates to the
advance or continuation of, conversion into, or payment on a Eurocurrency
Borrowing (i) in a currency other than Euros, on which banks are dealing in
Dollar or any Foreign Currency (other than Euros) deposits, as applicable, in
the applicable interbank eurocurrency market in London, England, and in the
country of issue of the currency of such Eurocurrency Borrowing, and (ii) in
Euros, on which the TARGET payment system is open for the settlement of payments
in Euros.
"CAPITAL LEASE OBLIGATIONS" of any Person shall mean all obligations
of such Person to pay rent or other amounts under any lease (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CHANGE IN CONTROL" shall mean the occurrence of one or more of the
following events: (a) any sale, lease, exchange or other transfer (in a single
transaction or a series of related transactions) of all or substantially all of
the assets of Xxxxxxxx to any Person or "group" (within the meaning of the
Securities Exchange Act of 1934, as amended, and the rules of the Securities and
Exchange Commission from time to time issued thereunder)(collectively, the
"Exchange Act"), (b) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or "group" (as defined immediately
above) of 30% or more of the outstanding shares of the voting stock of Xxxxxxxx;
(c) Xxxxxxxx ceases to own directly 100% of the outstanding capital stock of
International; or (d) occupation of a majority of the seats (other than vacant
seats) on the board of
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directors of Xxxxxxxx by persons who were neither (i) nominated by the then
current board of directors or (ii) appointed by directors so nominated.
"CHANGE IN LAW" shall mean (i) the adoption of any applicable law,
rule or regulation after the date of this Agreement, (ii) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office)
or the Issuing Bank (or for purposes of Section 2.21(b), by such Lender's or the
Issuing Bank's holding company, if applicable) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority
made or issued after the date of this Agreement.
"CLASS", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Swingline Loans and when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Commitment or a Swingline Commitment.
"CLOSING DATE" shall mean October 10, 2003.
"CODE" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"COMMITMENT" shall mean a Revolving Commitment or a Swingline
Commitment or any combination thereof (as the context shall permit or require).
"COMMITMENT TERMINATION DATE" shall mean the earliest of (i) October
9, 2006 and (ii) the date on which all amounts outstanding under this Agreement
have been declared or have automatically become due and payable (whether by
acceleration or otherwise).
"CONSOLIDATED EBITDA" shall mean, for the Consolidated Parties for any
period, an amount equal to the sum of (a) Consolidated Net Income for such
period plus (b) without duplication and only to the extent deducted in
determining Consolidated Net Income for such period, (i) Consolidated Interest
Expense, (ii) income tax expense, (iii) depreciation and amortization, (iv)
non-recurring charges not to exceed $10,000,000 in an aggregate amount during
the Availability Period relating to the settlement of claims described on
Schedule 4.5(a) and (iv) all other non-cash charges satisfactory to the
Administrative Agent in its reasonable discretion (including non-cash charges
for such period taken for the impairment of goodwill in accordance with
Statement of Financial Accounting Standards No. 142 "Goodwill and Other
Intangible Assets" issued by the Financial Accounting Standards Board) minus (c)
all software costs capitalized during such period (other than software purchased
or acquired from software vendors), in each case determined on a consolidated
basis in accordance with GAAP for such period.
"CONSOLIDATED EBITR" shall mean, for the Consolidated Parties for any
period, an amount equal to the sum of (a) Consolidated Net Income for such
period plus (b) without duplication and only to the extent deducted in
determining Consolidated Net Income for such period, (i) Consolidated Interest
Expense, (ii) income tax expense, (iii) Consolidated Lease Expense, (iv)
non-
4
recurring charges not to exceed $10,000,000 in an aggregate amount during
the Availability Period relating to the settlement of litigation pending as of
the Closing Date and (iv) all other non-cash charges satisfactory to the
Administrative Agent in its reasonable discretion (including non-cash charges
for such period taken for the impairment of goodwill in accordance with
Statement of Financial Accounting Standards No. 142 "Goodwill and Other
Intangible Assets" issued by the Financial Accounting Standards Board) minus (c)
all software costs capitalized during such period (other than software purchased
or acquired from software vendors), in each case determined on a consolidated
basis in accordance with GAAP for such period.
"CONSOLIDATED FIXED CHARGES" shall mean, for the Consolidated Parties
for any period, the sum of: (a) Consolidated Interest Expense for such period
and (b) Consolidated Lease Expense for such period.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for the Consolidated
Parties for any period determined on a consolidated basis in accordance with
GAAP, the sum of (i) total cash interest expense, including without limitation
the interest component of any payments in respect of Capital Lease Obligations
capitalized or expensed during such period (whether or not actually paid during
such period) plus (ii) the net amount payable (or minus the net amount
receivable) under Hedging Agreements during such period (whether or not actually
paid or received during such period).
"CONSOLIDATED LEASE EXPENSE" shall mean, for any period, the aggregate
amount of fixed and contingent rentals payable by the Consolidated Parties with
respect to leases of real and/or personal property (excluding Capital Lease
Obligations) determined on a consolidated basis in accordance with GAAP for such
period.
"CONSOLIDATED NET INCOME" shall mean, for any period, the net income
(or loss) of the Consolidated Parties for such period determined on a
consolidated basis in accordance with GAAP, but excluding therefrom (to the
extent otherwise included therein): (i) any extraordinary gains or losses, (ii)
any gains attributable to write-ups of assets, (iii) any equity interest of any
Consolidated Party in the unremitted earnings of any Person that is not a
Subsidiary, (iv) any income (or loss) of any Person accrued prior to the date
such Person becomes a Subsidiary or is merged into or consolidated with Xxxxxxxx
or any Subsidiary or the date that such Person's assets are acquired by Xxxxxxxx
or any such Subsidiary and (v) any income of any Subsidiary which is not a
Subsidiary Loan Party to the extent the payment of such income in the form of
dividends or other distributions to either Xxxxxxxx or any Subsidiary is then
prohibited, whether on account of restrictions in such Subsidiary's
organizational documents or restrictions in any agreement, document, contract,
deed or other instrument applicable to such Subsidiary.
"CONSOLIDATED PARTIES" shall mean, at any time, Xxxxxxxx and each
Consolidated Subsidiary of Xxxxxxxx.
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"CONSOLIDATED SUBSIDIARY" shall mean, at any date, any Person that, in
accordance with GAAP, would or should be consolidated in Xxxxxxxx'x consolidated
financial statements on such date.
"CONSOLIDATED TOTAL ASSETS" shall mean, at any time, the total assets
of Xxxxxxxx and its Subsidiaries, determined on a consolidated basis, in
accordance with GAAP.
"CONSOLIDATED TOTAL FUNDED DEBT" shall mean, at any time, all then
outstanding obligations, liabilities and indebtedness of the Consolidated
Parties on a consolidated basis of the types described in the definition of
Indebtedness, including, without limitation, all Obligations under the Loan
Documents.
"CONTROL" shall mean the power, directly or indirectly, either to (i)
vote 10% or more of securities having ordinary voting power for the election of
directors (or persons performing similar functions) of a Person or (ii) direct
or cause the direction of the management and policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise. The
terms "CONTROLLING", "CONTROLLED BY", and "UNDER COMMON CONTROL WITH" have
meanings correlative thereto.
"CURRENCY CALCULATION DATE" means (a) each date of delivery of a
Notice of Revolving Borrowing in accordance with Section 2.3, (b) the date of
any required conversion of Eurocurrency Loans pursuant to Section 2.10(c) and
(c) each other date on which the Administrative Agent shall, in its discretion,
calculate the Dollar Equivalent of a Revolving Loan denominated in a Foreign
Currency, other than on a Currency Calculation Date as set forth in clause (a)
of this definition.
"XXXXXXXX" shall have the meaning set forth in the introductory
paragraph hereof.
"DEFAULT" shall mean any condition or event that, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"DEFAULTING LENDER" shall mean any Lender with respect to which a
Lender Default is in effect.
"DOLLAR(S)" and the sign "$" shall mean lawful money of the United
States of America.
"DOLLAR EQUIVALENT" of any amount expressed in an Foreign Currency,
means the equivalent amount of Dollars as of the most recent date on which
Administrative Agent in its judgment determines to make a foreign exchange
calculation, after giving effect to a conversion of such amount of such Foreign
Currency to Dollars at the buy spot rate quoted for wholesale transactions by
Administrative Agent at approximately 11:00 a.m. on any Currency Calculation
Date in accordance with its normal practice.
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"DORMANT COMPANY" means each of the Subsidiaries of the Borrowers
specifically designated as "dormant" on Schedule 4.14 hereto.
"EMU" means the economic and monetary union as contemplated in the
Treaty on European Union.
"EMU LEGISLATION" shall mean the legislative measures of the European
Union for the introduction of, changeover to or operation of the Euro in one or
more member states.
"ENVIRONMENTAL LAWS" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release of any
Hazardous Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of either Borrower or any
Subsidiary directly or indirectly resulting from or based upon (a) any actual or
alleged violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
any actual or alleged exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"EQUITY OFFERING" means an underwritten public offering of any capital
stock of Xxxxxxxx, or any debt security convertible into or exchangeable for
capital stock of Xxxxxxxx (whether conditionally or unconditionally convertible
or exchangeable or convertible currently or in the future), or any debt security
issued with a warrant or other instrument conferring upon its owner the right to
purchase capital stock of Xxxxxxxx, in each case pursuant to an effective
registration statement filed with the Securities and Exchange Commission in
accordance with the Securities Act of 1933, as amended. In no event shall an
Equity Offering include any issuances of stock and stock options to employees
and directors of Xxxxxxxx or its Subsidiaries.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated), which, together with either Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA EVENT" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated
7
funding deficiency" (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the
Code or Section 303 of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by either Borrower
or any of its ERISA Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Plan; (e) the receipt by either Borrower or
any ERISA Affiliate from the PBGC or a plan administrator appointed by the PBGC
of any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by either Borrower
or any of its ERISA Affiliates of any liability with respect to the withdrawal
or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by
either Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from either Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"EURO" or "E" shall mean the single currency of the European Union as
constituted by the Treaty on European Union and as referred to in the EMU
Legislation for the introduction of, changeover to or operation of the Euro in
one or more member states.
"EUROCURRENCY" when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, bears interest at
a rate determined by reference to the Adjusted LIBOR and the Applicable Margin.
"EVENT OF DEFAULT" shall have the meaning provided in Article VIII.
"EXCHANGE ACT" shall have the meaning provided in the defined term
"Change of Control.
"EXCLUDED TAXES" shall mean with respect to the Administrative Agent,
any Lender, the Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrowers hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which any of its offices is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which either Borrower is located and (c) in the
case of a Foreign Lender, any withholding tax that is imposed on amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office) or is attributable to such
Foreign Lender's failure to comply with Section 2.23(e), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from a Borrower with respect to such withholding tax pursuant to Section
2.23(a).
"EXISTING LENDERS" means each of SunTrust Bank and Citibank, N.A.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the next 1/100th of 1%) equal to the weighted
average of the rates on overnight
8
Federal funds transactions with member banks of the Federal Reserve System
arranged by Federal funds brokers, as published by the Federal Reserve Bank of
New York on the next succeeding Business Day or if such rate is not so published
for any Business Day, the Federal Funds Rate for such day shall be the average
rounded upwards, if necessary, to the next 1/100th of 1% of the quotations for
such day on such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by the Administrative
Agent.
"FIXED CHARGE COVERAGE RATIO" shall mean, for any period of four
consecutive fiscal quarters of Xxxxxxxx, the ratio of (a) Consolidated EBITR for
such period to (b) Consolidated Fixed Charges for such period.
"FOREIGN CURRENCY" shall mean, individually and collectively, as the
context requires, (i) Euros, (ii) the lawful currency of each of the following
countries, provided that such currencies are not deemed unavailable to a Lender
as a result of any of the circumstances relevant to such Lender as set forth in
Sections 2.19, 2.20 or 2.21 (subject to the Borrowers' right to replace any such
affected Lender under Section 2.25): Canada, Japan, Norway, Australia, United
Kingdom of Great Britain, Northern Ireland, Switzerland, New Zealand, Mexico,
Singapore and South Africa and (iii) any other currencies that are freely
transferable and convertible into US Dollars; provided, however, that no such
currency under this clause (iii) shall be included as a Foreign Currency
hereunder, or included in a Notice of Revolving Borrowing, unless (x) the
Borrowers have first submitted a request to the Administrative Agent and the
Lenders that it be so included, and (y) the Administrative Agent and the
Lenders, in their sole discretion, have agreed to such request.
"FOREIGN CURRENCY PAYMENT ACCOUNTS" shall mean those bank accounts
specified on Schedule 1.1 for receipt of payments in Foreign Currencies, both
from the Lenders in accordance with Section 2.9(a) and the Borrowers in
accordance with Section 2.24(a), or such other bank accounts as may hereafter be
specified by the Administrative Agent in writing to the Borrowers and the
Lenders as being the applicable bank accounts for receipt of payments in such
currencies.
"FOREIGN CURRENCY SUBLIMIT" shall mean $55,000,000, as such amount may
be reduced from time to time pursuant to the terms of this Agreement.
"FOREIGN LENDER" shall mean any Lender that is organized under the
laws of a jurisdiction other than that of the Borrowers. For purposes of this
definition, the United States of America or any political subdivision thereof
shall constitute one jurisdiction.
"FOREIGN SUBSIDIARY" shall mean any direct or indirect Subsidiary of
Xxxxxxxx that is organized under the laws of a jurisdiction other than the
United States of America or any political subdivision thereof.
"FUNDING DATE" shall mean the first day on which all of the conditions
precedent set forth in Section 3.1 and Section 3.2 have been satisfied or waived
in accordance with Section 10.2.
"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of Section
1.3.
9
"GOVERNMENTAL AUTHORITY" shall mean the government of the United
States of America, any other foreign country or nation or any political
subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government (whether foreign or domestic).
"GUARANTEE" of or by any Person (the "GUARANTOR") shall mean any
legally binding obligation, contingent or otherwise, of the guarantor
guaranteeing or having the economic effect of guaranteeing any Indebtedness or
other obligation of any other Person (the "PRIMARY OBLIGOR") in any manner,
whether directly or indirectly and including any obligation, direct or indirect,
of the guarantor (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation or to purchase (or
to advance or supply funds for the purchase of) any security for the payment
thereof, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness or other obligation of the
payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or (d)
as an account party in respect of any letter of credit or letter of guaranty
issued in support of such Indebtedness or obligation; provided, that the term
"Guarantee" shall not include endorsements for collection or deposits in the
ordinary course of business. The amount of any Guarantee shall be deemed to be
an amount equal to the stated or determinable amount of the primary obligation
in respect of which Guarantee is made or, if not so stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as determined by such Person in good
faith. The term "Guarantee" used as a verb has a corresponding meaning.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"HEDGING AGREEMENTS" shall mean interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap agreements,
currency future or option contracts, commodity agreements and other similar
agreements or arrangements designed to protect against fluctuations in interest
rates, currency values, stock values or commodity values.
"INDEBTEDNESS" of any Person shall mean, without duplication: (i)
obligations of such Person for borrowed money, (ii) obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments, (iii)
obligations of such Person in respect of the deferred purchase price of property
or services (other than trade payables incurred in the ordinary course of
business on terms customary in the trade), (iv) obligations of such Person under
any conditional sale or other title retention agreement(s) relating to property
acquired by such Person, (v) Capital Lease Obligations of such Person, (vi)
obligations, contingent or otherwise, of such Person in respect of letters of
credit, acceptances or similar extensions of credit, (vii) guaranties by such
Person of the type of
10
indebtedness described in clauses (i) through (v) immediately above, (viii) all
indebtedness or other obligations of another Person secured by any Lien on
property owned by such Person, whether or not such indebtedness or obligations
have been assumed by such Person, (ix) all obligations of such Person,
contingent or otherwise, to purchase, redeem, retire or otherwise acquire for
value any capital stock or other security of such Person, (x) off-balance sheet
liability retained in connection with asset securitization programs, Synthetic
Leases, sale and leaseback transactions or other similar obligations 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 sheet of such Person and its Subsidiaries, and (xi)
obligations under any Hedging Agreement or foreign exchange agreement. For
purposes of determining Indebtedness under clause (xi) the obligations of either
Borrower or any Subsidiary in respect to any Hedging Agreement or foreign
exchange agreement at any time shall be the maximum aggregate amount (giving
effect to any netting agreements) that such Borrower or such Subsidiary would be
required to pay if such Hedging Agreement or foreign exchange agreement were
terminated at such time.
"INDEMNIFIED TAXES" shall mean Taxes imposed upon any payment made by
either Borrower or any other Loan Party to any Lender under any Loan Document
other than Excluded Taxes.
"INTEREST PERIOD" shall mean (i) with respect to any Eurocurrency
Borrowing, a period of one, two, three or six months and (ii) with respect to a
Swingline Loan, a period of such duration not to exceed 7 days, as Xxxxxxxx may
request and the Swingline Lender may agree in accordance with Section 2.5;
provided, that:
(i) the initial Interest Period for such Borrowing shall commence on
the date of such Borrowing (including the date of any conversion from a
Borrowing of another Type) and each Interest Period occurring thereafter in
respect of such Borrowing shall commence on the day on which the next
preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day, unless, in the case of a Eurocurrency Borrowing, such
Business Day falls in another calendar month, in which case such Interest
Period would end on the next preceding Business Day;
(iii) any Interest Period in respect of a Eurocurrency Borrowing which
begins on the last Business Day of a calendar month or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period shall end on the last Business Day of such calendar
month; and
(iv) no Interest Period may extend beyond the Commitment Termination
Date or the Swingline Termination Date, as the case may be.
"INVESTMENT" shall have the meaning given such term in Section 7.4.
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"ISSUING BANK" shall mean SunTrust Bank, in its capacity as an issuer
of Letters of Credit pursuant to Section 2.26, and its successors and assigns in
such capacity.
"LC COMMITMENT" shall mean that portion of the Aggregate Revolving
Commitments that may be used by the Borrowers for the issuance of Letters of
Credit in an aggregate stated amount not to exceed $15,000,000.
"LC DISBURSEMENT" shall mean a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC DOCUMENTS" shall mean the Letters of Credit and all applications,
agreements and instruments relating to the Letters of Credit.
"LC EXPOSURE" shall mean, at any time, the sum of (i) the aggregate
undrawn amount of all outstanding Letters of Credit at such time, plus (ii) the
aggregate amount of all LC Disbursements that have not been reimbursed by or on
behalf of the Borrowers at such time. The LC Exposure of any Lender shall be its
Pro Rata Share of the total LC Exposure at such time.
"LENDERS" shall have the meaning assigned to such term in the opening
paragraph of this Agreement and shall include, where appropriate, the Swingline
Lender.
"LENDER DEFAULT" shall mean (a) the failure (which has not been cured)
of any Lender to make available its portion of any Borrowing or to fund its
portion of any unreimbursed payment under Section 2.26 or (b) a Lender having
notified the Administrative Agent and/or the Borrowers that it does not intend
to comply with the obligations under Sections 2.2, 2.5 and 2.26.
"LETTER OF CREDIT" shall mean any standby letter of credit issued
pursuant to Section 2.26 by the Issuing Bank for the account of a Borrower
pursuant to the LC Commitment.
"LEVERAGE RATIO" shall mean, as of any date of determination, the
ratio of (i) Consolidated Total Funded Debt as of such date to (ii) Consolidated
EBITDA for the four fiscal quarters ending on or most recently preceding the
date of determination.
"LIBOR" means the rate of interest per annum determined on the basis
of the rate for deposits in Dollars or applicable Foreign Currency deposits, as
the case may be, in minimum amounts of at least $100,000 for a period equal to
the applicable Interest Period which appears for Dollar deposits and for Foreign
Currency deposits, respectively, on the Dow Xxxxx Markets page 3750 at
approximately 11:00 a.m. (London time), two (2) Business Days prior to the first
day of the applicable Interest Period (rounded upward, if necessary, to the
nearest one-hundredth of one percent (1/100%)). If, for any reason, such rate
does not appear on Dow Xxxxx Markets page 3750, then LIBOR shall be determined
by the Administrative Agent to be the arithmetic average (rounded upward, if
necessary, to the nearest one-hundredth of one percent (1/100%)) of the rate per
annum at which deposits in Dollars or the applicable Foreign Currency would be
offered by first class banks in the London interbank market to the
Administrative Agent at approximately 11:00 a.m. (London
12
time) two (2) Business Days prior to the first day of the applicable Interest
Period for a period equal to such Interest Period and in an amount substantially
equal to the amount of the applicable Loan.
"LIEN" shall mean any mortgage, pledge, security interest, lien
(statutory or otherwise), charge, encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement having the practical effect of the
foregoing or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
the same economic effect as any of the foregoing).
"LIQUIDATION CURRENCY" shall have the meaning assigned to such term in
Section 2.6(d).
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the Notes,
the LC Documents, all Notices of Borrowing, the Subsidiary Guaranty Agreement,
the Pledge Agreement required to be entered into pursuant to the terms hereof,
the Sharing Agreement, and any and all other instruments, agreements, documents
and writings executed in connection with any of the foregoing.
"LOAN PARTIES" shall mean the Borrowers and the Subsidiary Loan
Parties.
"LOANS" shall mean all Revolving Loans and Swingline Loans in the
aggregate or any of them, as the context shall require.
"MANDATORY COSTS RATE" shall have the meaning set forth in Section
2.21.
"MARGIN REGULATIONS" shall mean Regulation T, Regulation U and
Regulation X of the Board of Governors of the Federal Reserve System, as the
same may be in effect from time to time.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singly or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences whether or not related, a
material adverse change in, or a material adverse effect on, (i) the business,
results of operations, financial condition, affairs, properties, assets or
liabilities of the Consolidated Parties taken as a whole, (ii) the ability of
either Borrower or any Subsidiary Loan Party to perform any of their respective
obligations under the Loan Documents, (iii) the rights and remedies of the
Administrative Agent, the Issuing Bank and/or the Lenders under any of the Loan
Documents or (iv) the legality, validity or enforceability of any of the Loan
Documents.
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
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"NATIONAL CURRENCY UNIT" means the unit of currency (other than a
Euro) of a Participating Member State
"NET PROCEEDS" means the aggregate cash proceeds received by Xxxxxxxx
in respect of any Equity Offering, net of the direct costs relating to such
Equity Offering (including, without limitation, legal, accounting and investment
banking fees, printing, sales and distribution costs and expenses, and sales
commissions).
"NET WORTH" shall mean, as of any date, the total shareholders' equity
of the Consolidated Parties that would be reflected on Xxxxxxxx'x consolidated
balance sheet as of such date prepared in accordance with GAAP.
"NON-DEFAULTING LENDER" shall mean and include each Lender other than
a Defaulting Lender.
"NON-INTERNATIONAL OWNED FOREIGN SUBSIDIARY" shall have the meaning as
set forth in Section 5.10.
"NOTES" shall mean, collectively, the Revolving Credit Notes and the
Swingline Note.
"NOTE PURCHASE AGREEMENT" shall mean that certain Note Purchase
Agreement dated as of September 30, 2003 among the Borrowers and the Purchasers
listed on Schedule A attached thereto, as amended, restated, supplemented or
otherwise modified from time to time.
"NOTICES OF BORROWING" shall mean, collectively, the Notices of
Revolving Borrowing and the Notices of Swingline Borrowing.
"NOTICE OF CONVERSION/CONTINUATION" shall mean the notice given by the
Borrowers to the Administrative Agent in respect of the conversion or
continuation of an outstanding Borrowing as provided in Section 2.10(b) hereof.
"NOTICE OF REVOLVING BORROWING" shall have the meaning as set forth in
Section 2.3.
"NOTICE OF SWINGLINE BORROWING" shall have the meaning as set forth in
Section 2.5.
"OBLIGATIONS" shall mean all amounts owing by the Borrowers to the
Administrative Agent, the Issuing Bank or any Lender (including the Swingline
Lender) pursuant to or in connection with this Agreement or any other Loan
Document, including without limitation, all principal, interest (including any
interest accruing after the filing of any petition in bankruptcy or the
commencement of any insolvency, reorganization or like proceeding relating to
either Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), all reimbursement obligations, fees,
expenses, indemnification and reimbursement payments, costs and expenses
(including all actual and reasonable fees and expenses of counsel to the
Administrative Agent and any Lender (including the Swingline Lender) incurred
pursuant to this Agreement or any other Loan
14
Document), whether direct or indirect, absolute or contingent, liquidated or
unliquidated, now existing or hereafter arising hereunder or thereunder,
together with all renewals, extensions, modifications or refinancings thereof.
"OTHER TAXES" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from the execution, delivery or enforcement of this Agreement or
any other Loan Document.
"PARTICIPANT" shall have the meaning set forth in Section 10.4(c).
"PARTICIPATING MEMBER STATE" means each state so described in any EMU
Legislation.
"PAYMENT OFFICE" shall mean the office of the Administrative Agent
located at 000 Xxxxxxxxx Xxxxxx, X.X., 00xx Xxxxx, Xxxxxxx, Xxxxxxx 00000, or
such other location as to which the Administrative Agent shall have given
written notice to the Borrowers and the other Lenders.
"PAYOFF LETTER" means a letter, in form and substance reasonably
satisfactory to the Administrative Agent, from all Existing Lenders, notifying
the Administrative Agent and the Borrowers of the amount necessary to repay in
full all of the obligations of the Borrowers to the Existing Lenders and
committing to terminate and release any and all Liens existing in favor of the
Existing Lenders in the properties and assets of the Borrowers or any
Subsidiary.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA, and any successor entity performing similar functions.
"PERMITTED ACQUISITIONS" shall mean any Acquisition so long as (a) at
the time of such Acquisition, no Default or Event of Default is in existence,
(b) such acquisition has been approved or recommended by the board of directors
of the Person being acquired and (c) the Total Acquisition Consideration of such
Acquisition, when aggregated with the Total Acquisition Consideration of all
Acquisitions consummated by Xxxxxxxx and the Consolidated Subsidiaries during
the preceding 12 month period does not exceed the Permitted Acquisition Basket.
"PERMITTED ACQUISITION BASKET" shall mean $15,000,000 minus the
aggregate amount of Investments made under Section 7.4(i) during the 12 month
period preceding the date of determination.
"PERMITTED ENCUMBRANCES" shall mean:
(i) Liens imposed by law for taxes not yet due or which are being
contested in good faith by appropriate proceedings and with respect to
which adequate reserves are being maintained in accordance with GAAP;
(ii) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other Liens imposed by law created in the
ordinary course of business for
15
amounts not yet due or which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves are
being maintained in accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(iv) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(v) judgment and attachment liens not giving rise to an Event of
Default or Liens created by or existing from any litigation or legal
proceeding that are currently being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;
(vi) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or materially
interfere with the ordinary conduct of business of Xxxxxxxx and its
Subsidiaries taken as a whole; and
(vii) Liens created under any Pledge Agreement;
provided, that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness (except for clause vii above).
"PERMITTED INVESTMENTS" shall mean:
(i) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States (or
by any agency thereof to the extent such obligations are backed by the full
faith and credit of the United States), in each case maturing within one
year from the date of acquisition thereof;
(ii) commercial paper having the highest rating, at the time of
acquisition thereof, of S&P or Moody's and in either case maturing within
12 months from the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time deposits
maturing within 360 days of the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank organized under the
laws of the United States or any state thereof which has a combined capital
and surplus and undivided profits of not less than $500,000,000;
16
(iv) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (i) above and entered
into with a financial institution satisfying the criteria described in
clause (iii) above;
(v) mutual funds investing solely in any one or more of the Permitted
Investments described in clauses (i) through (iv) above; and
(vi) any Investment made pursuant to, and in accordance with, the
"Investment Guidelines" of Xxxxxxxx set forth on Schedule II hereto.
"PERSON" shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity, or
any Governmental Authority.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which either Borrower
or any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"PLEDGE AGREEMENT" shall mean a Pledge Agreement in favor of SunTrust
Bank, as Collateral Agent, for the benefit of the Lenders and the Institutional
Creditors (as defined therein), in substantially the form of Exhibit B, or such
other forms as may be required by the Collateral Agent to properly perfect its
interests under the laws of the applicable jurisdiction of a Non-International
Owned Foreign Subsidiary.
"PRIVATE PLACEMENT INDEBTEDNESS" shall mean the Indebtedness of the
Obligors (as defined in the Note Purchase Agreement) owing to the "holders" (as
defined in the Note Purchase Agreement) from time to time under the Note
Purchase Agreement.
"PRIVATE PLACEMENT LOAN DOCUMENTS" shall mean the documents and
instruments evidencing the Private Placement Indebtedness, including, without
limitation: (i) the Note Purchase Agreement and (ii) all other agreements,
instruments and other documents executed and delivered in connection with the
Note Purchase Agreement.
"PRO RATA SHARE" shall mean, with respect to any Lender at any time, a
percentage, the numerator of which shall be the sum of such Lender's Revolving
Commitment and the denominator of which shall be the sum of all Lenders'
Revolving Commitments; or if the Revolving Commitments have been terminated or
expired or if the Loans have been declared to be due and payable, a percentage,
the numerator of which shall be such Lender's Revolving Credit Exposure and the
denominator of which shall be the aggregate Revolving Credit Exposure of all
Lenders.
"REGULATION D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System, as the same may be in effect from time to time, and
any successor regulations.
17
"RELATED PARTIES" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"RELEASE" means any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"REQUIRED LENDERS" shall mean, at any time, Non-Defaulting Lenders
holding 51% or more of the aggregate outstanding Revolving Credit Exposures of
all Non-Defaulting Lenders at such time or if the Non-Defaulting Lenders have no
Revolving Credit Exposure outstanding, then Non-Defaulting Lenders holding 51%
or more of the Aggregate Revolving Commitments of all Non-Defaulting Lenders.
"RESPONSIBLE OFFICER" shall mean any of the president, the chief
executive officer, the chief operating officer, the chief financial officer, the
treasurer, controller or a vice president in the finance division of Xxxxxxxx or
such other representative of Xxxxxxxx as may be designated in writing by any one
of the foregoing with the consent of the Administrative Agent; and, with respect
to the financial covenants only, the chief financial officer or the treasurer of
Xxxxxxxx.
"RESTRICTED INVESTMENT" shall mean Investments in joint ventures and
in Subsidiaries that are not Consolidated Subsidiaries.
"RESTRICTED PAYMENT" shall have the meaning set forth in Section 7.5.
"REVOLVING COMMITMENT" shall mean, with respect to each Lender, the
obligation of such Lender to make Revolving Loans to the Borrowers and to
participate in Letters of Credit and Swingline Loans in an aggregate principal
amount not exceeding the amount set forth with respect to such Lender on the
signature pages to this Agreement, or in the case of a Person becoming a Lender
after the Closing Date, the amount of the assigned "Revolving Commitment" as
provided in the Assignment and Acceptance Agreement executed by such Person as
an assignee, as the same may be changed pursuant to the terms hereof.
"REVOLVING CREDIT EXPOSURE" shall mean, with respect to any Lender at
any time, the sum at such time, without duplication, of (i) the Dollar
Equivalent of the outstanding principal amount of such Lender's Revolving Loans,
(ii) the Dollar Equivalent of such Lender's LC Exposure and (iii) the Dollar
Equivalent of such Lender's Swingline Exposure.
"REVOLVING CREDIT NOTE" shall mean a promissory note of the Borrowers
payable to the order of a requesting Lender in the principal amount of such
Lender's Revolving Commitment, in substantially the form of Exhibit C.
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"REVOLVING LOAN" shall mean a loan made by a Lender (other than the
Swingline Lender) to the Borrowers under its Revolving Commitment, which may be
either a Base Rate Loan or a Eurocurrency Loan.
"S&P" shall mean Standard & Poor's.
"SHARING AGREEMENT" shall mean that certain Collateral Sharing
Agreement of even date herewith among SunTrust Bank, as Collateral Agent, the
Lenders, the "Institutional Creditors" party thereto and each of the Borrowers.
"SOLVENT" means, with respect to each Borrower as of a particular
date, (i) such Borrower is able to pay its debts and other liabilities,
contingent obligations and other commitments as they mature in the normal course
of business, (ii) such Borrower does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Borrower's ability to pay as such
debts and liabilities mature in their ordinary course, (iii) such Borrower is
not engaged in a business or a transaction, and is not about to engage in a
business or a transaction, for which such Borrower's assets would constitute
unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which such Borrower is engaged or is to engaged,
(iv) the fair value of the assets of such Borrower is greater than the total
amount of liabilities, including, without limitation, contingent liabilities, of
such Borrower and (v) the aggregate fair saleable value of the assets of such
Borrower will exceed its debts and other liabilities (including contingent,
subordinated, unmatured and unliquidated debts and liabilities). For purposes of
this definition, "debt" means any liability on a claim, and "claim" means (i) a
right to a payment or (ii) a right to an equitable remedy for breach of
performance, if in light of all of the facts and circumstances existing at such
time, such right can reasonably be expected to give rise to an actual or matured
liability.
"STATEMENT OF FUNDS FLOW" shall mean that certain Statement of Funds
Flow dated as of the Funding Date executed by each of the Borrowers.
"STATUTORY RESERVE RATE" shall mean, with respect to any currency, a
fraction (expressed as a decimal), the numerator of which is the number 1 and
the denominator of which is the number 1 minus the aggregate of the maximum
reserve, liquid asset or similar percentages (including any marginal, special,
emergency or supplemental reserves) expressed as a decimal established by any
Governmental Authority of the United States or of the jurisdiction of such
currency or any jurisdiction in which Loans in such currency are made to which
banks in such jurisdiction are subject for any category of deposits or
liabilities customarily used to fund loans in such currency or by reference to
which interest rates applicable to loans in such currency are determined. Such
reserve, liquid asset or similar percentages shall include those imposed
pursuant to Regulation D of the Board of Governors of the Federal Reserve
System. Eurocurrency Loans shall be deemed to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under Regulation D or any
other applicable law, rule or regulation. The Statutory Reserve Rate shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage.
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"SUBSIDIARY" shall mean, with respect to any Person (the "PARENT"),
any corporation, partnership, joint venture, limited liability company,
association or other entity the accounts of which would or should be
consolidated with those of the parent in the parent's consolidated financial
statements if such financial statements were prepared in accordance with GAAP as
of such date, as well as any other corporation, partnership, joint venture,
limited liability company, association or other entity of which securities or
other ownership interests representing more than 50% of the equity or more than
50% of the ordinary voting power, or in the case of a partnership, more than 50%
of the general partnership interests are, as of such date, owned, Controlled or
held, directly or indirectly, by the parent. Unless otherwise indicated, all
references to "Subsidiary" hereunder shall mean a Subsidiary of Xxxxxxxx.
"SUBSIDIARY GUARANTY AGREEMENT" shall mean the Subsidiary Guaranty
Agreement, substantially in the form of Exhibit D, made by the Subsidiary Loan
Parties in favor of the Administrative Agent for the benefit of the Lenders.
"SUBSIDIARY LOAN PARTY" shall mean any Subsidiary that is not a
Foreign Subsidiary.
"SWINGLINE COMMITMENT" shall mean the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any time
outstanding not to exceed $5,000,000.
"SWINGLINE EXPOSURE" shall mean, with respect to each Lender, the
principal amount of the Swingline Loans in which such Lender is legally
obligated either to make a Base Rate Loan or to purchase a participation in
accordance with Section 2.5, which shall equal such Lender's Pro Rata Share of
all outstanding Swingline Loans.
"SWINGLINE LENDER" shall mean SunTrust Bank, and its successors and
assigns hereunder.
"SWINGLINE LOAN" shall mean a loan made to the Borrowers by the
Swingline Lender under the Swingline Commitment.
"SWINGLINE NOTE" shall mean the promissory note of the Borrowers
payable to the order of the Swingline Lender in the principal amount of the
Swingline Commitment, substantially the form of Exhibit D.
"SWINGLINE RATE" shall mean, for any Interest Period, the rate as
offered by the Swingline Lender and accepted by Xxxxxxxx in writing.
"SWINGLINE TERMINATION DATE" shall mean the date that is five (5)
Business Days prior to the Commitment Termination Date.
"SYNTHETIC LEASE" shall mean any synthetic lease, tax retention
operating lease or similar off-balance sheet financing product where such
transaction is considered borrowed money indebtedness for tax purposes but is
classified as an operating lease under GAAP.
20
"TARGET" shall mean the Trans-European Automated Real-Time Gross
Settlement Express Transfer system.
"TAXES" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TOTAL ACQUISITION CONSIDERATION" shall mean as at the date of any
Acquisition, the sum of the following without duplication: (i) the amount of any
cash and fair market value of other property given as consideration, including
at such date the deferred payment of any such amounts, (ii) the amount
(determined by using the outstanding amount or the amount payable at maturity,
whichever is greater) of any obligations for money borrowed incurred, assumed or
acquired by either Borrower or any Subsidiary in connection with such
Acquisition, (iii) all amounts paid in respect of covenants not to compete and
consulting agreements that should be recorded on the financial statements of
Xxxxxxxx and its Subsidiaries in accordance with GAAP, and (iv) the aggregate
fair market value of all other consideration given by either Borrower or any
Subsidiary (including any shares of capital stock of either Borrower or any
Subsidiary) in connection with such Acquisition.
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of March 25, 1957,
as amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty (which was
signed at Maastricht on February 7, 1992, and came into force on November 1,
1993), as amended from time to time.
"TYPE", when used in reference to a Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBOR or the Base Rate.
"WHOLLY-OWNED SUBSIDIARY" shall mean any Subsidiary all of the shares
of capital stock or other ownership interests of which (except directors'
qualifying shares, or, in the case of any Subsidiary which is not organized or
created under the laws of the United States of America or any political
subdivision thereof, such nominal ownership interests which are required to be
held by third parties under the laws of the foreign jurisdiction under which
such Subsidiary was incorporated or organized) are at the time directly or
indirectly owned by Xxxxxxxx.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2. CLASSIFICATIONS OF LOANS AND BORROWINGS. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g. a
"Revolving Loan") or by Type (e.g. a "Eurocurrency Loan" or "Base Rate Loan") or
by Class and Type (e.g. "Revolving Eurocurrency Loan"). Borrowings also may be
classified and referred to by Class (e.g. "Revolving Borrowing") or by Type
(e.g. "Eurocurrency Borrowing") or by Class and Type (e.g. "Revolving
Eurocurrency Borrowing").
21
SECTION 1.3. ACCOUNTING TERMS AND DETERMINATION. Unless otherwise
defined or specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time, applied on a basis
consistent (except for such changes approved by Xxxxxxxx'x independent public
accountants) with the most recent audited consolidated financial statement of
Xxxxxxxx delivered pursuant to Section 5.1(a); provided, that if Xxxxxxxx
notifies the Administrative Agent that Xxxxxxxx wishes to amend any covenant in
Article VI to eliminate the effect of any change in GAAP on the operation of
such covenant (or if the Administrative Agent notifies Xxxxxxxx that the
Required Lenders wish to amend Article VI for such purpose), then Xxxxxxxx'x
compliance with such covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either
such notice is withdrawn or such covenant is amended in a manner satisfactory to
Xxxxxxxx and the Required Lenders.
SECTION 1.4. TERMS GENERALLY; RULES OF INTERPRETATION. The
definitions of terms herein shall apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". In the computation of periods of time
from a specified date to a later specified date, the word "from" means "from and
including" and the word "to" means "to but excluding". Unless the context
requires otherwise (i) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as it was originally executed or as it
may from time to time be amended, supplemented or otherwise modified (subject to
any restrictions on such amendments, supplements or modifications set forth
herein), (ii) any reference herein to any Person shall be construed to include
such Person's successors and permitted assigns, (iii) the words "hereof",
"herein" and "hereunder" and words of similar import shall be construed to refer
to this Agreement as a whole and not to any particular provision hereof, (iv)
all references to Articles, Sections, Exhibits and Schedules shall be construed
to refer to Articles, Sections, Exhibits and Schedules to this Agreement and (v)
all references to a specific time shall be construed to refer to the time in the
city and state of the Administrative Agent's principal office, unless otherwise
indicated. To the extent that any of the representations and warranties
contained in Section IV under this Agreement, in any of the other Loan Documents
or in the Note Purchase Agreement is qualified by "Material Adverse Effect",
then the qualifier "in all material respects" contained in Section 3.2 and
Section 4.18 and the qualifier "in any material respect" contained in Section
8.1 (c) shall not apply. Unless otherwise indicated, all references to time are
references to Eastern Standard Time or Eastern Daylight Savings Time, as the
case may be. Unless otherwise expressly provided herein, all references to
dollar amounts shall mean Dollars.
22
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
SECTION 2.1. GENERAL DESCRIPTION OF FACILITIES. Subject to and upon
the terms and conditions herein set forth, (i) the Lenders hereby establish in
favor of the Borrowers a revolving credit facility pursuant to which the Lenders
severally agree (to the extent of each Lender's Pro Rata Share up to such
Lender's Revolving Commitment) to make Revolving Loans to the Borrowers in
accordance with Section 2.2, (ii) the Issuing Bank agrees to issue Letters of
Credit in accordance with Section 2.26, (iii) the Swingline Lender agrees to
make Swingline Loans in accordance with Section 2.4, and (iv) each Lender agrees
to purchase a participation interest in the Letters of Credit and the Swingline
Loans pursuant to the terms and conditions hereof; provided, that in no event
shall the aggregate principal amount of all outstanding Revolving Loans,
Swingline Loans and outstanding LC Obligations exceed at any time the Aggregate
Revolving Commitments from time to time in effect.
SECTION 2.2. REVOLVING LOANS. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make Revolving Loans to the
Borrowers from time to time on any Business Day during the Availability Period,
in an aggregate principal amount outstanding at any time (determined in the case
of any Revolving Loan denominated in a Foreign Currency by reference to the
Dollar Equivalent thereof on such Business Day) that will not result in (a) the
Dollar Equivalent of such Lender's Revolving Credit Exposure exceeding such
Lender's Revolving Commitment or (b) the Dollar Equivalent of the sum of the
aggregate Revolving Credit Exposures of all Lenders exceeding the Aggregate
Revolving Commitments. During the Availability Period, the Borrowers shall be
entitled to borrow, prepay and reborrow Revolving Loans in accordance with the
terms and conditions of this Agreement. Funding of any Revolving Loans shall be
in any combination of Dollars or a Foreign Currency as specified by the
Borrowers as set forth in Section 2.3; provided that the Dollar Equivalent
amount of outstanding Revolving Loans funded in a Foreign Currency determined
from time to time by the Administrative Agent in its discretion shall at no time
exceed the Foreign Currency Sublimit then in effect.
SECTION 2.3. PROCEDURE FOR REVOLVING BORROWINGS. The Borrowers shall
give the Administrative Agent written notice (or telephonic notice promptly
confirmed in writing) of each Revolving Borrowing substantially in the form of
Exhibit 2.3 attached hereto (a "NOTICE OF REVOLVING BORROWING") (x) prior to
11:00 a.m. one (1) Business Day prior to the requested date of each Base Rate
Borrowing, (y) prior to 11:00 a.m. three (3) Business Days prior to the
requested date of each Eurocurrency Borrowing and (z) prior to 11:00 a.m. four
(4) Business Days prior to the requested date of each Borrowing denominated in a
Foreign Currency. Each Notice of Revolving Borrowing shall be irrevocable and
shall specify: (i) the aggregate principal amount of such Borrowing, (ii) the
date of such Borrowing (which shall be a Business Day), (iii) the Type of such
Revolving Loan comprising such Borrowing, and (iv) in the case of a Eurocurrency
Borrowing, the requested Foreign Currency (if such Borrowing is not denominated
in Dollars) and the duration of the initial Interest Period applicable thereto
(subject to the provisions of the definition of Interest Period). Each Revolving
Borrowing shall consist entirely of Base Rate Loans or Eurocurrency Loans, as
the Borrowers may request. The aggregate principal amount of each Eurocurrency
Borrowing
23
shall be not less than $100,000 (or, if applicable, the Dollar Equivalent
thereof in the Foreign Currency in which such Eurocurrency Borrowing is
denominated) or a larger multiple of $100,000, (or, if applicable, the Dollar
Equivalent thereof in the Foreign Currency in which such Eurocurrency Borrowing
is denominated) and the aggregate principal amount of each Base Rate Borrowing
shall not be less than $100,000 or a larger multiple of $100,000; provided, that
Base Rate Loans made pursuant to Section 2.5 or Section 2.26(c) may be made in
lesser amounts as provided therein. At no time shall the total number of
Eurocurrency Borrowings outstanding at any time exceed thirty (30). In addition,
at no time shall the total number of Borrowings outstanding at any time
denominated in a Foreign Currency exceed thirty (30). Promptly following the
receipt of a Notice of Revolving Borrowing in accordance herewith, the
Administrative Agent shall advise each Lender of the details thereof and the
amount of such Lender's Revolving Loan to be made as part of the requested
Revolving Borrowing.
SECTION 2.4. SWINGLINE COMMITMENT. Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrowers, from time to time from the Funding Date to the Swingline
Termination Date, in an aggregate principal amount outstanding at any time not
to exceed the lesser of (i) the Swingline Commitment then in effect and (ii) the
difference between the Aggregate Revolving Commitments and the aggregate
Revolving Credit Exposures of all Lenders; provided, that the Swingline Lender
shall not be required to make a Swingline Loan to refinance an outstanding
Swingline Loan. The Borrowers shall be entitled to borrow, repay and reborrow
Swingline Loans in accordance with the terms and conditions of this Agreement.
Notwithstanding anything herein to the contrary, the Borrowers are under no
obligation to accept any offer by the Swingline Lender to make a Swingline Loan,
and the Swingline Lender is under no obligation whatsoever to offer to make a
Swingline Loan to the Borrowers.
SECTION 2.5. PROCEDURE FOR SWINGLINE BORROWING; ETC. (a) The
Borrowers shall give the Administrative Agent written notice (or telephonic
notice promptly confirmed in writing) of each Swingline Borrowing substantially
in the form of Exhibit 2.5 attached hereto ("NOTICE OF SWINGLINE BORROWING")
prior to 11:00 a.m. on the requested date of each Swingline Borrowing. Each
Notice of Swingline Borrowing shall be irrevocable and shall specify: (i) the
principal amount of such Swingline Loan, (ii) the date of such Swingline Loan
(which shall be a Business Day) and (iii) the account to which the proceeds of
such Swingline Loan should be credited. The Administrative Agent will promptly
advise the Swingline Lender of each Notice of Swingline Borrowing. Each
Swingline Loan shall accrue interest at the Swingline Rate and shall have an
Interest Period (subject to the definition thereof) as agreed between Xxxxxxxx
and the Swingline Lender. The aggregate principal amount of each Swingline Loan
shall be not less than $500,000 or a larger multiple of $100,000, or such other
minimum amounts agreed to by the Swingline Lender and the Borrowers. The
Swingline Lender will make the proceeds of each Swingline Loan available to the
Borrowers in Dollars in immediately available funds at the account specified by
the Borrowers in the applicable Notice of Swingline Borrowing not later than
3:00 p.m. on the requested date of such Swingline Loan. The Administrative Agent
will notify the Lenders on a quarterly basis if any Swingline Loans occurred
during such quarter.
(b) If (i) any Swingline Loan matures and remains unpaid; (ii) any
Default or Event of Default occurs or (iii) the Swingline Lender's total amount
of outstanding aggregate
24
Revolving Credit Exposures and Swingline Loans exceed the Swingline Lender's
Revolving Commitment, the Swingline Lender may, on behalf of the Borrowers
(which hereby irrevocably authorize and direct the Swingline Lender to act on
their behalf), give a Notice of Revolving Borrowing to the Administrative Agent
requesting the Lenders (including the Swingline Lender) to make Base Rate Loans
in an amount equal to the unpaid principal amount of any Swingline Loan. Each
Lender will make the proceeds of its Base Rate Loan included in such Borrowing
available to the Administrative Agent for the account of the Swingline Lender in
accordance with Section 2.9, which will be used solely for the repayment of such
Swingline Loan.
(c) If for any reason a Base Rate Borrowing may not be (as determined
in the sole discretion of the Administrative Agent), or is not, made in
accordance with the foregoing provisions, then each Lender (other than the
Swingline Lender) shall purchase an undivided participating interest in such
Swingline Loan in an amount equal to its Pro Rata Share thereof on the date that
such Base Rate Borrowing should have occurred. On the date of such required
purchase, each Lender shall promptly transfer, in immediately available funds,
the amount of its participating interest to the Administrative Agent for the
account of the Swingline Lender. If such Swingline Loan bears interest at a rate
other than the Base Rate, such Swingline Loan shall automatically become a Base
Rate Loan on the effective date of any such participation and interest shall
become payable on demand.
(d) Each Lender's obligation to make a Base Rate Loan pursuant to
Section 2.5(b) or to purchase the participating interests pursuant to Section
2.5(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may have
or claim against the Swingline Lender, either Borrower or any other Person for
any reason whatsoever, (ii) the existence of a Default or an Event of Default or
the termination of any Lender's Revolving Commitment, (iii) the existence (or
alleged existence) of any event or condition which has had or could reasonably
be expected to have a Material Adverse Effect, (iv) any breach of this Agreement
or any other Loan Document by either Borrower, the Administrative Agent or any
Lender or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing. If such amount is not in fact made
available to the Swingline Lender by any Lender, the Swingline Lender shall be
entitled to recover such amount on demand from such Lender, together with
accrued interest thereon for each day from the date of demand thereof at the
Federal Funds Rate. Until such time as such Lender makes its required payment,
the Swingline Lender shall be deemed to continue to have outstanding Swingline
Loans in the amount of the unpaid participation for all purposes of the Loan
Documents. In addition, such Lender shall be deemed to have assigned any and all
payments made of principal and interest on its Loans and any other amounts due
to it hereunder, to the Swingline Lender to fund the amount of such Lender's
participation interest in such Swingline Loans that such Lender failed to fund
pursuant to this Section, until such amount has been purchased in full.
SECTION 2.6. MULTI-CURRENCY OPTIONS.
(a) The Borrowers may request Borrowings of Revolving Loans in any
Foreign Currency; provided, however, that the aggregate outstanding amount of
Revolving Loans made in Foreign Currencies shall not exceed at any time the
Foreign Currency Sublimit. Each Lender's Pro
25
Rata Share of each Revolving Loan made in a Foreign Currency shall be determined
by reference to its Dollar Equivalent on the date each such Revolving Loan is
made. As to any Revolving Loan made in a Foreign Currency, each Lender may elect
to fulfill its commitment to make such Revolving Loan by causing an Alternate
Lending Office to make such Revolving Loan; provided, however, that no such
election shall be made if as a result thereof either Borrower would be required
to pay United States withholding taxes or any additional amounts.
Notwithstanding anything herein to the contrary, all Base Rate Loans and all
Swingline Loans shall be funded only in Dollars. Eurocurrency Loans may be
funded in either Dollars or in a Foreign Currency, in either case, as requested
by the Borrowers pursuant to Section 2.3.
(b) If, after the Funding Date, any Change in Law shall make it
unlawful or impossible for Lenders to make or maintain or fund Loans in the
applicable Foreign Currency, Administrative Agent shall notify Borrowers. Upon
receipt of such notice, the applicable Eurocurrency Loan made in a Foreign
Currency shall be repaid by the Borrowers and/or converted to an available
Foreign Currency or Dollars on either: (i) the last day of the then current
Interest Period for the affected Eurocurrency Loan, if Lenders may lawfully
continue to maintain a Loan at such Foreign Currency to such day, or (ii)
immediately, if Lenders may not lawfully continue to so maintain such
Eurocurrency Loan.
(c) All payments of Obligations under this Agreement, the Notes or any
other Loan Document shall be made in Dollars, except for Eurocurrency Loans
funded in a Foreign Currency, which shall be repaid, including interest thereon,
in the applicable Foreign Currency. If any payment of any Obligation shall be
made in a currency other than the currency required hereunder, such amount shall
be converted into the currency required hereunder at the current market rate for
the purchase of the currency required hereunder with the currency in which such
Obligation was paid, as quoted by the Administrative Agent in accordance with
the methods customarily used by the Administrative Agent for such purposes as
the time of such determination. The parties hereto hereby agree, to the fullest
extent that they may effectively do so under applicable law, that (i) if for the
purposes of obtaining any judgment or award it becomes necessary to convert from
any currency other than the currency required hereunder into the currency
required hereunder any amount in connection with the Obligations, then the
conversion shall be made as provided above on the Business Day before the day on
which the judgment or award is given, (ii) in the event that there is a change
in the rate of exchange prevailing between the Business Day before the day on
which the judgment or award is given and the date of payment, the Borrowers will
pay to the Administrative Agent, for the benefit of the Lenders, such additional
amounts (if any) as may be necessary, and the Administrative Agent, on behalf of
the Lenders, will pay to the Borrowers such excess amounts (if any) as result
from such change in the rate of exchange, to assure that the amount paid on such
date is the amount in such other currency, which when converted at the rate of
exchange described herein on the date of payment, is the amount then due in the
currency required hereunder, and (iii) any amount due from the Borrowers under
this Section 2.6(c) shall be due as a separate debt and shall not be affected by
judgment or award being obtained for any other sum due. For the avoidance of
doubt, the parties affirm and agree that neither the fixation of the conversion
rate of any Foreign Currency against the Euro as a single currency, in
accordance with the Treaty Establishing the European Economic Community, as
amended by the Treaty on the European Union (The Maastricht Treaty), nor the
conversion of the Obligations under this Agreement from any Foreign Currency
into Euros
26
will be a reason for early termination or revision of this Agreement or
repayment of any amount due under this Agreement or create any liability of any
party towards any other party for any direct or consequential loss arising from
any of these events. As of the date that any Foreign Currency is no longer the
lawful currency of its respective country, all funding and payment Obligations
to be made in such affected currency under this Agreement shall be satisfied in
Euros.
(d) If either Borrower shall wind up, liquidate, dissolve or become a
debtor in bankruptcy while there remains outstanding: (i) any amounts owing to
the Lenders hereunder or under the Notes, (ii) any damages owing to the Lenders
in respect of a breach of any of the terms hereof, or (iii) any judgment or
order rendered in respect of such amounts or damages, the Borrowers shall
indemnify and hold the Lenders harmless against any deficiency with respect to
the applicable Foreign Currency in the amounts received by the Lenders arising
or resulting from any variation as between: (i) the rate of exchange at which
the applicable Foreign Currency is converted into another currency (the
"Liquidation Currency") for purposes of such winding-up, liquidation,
dissolution or bankruptcy with regard to the amount in the applicable Foreign
Currency due or contingently due hereunder or under the Notes or under any
judgment or order to which the relevant Obligations hereunder or under the Notes
shall have been merged and (ii) the rate of exchange at which Administrative
Agent could, in accordance with normal banking procedures, be able to purchase
the applicable Foreign Currency with the Liquidation Currency at the earlier of
(A) the date of payment of such amounts or damages and (B) the final date or
dates for the filing of proofs of a claim in a winding-up, liquidation,
dissolution or bankruptcy. As used in the preceding sentence, the "final date"
or dates for the filing of proofs of a claim in a winding-up, liquidation,
dissolution or bankruptcy shall be the date fixed by the liquidator under the
applicable law as being the last practicable date as of which the liabilities of
the applicable Borrower may be ascertained for such winding-up, liquidation,
dissolution or bankruptcy before payment by the liquidator or other appropriate
person in respect thereof.
(e) The Borrowers agree to indemnify the Administrative Agent and the
Lenders against any loss or expense which the Administrative Agent or such
Lenders may sustain or incur in liquidating or employing deposits from third
parties acquired to effect, fund or maintain any Loan made in a Foreign Currency
or any part thereof as a consequence of (i) the Borrowers' failure to make a
payment on other than the due date of such Loan, or (ii) the Borrowers' failure
to borrow under, convert to or renew under the applicable Foreign Currency on a
binding effective date of such borrowing, conversion or renewal. The
Administrative Agent's determination of an amount payable under this paragraph
(e) shall, in the absence of error, be conclusive and shall be payable on
demand.
(f) The Administrative Agent may from time to time in its discretion
calculate the Dollar Equivalent of any Revolving Loan denominated in a Foreign
Currency. In the event that the aggregate Dollar Equivalent of the outstanding
principal amount of the Revolving Loans denominated in a Foreign Currency at any
time exceeds the Foreign Currency Sublimit, the Administrative Agent shall
promptly give notice of such fact to the Borrowers and the Lenders, and the
Borrowers shall be required to make a payment to the Administrative Agent to
reduce the outstanding principal amount of the outstanding Revolving Loans
denominated in a Foreign Currency so that the Dollar Equivalent thereof equals
not more than the Foreign Currency Sublimit. Such payment shall be made within
two (2) Business Days following the date of receipt of such
27
notice given by the Administrative Agent. Each such prepayment shall be
accompanied by a payment of all accrued and unpaid interest on the Revolving
Loans prepaid and any applicable breakage fees and funding losses pursuant to
Section 2.22.
SECTION 2.7. EUROPEAN ECONOMIC AND MONETARY UNION.
(a) Effectiveness of Provisions. The provisions of subsections (b)
through (j) below shall be effective upon the execution of this Agreement,
provided, that if and to the extent that any such provision relates to any state
(or the currency of such state) that is not a Participating Member State upon
the execution of this Agreement, such provision shall become effective in
relation to such state (and the currency of such state) at and from the date on
which such state becomes a Participating Member State.
(b) Redenomination and Foreign Currencies. Each Obligation of any
party under this Agreement which has been denominated in the National Currency
Unit of a non-member state which becomes a Participating Member State after the
date of any Loan made in the National Currency Unit of such state shall be
converted into the Euros at the exchange rate set in accordance with EMU
Legislation, provided, that if and to the extent that any EMU Legislation
provides that an amount denominated either in Euros or in the National Currency
Unit of a Participating Member State and payable within that Participating
Member State by crediting an account of a creditor can be paid by a debtor
either in the Euros or in the National Currency Unit, each party to this
Agreement shall be entitled to pay or repay any such amount either in Euros or
in such National Currency Unit; provided, however, any amount paid in a National
Currency Unit shall be paid at the fixed exchange rate in order to yield the
required amount in Euros.
(c) Loans. Any Loan in the currency of a Participating Member State
shall be made in Euros, provided that any Loan may, if so requested by the
Borrowers, be made in the National Currency Unit (based upon fixed exchange
rate) of any Participating Member State so long as such National Currency Unit
continues to be a Foreign Currency.
(d) Business Days. With respect to any amount denominated or to be
denominated in the Euro or a National Currency Unit, any reference to a
"Business Day" shall be construed as a reference to a day (other than a Saturday
or Sunday) on which banks are generally open for business in New York City and
prime banks in London generally provide quotations for deposits denominated in
the Euro and such National Currency Unit.
(e) Payment to the Lenders. Sections of this Agreement which provide
for payment or repayment in a National Currency Unit shall be construed so that,
in relation to the payment of any amount of Euros or National Currency Units,
such amount shall be made available to the Lenders, in immediately available,
freely transferable, cleared funds to such account with each bank (in such
principal financial center) as each Lender may from time to time nominate for
this purpose in accordance with this Agreement.
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(f) Payments by the Lenders Generally. With respect to the payment of
any amount denominated in the Euro or in a National Currency Unit, the Lenders
shall not be liable to the Borrowers in any way whatsoever for any delay, or the
consequences of any delay, in the crediting to any account of any amount
required by this Agreement to be paid by a Lender if such Lender has made
reasonable efforts to effect all relevant steps to achieve, on the date required
by this Agreement, the payment of such amount in immediately available, freely
transferable, cleared funds (in the Euros or, as the case may be, in a National
Currency Unit) to the account with the bank in the principal financial center in
the Participating Member State which the Borrowers shall have specified for such
purpose. In this paragraph, "all relevant steps" means all such steps as may be
prescribed from time to time by the regulations or operating procedures of such
clearing or settlement system as such Lender may from time to time select for
the purpose of clearing or settling payment of the Euro.
(g) Basis of Accrual. If the basis of accrual of interest or fees
expressed in this Agreement with respect to the currency of any state that
becomes a Participating Member State shall, in a Lender's reasonable judgment,
be inconsistent with any convention or practice in the London Interbank Market
for the basis of accrual of interest or fees in respect of the Euro, or if
interest rate quotes for a National Currency Unit are no longer provided, such
convention or practice shall replace such expressed basis effective as of and
from the date on which such state becomes a Participating Member State;
provided, that if any Loan in the currency of such state is outstanding
immediately prior to such date, such replacement shall take effect, with respect
to such Loan, at the end of the then current Interest Period.
(h) Rounding and Other Consequential Changes. Without prejudice and in
addition to any method of conversion or rounding prescribed by any EMU
Legislation and without prejudice to the respective liabilities for indebtedness
of the Borrowers to the Lenders and of the Lenders to the Borrowers under or
pursuant to this Agreement,
(i) each reference in this Agreement to a minimum amount (or an
integral multiple thereof) in a National Currency Unit to be paid to or by
a Lender shall be replaced by a reference to such reasonably comparable and
convenient amount (or an integral multiple thereof) in Euros as such Lender
may from time to time specify; and
(ii) except as expressly provided in this Agreement, each
provision of this Agreement, including, without limitation, the right to
combine currencies to effect a setoff, shall be subject to such reasonable
changes of interpretation as Lenders may from time to time specify to be
necessary or appropriate to reflect the introduction of or changeover to
the Euro in Participating Member States.
(i) Exchange Indemnification and Increased Costs. The Borrowers shall
from time to time, upon demand from the Lenders, pay to the Lenders the amount
of any loss or cost or increased cost incurred by, or of any reduction in any
amount payable to or in the effective return of its capital to, or of interest
or other return, including principal foregone by any Lender or its holding
company as a result of the introduction of, changeover to or operation of the
Euro in any Participating Member State or Borrowers' election to borrow in a
National Currency Unit and repay
29
in the Euro or to borrow in the Euro and repay in a National Currency Unit other
than any such cost or reduction or amount foregone reflected in the associated
interest rate.
(j) Further Assurances. Borrowers agree, at the request of the
Administrative Agent or a Lender, at the time of or at any time following the
implementation of any EMU Legislation, to enter into an agreement amending this
Agreement in order to reflect the implementation of the EMU Legislation and to
place the parties hereto in the position they would have been in had such EMU
Legislation not been implemented.
SECTION 2.8. [RESERVED.]
SECTION 2.9. FUNDING OF BORROWINGS.
(a) Each Lender will make available each Borrowing in Dollars of
Revolving Loans to be made by it hereunder on the proposed date thereof by wire
transfer in immediately available funds by 11:00 a.m. to the Administrative
Agent at the Payment Office. Swingline Loans will be made as set forth in
Section 2.5. If any Borrowing is to be denominated in a Foreign Currency, not
later than 11:00 a.m. each Lender will make available its Pro Rata Share of such
Borrowing, in immediately available funds and in the Foreign Currency so
requested by the Borrowers at the applicable Foreign Currency Payment Account
for the benefit of the Administrative Agent and otherwise according to the
payment instructions of the Administrative Agent. The Administrative Agent will
make such Loans available to the Borrowers by promptly crediting the amounts
that it receives, in like funds by the close of business on such proposed date,
to an account maintained with the Administrative Agent or at the Borrowers'
option, by effecting a wire transfer of such amounts to an account designated by
the Borrowers to the Administrative Agent.
(b) Unless the Administrative Agent shall have been notified by any
Lender prior to 3:00 p.m. two (2) Business Day prior to the date of a Borrowing
in which such Lender is participating that such Lender will not make available
to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such amount available
to the Administrative Agent on such date, and the Administrative Agent, in
reliance on such assumption, may make available to the Borrowers on such date a
corresponding amount. If such corresponding amount is not in fact made available
to the Administrative Agent by such Lender on the date of such Borrowing, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender together with interest at a rate per annum equal to the
Administrative Agent's cost of funds for such amount for up to two (2) days and
thereafter at the rate specified for such Borrowing. If such Lender does not pay
such corresponding amount forthwith upon the Administrative Agent's demand
therefore, the Administrative Agent shall promptly notify the Borrowers, and the
Borrowers shall immediately pay such corresponding amount to the Administrative
Agent together with interest at the rate specified for such Borrowing. Nothing
in this subsection shall be deemed to relieve any Lender from its obligation to
fund its Pro Rata Share of any Borrowing hereunder or to prejudice any rights
which the Borrowers may have against any Lender as a result of any default by
such Lender hereunder.
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(c) All Revolving Loans shall be made by the Lenders on the basis of
their respective Pro Rata Shares. No Lender shall be responsible for any default
by any other Lender in its obligations hereunder, and each Lender shall be
obligated to make its Loans provided to be made by it hereunder, regardless of
the failure of any other Lender to make its Loans hereunder.
SECTION 2.10. INTEREST ELECTIONS; CONVERSIONS; CONTINUATIONS.
(a) Each Borrowing initially shall be of the Type specified in the
applicable Notice of Borrowing, and in the case of a Eurocurrency Borrowing,
shall have an initial Interest Period as specified in such Notice of Borrowing.
Thereafter, the Borrowers may elect to convert such Borrowing into a different
Type or to continue such Borrowing (subject to satisfaction of any conditions
applicable to Borrowings of that Type), and in the case of a Eurocurrency
Borrowing, may elect Interest Periods therefore, all as provided in this
Section. The Borrowers may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding Loans comprising such Borrowing, and
the Loans comprising each such portion shall be considered a separate Borrowing.
This Section 2.10 shall not apply to Eurocurrency Borrowings denominated in a
Foreign Currency (other than continuations in the same Foreign Currency which
shall be permitted) or Swingline Borrowings, which may not be converted or
continued.
(b) To make an election pursuant to this Section, the Borrowers shall
give the Administrative Agent prior written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing substantially in the form of
Exhibit 2.10 attached hereto (a "NOTICE OF CONVERSION/CONTINUATION") that is to
be converted or continued, as the case may be, (x) prior to 11:00 a.m. one (1)
Business Day prior to the requested date of a conversion into a Base Rate
Borrowing and (y) prior to 11:00 a.m. three (3) Business Days prior to a
continuation of or conversion into a Eurocurrency Borrowing. Each such Notice of
Conversion/Continuation shall be irrevocable and shall specify (i) the Borrowing
to which such Notice of Continuation/Conversion applies and if different options
are being elected with respect to different portions thereof, the portions
thereof that are to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) shall be
specified for each resulting Borrowing); (ii) the effective date of the election
made pursuant to such Notice of Continuation/Conversion, which shall be a
Business Day, (iii) whether the resulting Borrowing is to be a Base Rate
Borrowing or a Eurocurrency Borrowing; and (iv) if the resulting Borrowing is to
be a Eurocurrency Borrowing, the requested currency which shall be the same
currency as the original Borrowing and the duration of the Interest Period
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of "Interest Period". If any such Notice of
Continuation/Conversion requests a Eurocurrency Borrowing but does not specify
an Interest Period, the Borrowers shall be deemed to have selected an Interest
Period of one month. The principal amount of any resulting Borrowing shall
satisfy the minimum borrowing amount for Eurocurrency Borrowings and Base Rate
Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in respect of any
Eurocurrency Borrowing, the Borrowers shall have failed to deliver a Notice of
Conversion/Continuation, then, unless such Borrowing is repaid as provided
herein, the Borrowers shall be deemed to have elected
31
to convert such Borrowing to a Base Rate Borrowing; provided, that if, on the
expiration of any Interest Period in respect of any Eurocurrency Borrowing
denominated in a Foreign Currency, the Borrowers shall have failed to deliver a
Notice of Conversion/Continuation for such Borrowing in the same Foreign
Currency, then, unless such Borrowing is repaid as provided herein, the
Borrowers shall be deemed to have elected to convert such Borrowing to a Base
Rate Borrowing in the Dollar Equivalent of such Borrowing. No Borrowing may be
converted into, or continued as, a Eurocurrency Borrowing if a Default or an
Event of Default exists, unless the Administrative Agent and each of the Lenders
shall have otherwise consented in writing. Further, any Eurocurrency Borrowing
that may not be continued as a Eurocurrency Borrowing as a result of a Default
or Event of Default shall automatically convert to a Base Rate Borrowing at the
end of then applicable Interest Period, and such Borrowing shall be subject to
the increased interest rate specified under Section 2.15(c) both before and
after the conversion thereof. During the existence of a Default or an Event of
Default (unless the Administrative Agent and each of the Lenders shall have
otherwise consented in writing), all Eurocurrency Loans denominated in a Foreign
Currency shall be converted into Dollars upon the expiration of Interest Period
applicable thereto. No conversion of any Eurocurrency Loans shall be permitted
except on the last day of the Interest Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
SECTION 2.11. TERMINATION OF COMMITMENTS.
Unless previously terminated, all Revolving Commitments shall
terminate on the Commitment Termination Date, except that the Swingline
Commitment shall terminate on the Swingline Termination Date.
SECTION 2.12. REPAYMENT OF LOANS.
(a) The outstanding principal amount of all Revolving Loans shall be
due and payable (together with accrued and unpaid interest thereon) on the
Commitment Termination Date; provided, however, the outstanding principal amount
of all Eurocurrency Loans denominated in a Foreign Currency shall be due and
payable (together with accrued and unpaid interest thereon) on the last day of
the Interest Period (unless such Eurocurrency Loans denominated in Foreign
Currency are continued in the same Foreign Currency in accordance with Section
2.10).
(b) The principal amount of each Swingline Loan shall be due and
payable (together with accrued interest thereon) on the earlier of (i) the last
day of the Interest Period applicable to such Loan and (ii) the Swingline
Termination Date.
(c) If the Administrative Agent determines at any time that the sum of
the Dollar Equivalent of the aggregate principal amount of outstanding Loans and
LC Exposures exceeds the Aggregate Revolving Commitment then in effect, then the
Borrowers shall prepay Revolving Loans in an aggregate amount sufficient to
eliminate such excess no later than the second Business Day following such
notice. Promptly upon determining the need to make any such prepayment, the
32
Administrative Agent shall notify the Borrowers of such required prepayment.
Each such prepayment shall be accompanied by a payment of all accrued and unpaid
interest on the Loans prepaid and any applicable breakage fees and funding
losses pursuant to Section 2.22.
SECTION 2.13. EVIDENCE OF INDEBTEDNESS. (a) Each Lender shall
maintain in accordance with its usual practice appropriate records 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 thereon and paid to such Lender from time to time under this
Agreement. The Administrative Agent shall maintain appropriate records in which
shall be recorded (i) the Revolving Commitment of each Lender, (ii) the amount
and currency of each Loan made hereunder by each Lender, the Class and Type
thereof and the Interest Period applicable thereto, (iii) the date of each
continuation thereof pursuant to Section 2.10, (iv) the date of each conversion
of all or a portion thereof to another Type pursuant to Section 2.10, (v) the
date and amount of any principal or interest due and payable or to become due
and payable from the Borrowers to each Lender hereunder in respect of such Loans
and (vi) both the date and amount of any sum received by the Administrative
Agent hereunder from the Borrowers in respect of the Loans and each Lender's Pro
Rata Share thereof. The entries made in such records shall be prima facie
evidence of the existence and amounts of the obligations of the Borrowers
therein recorded; provided, that the failure or delay of any Lender or the
Administrative Agent in maintaining or making entries into any such record or
any error therein shall not in any manner affect the obligation of the Borrowers
to repay the Loans (both principal and unpaid accrued interest) of such Lender
in accordance with the terms of this Agreement.
(b) At the request of any Lender (including the Swingline Lender) at
any time, the Borrowers agree that they will execute and deliver to such Lender
a Revolving Credit Note and, in the case of the Swingline Lender only, a
Swingline Note, payable to the order of such Lender.
SECTION 2.14. OPTIONAL AND MANDATORY PREPAYMENTS.
(a) Optional Prepayment. The Borrowers shall have the right at any
time and from time to time to prepay any Borrowing, in whole or in part, without
premium or penalty, by giving irrevocable written notice (or telephonic notice
promptly confirmed in writing) to the Administrative Agent no later than (i) in
the case of prepayment of any Eurocurrency Borrowing, 11:00 a.m. not less than
three (3) Business Days prior to any such prepayment, (ii) in the case of any
prepayment of any Base Rate Borrowing, not less than one Business Day prior to
the date of such prepayment, and (iii) in the case of Swingline Borrowings,
prior to 11:00 a.m. on the date of such prepayment. Each such notice shall be
irrevocable and shall specify the proposed date of such prepayment and the
principal amount of each Borrowing or portion thereof to be prepaid. Upon
receipt of any such notice, the Administrative Agent shall promptly notify each
affected Lender of the contents thereof and of such Lender's Pro Rata Share of
any such prepayment. If such notice is given, the aggregate amount specified in
such notice shall be due and payable on the date designated in such notice,
together with accrued interest to such date on the amount so prepaid in
accordance with Section 2.15(d); provided, that if a Eurocurrency Borrowing is
prepaid on a date other than the last day of an Interest Period applicable
thereto, the Borrowers shall also pay all amounts required pursuant to Section
2.22. Each partial prepayment of any Loan (other than a Swingline Loan) shall
33
be in an amount that would be permitted in the case of an advance of a Revolving
Borrowing of the same Type pursuant to Section 2.3. Each prepayment of a
Borrowing shall be applied ratably to the Loans comprising such Borrowing.
(b) Mandatory Prepayment. The Borrowers shall be required to make
mandatory prepayments of Borrowings pursuant to and in accordance with Section
2.6(f) and Section 2.12(c). Any such prepayment shall be applied to such Loans
as designated by the Borrowers and, in the event the Borrowers fail to designate
such Loans, to such Loans with the earliest maturity dates, based upon the
remaining terms of their respective Interest Periods, in any case, to the
Lenders in accordance with their Pro Rata Share of such payment; provided, that
the Borrowers shall also pay all amounts required pursuant to Section 2.22.
SECTION 2.15. INTEREST ON LOANS.
(a) The Borrowers shall pay interest (i) on each Base Rate Loan at the
Base Rate in effect from time to time, and (ii) on each Eurocurrency Loan at the
Adjusted LIBOR for the applicable Interest Period then in effect for such
Eurocurrency Loan plus the Applicable Margin in effect from time to time.
(b) The Borrowers shall pay interest on each Swingline Loan at the
Swingline Rate in effect from time to time.
(c) While an Event of Default exists and after acceleration, the
Borrowers shall pay interest with respect to all Loans at the rates otherwise
applicable to such Loans plus an additional 2% per annum. All interest payable
under this clause (c) shall be due and payable on demand. While an Event of
Default exists and after acceleration, the Applicable Percentage for the letter
of credit fees provided for under Section 2.16(c) shall be increased by two
percent (2.0%). All such letter of credit fees under this clause (c) shall be
due and payable on demand.
(d) Interest on the principal amount of all Loans shall accrue from
and including the date such Loans are made to but excluding the date of any
repayment thereof, provided such Loans are repaid within the times provided for
hereunder. Interest on all outstanding Base Rate Loans shall be payable
quarterly in arrears on the last day of each March, June, September and December
and on the Commitment Termination Date. Interest on all outstanding Eurocurrency
Loans shall be payable on the last day of each Interest Period applicable
thereto, and, in the case of any Eurocurrency Loans having an Interest Period in
excess of three months or 90 days, respectively, on each day which occurs every
three months or 90 days, as the case may be, after the initial date of such
Interest Period, and on the Commitment Termination Date. Interest on each
Swingline Loan shall be payable on the maturity date of such Loan, which shall
be the last day of the Interest Period applicable thereto, and on the Swingline
Termination Date. Interest on any Loan which is converted into a Loan of another
Type or which is repaid or prepaid shall be payable on the date of such
conversion or on the date of any such repayment or prepayment (on the amount
repaid or prepaid) thereof.
34
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder and shall promptly notify the Borrowers and
the Lenders of such rate in writing (or by telephone, promptly confirmed in
writing). Any such determination shall be conclusive and binding for all
purposes, absent manifest error.
SECTION 2.16. FEES.
(a) Administrative Agent's Fees. The Borrowers shall pay to the
Administrative Agent for its own account fees in the amounts and at the times
previously agreed upon by the Borrowers and the Administrative Agent.
(b) Commitment Fee. The Borrowers agree to pay to the Administrative
Agent for the account of each Lender a commitment fee, which fee shall accrue at
the Applicable Percentage on the average daily amount of the unused Revolving
Commitment of such Lender during the Availability Period; provided, that if any
Lender continues to have any Revolving Credit Exposure after the Commitment
Termination Date, then the commitment fee shall continue to accrue on the amount
of such Lender's unused Revolving Commitment from and after the Commitment
Termination Date to the date that such Lender's Revolving Commitment has been
terminated. Accrued commitment fees shall be payable in arrears on the last day
of each March, June, September and December of each year and on the Commitment
Termination Date, commencing on the first such date after the Funding Date;
provided further, that any commitment fees accruing after the Commitment
Termination Date shall be payable on demand. For purposes of computing
commitment fees with respect to the Revolving Commitments, the Revolving
Commitment of each Lender shall be deemed used to the extent of the outstanding
Revolving Loans and LC Exposure of such Lender. Any Swingline Loans outstanding
shall be treated as if such Loan were unused for purposes of this clause (b).
(c) Letter of Credit Fees. The Borrowers agree to pay (i) to the
Administrative Agent, for the account of each Lender, a letter of credit fee
with respect to its participation in each Letter of Credit, which shall accrue
at the Applicable Percentage then in effect on the average daily amount of such
Lender's LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) attributable to such Letter of Credit during the period from
and including the date of issuance of such Letter of Credit to but excluding the
date on which such Letter of Credit expires or is drawn in full (including
without limitation any LC Exposure that remains outstanding after the Commitment
Termination Date) and (ii) to the Issuing Bank for its own account a fronting
fee, which shall accrue at the rate of 0.125% per annum on the average daily
amount of the LC Exposure (excluding any portion thereof attributable to
Unreimbursed LC Disbursements) during the Availability Period (or until the date
that such Letter of Credit is irrevocably cancelled, whichever is later), as
well as the Issuing Bank's standard fees with respect to issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings
thereunder. While an Event of Default exists or after acceleration, at the
option of the Required Lenders, the Borrowers shall pay to the Administrative
Agent, for the account of each Lender, a letter of credit fee with respect to
its participation in each Letter of Credit, which shall accrue at the rate
otherwise applicable plus an additional 2% per annum until the date on which
such Letter of Credit expires or is drawn in full
35
(including without limitation any LC Exposure that remains outstanding after the
Commitment Termination Date).
(d) Payments. Accrued fees shall be payable quarterly in arrears on
the last day of each of March, June, September and December, commencing on the
first such date after the Funding Date and on the Commitment Termination Date
(and if later, the date the Loans and LC Exposure shall be repaid in their
entirety).
SECTION 2.17. EFFECTIVE DATE FOR ADJUSTMENT TO APPLICABLE PERCENTAGE
AND APPLICABLE MARGIN. The Applicable Percentage and Applicable Margin shall be
determined and adjusted quarterly on the date that is two Business Days after
the date on which the Borrowers provide the officer's certificate in accordance
with the provisions of Section 5.1.(c) (each "Margin Calculation Date");
provided, however that (i) the Applicable Percentage and the Applicable Margin
from the Closing Date until the first Margin Calculation Date subsequent to the
Funding Date shall be at Level IV (as set forth in Schedule I), and, thereafter,
such level shall be determined by the then current Leverage Ratio, and (ii) if
the Borrowers fail to provide the officer's certificate to the Administrative
Agent by the date such certificate is required to be delivered under Section
5.1.(c), the Applicable Percentage and the Applicable Margin from such date
shall be at Level V until such time as an appropriate officer's certificate is
provided, whereupon the level shall be determined by the then current Leverage
Ratio. Except as set forth above, the Applicable Percentage and the Applicable
Margin shall be effective from one Margin Calculation Date until the next Margin
Calculation Date
SECTION 2.18. COMPUTATION OF INTEREST AND FEES. Interest based on the
prime lending rate hereunder shall be computed on the basis of a year of 365
days (or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and all
fees shall be computed on the basis of a year of 360 days (except for any
Eurocurrency Loans outstanding in British pounds sterling, Australia dollars,
Canadian dollars, Hong Kong dollars and South Africa rand, each of which shall
be computed on the basis of a year of 365 or 366 days, as the case may be) and
paid for the actual number of days elapsed (including the first day but
excluding the last day). Each determination by the Administrative Agent of an
interest amount or fee hereunder shall be made in good faith and, except for
manifest error, shall be final, conclusive and binding for all purposes.
SECTION 2.19. INABILITY TO DETERMINE INTEREST RATES. If prior to the
commencement of any Interest Period for any Eurocurrency Borrowing,
(i) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrowers) that, by
reason of circumstances affecting the relevant interbank market, adequate
means do not exist for ascertaining the LIBOR for such Interest Period, or
(ii) the Administrative Agent shall have received notice from the
Required Lenders that the Adjusted LIBOR does not adequately and fairly
reflect the cost to such
36
Lenders of making, funding or maintaining their Eurocurrency Loans for such
Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrowers and to the Lenders as soon as
practicable thereafter. In the case of Eurocurrency Loans, until the
Administrative Agent shall notify the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) the obligations of
the Lenders to make Eurocurrency Revolving Loans or to continue or convert
outstanding Loans as or into Eurocurrency Loans shall be suspended and (ii) all
such affected Loans shall automatically, on the last day of the then current
Interest Period applicable thereto unless the Borrowers prepay such Loans in
accordance with this Agreement, (A) if such Loans are Eurocurrency Loans, be
converted into Base Rate Loans and (B) if such Loans are Eurocurrency Loans
denominated in a Foreign Currency, be exchanged for the Dollar Equivalent
thereof and converted into Base Rate Loans. Unless the Borrowers notify the
Administrative Agent at least one Business Day before the date of any
Eurocurrency Borrowing for which a Notice of Revolving Borrowing has previously
been given that it elects not to borrow on such date, then such Borrowing shall
be made as a Base Rate Borrowing.
SECTION 2.20. ILLEGALITY. If any Change in Law shall make it unlawful
or impossible for any Lender to make, maintain or fund any Eurocurrency Loan and
such Lender shall so notify the Administrative Agent, the Administrative Agent
shall promptly give notice thereof to the Borrowers and the other Lenders,
whereupon until such Lender notifies the Administrative Agent and the Borrowers
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Lender to make Eurocurrency Revolving Loans or to continue or
convert outstanding Loans as or into Eurocurrency Loans shall be suspended. In
the case of the making of a Eurocurrency Borrowing, such Lender's Revolving Loan
shall be made as a Base Rate Loan as part of the same Borrowing for the same
Interest Period and if the affected Eurocurrency Loan is then outstanding, such
Loan shall be converted to a Base Rate Loan either (i) on the last day of the
then current Interest Period applicable to such Eurocurrency Loan if such Lender
may lawfully continue to maintain such Loan to such date or (ii) immediately if
such Lender shall determine that it may not lawfully continue to maintain such
Eurocurrency Loan to such date. In the case of the making of a Eurocurrency
Borrowing denominated in a Foreign Currency, such Lender's Revolving Loan shall
be made as a Base Rate Loan as part of the same Borrowing for the same Interest
Period and if the affected Loan is then outstanding, such Loan shall be
exchanged for the Dollar Equivalent thereof and converted to a Base Rate Loan
either (i) on the last day of the then current Interest Period applicable to
such Loan if such Lender may lawfully continue to maintain such Loan to such
date or (ii) immediately if such Lender shall determine that it may not lawfully
continue to maintain such Loan to such date. Notwithstanding the foregoing, the
affected Lender shall, prior to giving such notice to the Administrative Agent,
designate a different Applicable Lending Office if such designation would avoid
the need for giving such notice and if such designation would not otherwise be
disadvantageous to such Lender in the good faith exercise of its discretion.
SECTION 2.21. INCREASED COSTS.
(a) If any Change in Law shall:
37
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement that is not otherwise included in the
determination of the Adjusted LIBOR hereunder against assets of,
deposits with or for the account of, or credit extended by, any Lender
(except any such reserve requirement reflected in the Adjusted LIBOR )
or the Issuing Bank; or
(ii) impose on any Lender or on the Issuing Bank or the
eurocurrency interbank market any other condition affecting this
Agreement or any Eurocurrency Loans made by such Lender or any Letter
of Credit or any participation therein;
and the result of the foregoing is to increase the cost to such Lender of
making, converting into, continuing or maintaining a Eurocurrency Loan, or to
increase the cost to such Lender or the Issuing Bank of participating in or
issuing any Letter of Credit or to reduce the amount received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or any
other amount), then the Borrowers shall promptly pay, upon written notice from
and demand by such Lender on the Borrowers (with a copy of such notice and
demand to the Administrative Agent), to the Administrative Agent for the account
of such Lender, within five Business Days after the date of such notice and
demand, additional amount or amounts sufficient to compensate such Lender or the
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that on or
after the date of this Agreement any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's or the Issuing Bank's capital (or on the capital of such Lender's or
the Issuing Bank's parent corporation) as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit to a level below that
which such Lender or the Issuing Bank or such Lender's or the Issuing Bank's
parent corporation could have achieved but for such Change in Law (taking into
consideration such Lender's or the Issuing Bank's policies or the policies of
such Lender's or the Issuing Bank's parent corporation with respect to capital
adequacy) then, from time to time, within five (5) Business Days after receipt
by the Borrowers of written demand by such Lender (with a copy thereof to the
Administrative Agent), the Borrowers shall pay to such Lender such additional
amounts as will compensate such Lender or the Issuing Bank or such Lender's or
the Issuing Bank's parent corporation for any such reduction suffered.
(c) If and so long as any Lender is required to make special deposits
with the Bank of England, to maintain reserve asset ratios or to pay fees, in
each case in respect of such Lender's Eurocurrency Loans denominated in any
Foreign Currency, such Lender may require the Borrowers to pay,
contemporaneously with each payment of interest on each of such Loans,
additional interest on such Loan at a rate per annum equal to the Mandatory
Costs Rate calculated in accordance with the formula and in the manner set forth
in Exhibit 2.21 hereto.
(d) If and so long as any Lender is required to comply with reserve
assets, liquidity, cash margin or other requirements of any monetary or other
authority (including any such requirement imposed by the European Central Bank
or the European System of Central Banks, but excluding requirements reflected in
the Statutory Reserve Rate or the Mandatory Costs Rate) in respect of any of
such Lender's Eurocurrency Loans denominated in a Foreign Currency, such
38
Lender may require the Borrowers to pay, contemporaneously with each payment of
interest on each of such Loans subject to such requirements, additional interest
on such Loan at a rate per annum specified by such Lender to be the cost to such
Lender of complying with such requirement in relation to such Loan.
(e) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or
such Lender's or the Issuing Bank's parent corporation, as the case may be,
specified in paragraph (a), (b), (c) or (d) of this Section shall be delivered
to the Borrowers (with a copy to the Administrative Agent) and shall be
conclusive, absent manifest error. The Borrowers shall pay any such Lender or
the Issuing Bank, as the case may be, such amount or amounts within 10 days
after receipt thereof.
(f) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided,
that the Borrowers shall not be required to compensate a Lender or the Issuing
Bank under this Section for any increased costs or reductions incurred more than
120 days prior to the date that such Lender or the Issuing Bank notifies the
Borrowers of such increased costs or reductions and of such Lender's or the
Issuing Bank's intention to claim compensation therefor.
SECTION 2.22. FUNDING INDEMNITY. In the event of (a) the payment of
any principal of a Eurocurrency Loan other than on the last day of the Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion or continuation of a Eurocurrency Loan other than on the last day
of the Interest Period applicable thereto or (c) the failure by the Borrowers to
borrow, prepay, convert or continue any Eurocurrency Loan on the date specified
in any applicable notice (regardless of whether such notice is withdrawn or
revoked), then, in any such event, the Borrowers shall compensate each Lender,
within five (5) Business Days after written demand from such Lender, for any
loss, cost or expense attributable to such event. In the case of a Eurocurrency
Loan, such loss, cost or expense shall be deemed to include an amount determined
by such Lender to be the excess, if any, of (A) the amount of interest that
would have accrued on the principal amount of such Eurocurrency Loan if such
event had not occurred at the Adjusted LIBOR applicable to such Eurocurrency
Loan for the period from the date of such event to the last day of the then
current Interest Period therefor (or in the case of a failure to borrow, convert
or continue, for the period that would have been the Interest Period for such
Eurocurrency Loan) over (B) the amount of interest that would accrue on the
principal amount of such Eurocurrency Loan for the same period if the Adjusted
LIBOR were set on the date such Eurocurrency Loan was prepaid or converted or
the date on which the Borrowers failed to borrow, convert or continue such
Eurocurrency Loan. A certificate as to any additional amount payable under this
Section 2.22 submitted to the Borrowers by any Lender shall be conclusive,
absent manifest error.
SECTION 2.23. TAXES.
(a) Any and all payments by or on account of any obligation of either
Borrower hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided, that if either Borrower shall be
required to deduct any Indemnified Taxes or Other
39
Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, any Lender or the Issuing Bank (as the case may be) shall receive an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Borrower shall make such deductions and (iii) such Borrower shall pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) In addition, such Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Each Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within five (5) Business Days after written demand
therefore, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent, such Lender or the Issuing Bank, as the case may be,
on or with respect to any payment by or on account of any obligation of either
Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrowers by a Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by a Borrower to a Governmental Authority, the Borrowers shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Each Foreign Lender shall deliver to the Borrowers (with a copy to
the Administrative Agent), at the time or times prescribed by applicable law,
such properly completed and executed documentation prescribed by applicable law
or reasonably requested by the Borrowers as will permit all payments under this
Agreement to be made without withholding. Without limiting the generality of the
foregoing, each Foreign Lender agrees that it will deliver to the Administrative
Agent and the Borrowers (or in the case of a Participant, to the Lender from
which the related participation shall have been purchased) (i) two (2) duly
completed copies of Internal Revenue Service Form W-8ECI or W-8BEN, or any
successor form thereto, as the case may be, certifying in each case that such
Foreign Lender is entitled to receive payments made by the Borrowers hereunder
and under the Notes payable to it, without deduction or withholding of any
United States federal income taxes and (ii) a duly completed Internal Revenue
Service Form W-8 or W-9, or any successor form thereto, as the case may be, to
establish an exemption from United State backup withholding tax. Each such
Foreign Lender shall deliver to the Borrowers and the Administrative Agent such
forms on or before the date that it becomes a party to this Agreement (or in the
case of a Participant, on or before the date such Participant purchases the
related participation). In addition, each such Lender shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously delivered by
such Lender. Each such Lender shall promptly notify the Borrowers and the
40
Administrative Agent at any time that it determines that it is no longer in a
position to provide any previously delivered certificate to the Borrowers (or
any other form of certification adopted by the U.S. taxing authorities for such
purpose) which notice shall create in Borrowers the right to replace such Lender
pursuant to Section 2.25 hereof.
(f) Each Lender agrees upon the request of the Borrowers and at the
Borrowers' expense to complete, accurately and in a manner reasonably
satisfactory to the Borrowers and the Administrative Agent, and to execute,
arrange for any required certification of, and deliver to the Borrowers (with a
copy to the Administrative Agent) (or to such government or taxing authority as
the Borrowers or Administrative Agent reasonably directs), any other form or
document that may be required under the laws of any jurisdiction outside the
United States to allow the Borrowers to make a payment under this Agreement or
the other Loan Documents without any deduction or withholding for or on account
of any taxes of the type described in this Section 2.23 or with any such
deduction or withholding for or on account of such taxes at a reduced rate, in
each case so long as such Lender is (i) legally entitled to provide such
certification and deliver such form or document and (ii) such action is
consistent with its overall tax policies and is not otherwise, in the judgment
of such Lender, impractical or disadvantageous in any material respect to such
Lender.
(g) Notwithstanding any provision of Section 2.23 above to the
contrary, the Borrowers shall not have any obligations to pay any taxes or to
indemnify any Lender for such taxes pursuant to this Section 2.23 to the extent
that such taxes result from (i) the failure of any Lender to comply with its
obligations pursuant to Section 2.23(f) or (ii) any representation made on Form
1001, 4224 or W-8 or successor applicable form or certification by any Lender
incurring such taxes proving to have been incorrect, false or misleading in any
material respect when so made or deemed to be made or (iii) such Lender changing
its Applicable Lending Office to a jurisdiction in which such taxes arise,
except to the extent in the judgment of such Lender such change was required by
the terms of this Agreement.
(h) To the extent that the payment of any Lender's Indemnified Taxes
or Other Taxes by the Borrowers hereunder gives rise from time to time to a Tax
Benefit to such lender in any jurisdiction other than the jurisdiction which
imposed such Indemnified Taxes or Other Taxes, such Lender shall pay to the
Borrowers the amount of each such Tax Benefit so recognized or received. The
amount of each Tax Benefit and, therefore, payment to the Borrowers will be
determined from time to time by the relevant Lender in its sole discretion,
which determination shall be binding and conclusive on all parties hereto. Each
such payment will be due and payable by such Lender to the Borrowers within a
reasonable time after the filing of the tax return in which such Tax Benefit is
recognized or, in the case of any tax refund, after the refund is received;
provided, however, if at any time thereafter such Lender is required to rescind
such Tax Benefit or such Tax Benefit is otherwise disallowed or nullified, the
Borrowers shall promptly, after notice thereof from such Lender, repay to such
Lender the amount of such Tax Benefit previously paid to such Lender and which
has been rescinded, disallowed or nullified. For purposes hereof, the term "Tax
Benefit" shall mean the amount by which any Lender's income tax liability for
the taxable period in question is reduced below what would have been payable had
the Borrowers not been required to pay such Lender's taxes hereunder.
41
SECTION 2.24. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS.
(a) The Borrowers shall make each payment required to be made by them
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.21, 2.22 or 2.23, or
otherwise) (i) prior to 12:00 noon, in the case of payments in Dollars, and (ii)
no later than 11:00 a.m. (at the Applicable Lending Office where the applicable
Foreign Currency Payment Account is maintained) in the case of payments in a
Foreign Currency, on the date when due, in immediately available funds, free and
clear of any claims or defenses, and without deduction, set-off or counterclaim
of any kind. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at the Payment Office or
at the applicable Foreign Currency Payment Account, as the case may be, except
payments to be made directly to the Issuing Bank or Swingline Lender as
expressly provided herein and except that payments pursuant to Sections 2.21,
2.22 and 2.23 and 10.3 shall be made directly to the Persons entitled thereto.
The Administrative Agent shall distribute any such payments received by it for
the account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be made payable for the period of such extension. All payments
hereunder shall be made in Dollars; provided, however, that all payments of
principal and interest with respect to Eurocurrency Loans denominated in a
Foreign Currency shall be made in accordance with Section 2.6(c).
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans that would result in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in
LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in LC Disbursements and Swingline Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and
participations in LC Disbursements and Swingline Loans; provided, that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this
42
paragraph shall not be construed to apply to any payment made by the Borrowers
pursuant to and in accordance with the express terms of this Agreement or any
payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC Disbursements or
Swingline Loans to any assignee or participant, other than to the Borrowers or
any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). Each of the Borrowers consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against either Borrower rights of set-off and counterclaim with respect
to such participation as fully as if such Lender were a direct creditor of a
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrowers prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrowers will not make such payment, the Administrative
Agent may assume that the Borrowers have made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the
Lenders or the Issuing Bank, as the case may be, the amount or amounts due. In
such event, if the Borrowers have not in fact made such payment, then each of
the Lenders or the Issuing Bank, as the case may be, severally agrees to repay
to the Administrative Agent forthwith on demand the amount so distributed to
such Lender or Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.5(b), 2.9, 2.24(d) 2.26(d), or 10.3(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.25. MITIGATION OF OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) If any Lender requests compensation under Section 2.21, or if
either Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.23,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the sole judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable under Section 2.21 or Section 2.23, as the
case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrowers hereby agree to pay all costs and expenses incurred by any
Lender in connection with such designation or assignment.
(b) If any Lender requests compensation under Section 2.21, or if
either Borrower is required to pay any additional amount to any Lender or any
Governmental Authority of the account of any Lender pursuant to Section 2.23, or
any Lender is unable to make Eurocurrency Loans
43
for the reasons set forth in Section 2.20 or if any Lender defaults in its
obligation to fund Loans hereunder, then the Borrowers may, at their sole
expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance with
and subject to the restrictions set forth in Section 10.4(b) all its interests,
rights and obligations under this Agreement to an assignee that shall assume
such obligations (which assignee may be another Lender); provided, that (i) the
Borrowers shall have received the prior written consent of the Administrative
Agent, which consent shall not be unreasonably withheld, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal amount of
all Loans owed to it, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (in the case of such
outstanding principal and accrued interest) and from the Borrowers (in the case
of all other amounts) and (iii) in the case of a claim for compensation under
Section 2.21 or payments required to be made pursuant to Section 2.23, such
assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrowers to require such assignment and delegation cease to
apply.
SECTION 2.26. LETTERS OF CREDIT.
(a) During the Availability Period, the Issuing Bank, in reliance upon
the agreements of the other Lenders pursuant to Section 2.26(d), agrees to
issue, at the request of the Borrowers, Letters of Credit for the account of the
Borrowers on the terms and conditions hereinafter set forth; provided, that (i)
each Letter of Credit shall be a standby letter of credit which shall expire on
the earlier of (A) the date one year after the date of issuance of such Letter
of Credit (or in the case of any renewal or extension thereof, one year after
such renewal or extension) and (B) the date that is five (5) Business Days prior
to the Commitment Termination Date; (ii) each Letter of Credit shall be in a
stated amount of at least $100,000; and (iii) the Borrowers may not request any
Letter of Credit, if, after giving effect to such issuance (A) the aggregate LC
Exposure would exceed the LC Commitment or (B) the aggregate LC Exposure, plus
the aggregate outstanding Revolving Loans of all Lenders would exceed the
Aggregate Revolving Commitments. Upon the issuance of each Letter of Credit,
each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Issuing Bank without recourse a participation in
such Letter of Credit equal to such Lender's Pro Rata Share of the aggregate
amount available to be drawn under such Letter of Credit. Each issuance of a
Letter of Credit shall be deemed to utilize the Revolving Commitment of each
Lender by an amount equal to the amount of such participation.
(b) To request the issuance of a Letter of Credit (or any amendment,
renewal or extension of an outstanding Letter of Credit), the Borrowers shall
give the Issuing Bank and the Administrative Agent irrevocable written notice at
least three (3) Business Days prior to the requested date of such issuance
specifying the date (which shall be a Business Day) such Letter of Credit is to
be issued (or amended, extended or renewed, as the case may be), the expiration
date of such Letter of Credit, the amount of such Letter of Credit, the name and
address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. In addition
to the satisfaction of the conditions in Article III, the issuance of such
Letter of Credit (or any amendment which increases the amount of such Letter of
Credit) will be
44
subject to the further conditions that such Letter of Credit shall be in such
form and contain such terms as the Issuing Bank shall approve and that the
Borrowers shall have executed and delivered any additional applications,
agreements and instruments relating to such Letter of Credit as the Issuing Bank
shall reasonably require; provided, that in the event of any conflict between
such applications, agreements or instruments and this Agreement, the terms of
this Agreement shall control.
(c) At least two Business Days prior to the issuance of any Letter of
Credit, the Issuing Bank will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received such notice
and if not, the Issuing Bank will provide the Administrative Agent with a copy
thereof. Unless the Issuing Bank has received notice from the Administrative
Agent on or before the Business Day immediately preceding the date the Issuing
Bank is to issue the requested Letter of Credit (1) directing the Issuing Bank
not to issue the Letter of Credit because such issuance is not then permitted
hereunder because of the limitations set forth in Section 2.26(a) or that one or
more conditions specified in Article III are not then satisfied, then, subject
to the terms and conditions hereof, the Issuing Bank shall, on the requested
date, issue such Letter of Credit in accordance with the Issuing Bank's usual
and customary business practices.
(d) The Issuing Bank shall examine all documents purporting to
represent a demand for payment under a Letter of Credit promptly following its
receipt thereof. The Issuing Bank shall notify the Borrowers and the
Administrative Agent of such demand for payment and whether the Issuing Bank has
made or will make a LC Disbursement thereunder; provided, that any failure to
give or delay in giving such notice shall not relieve the Borrowers of their
obligation to reimburse the Issuing Bank and the Lenders with respect to such LC
Disbursement. The Borrowers shall be irrevocably and unconditionally obligated
to reimburse the Issuing Bank for any LC Disbursements paid by the Issuing Bank
in respect of such drawing, without presentment, demand or other formalities of
any kind. Unless the Borrowers shall have notified the Issuing Bank and the
Administrative Agent prior to 11:00 a.m. on the Business Day immediately prior
to the date on which such drawing is honored that the Borrowers intend to
reimburse the Issuing Bank for the amount of such drawing in funds other than
from the proceeds of Revolving Loans, the Borrowers shall be deemed to have
timely given a Notice of Revolving Borrowing to the Administrative Agent
requesting the Lenders to make a Base Rate Borrowing on the date on which such
drawing is honored in an exact amount due to the Issuing Bank; provided, that
for purposes solely of such Borrowing, the conditions precedents set forth in
Section 3.2 hereof shall not be applicable. The Administrative Agent shall
notify the Lenders of such Borrowing in accordance with Section 2.3, and each
Lender shall make the proceeds of its Base Rate Loan included in such Borrowing
available to the Administrative Agent for the account of the Issuing Bank in
accordance with Section 2.9. The proceeds of such Borrowing shall be applied
directly by the Administrative Agent to reimburse the Issuing Bank for such LC
Disbursement.
(e) If for any reason a Base Rate Borrowing may not be (as determined
in the sole discretion of the Administrative Agent), or is not, made in
accordance with the foregoing provisions, then each Lender (other than the
Issuing Bank) shall be obligated to fund the participation that such Lender
purchased pursuant to subsection (a) in an amount equal to its Pro Rata Share of
such LC Disbursement on and as of the date which such Base Rate Borrowing should
have occurred. Each
45
Lender's obligation to fund its participation shall be absolute and
unconditional and shall not be affected by any circumstance, including without
limitation (i) any setoff, counterclaim, recoupment, defense or other right that
such Lender or any other Person may have against the Issuing Bank or any other
Person for any reason whatsoever, (ii) the existence of a Default or an Event of
Default or the termination of the Aggregate Revolving Commitments, (iii) any
adverse change in the condition (financial or otherwise) of either Borrower or
any Subsidiary, (iv) any breach of this Agreement by either Borrower or any
other Lender, (v) any amendment, renewal or extension of any Letter of Credit or
(vi) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing. On the date that such participation is required
to be funded, each Lender shall promptly transfer, in immediately available
funds, the amount of its participation to the Administrative Agent for the
account of the Issuing Bank. Whenever, at any time after the Issuing Bank has
received from any such Lender the funds for its participation in a LC
Disbursement, the Issuing Bank (or the Administrative Agent on its behalf)
receives any payment on account thereof, the Administrative Agent or the Issuing
Bank, as the case may be, will distribute to such Lender its Pro Rata Share of
such payment; provided, that if such payment is required to be returned for any
reason to the Borrowers or to a trustee, receiver, liquidator, custodian or
similar official in any bankruptcy proceeding, such Lender will return to the
Administrative Agent or the Issuing Bank any portion thereof previously
distributed by the Administrative Agent or the Issuing Bank to it.
(f) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (d) of this Section 2.26 on the due
date therefore, such Lender shall pay interest to the Issuing Bank (through the
Administrative Agent) on such amount from such due date to the date such payment
is made at a rate per annum equal to the Federal Funds Rate; provided, that if
such Lender shall fail to make such payment to the Issuing Bank within three (3)
Domestic Business Days of such due date, then, retroactively to the due date,
such Lender shall be obligated to pay interest on such amount at the Default
Rate.
(g) If any Event of Default shall occur and be continuing, on the
Business Day that the Borrowers receive notice from the Administrative Agent or
the Required Lenders demanding the deposit of cash collateral pursuant to this
paragraph, the Borrowers shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided, that the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, with demand or notice of any kind, upon the
occurrence of any Event of Default with respect to either Borrower described in
clause (g) or (h) of Section 8.1. Such deposit shall be held by the
Administrative Agent as collateral in an interest bearing account (which account
shall be chosen in the sole discretion of the Administrative Agent and at the
Borrowers' risk and expense) for the payment and performance of the obligations
of the Borrowers under this Agreement. The Administrative Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal,
over such account. Interest and profits on such investments shall accumulate in
such account. Moneys in such account shall be applied by the Administrative
Agent to reimburse the Issuing Bank for LC Disbursements for which it had not
been reimbursed and to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the Borrowers for the LC
Exposure at such time or, if the maturity of the Loans has been accelerated,
with the consent of the Required Lenders, be
46
applied to satisfy other obligations of the Borrowers under this Agreement. If
the Borrowers are required to provide an amount of cash collateral hereunder as
a result of the occurrence of an Event of Default, such amount (to the extent
not so applied as aforesaid) shall be returned to the Borrowers within three (3)
Business Days after all Events of Default have been cured or waived.
(h) Promptly following the end of each fiscal quarter, the Issuing
Bank shall deliver (through the Administrative Agent) to each Lender and the
Borrowers a report describing the aggregate Letters of Credit outstanding at the
end of such fiscal quarter. Upon the request of any Lender from time to time,
the Issuing Bank shall deliver to such Lender any other information reasonably
requested by such Lender with respect to each Letter of Credit then outstanding.
(i) The Borrowers' obligation to reimburse LC Disbursements hereunder
shall be absolute, unconditional and irrevocable and shall be performed strictly
in accordance with the terms of this Agreement under all circumstances
whatsoever and irrespective of any of the following circumstances:
(i) Any lack of validity or enforceability of any Letter of
Credit or this Agreement;
(ii) The existence of any claim, set-off, defense or other right
which either Borrower or any Subsidiary or Affiliate of either Borrower may
have at any time against a beneficiary or any transferee of any Letter of
Credit (or any Persons or entities for whom any such beneficiary or
transferee may be acting), any Lender (including the Issuing Bank) or any
other Person, whether in connection with this Agreement or the Letter of
Credit or any document related hereto or thereto or any unrelated
transaction;
(iii) Any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect;
(iv) Payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document to the Issuing Bank that does not
comply with the terms of such Letter of Credit;
(v) Any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of this
Section, constitute a legal or equitable discharge of, or provide a right
of setoff against, the Borrowers' obligations hereunder; or
(vi) The existence of a Default or an Event of Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related
Party of any of the foregoing shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to above), or any error, omission, interruption, loss
47
or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the Issuing Bank;
provided, that nothing in this Agreement, any Letter of Credit or any other Loan
Document shall be construed to excuse the Issuing Bank from liability to the
Borrowers to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrowers to the
extent permitted by applicable law) suffered by either Borrower that are caused
by the Issuing Bank's failure to exercise care when determining whether drafts
or other documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree, that in the absence of gross
negligence or willful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing Bank shall be
deemed to have exercised care in each such determination. In furtherance of the
foregoing and without limiting the generality thereof, the parties agree that,
with respect to documents presented that appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
Unless otherwise expressly agreed by the Issuing Bank and the Borrowers when a
Letter of Credit is issued and subject to applicable laws, performance under
Letters of Credit by the Issuing Bank, its correspondents, and the beneficiaries
thereof will be governed by the rules of the "International Standby Practices
1998" (ISP98) (or such later revision as may be published by the Institute of
International Banking Law & Practice on any date any Letter of Credit may be
issued) and to the extent not inconsistent therewith, the governing law of this
Agreement set forth in Section 10.5.
SECTION 2.27. BORROWERS' REPRESENTATIVE. Each of the Borrowers hereby
appoints Xxxxxxxx as, and Xxxxxxxx shall act under this Agreement as, the agent,
attorney-in-fact and legal representative of the Borrowers for all purposes
hereunder, including, without limitation, requesting Borrowings and Letters of
Credit and receiving account statements and other notices and communications to
the Borrowers (or either of them) from the Administrative Agent or any Lender.
Accordingly, the parties agree that any and all actions to be taken hereunder by
the Borrowers may be taken by Xxxxxxxx for and on behalf of the Borrowers, and
any and all notices and communications permitted or required to be made by the
Administrative Agent or any Lender hereunder to the Borrowers, shall be deemed
made to each of the Borrowers if delivered to Xxxxxxxx. The Administrative Agent
and each Lender may rely, and shall be fully protected in relying, on any Notice
of Borrowing, Notice of Conversion/Continuation, request for a Letter of Credit,
disbursement instruction, report, information or any other notice or
communication made or given by Xxxxxxxx, whether in its own name, on behalf of
the other Borrower or on behalf of "the Borrowers", and neither the
Administrative Agent nor any Lender shall have any obligation to make any
inquiry or request any confirmation from or on behalf of the other Borrower as
to the binding effect on it of any such notice, request, instruction, report,
information, other notice or communications. Xxxxxxxx may from time to time
tender to the Administrative Agent and the Lenders, representations or
performance of covenants hereunder and take actions in respect of other matters
on behalf of the Borrowers, and any such representations, performance or actions
by
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Xxxxxxxx, if accepted by the Administrative Agent or any such Lender, as the
case may be, shall (irrespective of whether the particular matter is otherwise
authorized elsewhere herein) be conclusively deemed done with the authorization
of and on behalf of the other Borrower, as the circumstances and the specific
action taken may indicate. The Administrative Agent and each of the Lenders may
in all cases rely on communications from, and representations and actions taken
by, Xxxxxxxx as though given, delivered, made or taken by or from the Borrowers,
and all such communications, representations and actions shall be binding upon
each Borrower on whose behalf such communications, representations or actions
were purportedly taken by Xxxxxxxx.
SECTION 2.28. JOINT AND SEVERAL LIABILITY.
(a) Each of the Borrowers acknowledges and agrees that (i) it is a
co-borrower hereunder and shall be jointly and severally, with the other
Borrower, directly and primarily liable for the Obligations regardless of which
Borrower actually receives Loans or other extensions of credit hereunder or the
amount of such Loans or other extensions of credit received or the manner in
which the Administrative Agent and/or any Lender accounts for such Loans or
other extensions of credit on its books and records, (ii) each of the Borrowers
shall have the obligations of co-maker and shall be primary obligors with
respect to all Loans, the Notes, the Letters of Credit and the other
Obligations, it being agreed that such extensions of credit to each Borrower
inure to the benefit of both Borrowers, and (iii) the Administrative Agent and
each of the Lenders is relying on such joint and several liability of the
Borrowers as co-makers in extending the Loans and issuing the Letters of Credit
hereunder. Each Borrower's obligations with respect to Loans made to it or with
respect to any Letters of Credit issued for its account, and each Borrower's
obligations arising as a result of the joint and several liability of the
Borrowers hereunder, with respect to Loans made to the other Borrower hereunder
or with respect to any Letters of Credit issued for the account of the other
Borrower hereunder, shall be separate and distinct obligations, but all such
Obligations shall be primary obligations of each Borrower. Each Borrower hereby
unconditionally and irrevocably agrees that upon default in the payment when due
(whether at stated maturity, by acceleration or otherwise) of any principal of,
or interest on, any Obligation payable by it to the Lender, it will forthwith
pay the same, without notice of demand.
(b) Each Borrower's obligations arising as a result of the joint and
several liability of the Borrowers hereunder with respect to Obligations of the
other Borrower hereunder shall, to the fullest extent permitted by law, be
unconditional irrespective of (i) the validity or enforceability, avoidance or
subordination of the Obligations of the other Borrower or of any Note or other
document evidencing all or any part of the Obligations of the other Borrower,
(ii) the absence of any attempt to collect the Secured Obligations from the
other Borrower, or any other security therefore, or the absence of any other
action to enforce the same, (iii) the waiver, consent, extension, forbearance or
granting of any indulgence by the Administrative Agent or any Lender with
respect to any provision of any instrument evidencing the Obligations of the
other Borrower, or any part thereof, or any other agreement now or hereafter
executed by the other Borrower and delivered to the Administrative Agent or any
Lender, (iv) the failure by the Administrative Agent or any Lender to take any
steps to perfect and maintain its security interest in, or to preserve its
rights to, any security for the Obligations of the other Borrower, (v) any
borrowing or grant of a security interest by the other Borrower, as
debtors-in-possession under Section 364 of the Bankruptcy Code, (vi) the
49
disallowance of all or any portion of the Administrative Agent's or any Lender's
claim(s) for the repayment of the Obligations of the other Borrower under
Section 502 of the Bankruptcy Code, or (vii) any other circumstances which might
constitute a legal or equitable discharge or defense of any other Borrower.
(c) With respect to each Borrower's obligations arising as a result of
the joint and several liability of the Borrowers hereunder with respect to
Obligations any of the other Borrower hereunder, each Borrower waives, until the
Obligations shall have been paid in full in cash and this Agreement and the
other Loan Documents shall have terminated, any right to enforce any right of
subrogation or any remedy which the Administrative Agent or any Lender now has
or may hereafter have against such Borrower, any endorser or any guarantor of
all or any part of the Obligations, and any benefit of, and any right to
participate in, any security or collateral given to the Administrative Agent or
any Lender to secure payment of the Obligations.
(d) No payment or payments made by any of the Borrowers or any other
Person or received or collected by the Administrative Agent or any Lender from
either of the Borrowers or any other Person by virtue of any action or
proceeding or any set-off-or appropriation or application at any time or from
time to time in reduction of or in payment of the Obligations shall be deemed
(except to the extent Obligations are satisfied) to modify, release or otherwise
affect the liability of each Borrower under this Agreement, which shall remain
liable for the Obligations until the Obligations are paid in full in cash and
this Agreement is terminated.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
SECTION 3.1. CONDITIONS TO EFFECTIVENESS. The obligations of the
Lenders (including the Swingline Lender) to make Loans and the obligation of the
Issuing Bank to issue any Letter of Credit hereunder shall not become effective
until the date on which each of the following conditions is satisfied (or waived
in accordance with Section 10.2):
(a) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Closing Date, including reimbursement
or payment of all out-of-pocket expenses (including reasonable fees, charges and
disbursements of counsel to the Administrative Agent) required to be reimbursed
or paid by the Borrowers hereunder, under any other Loan Document and under any
agreement with the Administrative Agent or SunTrust Xxxxxxxx Xxxxxxxx, as Lead
Arranger.
(b) Contemporaneously with the effectiveness of this Agreement, the
Note Purchase Agreement shall have become effective and the Borrowers shall have
received the proceeds of the Private Placement Indebtedness pursuant to, and in
accordance with, the terms and conditions of the Note Purchase Agreement, and
the Administrative Agent (or its counsel) shall have received true and correct
copies of each of the documents constituting the Private Placement Loan
Documents as in effect on the Closing Date, certified as true and correct by a
Responsible Officer of Xxxxxxxx.
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(c) The Administrative Agent (or its counsel) shall have received the
following:
(i) on or prior to the Closing Date, a counterpart of this
Agreement signed by or on behalf of each party hereto or written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such party
has signed a counterpart of this Agreement;
(ii) on or prior to the Funding Date, duly executed Notes payable
to each Lender, as applicable;
(iii) on or prior to the Funding Date, a duly executed Subsidiary
Guaranty Agreement from each Subsidiary Loan Party;
(iv) on or prior to the Funding Date, a Pledge Agreement duly
executed by Xxxxxxxx covering all of the capital stock of International,
together with delivery of the original stock certificates evidencing such
shares, undated stock powers executed in blank, and such documents shall be
accompanied by such other documents as the Administrative Agent may
reasonably request (including without limitation, certificates of
incorporation, incumbency certificates of such entities, articles of
incorporation, bylaws, other organizational documents, membership operating
agreements, opinion letters (including legal opinions of foreign counsel to
the relevant Consolidated Parties) and appropriate resolutions of the
governing body of any such Foreign Subsidiary);
(v) on or prior to the Funding Date, duly executed Payoff
Letters, executed by each of the Existing Lenders;
(vi) on or prior to the Closing Date, a certificate of the
Secretary or Assistant Secretary of each Borrower and/or each Subsidiary
Loan Party (or other similar officer for entities other than corporations),
attaching and certifying copies of its bylaws, partnership or operating
agreement, as the case may be, and of the resolutions of its boards of
directors, Board of Managers or partnership resolutions, as the case may
be, authorizing the execution, delivery and performance of the Loan
Documents to which it is a party and certifying the name, title and true
signature of each officer of such Borrower or Subsidiary Loan Party
executing the Loan Documents to which it is a party;
(vii) on or prior to the Closing Date, certified copies of the
certificate or articles of incorporation or other documents of formation or
organization of each Borrower and each Subsidiary Loan Party, together with
certificates of good standing or existence, as may be available from the
Secretary of State of the jurisdiction of incorporation or formation of
each Borrower and each Subsidiary Loan Party and (x) each other
jurisdiction where the ownership of property or the conduct of its business
requires the Borrowers to be qualified (provided that any such foreign good
standing certificates for Xxxxxxxx which are not delivered by the Closing
Date may be delivered after such date and shall be subject to
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Section 5.12) and (y) each jurisdiction where such Subsidiary Loan Party
maintains its principal place of business;
(viii) on or prior to the Funding Date, a favorable written
opinion of King & Spalding LLP, counsel to the Loan Parties, addressed to
the Administrative Agent and each of the Lenders, substantially in the form
attached hereto as Exhibit F hereof;
(ix) on the Funding Date, a certificate, dated the Funding Date
and signed by a Responsible Officer of Xxxxxxxx, confirming, among other
things, compliance with the conditions of Section 3.1 and compliance with
the conditions set forth in paragraphs (a), (b) and (c) of Section 3.2;
(x) on or prior to the Funding Date, duly executed Notices of
Borrowing, and duly executed Statement of Funds Flow;
(xi) on or prior to the Funding Date, the consolidated financial
statements of Xxxxxxxx and its Consolidated Subsidiaries for the fiscal
quarter ended June 30, 2003 including balance sheets, income and cash flow
statements certified by the chief financial officer of Xxxxxxxx and
prepared in conformity with GAAP, and such other financial information as
the Administrative Agent may request;
(xii) on or prior to the Funding Date, delivery of certified
copies of all consents, approvals, authorizations, registrations, or
filings required to be made or obtained by either Borrower and any
Subsidiary Loan Party in connection with the Loan Documents and the other
transactions contemplated herein; and
(xiii) Administrative Agent shall have received such other
documents, certificates or information with respect to either Borrower and
any Subsidiary Loan Party as it or the Required Lenders may reasonably
request.
SECTION 3.2. EACH CREDIT EVENT. The obligation of each Lender to make
a Loan on the occasion of any Borrowing and of the Issuing Bank to issue, amend,
renew or extend any Letter of Credit is subject to the satisfaction of the
following conditions:
(a) at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default or Event of Default shall exist; and
(b) all representations and warranties of each Loan Party set forth in
the Loan Documents shall be true and correct in all material respects on and as
of the date of such Borrowing or the date of issuance, amendment, extension or
renewal of such Letter of Credit, in each case before and after giving effect
thereto (except for such representations and warranties that expressly relate to
a prior date); and
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(c) since the date of the audited financial statements of Xxxxxxxx
described in Section 4.4(i), there shall have been no changes, events, acts,
conditions or occurrences of any nature, singly or in the aggregate, that have
had or could reasonably be expected to have a Material Adverse Effect.
Each Borrowing and each issuance, amendment, extension or renewal of
any Letter of Credit shall be deemed to constitute a representation and warranty
by the Borrowers on the date thereof as to the matters specified in paragraphs
(a), (b) and (c) of this Section 3.2.
SECTION 3.3. DELIVERY OF DOCUMENTS. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this
Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and shall be
in form and substance satisfactory in all respects to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrowers represent and warrant to the Administrative Agent and
each Lender as follows:
SECTION 4.1. EXISTENCE; POWER. Each of the Borrowers and each of
their Subsidiaries (other than Dormant Companies) (i) is duly organized or
formed, validly existing and in good standing as a corporation, limited
liability company or partnership, as the case may be, under the laws of the
jurisdiction of its organization or formation, (ii) has all requisite power and
authority to carry on its business and to execute, deliver and perform its
respective obligations under each Loan Document to which it is a party, and
(iii) is duly qualified to transact business, and is in good standing, in each
jurisdiction where such qualification is required, except, in the case of clause
(iii), where a failure to be so qualified could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 4.2. ORGANIZATIONAL POWER; AUTHORIZATION. The execution,
delivery and performance by each Loan Party of the Loan Documents to which it is
a party are within such Loan Party's organizational powers and have been duly
authorized by all necessary organizational, and if required, stockholder, member
or partner, action. This Agreement has been duly executed and delivered by each
of the Borrowers, and constitutes, and each other Loan Document to which any
Loan Party is a party, when executed and delivered by such Loan Party, will
constitute, valid and binding obligations of each Borrower or such Loan Party
(as the case may be), enforceable against it in accordance with their respective
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium, or similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
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SECTION 4.3. GOVERNMENTAL AND THIRD PARTY APPROVALS; NO CONFLICTS.
The execution, delivery and performance by the Borrowers of this Agreement, and
by each Loan Party of the other Loan Documents to which it is a party (a) do not
require any consent or approval of, registration or filing with, or any action
by, any Governmental Authority or any other Person, except those as have been
obtained or made and are in full force and effect, (b) will not violate any
applicable law, rule or regulation or any order or judgment of any Governmental
Authority, (c) will not violate the articles or certificate of incorporation,
operating agreement, partnership agreement, by-laws or other organizational
documents of either Borrower or any Subsidiary, (d) will not violate or result
in a default under any indenture, material agreement or other material
instrument binding on either Borrower or any Subsidiary or any of its assets or
give rise to a right thereunder to require any payment to be made by either
Borrower or any Subsidiary and (e) will not result in the creation or imposition
of any Lien on any asset of either Borrower or any Subsidiary, except Liens (if
any) created under the Loan Documents.
SECTION 4.4. FINANCIAL STATEMENTS. The Borrowers have furnished to
each Lender (i) the audited consolidated balance sheet of Xxxxxxxx as of
December 31, 2002 and the related audited consolidated statements of income,
changes in shareholders' equity and cash flows for the fiscal year then ended
prepared by Ernst & Young LLP and (ii) the unaudited consolidated balance sheet
of Xxxxxxxx as at the end of June 30, 2003, and the related unaudited
consolidated statements of income and cash flows for the fiscal quarter then
ending, certified by a Responsible Officer. Such financial statements fairly
present in all material respects the consolidated financial condition of
Xxxxxxxx as of such dates and the consolidated results of operations for such
periods in conformity with GAAP consistently applied, subject to year end audit
adjustments and the absence of footnotes in the case of the statements referred
to in clause (ii). Since December 31, 2002, there have been no changes, events,
acts, conditions or occurrences of any nature, singly or in the aggregate that
have had or could reasonably be expected to have a Material Adverse Effect.
Since the December 31, 2002, no Consolidated Party has made any Restricted
Payment except as permitted pursuant to Section 7.5.
SECTION 4.5. LITIGATION AND ENVIRONMENTAL MATTERS.
(a) Except for matters set forth on Schedule 4.5(a), no litigation,
investigation or proceeding of or before any arbitrators or Governmental
Authorities is pending against or, to the knowledge of either Borrower,
threatened against or affecting either Borrower or any Subsidiary (i) as to
which there is a reasonable probability of an adverse determination that could
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect or (ii) which in any manner challenges the validity or
enforceability of this Agreement or any other Loan Document. With respect to any
pending litigation, investigation or proceeding of or before any arbitrators or
Governmental Authorities, no events, acts or conditions have occurred in respect
of or in relation to any such pending litigation, investigation or proceeding
that could reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect.
(b) Except for the matters set forth on Schedule 4.5(b) and except for
matters which could not reasonably be expected to have a Material Adverse
Effect, neither either Borrower nor any Subsidiary (i) has failed to comply with
any Environmental Law or to obtain, maintain or
54
comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability in each case.
SECTION 4.6. COMPLIANCE WITH LAWS AND AGREEMENTS. Except where
non-compliance, either singly or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, each of the Borrowers and each
Subsidiary is in compliance with (a) all applicable laws, rules, regulations and
orders of any Governmental Authority, and (b) all indentures, agreements or
other instruments binding upon it or its properties.
SECTION 4.7. INVESTMENT COMPANY ACT, ETC. Neither the Borrower nor
any Subsidiary is (a) an "investment company", as defined in, or is controlled
by an "investment company" as defined in, or is subject to regulation under, the
Investment Company Act of 1940, as amended, (b) a "holding company" as defined
in, or subject to regulation under, the Public Utility Holding Company Act of
1935, as amended or (c) otherwise subject to any other regulatory scheme
limiting its ability to incur debt.
SECTION 4.8. TAXES. Each of the Borrowers and each Subsidiary has, as
applicable, timely filed or caused to be filed all federal, state and foreign
tax returns and all other tax returns or reports that are required to be filed
by them except, in the case of tax returns or reports that may be required to be
filed in jurisdictions other than the United States and political subdivisions
thereof, those foreign tax returns or reports which, in the aggregate, would not
reflect an amount of taxes owing that would be material. Each of the Borrowers
and each Subsidiary has paid all taxes and other amounts shown to be due and
payable on such returns or reports or on any assessments made against it or its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority, except where the same are currently
being contested in good faith by appropriate proceedings and for which such
Borrower or such Subsidiary, as the case may be, has set aside on its books
adequate reserves. There is no proposed tax assessment against either of the
Borrowers or any of their respective Subsidiaries that would, if made, have a
Material Adverse Effect.
SECTION 4.9. MARGIN REGULATIONS. None of the proceeds of any of the
Loans or Letters of Credit will be used for "purchasing" or "carrying" any
"margin stock" with the respective meanings of each of such terms under
Regulation U as now and from time to time hereafter in effect or for any purpose
that violates the provisions of the applicable Margin Regulations.
SECTION 4.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. As determined by the Borrowers' actuary,
the present value of the aggregate projected benefit obligation of all
underfunded Plans subject to ERISA, as of January 1, 2003 (based on the
assumptions used for purposes of Statement of Financial Standards No. 87), did
not exceed by more than $67,000,000 the aggregate fair value of the assets of
all such underfunded Plans as of January 1, 2003.
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SECTION 4.11. OWNERSHIP OF PROPERTY.
(a) Each of the Borrowers and each Subsidiary (other than any Dormant
Company) has good title to, or valid leasehold interests in, all of its real and
personal property material to the operation of its business.
(b) Each of the Borrowers and each Subsidiary owns, or is licensed, or
otherwise has the right, to use, all patents, trademarks, service marks,
tradenames, copyrights and other intellectual property material to its business,
and the use thereof by the Borrowers and the Subsidiaries does not infringe on
the rights of any other Person, except for any such infringements that,
individually or in the aggregate, would not have a Material Adverse Effect.
SECTION 4.12. DISCLOSURE. The Borrowers have disclosed to the Lenders
all agreements, instruments, and corporate or other restrictions to which either
Borrower or any Subsidiary is subject, and all other matters known to any of
them, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. None of the reports (including without
limitation all reports that Xxxxxxxx is required to file with the Securities and
Exchange Commission), financial statements, certificates or other information
furnished by or on behalf of the Borrowers to the Administrative Agent or any
Lender in connection with the negotiation or syndication of this Agreement or
any other Loan Document or delivered hereunder or thereunder (as modified or
supplemented by any other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, taken as a whole, in light of the circumstances under which
they were made, not misleading.
SECTION 4.13. LABOR RELATIONS. There are no strikes, lockouts or
other labor disputes or grievances against either Borrower or any Subsidiary,
or, to either Borrower's knowledge, threatened against or affecting either
Borrower or any Subsidiary, and no significant unfair labor practice, charges or
grievances are pending against either Borrower or any Subsidiary, or to either
Borrower's knowledge, threatened against any of them before any Governmental
Authority that could reasonably be expected to have a Material Adverse Effect.
SECTION 4.14. SUBSIDIARIES. As of the Funding Date, Schedule 4.14
sets forth the exact legal name of, the percentage and type of ownership
interest in, the name of the Person who is the record owner of, the jurisdiction
of incorporation or formation of, and the type of, each Subsidiary, and
identifies each Subsidiary that is a Subsidiary Loan Party and each Subsidiary
that is a Dormant Company.
SECTION 4.15. SOLVENCY. Each of the Borrowers is Solvent (including,
without limitation, after giving effect to all Borrowings on the Funding Date
and the issuance of the Private Placement Indebtedness).
SECTION 4.16. INDEBTEDNESS. As of August 31, 2003, neither of the
Borrowers nor any Consolidated Subsidiary has any Indebtedness except as set
forth on Schedule 4.16. As of the Funding Date, neither of the Borrowers nor any
Consolidated Subsidiary has any Indebtedness except for Indebtedness that is
permitted under Section 7.1.
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SECTION 4.17. DORMANT COMPANIES. Except as set forth on Schedule
4.17, none of the Dormant Companies own any material assets or has any
outstanding Indebtedness or other material liabilities. The aggregate revenues
and assets of the Dormant Companies are less than 1% of the aggregate revenues
and assets of Xxxxxxxx and its Subsidiaries on a consolidated basis.
SECTION 4.18. NOTE PURCHASE AGREEMENT. Each of the representations
and warranties set forth in Section 5 of the Note Purchase Agreement is true and
correct in all material respects on and as of the Funding Date.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrowers covenant and agree that, from and after the Closing
Date, so long as any Lender has a Commitment hereunder or the principal of and
interest on any Loan or any fee or any LC Disbursement remains unpaid or any
Letter of Credit remains outstanding:
SECTION 5.1. FINANCIAL STATEMENTS AND OTHER INFORMATION. The
Borrowers will deliver to the Administrative Agent:
(a) as soon as available and in any event within 90 days after the end
of each fiscal year of Xxxxxxxx, a copy of the annual audited report for such
fiscal year for Xxxxxxxx and its Subsidiaries, containing a consolidated balance
sheet of Xxxxxxxx and its Consolidated Subsidiaries as of the end of such fiscal
year and the related consolidated statements of income, stockholders' equity and
cash flows (together with all footnotes thereto) of Xxxxxxxx and its
Consolidated Subsidiaries for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable
detail and reported on by Ernst & Young LLP or other independent public
accountants of nationally recognized standing (without a "going concern" or like
qualification, exception or explanation and without any qualification or
exception as to scope of such audit); provided, that the delivery required by
this clause (a) shall not be required so long as Xxxxxxxx delivers to the
Administrative Agent and each Lender, within the time frame set forth above, its
periodic filing on Form 10-K of the Securities Act of 1934 as filed with the
Securities and Exchange Commission; provided, further, that, if Xxxxxxxx no
longer files such financial information with the Securities and Exchange
Commission, then Xxxxxxxx shall cause to be delivered to the Administrative
Agent at such time a certificate from Ernst & Young LLP or other independent
public accountants of nationally recognized standing to the effect that such
financial statements present fairly in all material respects the financial
condition and the results of operations of Xxxxxxxx and its Consolidated
Subsidiaries for such fiscal year on a consolidated basis in accordance with
GAAP and that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with generally
accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end
of each of the first three fiscal quarters of each fiscal year of Xxxxxxxx, an
unaudited consolidated balance sheet
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of Xxxxxxxx and its Consolidated Subsidiaries as of the end of such fiscal
quarter and (A) the related unaudited consolidated statements of income of
Xxxxxxxx and its Consolidated Subsidiaries for such fiscal quarter and the then
elapsed portion of such fiscal year and (B) the related unaudited consolidated
statements of cash flows of Xxxxxxxx and its Consolidated Subsidiaries for the
then elapsed portion of such fiscal year, setting forth in each case in
comparative form the figures for the corresponding quarter (except in the case
of statements of cash flows) and the corresponding portion of Xxxxxxxx'x
previous fiscal year; provided, that the delivery required by this clause (b)
shall not be required so long as Xxxxxxxx delivers to the Administrative Agent
and each Lender, within the time frame set forth above, its periodic filing on
Form 10-Q of the Securities Act of 1934 as filed with the Securities and
Exchange Commission; provided, further, that, if Xxxxxxxx no longer files such
financial information with the Securities and Exchange Commission, then Xxxxxxxx
shall provide to the Administrative Agent at such time a certificate of the
chief financial officer or treasurer of Xxxxxxxx certifying that the foregoing
financials present fairly in all material respects the financial condition and
results of operations of Xxxxxxxx and its Consolidated Subsidiaries on a
consolidated basis in accordance with GAAP, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements
referred to in clauses (a) and (b) above, a certificate of a Responsible
Officer, (i) certifying as to whether there exists a Default or Event of Default
on the date of such certificate, and if a Default or an Event of Default then
exists, specifying the details thereof and the action which the Borrowers have
taken or proposes to take with respect thereto, (ii) setting forth in reasonable
detail calculations demonstrating compliance with Article VI and (iii) stating
whether any change in GAAP or the application thereof has occurred since the
date of Xxxxxxxx'x audited financial statements referred to in Section 4.4 and,
if any change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate; provided, however, that no
action shall be required by the Borrowers under this clause (iii) to the extent
any such change in GAAP or the application thereof does not affect or apply to
the Borrowers and their Subsidiaries, including the presentation by such Persons
of their financial statements;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
Xxxxxxxx with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all functions of said Commission, or with any
national securities exchange, or distributed by Xxxxxxxx to its shareholders
generally, as the case may be;
(e) to the extent not provided above in this Section 5.1, all reports,
statements, certificates, notices or other writings required to be delivered
pursuant to Section 7.1 and 7.2 of the Note Purchase Agreement within the times
required therein; and
(f) promptly following any request therefore, such other information
regarding the results of operations, business affairs and financial condition of
Xxxxxxxx or any Subsidiary as the Administrative Agent or any Lender may
reasonably request.
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SECTION 5.2 NOTICES OF MATERIAL EVENTS. The Borrowers will furnish to
the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or, to the knowledge of
either Borrower, affecting either Borrower or any Subsidiary which, if adversely
determined, could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any event or any other development (which
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect) by which either Borrower or any Consolidated Subsidiary
(i) fails to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law,
(ii) becomes subject to any Environmental Liability, (iii) receives notice of
any claim with respect to any Environmental Liability, or (iv) becomes aware of
any basis for any Environmental Liability;
(d) the occurrence of any ERISA Event that alone, or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
liability of the Borrowers and the Consolidated Subsidiaries in an aggregate
amount exceeding $1,000,000; and
(e) any development that results in, or could reasonably be expected
to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a
written statement of a Responsible Officer setting forth the details of the
event or development requiring such notice and, if applicable, any action taken
or proposed to be taken with respect thereto.
SECTION 5.3. EXISTENCE. Each of the Borrowers will, and will cause
each of the Subsidiaries (other than any Dormant Company) to, do or cause to be
done all things necessary to preserve, renew and maintain in full force and
effect its legal existence and its respective rights, licenses, permits,
privileges, franchises, patents, copyrights, trademarks and trade names material
to the conduct of its business; provided, that nothing in this Section shall
prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 7.3 or any disposition permitted by Section 7.6.
SECTION 5.4. COMPLIANCE WITH LAWS, ETC. Each of the Borrowers will,
and will cause each of the Subsidiaries to, comply with all laws, rules,
regulations and requirements of any Governmental Authority applicable to its
properties, except where the failure to do so, either individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. Each of the Borrowers will comply at all times with the Margin
Regulations.
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SECTION 5.5. PAYMENT OF OBLIGATIONS.
(a) The Borrowers will duly and punctually pay or cause to be paid the
principal and interest on the Loans and all other Obligations provided for in
this Agreement and the other Loan Documents to which the Borrowers are a party,
all in accordance with the terms of this Agreement and such other Loan
Documents.
(b) Each of the Borrowers will, and will cause each of the
Subsidiaries to, pay and discharge at or before maturity, all of its obligations
and liabilities (including without limitation all tax liabilities and claims
that could result in a statutory Lien) before the same shall become delinquent
or in default, except where (a) the validity or amount thereof is being
contested in good faith by appropriate proceedings, (b) such Borrower or such
Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP and (c) the failure to make payment pending such contest
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.6. BOOKS AND RECORDS. Each of the Borrowers will, and will
cause each of the Subsidiaries to, keep proper books of record and account in
which full, true and correct entries shall be made of all material dealings and
transactions in relation to its business and activities to the extent necessary
to prepare the consolidated financial statements of Xxxxxxxx in conformity with
GAAP.
SECTION 5.7. VISITATION, INSPECTION, ETC. Each of the Borrowers will,
and will cause each of the Subsidiaries to, permit any representative of the
Administrative Agent or any Lender, to visit and inspect its properties, to
examine its books and records and to make copies and take extracts therefrom,
and to discuss its affairs, finances and accounts with any of its officers and
with its independent certified public accountants, all at such reasonable times
and as often as the Administrative Agent or any Lender may reasonably request
after reasonable prior notice to the Borrowers; provided, that, so long as no
Default or Event of Default has occurred and is continuing, no more than one (1)
such visit, inspection and examination in any fiscal year shall be at the
expense of the Borrowers and; provided, further, that, if a Default or Event of
Default has occurred and is continuing, each such visit, inspection and
examination shall be at the expense of the Borrowers and shall be at such times
and as often as the Administrative Agent or any Lender may request.
SECTION 5.8. MAINTENANCE OF PROPERTIES; INSURANCE. Each of the
Borrowers will, and will cause each of the Subsidiaries (other than any Dormant
Company) to, (a) keep and maintain all property material to the conduct of its
business in good working order and condition, subject to ordinary wear and tear,
and (b) maintain with financially sound and reputable insurance companies,
insurance with respect to its properties and business, and the properties and
business of its Subsidiaries, against loss or damage of the kinds customarily
insured against by companies in the same or similar businesses operating in the
same or similar locations.
SECTION 5.9. USE OF PROCEEDS AND LETTERS OF CREDIT. The Borrowers
will use the proceeds of all Loans solely to refinance Indebtedness owing to the
Persons referenced in the Statement of Funds Flow on the Funding Date, and
thereafter to finance Acquisitions that are permitted hereunder, to finance
working capital needs of the Borrowers and their Subsidiaries and
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for other general corporate purposes of the Borrowers and their Subsidiaries
including loans from Borrowers to their Subsidiaries to the extent permitted
herein. All Letters of Credit will be used solely for general corporate
purposes. Notwithstanding the foregoing, the Borrowers will not, directly or
indirectly, use the proceeds of any Loan or any Letter of Credit to make any
loan or other advance to, or Investment in, any Dormant Company.
SECTION 5.10. ADDITIONAL SUBSIDIARIES; DORMANT COMPANIES.
(a) If any Subsidiary is acquired, formed or created after the Closing
Date, or if any Foreign Subsidiary that is not a Wholly-Owned Subsidiary of
International (such Foreign Subsidiary, a "Non-International Owned Foreign
Subsidiary") at any time becomes a "significant subsidiary" within the meaning
of Regulation S-X of the Exchange Act, the Borrowers will, within fifteen (15)
Business Days, notify the Administrative Agent and the Lenders thereof and (i)
if such Subsidiary is not a Foreign Subsidiary, will cause such Subsidiary to
become a Subsidiary Loan Party by executing an agreement in the form of Annex I
to Exhibit D, (ii) if any Non-International Owned Foreign Subsidiary is or
becomes a "significant subsidiary" within the meaning of Regulation S-X of the
Exchange Act, will pledge or caused to be pledged the Applicable Pledge Amount
of the capital stock or other equity interest of such Non-International Owned
Foreign Subsidiary pursuant to a Pledge Agreement, and will deliver or cause to
be delivered the original stock certificate(s) evidencing such shares, and
undated stock powers executed in blank, and (iii) will cause such Subsidiary to
deliver simultaneously therewith similar documents applicable to such Subsidiary
required under Section 3.1 as reasonably requested by the Administrative Agent.
(b) If, at any time after the Closing Date, the Borrowers decide that
any Subsidiary that is a Dormant Company at such time shall cease being a
Dormant Company, such Subsidiary shall cease to be a Dormant Company for all
purposes of this Agreement and the other Loan Documents upon the satisfaction of
each of the following conditions:
(i) the Borrowers shall notify the Administrative Agent and the
Lenders of the proposed change in the status of such Subsidiary, which notice
shall contain a certification by a Responsible Officer of each of the Borrowers
to the effect that (A) such Subsidiary is in full compliance with all provisions
of this Agreement applicable to it as a Subsidiary that is not a Dormant
Company, (B) each of the representations and warranties set forth in Article IV
that are applicable to a Subsidiary that is not a Dormant Company are true and
correct with respect to such Subsidiary and (C) no Default or Event of Default
would result from such change in status of such Subsidiary.
(ii) Schedule 4.14 hereto shall be revised to reflect that such
Subsidiary is no longer a Dormant Company; and
(iii) the Borrowers shall have delivered to the Administrative
Agent and the Lenders such information (financial and otherwise) as is
reasonably requested by the Administrative Agent.
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(c) If, at any time after the Closing Date, the Borrowers decide that
any Subsidiary that is not a Dormant Company at such time shall become a Dormant
Company, such Subsidiary shall become a Dormant Company for all purposes of this
Agreement and the other Loan Documents upon the satisfaction of each of the
following conditions:
(i) the Borrowers shall notify the Administrative Agent and the
Lenders of the proposed change in the status of such Subsidiary, which notice
shall contain a certification by a Responsible Officer of each of the Borrowers
to the effect that (A) such Subsidiary is in full compliance with all provisions
of this Agreement applicable to it as a Subsidiary that is a Dormant Company,
(B) after giving effect to such Subsidiary becoming a Dormant Company, the
aggregate revenues and assets of all Dormant Companies is less than 1% of the
aggregate revenues and assets of Xxxxxxxx and its Consolidated Subsidiaries and
(C) no Default or Event of Default would result from such change in status of
such Subsidiary;
(ii) Schedule 4.14 hereto shall be revised to reflect that such
Subsidiary has after such time become a Dormant Company; and
(iii) the Borrowers shall have delivered to the Administrative
Agent and the Lenders such information (financial and otherwise) as is
reasonably requested by the Administrative Agent.
SECTION 5.11. AMENDMENT TO PRIVATE PLACEMENT LOAN DOCUMENTS. If at
any time on or after the Closing Date either Borrower or any Subsidiary enters
into, assumes or otherwise becomes bound or obligated under, or agrees to any
new agreement with the holders of the Private Placement Indebtedness or, without
derogating from any of the restrictions contained herein, any amendment,
modification or supplement of any agreement which relates to the Private
Placement Loan Documents in any manner the effect of which would be (i) to
create, amend or add covenants or obligations of the Borrowers and the
Subsidiaries which are in addition to those contained herein or (ii) more
restrictive on the Borrowers or any Subsidiary than are the covenants contained
herein, then this Agreement shall, without any further action on the part of
either Borrower, any Subsidiary, the Administrative Agent or any Lender, be
deemed to be amended automatically to include each such additional covenant or
provision; provided, that the Administrative Agent, the Required Lenders and the
Borrowers may agree in writing not to so amend this Agreement. Each of the
Borrowers further covenants to promptly, and in any event within 30 Business
Days, execute and deliver at its expense (including, without limitation, the
fees and expenses of counsel for the Administrative Agent) a document which
amends this Agreement in form and substance satisfactory to the Administrative
Agent to reflect any amendment, modification or supplement of any covenants or
provision in this Agreement pursuant to this Section 5.11, provided that the
execution and delivery of such document shall not be a precondition to the
effectiveness of such amendment, modification or supplement. The provisions of
this Section 5.11 shall apply successively to each amendment, modification or
supplement so that the Lenders shall have the benefit of every such amendment,
modification or supplement. In the event that the terms of any Private Placement
Loan Documents are amended, modified or supplemented, the Borrowers shall
promptly deliver to the Administrative Agent a certified copy of such amendment,
modification or supplement. For the purposes of clause (ii) above, in the event
that (A) any such amendment, modification or supplement reduces a
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percentage in the Private Placement Loan Documents, which reduction has the
effect of making a covenant in the Private Placement Loan Documents more
restrictive than a covenant contained herein and (B) the corresponding covenant
contained herein is a sum certain dollar amount rather than a percentage, then
such sum certain dollar amount contained herein shall be reduced and shall
thereafter be equal to the product of (x) such sum certain dollar amount,
multiplied by (y) a fraction, the numerator of which is the percentage in the
Private Placement Loan Documents after giving effect to such amendment,
modification or supplement and the denominator of which is the stated percentage
in the Private Placement Loan Documents immediately prior to giving effect to
such amendment, modification or supplement. By way of example, if the definition
of Permitted Acquisition in the Note Purchase Agreement were amended to reduce
the percentage to 6% from 10% (a 40% reduction), then the dollar amount in the
definition of the Permitted Acquisition Basket herein would be reduced to
$9,000,000 from $15,000,000 (a 40% reduction).
SECTION 5.12. POST CLOSING REQUIREMENTS. No later than 60 days
following the Closing Date, the Borrowers will deliver or cause to be delivered
to the Administrative Agent (i) certificates of good standing from the office of
the Secretary of State from each jurisdiction where the ownership of property or
the conduct of its business requires Xxxxxxxx to be qualified to transact
business as a foreign corporation and (ii) certificates of good standing from
the office of the Secretary of State of the jurisdiction of incorporation of
Qirra Custom Software, Inc. and the jurisdiction where such Subsidiary maintains
its principal place of business. No later than 75 days following the Closing
Date, the Borrowers will cause the following Subsidiaries to be dissolved and
shall provide the Administrative Agent with reasonably satisfactory evidence of
such dissolution: (i) Brocklehursts, Inc., (ii) Xxxxxxxxxxxx Holdings, Inc., and
(iii) Xxxxxx Xxxxxx, Inc. No later than 30 days following the Closing Date, the
Borrowers will cause all Liens in favor of Royal Bank of Canada set forth on
Schedule 7.2 to be terminated and released of record, and will promptly provide
the Administrative Agent written evidence of such termination and release. The
Borrowers will, within 30 days following a request therefore by the Required
Lenders, cause the documents and instrument described on Schedule 7.8 as item 1,
to be terminated, or otherwise cause the restrictive agreements or arrangements
therein requiring such items to be disclosed pursuant to Section 7.8 to be
terminated and released, and will promptly provide the Administrative Agent
written evidence of such termination and release.
ARTICLE VI
FINANCIAL COVENANTS
The Borrowers covenant and agree that, from and after the Closing
Date, so long as any Lender has a Commitment hereunder or the principal of or
interest on or any Loan remains unpaid or any fee or any LC Disbursement remains
unpaid or any Letter of Credit remains outstanding:
SECTION 6.1. LEVERAGE RATIO. Xxxxxxxx will not permit the Leverage
Ratio, as at the end of each fiscal quarter of Xxxxxxxx set forth below, to
exceed the ratio set forth opposite such period:
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PERIOD RATIO
------ -----
Closing Date through June 30, 2004 2.75 to 1.00
July 1, 2004 through June 30, 2005 2.50 to 1.00
July 1, 2005 and thereafter 2.25 to 1.00
SECTION 6.2. FIXED CHARGE COVERAGE RATIO. Xxxxxxxx will not permit
the Fixed Charge Coverage Ratio, as at the end of each fiscal quarter of
Xxxxxxxx set forth below, to be less than the ratio set forth opposite such
period:
PERIOD RATIO
------ -----
Closing Date through June 30, 2004 1.25 to 1.00
September 30, 2004 and thereafter 1.50 to 1.00
SECTION 6.3. MINIMUM NET WORTH. Xxxxxxxx will maintain a Net Worth in
an amount equal to or greater than the sum of (i) $135,516,350, plus (ii) 50% of
cumulative positive Consolidated Net Income accrued after December 31, 2002,
plus (iii) 100% of the Net Proceeds from any Equity Offering; provided, that the
Net Proceeds of an Equity Offering of a debt security that is convertible into
or exchangeable for capital stock of Xxxxxxxx or a debt security that is issued
with a warrant or other instrument to purchase capital stock of Xxxxxxxx shall
not be required to be added under this clause (iii) unless and until such debt
security is converted into or exchanged for, or such warrant or other instrument
is exercised for, capital stock of Xxxxxxxx. For purposes of determining Net
Worth on any date after December 31, 2002, (A) any non-cash adjustment after
December 31, 2002 (whether such adjustment is an increase or decrease) to
shareholders' investment related to pension fund liabilities, (B) any non-cash
adjustment after December 31, 2002 (whether such adjustment is an increase or
decrease) to shareholders' investment related to goodwill and (C) any non-cash
adjustment after December 31, 2002 (whether such adjustment is an increase or
decrease) to shareholders' investment related to foreign currency translations
shall, in each case, be excluded. The foregoing covenant shall be calculated and
tested quarterly on the last day of each fiscal quarter of Xxxxxxxx commencing
with the fiscal quarter ending September 30, 2003.
ARTICLE VII
NEGATIVE COVENANTS
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The Borrowers covenant and agree that, from and after the Closing
Date, so long as any Lender has a Commitment hereunder or the principal of or
interest on any Loan remains unpaid or any fee or any LC Disbursement remains
unpaid or any Letter of Credit remains outstanding:
SECTION 7.1. INDEBTEDNESS. The Borrowers will not, and will not
permit any Subsidiaries to, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness created pursuant to the Loan Documents;
(b) Private Placement Indebtedness, including refundings, refinancings
and replacements thereof, and amendments or modifications to the Private
Placement Loan Documents; provided, however, that the aggregate principal amount
of such Private Placement Indebtedness shall not at any time exceed $50,000,000
plus the aggregate amount of Indebtedness available to be incurred at such time
pursuant to clause (i) immediately below (which additional Indebtedness may be
secured to the same extent as the Private Placement Indebtedness);
(c) Indebtedness on the Funding Date set forth on Schedule 7.1 and
borrowings, reborrowings and refinancings of such amounts up to the "Available"
amounts set forth on such Schedule 7.1;
(d) Indebtedness of any Loan Party incurred to finance the
acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations; provided, that (i) such Indebtedness is
incurred prior to or within 90 days after such acquisition or the completion of
such construction or improvements and extensions, renewals, and replacements of
any such Indebtedness that do not increase the outstanding principal amount
thereof (immediately prior to giving effect to such extension, renewal or
replacement) or shorten the maturity or the weighted average life thereof and
(ii) such Indebtedness does not, in the aggregate, exceed $5,000,000 at any time
outstanding;
(e) Indebtedness of any Consolidated Subsidiary (other than a Dormant
Company) owing to a Loan Party to the extent permitted under Section 7.4(d);
(f) Guarantees by any Consolidated Subsidiary of Indebtedness of the
Borrowers and guarantees by a Borrower of Indebtedness of any Consolidated
Subsidiary (other than a Dormant Company); provided, that any Indebtedness of a
Borrower which is guaranteed by a Consolidated Subsidiary and any Indebtedness
of any Consolidated Subsidiary which is guaranteed by a Borrower must otherwise
be permitted under this Section 7.1;
(g) Indebtedness of the Borrowers in respect of obligations under
Hedging Agreements permitted by Section 7.10;
(h) Indebtedness of Xxxxxxxx & Company (Australia) Pty Limited in an
aggregate amount not to exceed $2,750,000 at any time; and
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(i) up to an aggregate principal amount of $5,000,000 of Indebtedness
of the Borrowers and the Consolidated Subsidiaries (other than a Dormant
Company) which shall be (A) unsecured and/or (B) additional Private Placement
Indebtedness incurred pursuant to clause (b) above; provided, however, that the
aggregate principal amount of all Indebtedness outstanding at any one time
pursuant to this clause (i) shall not exceed $5,000,000.
SECTION 7.2. NEGATIVE PLEDGE. The Borrowers will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien on any of its assets or property now owned or hereafter acquired or,
except:
(a) Permitted Encumbrances;
(b) any Liens on any property or asset of the Borrowers or any
Subsidiary existing on the Closing Date set forth on Schedule 7.2; provided,
that such Lien shall not apply to any other property or asset of the Borrower or
any Subsidiary;
(c) purchase money Liens to secure Indebtedness permitted pursuant to
Section 7.1(d); provided, that (i) such Lien attaches to such asset concurrently
or within 90 days after the acquisition, improvement or completion of the
construction thereof and (ii) such Lien does not extend to any other asset
(other than replacement assets of the same type);
(d) Liens on the assets of Xxxxxxxx & Company (Australia) Pty Limited
solely to secure Indebtedness permitted under Section 7.1(h); and
(e) extensions, renewals, or replacements of any Lien referred to in
paragraphs (a) through (d) of this Section; provided, that the Indebtedness
secured thereby is not increased and that any such extension, renewal or
replacement is limited to the assets originally encumbered thereby.
SECTION 7.3. FUNDAMENTAL CHANGES; LINE OF BUSINESS.
(a) The Borrowers will not, and will not permit any Subsidiary (other
than any Dormant Company) to, merge into or consolidate into any other Person,
or permit any other Person to merge into or consolidate with it, or sell, lease,
transfer or otherwise dispose of (in a single transaction or a series of
transactions) all or substantially all of its assets (in each case, whether now
owned or hereafter acquired) or all or substantially all of the stock of any of
its Subsidiaries (in each case, whether now owned or hereafter acquired) or
liquidate or dissolve; provided, that if at the time thereof and immediately
after giving effect thereto, no Default or Event of Default shall have occurred
and be continuing (i) a Borrower or any Subsidiary (other than a Dormant
Company) may merge with a Person that is not a Subsidiary if a Borrower (or such
Subsidiary if a Borrower is not a party to such merger) is the surviving Person,
(ii) any Subsidiary may merge into another Subsidiary (other than a Dormant
Company); provided, that if any party to such merger is a Subsidiary Loan Party
(other than a Dormant Company), the Subsidiary Loan Party shall be the surviving
Person, (iii) any Subsidiary may sell, transfer, lease or otherwise dispose of
all or substantially all of its assets to a Borrower or to a Subsidiary (other
than a Dormant Company); provided, that a Subsidiary Loan Party may only sell,
lease or otherwise dispose of all or substantially all of its assets to a
Borrower or
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another Subsidiary Loan Party (other than a Dormant Company), (iv) any
Subsidiary may liquidate or dissolve if the Borrowers determine in good faith
that such liquidation or dissolution is in the best interests of the Borrowers
and is not materially disadvantageous to the Lenders and (v) any Subsidiary may
be sold so long as such sale is permitted under Section 7.6; provided, that any
merger involving a Person that is not a Wholly-Owned Subsidiary immediately
prior to such merger shall not be permitted unless also permitted by Section
7.4.
(b) The Borrowers will not, and will not permit any Subsidiary to,
engage to any substantial extent in any business other than businesses of the
type conducted by the Borrowers and the Subsidiaries on the Closing Date and
businesses reasonably related thereto. The Borrowers will not permit any Dormant
Company to own any material assets or incur any Indebtedness or other material
liabilities. The Borrowers will not at any time permit the aggregate revenues
and assets of the Dormant Companies to exceed 1% of the aggregate revenues and
assets of Xxxxxxxx and its Subsidiaries on a consolidated basis.
SECTION 7.4. INVESTMENTS, LOANS, ACQUISITIONS, ETC. The Borrowers
will not, and will not permit any Subsidiaries to, purchase, hold or acquire
(including pursuant to any merger with any Person that was not a Wholly-Owned
Subsidiary prior to such merger), any capital stock, evidence of Indebtedness or
other securities (including any option, warrant, or other right to acquire any
of the foregoing) of, make or permit to exist any loans or advances to
(including intercompany loans or advances), Guarantee any obligations of, or
make or permit to exist any investment or any other interest in, any Person (all
of the foregoing being collectively called "INVESTMENTS"), or consummate any
Acquisitions or make any Restricted Investments, except:
(a) Permitted Investments;
(b) Guarantees constituting Indebtedness not prohibited by Section
7.1; provided, that the aggregate principal amount of Indebtedness of
Subsidiaries that are not Subsidiary Loan Parties that is Guaranteed by any Loan
Party shall be subject to the limitations set forth in clause (d) hereof, as
applicable;
(c) Investments made by any Consolidated Subsidiary (other than a
Dormant Company) in or to any Loan Party (other than a Dormant Company);
(d) Investments made by the Borrowers in the form of Indebtedness of
any Consolidated Subsidiary owing to the Borrowers (or either of them) and
Guarantees by the Borrowers of Indebtedness of any Consolidated Subsidiary;
provided, that (i) the aggregate amount of (A) Investments (determined at book
value without giving effect to any consolidation of accounts) by the Borrowers
in Indebtedness of any Consolidated Subsidiary that is not a Subsidiary Loan
Party (excluding Investments existing on the Funding Date and which are
identified on Schedule 7.4 hereto) and (B) Guarantees (determined in accordance
with the definition thereof without giving effect to any consolidation of
accounts) by the Borrowers of Indebtedness of any Consolidated Subsidiary that
is not a Subsidiary Loan Party (excluding such Guarantees existing on the
Funding Date which are identified on Schedule 7.4 hereto) shall not exceed
$15,000,000 in any period of 12 consecutive months and not more than $45,000,000
in the aggregate during the Availability Period,
67
(ii) the aggregate amount of (A) Investments (determined at book value without
giving effect to any consolidation of accounts) by the Borrowers in Indebtedness
of any single Consolidated Subsidiary that is not a Subsidiary Loan Party
(excluding Investments existing on the Funding Date and which are identified on
Schedule 7.4 hereto) and (B) Guarantees (determined in accordance with the
definition thereof without giving effect to any consolidation of accounts) by
the Borrowers of Indebtedness of any single Consolidated Subsidiary that is not
a Loan Party (excluding such Guarantees existing on the Funding Date which are
identified on Schedule 7.4 hereto) shall not exceed $10,000,000 and (iii) no
Investment shall be made, directly or indirectly, by the Borrowers (or either of
them) or any of their Subsidiaries in any Dormant Company;
(e) loans or advances to employees, officers or directors of the
Borrowers or any Consolidated Subsidiary (other than a Dormant Company) in the
ordinary course of business for travel, relocation and other business related
expenses;
(f) Hedging Agreements permitted by Section 7.10;
(g) Permitted Acquisitions;
(h) Investments (other than Permitted Investments) existing on the
Closing Date and set forth on Schedule 7.4 (including Investments in
Consolidated Subsidiaries); provided, that, with respect to any Investment set
forth on Schedule 7.4 consisting of Indebtedness owing by a Subsidiary that is
not a Subsidiary Loan Party to any Consolidated Party, such Indebtedness, upon
repayment, may not be reborrowed;
(i) Investments in joint ventures that are not Subsidiaries of the
Borrowers (other than a Dormant Company) made after the Funding Date; provided,
that (a) no Default or Event of Default shall exist prior to or after giving
effect to such Investment and (b) the total amount of all such Investments
(determined at book value) made under this clause (i) during the preceding 12
month period, when aggregated with such Investment, does not exceed the lesser
of (x) $5,000,000 and (y) the Permitted Acquisition Basket minus the aggregate
amount of Total Acquisition Consideration of all Acquisitions consummated by
Xxxxxxxx and the Consolidated Subsidiaries during such preceding 12 month
period; and
(j) other Investments in and to a Subsidiary Loan Party (other than a
Dormant Company).
SECTION 7.5. RESTRICTED PAYMENTS. (a) The Borrowers will not, and
will not permit any Subsidiary to, declare or make, or agree to pay or make,
directly or indirectly, any dividend on any class of its stock, or make any
payment or prepayment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, retirement, defeasance or other
acquisition of, any shares of capital stock, or Indebtedness subordinated in any
manner to the Obligations, or any options, warrants, or other rights to purchase
such capital stock or such Indebtedness, whether now or hereafter outstanding
(each, a "RESTRICTED PAYMENT"), except for (i) dividends payable by Xxxxxxxx
solely in shares of any class of its capital stock; (ii) Restricted Payments
made by any Subsidiary to either Borrower or to another Subsidiary (other than a
Dormant
68
Company) and (iii) cash dividends paid on, and cash redemptions of, the common
stock of Xxxxxxxx in an amount not to exceed 100% of Consolidated Net Income (if
greater than $0) earned during the immediately preceding fiscal year of
Xxxxxxxx; provided, that, in the case of clauses (i) and (iii) above, no Default
or Event of Default has occurred and is continuing at the time such dividend is
paid or redemption is made or would be caused thereby; provided, further, that
in the case of clause (ii) above, no Default or Event of Default has occurred
and is continuing at the time any such Restricted Payment is made or would be
caused thereby if such Restricted Payment is to be made to any Person other than
a Loan Party.
(b) The Borrowers will not, and will not permit any Subsidiary to,
settle or compromise, or enter into any agreement to settle or compromise, any
pending or threatened suit, investigation, cause of action or other proceeding
described on Schedule 4.5(a) with any Person or Governmental Authority, as to
any single or related series of claims, involving payment by a Consolidated
Party (or a group of them) of $10,000,000 or more, without the obtaining the
prior written consent of the Administrative Agent.
SECTION 7.6. SALE OF ASSETS. Except as permitted under Section 7.3,
the Borrowers will not, and will not permit any Subsidiary (other than a Dormant
Company) to, convey, sell, lease, assign, transfer or otherwise dispose of, any
of their respective assets, business or property, whether now owned or hereafter
acquired, or, in the case of any Subsidiary, issue or sell any shares of such
Subsidiary's capital stock to any Person other than Xxxxxxxx or any Wholly-Owned
Subsidiary of Xxxxxxxx other than a Dormant Company (or to qualify directors if
required by applicable law), except:
(a) the sale or other disposition for fair market value of obsolete or
worn out property or other property not necessary for operations disposed of in
the ordinary course of business;
(b) the sale of inventory and Permitted Investments in the ordinary
course of business;
(c) the sale or other disposition of such assets (which may include
the capital stock of any Subsidiary of the Borrowers or all or substantially all
of the assets of any Subsidiary of the Borrowers) in an aggregate amount in any
fiscal year of Xxxxxxxx not to exceed $7,500,000.
SECTION 7.7. TRANSACTIONS WITH AFFILIATES. The Borrowers will not,
and will not permit any Subsidiaries to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrowers or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Borrowers and Wholly-Owned Subsidiaries not
involving any other Affiliates (subject to limitations in Section 7.4) and (c)
any Restricted Payment permitted by Section 7.5. Notwithstanding the foregoing,
the Borrowers will not, and will not permit any Subsidiaries to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or
69
otherwise engage in any other transactions with, any Dormant Company, unless (i)
such transaction is at prices and on terms and conditions not less favorable to
the Borrowers or such Subsidiary (other than the Dormant Company) than could be
obtained on an arm's length basis from unrelated third parties or involves
maintaining the corporate existence, good standing or properties of any Dormant
Company and (ii) after giving effect to such transaction, the representations
and warranties contained in Section 4.17 shall be true and correct.
SECTION 7.8. RESTRICTIVE AGREEMENTS. The Borrowers will not, and will
not permit any Subsidiary to, directly or indirectly, enter into, incur or
permit to exist any agreement that prohibits, restricts or imposes any condition
upon (a) the ability of either Borrower or any Subsidiary to create, incur or
permit any Lien upon any of its assets or properties, whether now owned or
hereafter acquired, or (b) the ability of any Subsidiary to pay dividends or
other distributions with respect to its capital stock, to make or repay loans or
advances to either Borrower or any other Subsidiary, to Guarantee Indebtedness
of either Borrower or any other Subsidiary or to transfer any of its property or
assets to either Borrower or any Subsidiary; provided, that (i) the foregoing
shall not apply to restrictions or conditions imposed by law or by this
Agreement, or any other Loan Document or the Private Placement Loan Documents,
(ii) the foregoing shall not apply to customary restrictions and conditions
contained in agreements relating to the sale of a Subsidiary pending such sale,
provided such restrictions and conditions apply only to the Subsidiary that is
sold and such sale is permitted hereunder, (iii) clause (a) above shall not
apply to restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions and conditions
apply only to the property or assets securing such Indebtedness, and (iv) clause
(a) above shall not apply to restrictions or conditions imposed by the
agreements listed on Schedule 7.8.
SECTION 7.9. SALE AND LEASEBACK TRANSACTIONS. The Borrowers will not,
and will not permit any Subsidiaries to, enter into any arrangement, directly or
indirectly, whereby they shall sell or transfer any property, real or personal,
used or useful in their business, whether now owned or hereinafter acquired, and
thereafter rent or lease such property or other property that they intend to use
for substantially the same purpose or purposes as the property sold or
transferred, except for any such sale of any fixed or capital assets that is
made for cash consideration in an amount not less than the cost of such fixed or
capital asset and is consummated within 90 days after the Borrowers or such
Subsidiary acquires or completes the construction of such fixed or capital
asset.
SECTION 7.10. HEDGING AGREEMENTS. The Borrowers will not, and will
not permit any of the Subsidiaries to, enter into any Hedging Agreement, other
than non-speculative Hedging Agreements entered into in the ordinary course of
business to hedge or mitigate risks to which a Borrower or any Subsidiary is
exposed in the conduct of its business or the management of its liabilities.
SECTION 7.11. AMENDMENT TO ORGANIZATIONAL DOCUMENTS. The Borrowers
will not, and will not permit any Subsidiary to, amend, modify or waive any of
their rights in a manner materially adverse to the Lenders under their articles
or certificate of incorporation, bylaws or other organizational documents.
70
SECTION 7.12. ACCOUNTING CHANGES; CHANGE OF FISCAL YEAR. The
Borrowers will not, and will not permit any Subsidiary to, change their
respective fiscal year ends or make any significant change in accounting
treatment or reporting practices, except as permitted or required by GAAP or
applicable law.
SECTION 7.13. MINIMUM CASH. At all times prior to the payment and
satisfaction in full by the Borrowers of all claims made by the Department of
Justice or any Governmental Authority in respect of the Department of Justice
litigation described in Schedule 4.5(a), the Borrowers will not permit cash on
hand to be less than $10,000,000, less any amount paid to such Persons in
satisfaction of such claims.
SECTION 7.14. NO LIMITATION ON PREPAYMENTS OR AMENDMENTS TO CERTAIN
LOAN DOCUMENTS. The Borrowers will not, and will not permit any Subsidiary to,
be a party to any agreement or instrument limiting its rights (a) to make
payments or prepayments on the Notes, whether optional or mandatory, under this
Agreement or (b) to amend or waive any term or provision of this Agreement, the
Notes or the Subsidiary Guaranty Agreement.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. EVENTS OF DEFAULT. If any of the following events (each
an "Event of Default") shall occur:
(a) the Borrowers shall fail to pay any principal of any Loan or of
any reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a date
fixed for prepayment or otherwise; or
(b) the Borrowers shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount payable under clause (a) of this
Article) payable under this Agreement or any other Loan Document, when and as
the same shall become due and payable, and such failure shall continue
unremedied for a period of three (3) Business Days; or
(c) any representation or warranty made or deemed made by or on behalf
of either Borrower or any Subsidiary in or in connection with this Agreement or
any other Loan Document (including the Schedules attached thereto) and any
amendments or modifications hereof or waivers hereunder, or in any certificate,
report, financial statement or other document submitted to the Administrative
Agent or the Lenders by either Borrower or any Subsidiary or any representative
of either Borrower or any Subsidiary pursuant to or in connection with this
Agreement or any other Loan Document shall prove to be incorrect in any material
respect when made or deemed made or submitted; or
71
(d) the Borrowers shall fail to observe or perform any covenant or
agreement contained in Sections 5.1, 5.2, 5.3 (with respect to the Borrowers'
existence), 5.10, 5.12 or Articles VI or VII; or
(e) the Borrowers or any Subsidiary shall fail to observe or perform
any covenant or agreement contained in this Agreement or any other Loan Document
(other than those referred to in clauses (a), (b) and (d) above and other than
the Sharing Agreement), and such failure shall remain unremedied for 30 days
after the earlier of (i) any Responsible Officer of either Borrower becomes
aware of such failure, or (ii) notice thereof shall have been given to the
Borrowers by the Administrative Agent or any Lender; or
(f) any Consolidated Party (whether as primary obligor or as guarantor
or other surety) shall fail to pay any principal of or premium or interest on
any Indebtedness which exceeds $5,000,000 individually or in the aggregate, when
and as the same shall become due and payable (whether at scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the agreement
or instrument evidencing such Indebtedness; or any other event shall occur or
condition shall exist under any agreement or instrument relating to such
Indebtedness and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and payable;
or required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or any offer to
prepay, redeem, purchase or defease such Indebtedness shall be required to be
made, in each case prior to the stated maturity thereof; or
(g) either Borrower or any Subsidiary shall (i) commence a voluntary
case or other proceeding or file any petition seeking liquidation,
reorganization or other relief under any federal, state or foreign bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a custodian, trustee, receiver, liquidator or other similar
official of it or any substantial part of its property, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (i) of this Section, (iii) apply for
or consent to the appointment of a custodian, trustee, receiver, liquidator or
other similar official for either Borrower or any such Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, or (vi) take any action for the
purpose of effecting any of the foregoing; or
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of either Borrower or any Subsidiary or its debts, or any substantial
part of its assets, under any federal, state or foreign bankruptcy, insolvency
or other similar law now or hereafter in effect or (ii) the appointment of a
custodian, trustee, receiver, liquidator or other similar official for either
Borrower or any Subsidiary or for a substantial part of its assets, and in any
such case, such proceeding or petition shall remain undismissed for a period of
60 days or an order or decree approving or ordering any of the foregoing shall
be entered; or
72
(i) either Borrower or any Subsidiary Loan Party shall become unable
to pay, shall admit in writing its inability to pay, or shall fail generally to
pay, its debts as they become due; or
(j) an ERISA Event shall have occurred that, when taken together with
other ERISA Events that have occurred, could reasonably be expected to result in
liability to either Borrower or any Consolidated Subsidiary in an aggregate
amount exceeding $5,000,000; or
(k) any judgment or order for the payment of money in excess of
$10,000,000 shall be rendered against either Borrower or any Consolidated
Subsidiary, and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be a period of 30
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(l) a Consolidated Party is enjoined, restrained or in any way
prevented by the order of any Governmental Authority from conducting all or a
material part of its business and such order continues for more than 30 days; or
(m) any non-monetary judgment shall have been rendered against any
Consolidated Party that could reasonably be expected to have a Material Adverse
Effect and there shall be a period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(n) a Change in Control shall occur or exist; or
(o) an "Event of Default" under and as defined in the Note Purchase
Agreement shall have occurred; or
(p) the Subsidiary Guaranty Agreement or any Pledge Agreement shall
for any reason cease to be valid and binding on, or enforceable against, any
Loan Party, or any Loan Party shall so state in writing, or any Loan Party or
other Person shall challenge the validity of or seek to terminate the Subsidiary
Guarantee Agreement or a Pledge Agreement or any provision of this Agreement or
any other Loan Document,
then, and in every such event (other than an event with respect to either
Borrower described in clause (g) or (h) of this Section) and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and upon the written request of the Required Lenders shall, by notice to the
Borrowers, take any or all of the following actions, at the same or different
times: (i) terminate the Commitments, whereupon the Commitment of each Lender
shall terminate immediately; (ii) declare the principal of and any accrued
interest on the Loans, and all other Obligations owing hereunder, to be,
whereupon the same shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Borrower and (iii) exercise all remedies contained in any
other Loan Document; and that, if an Event of Default specified in either clause
(g) or (h) shall occur, the Commitments shall
73
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon, and all fees, and all other Obligations
shall automatically become due and payable, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by each Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.1. APPOINTMENT OF ADMINISTRATIVE AGENT. (a) Each Lender
irrevocably appoints SunTrust Bank as the Administrative Agent and authorizes it
to take such actions on its behalf and to exercise such powers as are delegated
to the Administrative Agent under this Agreement and the other Loan Documents,
together with all such actions and powers that are reasonably incidental
thereto. The Administrative Agent may perform any of its duties hereunder by or
through any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers through their respective Related
Parties. The exculpatory provisions set forth in this Article shall apply to any
such sub-agent and the Related Parties of the Administrative Agent and any such
sub-agent and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
(b) The Issuing Bank shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated therewith
until such time and except for so long as the Administrative Agent may agree at
the request of the Required Lenders to act for the Issuing Bank with respect
thereto; provided, that the Issuing Bank shall have all the benefits and
immunities (i) provided to the Administrative Agent in this Article IX with
respect to any acts taken or omissions suffered by the Issuing Bank in
connection with Letters of Credit issued by it or proposed to be issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as the term "Administrative Agent" as used in this
Article IX included the Issuing Bank with respect to such acts or omissions and
(ii) as additionally provided in this Agreement with respect to the Issuing
Bank.
SECTION 9.2. NATURE OF DUTIES OF ADMINISTRATIVE AGENT. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in this Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except those discretionary rights and powers
expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2), and (c) except as expressly set forth in the Loan
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrowers or any of their Subsidiaries that is communicated to or obtained by
the Administrative Agent or any
74
of its Affiliates in any capacity. The Administrative Agent shall not be liable
(provided that the Borrowers reserve any and all rights and claims against any
Lender, including the Administrative Agent in its capacity as a Lender) for any
action taken or not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 10.2) or in the absence
of its own gross negligence or willful misconduct. The Administrative Agent
shall not be deemed to have knowledge of any Default or Event of Default unless
and until written notice thereof is given to the Administrative Agent by the
Borrowers or any Lender, and the Administrative Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements, or other terms and conditions
set forth in any Loan Document, (iv) the validity, enforceability, effectiveness
or genuineness of any Loan Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article III or
elsewhere in any Loan Document, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
SECTION 9.3. LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT. Each of
the Lenders, the Swingline Lender and the Issuing Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each of
the Lenders, the Swingline Lender and the Issuing Bank also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, continue to make its own decisions in taking or not taking of any
action under or based on this Agreement, any related agreement or any document
furnished hereunder or thereunder.
SECTION 9.4. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain from
such act or taking such act, unless and until it shall have received
instructions from such Lenders; and the Administrative Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
SECTION 9.5. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed,
sent or made by the proper Person. The Administrative Agent may also rely upon
any statement made to it orally or by telephone and believed by it to be made by
the proper Person and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (including counsel for the
Borrowers), independent public accountants and other
75
experts selected by it and shall not be liable for any action taken or not taken
by it in accordance with the advice of such counsel, accountants or experts.
SECTION 9.6. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The
bank serving as the Administrative Agent shall have the same rights and powers
under this Agreement and any other Loan Document in its capacity as a Lender as
any other Lender and may exercise or refrain from exercising the same as though
it were not the Administrative Agent; and the terms "Lenders", "Required
Lenders", "holders of Notes", or any similar terms shall, unless the context
clearly otherwise indicates, include the Administrative Agent in its individual
capacity. The bank acting as the Administrative Agent and its Affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with either Borrower or any Subsidiary or Affiliate of either Borrower
as if it were not the Administrative Agent hereunder.
SECTION 9.7. SUCCESSOR ADMINISTRATIVE AGENT.
(a) The Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Borrowers. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent, subject to the approval by the Borrowers provided that no Event of
Default shall exist at such time. If no successor Administrative Agent shall
have been so appointed, and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States of America or any state thereof or
a bank which maintains an office in the United States, having a combined capital
and surplus of at least $500,000,000.
(b) Upon the acceptance of its appointment as the Administrative Agent
hereunder by a successor, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under this Agreement and the
other Loan Documents. If within 45 days after written notice is given of the
retiring Administrative Agent's resignation under this Section 9.7 no successor
Administrative Agent shall have been appointed and shall have accepted such
appointment, then on such 45th day (i) the retiring Administrative Agent's
resignation shall become effective, (ii) the retiring Administrative Agent shall
thereupon be discharged from its duties and obligations under the Loan Documents
and (iii) the Required Lenders shall thereafter perform all duties of the
retiring Administrative Agent under the Loan Documents until such time as the
Required Lenders appoint a successor Administrative Agent as provided above.
After any retiring Administrative Agent's resignation hereunder, the provisions
of this Article IX shall continue in effect for the benefit of such retiring
Administrative Agent and its representatives and agents in respect of any
actions taken or not taken by any of them while it was serving as the
Administrative Agent.
ARTICLE X
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MISCELLANEOUS
SECTION 10.1. NOTICES.
(a) Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications to any
party herein to be effective shall be in writing and shall be delivered by hand
or overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
To either Borrower: Xxxxxxxx & Company
0000 Xxxxxxxxx Xxxxx XX
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Telecopy Number: (000) 000-0000
With a copy to: King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx
Telecopy Number: (000) 000-0000
To the Administrative Agent: SunTrust Xxxxxxxx Xxxxxxxx
c/o Agency Services
000 Xxxxxxxxx Xxxxxx, X. E./ 25th Floor
Atlanta, Georgia 30308
Attention: Agency Services
Telecopy Number: (000) 000-0000
With a copy to: SunTrust Bank
000 Xxxxxxxxx Xxxxxx, X. X., 0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy Number: (000) 000-0000
To the Issuing Bank: SunTrust Bank
00 Xxxx Xxxxx, X. E./Mail Code 3706
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxx
Telecopy Number: (000) 000-0000
To the Swingline Lender: SunTrust Bank
000 Xxxxxxxxx Xxxxxx, X.X./0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Agency Services
Telecopy Number: (000) 000-0000
77
Any party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties hereto. All
such notices and other communications shall, when transmitted by overnight
delivery, or faxed, be effective when delivered for overnight (next-day)
delivery, or transmitted in legible form by facsimile machine, respectively, or
if mailed, upon the third Business Day after the date deposited into the mails
or if delivered, upon delivery; provided, that notices delivered to the
Administrative Agent, the Issuing Bank or the Swingline Bank shall not be
effective until actually received by such Person at its address specified in
this Section 10.1.
(b) Any agreement of the Administrative Agent and the Lenders herein
to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Borrowers. The Administrative Agent and
the Lenders shall be entitled to rely on the authority of any Person purporting
to be a Person authorized by the Borrowers to give such notice and the
Administrative Agent and Lenders shall not have any liability to the Borrowers
or other Person on account of any action taken or not taken by the
Administrative Agent or the Lenders in reliance upon such telephonic or
facsimile notice. The obligation of the Borrowers to repay the Loans and all
other Obligations hereunder shall not be affected in any way or to any extent by
any failure of the Administrative Agent and the Lenders to receive written
confirmation of any telephonic or facsimile notice or the receipt by the
Administrative Agent and the Lenders of a confirmation which is at variance with
the terms understood by the Administrative Agent and the Lenders to be contained
in any such telephonic or facsimile notice.
SECTION 10.2. WAIVER; AMENDMENTS.
(a) No failure or delay by the Administrative Agent, the Issuing Bank
or any Lender in exercising any right or power hereunder or any other Loan
Document, and no course of dealing between either Borrower and the
Administrative Agent or any Lender, shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power or any abandonment or
discontinuance of steps to enforce such right or power, preclude any other or
further exercise thereof or the exercise of any other right or power hereunder
or thereunder. The rights and remedies of the Administrative Agent, the Issuing
Bank and the Lenders hereunder and under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies provided by law. No waiver of
any provision of this Agreement or any other Loan Document or consent to any
departure by either Borrower therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given. Without limiting the generality of the foregoing, the
making of a Loan or the issuance of a Letter of Credit shall not be construed as
a waiver of any Default or Event of Default, regardless of whether the
Administrative Agent, any Lender or the Issuing Bank may have had notice or
knowledge of such Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or the
other Loan Documents, nor consent to any departure by either Borrower therefrom,
shall in any event be effective unless the same shall be in writing and signed
by each Borrower and the Required Lenders
78
or each Borrower and the Administrative Agent with the consent of the Required
Lenders and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, that no
amendment or waiver shall: (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the date fixed for any payment of any principal of, or interest
on, any Loan or LC Disbursement or interest thereon or any fees hereunder or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date for the termination or reduction of any Commitment, without the
written consent of each Lender affected thereby, (iv) change Section 2.24(b) or
(c) in a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender, (v) change any of the
provisions of this Section or the definition of "Required Lenders" or any other
provision hereof specifying the number or percentage of Lenders which are
required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the consent of each
Lender; (vi) release any guarantor or limit the liability of any such guarantor
under any guaranty agreement; provided, that the consent of the Administrative
Agent or the Lenders shall not be required for the release of a guarantor under
any guaranty agreement so long as such guarantor (A) is a Dormant Company and
(B) will be dissolved simultaneously with such release under such guaranty
agreement; and (vii) release all or substantially all of the capital stock
subject to a Pledge Agreement; provided, further, that no such agreement shall
amend, modify or otherwise affect the rights, duties or obligations of the
Administrative Agent, the Swingline Bank or the Issuing Bank without the prior
written consent of such Person.
SECTION 10.3. EXPENSES; INDEMNIFICATION.
(a) The Borrowers shall pay (i) all reasonable out-of-pocket costs and
expenses of the Administrative Agent and its Affiliates as previously agreed
upon by the Borrowers and the Administrative Agent, including, subject to such
previously agreed upon arrangement, the reasonable fees, charges and
disbursements of counsel for the Administrative Agent and its Affiliates in
connection with the syndication of the credit facilities provided for herein,
the preparation and administration of the Loan Documents and any amendments,
modifications or waivers thereof (whether or not the transactions contemplated
in this Agreement or any other Loan Document shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket costs and expenses
(including, without limitation, the fees, charges and disbursements of outside
counsel) of the Administrative Agent, the Issuing Bank or any Lender in
connection with the enforcement or protection of its rights in connection with
this Agreement, including its rights under this Section, or in connection with
the Loans made or any Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) The Borrowers shall indemnify the Administrative Agent, the
Issuing Bank and each Lender, and each Related Party of any of the foregoing
(each, an "INDEMNITEE") against, and hold each of them harmless from, any and
all costs, losses, liabilities, claims, damages and
79
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, which may be incurred by or asserted against any Indemnitee
arising out of, in connection with or as a result of (i) the execution or
delivery of this Agreement or any other agreement or instrument contemplated
hereby, the performance by the parties hereto of their respective obligations
hereunder or the consummation of any of the transactions contemplated hereby,
(ii) any Loan or Letter of Credit or any actual or proposed use of the proceeds
therefrom (including any refusal by the Issuing Bank to honor a demand for
payment under a Letter of Credit if the documents presented in connection with
such demand do not strictly comply with the terms of such Letter of Credit),
(iii) any actual or alleged presence or release of Hazardous Materials on or
from any property owned by either Borrower or any Subsidiary or any
Environmental Liability related in any way to either Borrower or any Subsidiary
or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto; provided,
that the Borrowers shall not be obligated to indemnify any Indemnitee for any of
the foregoing arising out of such Indemnitee's gross negligence or willful
misconduct as determined by a court of competent jurisdiction in a final and
nonappealable judgment.
(c) The Borrowers shall pay, and hold the Administrative Agent and
each of the Lenders harmless from and against, any and all present and future
Other Taxes and Indemnified Taxes, and save the Administrative Agent and each
Lender harmless from and against any and all liabilities with respect to or
resulting from any delay or omission to pay such taxes.
(d) To the extent that either Borrower fails to pay any amount
required to be paid to the Administrative Agent, the Issuing Bank or the
Swingline Lender under clauses (a), (b) or (c) hereof, each Lender severally
agrees to pay to the Administrative Agent, the Issuing Bank or the Swingline
Lender, as the case may be, such Lender's Pro Rata Share (determined as of the
time that the unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided, that the unreimbursed expense or indemnified payment,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent, the Issuing Bank or the Swingline
Lender in its capacity as such.
(e) To the extent permitted by applicable law, no Borrower shall
assert, and each such Borrower hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to actual or direct damages) arising out of, in connection
with or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the transactions contemplated therein, any Loan or any
Letter of Credit or the use of proceeds thereof.
(f) All amounts due under this Section shall be payable promptly after
written demand therefore.
SECTION 10.4. SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, except that no Borrower may
80
assign or transfer any of its rights hereunder without the prior written consent
of each Lender (and any attempted assignment or transfer by any such Borrower
without such consent shall be null and void).
(b) Any Lender may at any time assign to one or more banks or other
financial institutions all or a portion of its rights and obligations under this
Agreement and the other Loan Documents (including all or a portion of its
Commitment and the Loans and LC Exposure at the time owing to it); provided,
that (i) except in the case of an assignment to a Lender or an Affiliate of a
Lender, the Borrowers and the Administrative Agent (and, in the case of an
assignment of all or a portion of a Commitment or any Lender's obligations in
respect of its LC Exposure or Swingline Exposure, the Issuing Bank and the
Swingline Lender) must give their prior written consent (which consent shall not
be unreasonably withheld or delayed), (ii) except in the case of an assignment
to a Lender or an Affiliate of a Lender or an assignment of the entire amount of
the assigning Lender's Commitment hereunder or an assignment while an Event of
Default has occurred and is continuing, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 (unless the Borrowers
and the Administrative Agent shall otherwise consent), (iii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement and the other
Loan Documents, (iv) the assigning Lender and the assignee shall (unless
otherwise waived by the Administrative Agent) execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee payable by the assigning Lender or the assignee (as
determined between such Persons) in an amount equal to $1,000 (unless otherwise
waived by the Administrative Agent) and (v) such assignee, if it is not a
Lender, shall deliver a duly completed Administrative Questionnaire to the
Administrative Agent; provided, that any consent of the Borrowers otherwise
required hereunder shall not be required in connection with the initial
syndication of the Loans or if an Event of Default has occurred and is
continuing. Upon the execution and delivery of the Assignment and Acceptance and
payment by such assignee to the assigning Lender of an amount equal to the
purchase price agreed between such Persons, such assignee shall become a party
to this Agreement and any other Loan Documents to which such assigning Lender is
a party and, to the extent of such interest assigned by such Assignment and
Acceptance, shall have the rights and obligations of a Lender under this
Agreement, and the assigning Lender shall be released from its obligations
hereunder to a corresponding extent (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.20, 2.21, 2.22, 2.23 and 10.3).
Upon the consummation of any such assignment hereunder, the assigning Lender,
the Administrative Agent and the Borrowers shall make appropriate arrangements
to have new Notes issued. Any assignment or other transfer by a Lender that does
not fully comply with the terms of this clause (b) shall be treated for purposes
of this Agreement as a sale of a participation pursuant to clause (c) below.
(c) Any Lender may at any time, without the consent of either
Borrower, the Administrative Agent, the Issuing Bank or the Swingline Lender,
sell participations to one or more banks or other entities (a "Participant") in
all or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment, the Loans owing to it and its LC
81
Exposure); provided, that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of its obligations hereunder, and (iii)
the Borrowers, the Administrative Agent, the Swingline Bank, the Issuing Bank
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. Any agreement between such Lender and
the Participant with respect to such participation shall provide that such
Lender shall retain the sole right and responsibility to enforce this Agreement
and the other Loan Documents and the right to approve any amendment,
modification or waiver of this Agreement and the other Loan Documents; provided,
that such participation agreement may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver
of this Agreement described in the first proviso of Section 10.2(b) that affects
the Participant. Each of the Borrowers agrees that each Participant shall be
entitled to the benefits of Sections 2.20, 2.21, 2.22 and 2.23 to the same
extent as if it were a Lender hereunder and had acquired its interest by
assignment pursuant to paragraph (b); provided, that no Participant shall be
entitled to receive any greater payment under Section 2.19 or 2.21 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant. To the extent permitted by law, the
Borrowers agree that each Participant shall be entitled to the benefits of
Section 2.23 as though it were a Lender, provided, that such Participant agrees
to share with the Lenders the proceeds thereof in accordance with Section 2.24
as fully as if it were a Lender hereunder. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 2.23
unless the Borrowers are notified of such participation sold to such Participant
and such Participant agrees, for the benefit of the Borrowers, to comply with
Section 2.23(e) as though it were a Lender hereunder.
(d) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement and its Notes (if any) to
secure its obligations to a Federal Reserve Bank without complying with this
Section; provided, that no such pledge or assignment shall release a Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(e) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPV"), identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrowers, the option to provide to the
Borrowers all or any part of any Loan that such Granting Lender would otherwise
be obligated to make to the Borrowers pursuant to this Agreement; provided, that
(i) nothing herein shall constitute a commitment by any SPV to make any Loan and
(ii) if an SPV elects not to exercise such option or otherwise fails to provide
all or any part of any Loan, the Granting Lender shall be obligated to make such
Loan pursuant to the terms hereof. The making of a Loan by an SPV hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPV shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPV, it will not institute
against, or join any other person in
82
instituting against, such SPV any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any
State. Notwithstanding anything to the contrary in this Section 10.4, any SPV
may (i) with notice to, but without the prior written consent of, the Borrowers
and the Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loans to the Granting Lender or
to any financial institutions (consented to by the Borrowers and the
Administrative Agent) providing liquidity and/or credit support to or for the
account of such SPV to support the funding or maintenance of Loans and (ii)
disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPV. As this Section
10.4(e) applies to any particular SPV, this Section may not be amended without
the written consent of such SPV.
SECTION 10.5. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS.
(a) This Agreement and the other Loan Documents shall be construed in
accordance with and be governed by the law (without giving effect to the
conflict of law principles thereof) of the State of New York.
(b) Each of the Borrowers hereby irrevocably and unconditionally
submits, for itself and its property, to the non-exclusive jurisdiction of the
United States District Court of the Northern District of Georgia, and of any
state court of the State of Georgia located in Xxxxxx County and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or any other Loan Document or the transactions contemplated
hereby or thereby, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such Georgia state court or, to the extent permitted by applicable law, such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that
the Administrative Agent, the Issuing Bank or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan
Document against either Borrower or their properties in the courts of any
jurisdiction.
(c) Each of the Borrowers irrevocably and unconditionally waives any
objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding described in paragraph (b) of this Section and
brought in any court referred to in paragraph (b) of this Section. Each of the
parties hereto irrevocably waives, to the fullest extent permitted by applicable
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to the service
of process in the manner provided for notices in Section 10.1. Nothing in this
Agreement or in any other Loan Document will affect the right of any party
hereto to serve process in any other manner permitted by law.
83
SECTION 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.7. RIGHT OF SETOFF. In addition to any rights now or
hereafter granted under applicable law and not by way of limitation of any such
rights, each Lender and the Issuing Bank shall have the right, at any time or
from time to time upon the occurrence and during the continuance of an Event of
Default, without prior notice to either Borrower, any such notice being
expressly waived by each Borrower to the extent permitted by applicable law, to
set off and apply against all deposits (general or special, time or demand,
provisional or final) of either Borrower at any time held or other obligations
at any time owing by such Lender and the Issuing Bank to or for the credit or
the account of either Borrower against any and all Obligations held by such
Lender or the Issuing Bank, as the case may be, irrespective of whether such
Lender or the Issuing Bank shall have made demand hereunder and although such
Obligations may be unmatured. Each Lender and the Issuing Bank agree promptly to
notify the Administrative Agent and the Borrowers after any such set-off and any
application made by such Lender and the Issuing Bank, as the case may be;
provided, that the failure to give such notice shall not affect the validity of
such set-off and application.
SECTION 10.8. COUNTERPARTS; INTEGRATION. This Agreement may be
executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. This
Agreement, the other Loan Documents, and any separate letter agreement(s)
relating to any fees payable to the Administrative Agent constitute the entire
agreement among the parties hereto and thereto regarding the subject matters
hereof and thereof and supersede all prior agreements and understandings, oral
or written, regarding such subject matters.
SECTION 10.9. SURVIVAL. All covenants, agreements, representations
and warranties made by either Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is
84
outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not expired or terminated. The provisions of Sections 2.21,
2.22, 2.23, and 10.3 and Article IX shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans, the expiration or termination of the Letters of
Credit and the Commitments or the termination of this Agreement or any provision
hereof. All representations and warranties made herein, in the certificates,
reports, notices, and other documents delivered pursuant to this Agreement shall
survive the execution and delivery of this Agreement and the other Loan
Documents, and the making of the Loans and the issuance of the Letters of
Credit.
SECTION 10.10. SEVERABILITY. Any provision of this Agreement or any
other Loan Document held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 10.11. INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which may be treated as
interest on such Loan under applicable law (collectively, the "CHARGES"), shall
exceed the maximum lawful rate of interest (the "MAXIMUM RATE") which may be
contracted for, charged, taken, received or reserved by a Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefore) until such
cumulated amount, together with interest thereon at the Federal Funds Rate to
the date of repayment, shall have been received by such Lender.
SECTION 10.12. CONFIDENTIALITY. The Administrative Agent and each
Lender agrees to keep confidential all non-public information identified as such
in writing and provided to it by the Borrowers or any of their Subsidiaries;
provided that nothing herein shall prevent the Administrative Agent or any
Lender from disclosing such information: (a) to the Administrative Agent, any
other Lender or any Affiliate thereof, (b) to prospective transferees,
assignees, SPVs or participants that sign a document containing the provisions
of this Section prior to disclosure, (c) its employees, directors, agents,
attorneys, accountants and other professional advisors or those of any of its
Affiliates that are made aware of the provisions of this Section prior to
disclosure, (d) in response to any order of any court or other Governmental
Authority or as may be required by law or regulation, (e) if requested or
required to do so in connection with any litigation or similar proceeding, (f)
that has been publicly disclosed, (g) to any nationally recognized rating agency
that requires access to information about a Lender's investment portfolio in
connection with ratings issued with respect to such Lender, or (h) in connection
with the exercise of any remedy hereunder or under any other Loan Document. The
parties hereto agree and acknowledge that the U.S. tax treatment and U.S. tax
structure of the transactions contemplated by this Agreement are not to be kept
confidential and are expressly excluded from treatment as such under this
Section 10.12.
85
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed under seal in the case of the Borrowers by their respective
authorized officers as of the day and year first above written.
XXXXXXXX & COMPANY
By /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
[SEAL]
XXXXXXXX & COMPANY
INTERNATIONAL, INC.
By /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
[SEAL]
SUNTRUST BANK
AS ADMINISTRATIVE AGENT, AS ISSUING
BANK, AS SWINGLINE LENDER AND AS
A LENDER
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Revolving Commitment: $30,000,000
LC Commitment: $15,000,000
Swingline Commitment: $ 5,000,000
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
86
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed under seal in the case of the Borrowers by their respective
authorized officers as of the day and year first above written.
XXXXXXXX & COMPANY
By
-------------------------------------
Name:
Title:
[SEAL]
XXXXXXXX & COMPANY
INTERNATIONAL, INC.
By
-------------------------------------
Name:
Title:
[SEAL]
SUNTRUST BANK
AS ADMINISTRATIVE AGENT, AS ISSUING
BANK, AS SWINGLINE LENDER AND AS
A LENDER
By /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
Revolving Commitment: $30,000,000
LC Commitment: $15,000,000
Swingline Commitment: $ 5,000,000
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT]
87
[Signature page to Revolving Credit Agreement dated as of September 30, 2003
among Xxxxxxxx & Company, Xxxxxxxx & Company International, Inc., the Lenders
from time to time party hereto, Bank of America, N.A., as Syndication Agent,
and SunTrust Bank, as Administrative Agent.]
BANK OF AMERICA, N.A.
AS SYNDICATION AGENT AND AS A LENDER
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Revolving Commitment: $25,000,000
CITIBANK, N.A.
AS A LENDER
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Revolving Commitment: $15,000,000
[SIGNATURE PAGE TO
REVOLVING CREDIT AGREEMENT]
88
[Signature page to Revolving Credit Agreement dated as of September 30, 2003
among Xxxxxxxx & Company, Xxxxxxxx & Company International, Inc., the Lenders
from time to time party hereto, Bank of America, N.A., as Syndication Agent,
and SunTrust Bank, as Administrative Agent.]
BANK OF AMERICA, N.A.
AS SYNDICATION AGENT AND AS A LENDER
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Revolving Commitment: $25,000,000
CITIBANK, N.A.
AS A LENDER
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Revolving Commitment: $15,000,000
[SIGNATURE PAGE TO REVOLVING CREDIT AGREEMENT]
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SCHEDULE I
APPLICABLE MARGIN AND APPLICABLE PERCENTAGE
Applicable Margin Applicable Applicable
Pricing for Eurocurrency Percentage for Percentage for Letter
Level Leverage Ratio Loans Commitment Fee of Credit Fees
------- -------------- ----------------- -------------- ---------------------
I Less than
0.50:1.00 .50% p.a. .20% p.a. .50% p.a.
II Less than
1.00:1.00 but
greater than or
equal to
0.50:1.00 .75% p.a. .20% p.a. .75% p.a.
III Less than
1.50:1.00 but
greater than or
equal to
1.00:1.00 .875% p.a. .25% p.a. .875% p.a.
IV Less than
2.00:1.00 but
greater than or
equal to
1.50:1.00 1.00% p.a. .25% p.a. 1.00% p.a.
V Greater than or
equal to
2.00:1.00 1.25% p.a. .375% p.a. 1.25% p.a.
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