EXHIBIT 99.1
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
THE XXXX GROUP INC.,
AS THE BORROWER,
CREDIT LYONNAIS NEW YORK BRANCH,
AS A LENDER, SWING LINE LENDER, AN ISSUER AND AGENT
AND
THE OTHER LENDERS SIGNATORY HERETO
CREDIT LYONNAIS SECURITIES,
AS JOINT ARRANGER AND SOLE BOOK RUNNER
CREDIT SUISSE FIRST BOSTON,
AS JOINT ARRANGER
XXXXXX TRUST AND SAVINGS BANK
AND
BNP PARIBAS
AS CO-SYNDICATION AGENTS
AND
U.S. BANK NATIONAL ASSOCIATION
AS DOCUMENTATION AGENT
$250,000,000 FACILITY
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TABLE OF CONTENTS
Article I DEFINITIONS....................................................................................1
Article II THE CREDITS...................................................................................23
2.1 Commitments...................................................................................23
2.2 Required Payments, Termination................................................................26
2.3 Ratable Loans.................................................................................27
2.4 Types of Advances.............................................................................27
2.5 Commitment Fee, Reductions in Aggregate Commitment............................................28
2.6 Minimum Amount of Each Advance................................................................28
2.7 Optional Principal Payments...................................................................28
2.8 Method of Selecting Types and Interest Periods for New Advances...............................28
2.9 Conversion and Continuation of Outstanding Advances...........................................29
2.10 Change in Interest Rate, etc..................................................................30
2.11 Rates Applicable After Default................................................................30
2.12 Method of Payment.............................................................................31
2.13 Noteless Agreement, Evidence of Indebtedness..................................................31
2.14 Telephonic Notices............................................................................32
2.15 Interest Payment Dates, Interest and Fee Basis................................................32
2.16 Notification of Advances, Interest Rates, Prepayments and Commitment Reductions...............32
2.17 Lending Installations.........................................................................33
2.18 Non-Receipt of Funds by the Agent.............................................................33
2.19 Facility LCs..................................................................................33
2.20 Replacement of Lender.........................................................................38
Article III YIELD PROTECTION; TAXES.......................................................................39
3.1 Yield Protection..............................................................................39
3.2 Changes in Capital Adequacy Regulations.......................................................40
3.3 Availability of Types of Advances.............................................................41
3.4 Funding Indemnification.......................................................................41
3.5 Taxes.........................................................................................41
3.6 Lender Statements; Survival of Indemnity......................................................43
3.7 Effect of Yield Protection....................................................................43
Article IV CONDITIONS PRECEDENT..........................................................................44
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4.1 Effectiveness.................................................................................44
4.2 Each Credit Extension.........................................................................47
4.3 Reaffirmations of Warranties..................................................................48
Article V REPRESENTATIONS AND WARRANTIES................................................................48
5.1 Existence and Standing........................................................................48
5.2 Authorization and Validity....................................................................48
5.3 No Conflict; Government Consent...............................................................48
5.4 Financial Statements..........................................................................49
5.5 Material Adverse Change.......................................................................49
5.6 Taxes.........................................................................................49
5.7 Litigation and Contingent Obligations.........................................................49
5.8 Subsidiaries..................................................................................50
5.9 ERISA.........................................................................................50
5.10 Accuracy of Information.......................................................................50
5.11 Regulation U, T and X.........................................................................50
5.12 Material Agreements...........................................................................50
5.13 Compliance With Laws..........................................................................50
5.14 Ownership of Properties.......................................................................51
5.15 Plan Assets; Prohibited Transactions..........................................................51
5.16 Environmental Matters.........................................................................51
5.17 Investment Company Act........................................................................51
5.18 Public Utility Holding Company Act............................................................51
5.19 No Default....................................................................................51
5.20 Post-Retirement Benefits......................................................................51
5.21 Insurance.....................................................................................52
5.22 Solvency......................................................................................52
5.23 Bond Obligations..............................................................................52
5.24 Intellectual Property.........................................................................52
5.25 Post-Closing Requirements.....................................................................52
5.26 Revisions or Updates to the Schedules.........................................................53
Article VI COVENANTS.....................................................................................53
6.1 Financial Reporting...........................................................................53
6.2 Use of Proceeds...............................................................................55
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6.3 Notice of Default.............................................................................55
6.4 Conduct of Business; Books and Records........................................................55
6.5 Taxes.........................................................................................56
6.6 Insurance.....................................................................................56
6.7 Compliance with Laws..........................................................................56
6.8 Maintenance of Properties.....................................................................56
6.9 Inspection....................................................................................56
6.10 Dividends.....................................................................................57
6.11 Indebtedness..................................................................................57
6.12 Merger........................................................................................58
6.13 Sale of Assets................................................................................58
6.14 Investments and Acquisitions..................................................................59
6.15 Liens.........................................................................................60
6.16 Affiliates....................................................................................61
6.17 Prepayment of Other Indebtedness..............................................................61
6.18 Sale of Accounts..............................................................................61
6.19 Contingent Obligations........................................................................61
6.20 Letters of Credit.............................................................................62
6.21 Financial Contracts...........................................................................62
6.22 Financial Covenants...........................................................................62
6.23 Subsidiaries..................................................................................63
6.24 Acquisitions..................................................................................63
6.25 Limitation on Leases..........................................................................64
6.26 XXXXx Interest Expense........................................................................64
6.27 XXXXx Indenture...............................................................................64
6.28 Name, Fiscal Year and Accounting Method.......................................................64
6.29 Agreements Restricting Liens and Distributions................................................64
6.30 Further Assurances in General.................................................................64
Article VII DEFAULTS......................................................................................65
Article VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES................................................68
8.1 Acceleration; Facility LC Collateral Account..................................................68
8.2 Amendments....................................................................................69
8.3 Preservation of Rights........................................................................70
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Article IX GENERAL PROVISIONS............................................................................71
9.1 Survival of Representations...................................................................71
9.2 Governmental Regulation.......................................................................71
9.3 Headings......................................................................................71
9.4 Entire Agreement..............................................................................71
9.5 Several Obligations; Benefits of this Agreement...............................................71
9.6 Expenses; Indemnification.....................................................................71
9.7 Accounting....................................................................................72
9.8 Severability of Provisions....................................................................72
9.9 Nonliability of Lenders.......................................................................72
9.10 Confidentiality...............................................................................73
9.11 Nonreliance...................................................................................73
9.12 Disclosure....................................................................................73
9.13 Interest......................................................................................73
9.14 Excess Share Certificates.....................................................................74
9.15 Survival of Prior Agreements..................................................................74
9.16 Guarantor's Acknowledgment and Consent........................................................74
9.17 Existing Indebtedness.........................................................................75
Article X THE AGENT.....................................................................................76
10.1 Appointment; Nature of Relationship...........................................................76
10.2 Powers........................................................................................76
10.3 General Immunity..............................................................................76
10.4 No Responsibility for Loans, Recitals, etc....................................................76
10.5 Action on Instructions of Lenders.............................................................77
10.6 Employment of Agents and Counsel..............................................................77
10.7 Reliance on Documents; Counsel................................................................77
10.8 Agent's Reimbursement and Indemnification.....................................................77
10.9 Notice of Default.............................................................................78
10.10 Rights as a Lender............................................................................78
10.11 Lender Credit Decision........................................................................78
10.12 Successor Agent...............................................................................78
10.13 Agent's Fee...................................................................................79
10.14 Delegation to Affiliates......................................................................79
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10.15 Execution of Collateral Documents.............................................................79
10.16 Collateral Releases...........................................................................79
Article XI SETOFF; RATABLE PAYMENTS......................................................................80
11.1 Setoff........................................................................................80
11.2 Ratable Payments..............................................................................80
Article XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.............................................80
12.1 Successors and Assigns........................................................................80
12.2 Participations................................................................................81
12.3 Assignments...................................................................................82
12.4 Dissemination of Information..................................................................83
12.5 Tax Treatment.................................................................................83
Article XIII NOTICES.......................................................................................83
13.1 Notices.......................................................................................83
13.2 Change of Address.............................................................................84
Article XIV COUNTERPARTS..................................................................................84
Article XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL..................................84
15.1 CHOICE OF LAW.................................................................................84
15.2 CONSENT TO JURISDICTION.......................................................................84
15.3 WAIVER OF JURY TRIAL..........................................................................85
15.4 Judgment Currency.............................................................................85
PRICING SCHEDULE
EXHIBIT 2.13(d) NOTE
EXHIBIT 4.1(a)(v) FORM OF GUARANTOR'S SOLVENCY CERTIFICATE
EXHIBIT 4.1(a)(viii) LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
EXHIBIT 6.1(d) COMPLIANCE CERTIFICATE
EXHIBIT 6.1(k) BORROWING BASE CERTIFICATE
EXHIBIT 6.1(l) BACKLOG REPORT
EXHIBIT 12.3.1 ASSIGNMENT AGREEMENT
SCHEDULE 2.19 EXISTING FACILITY LETTERS OF CREDIT
SCHEDULE 4.1(d) PRO FORMA AND HISTORICAL COMPLIANCE
SCHEDULE 5.7 LITIGATION AND CONTINGENT OBLIGATIONS
SCHEDULE 5.8 SUBSIDIARIES
SCHEDULE 5.12 MATERIAL AGREEMENTS
SCHEDULE 5.14 OWNERSHIP OF PROPERTIES
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SCHEDULE 5.23 BOND OBLIGATIONS
SCHEDULE 5.25 POST-CLOSING ITEMS
SCHEDULE 6.11(b) INDEBTEDNESS AND CONTINGENT OBLIGATIONS
SCHEDULE 6.14(b) INVESTMENTS
SCHEDULE 6.15(c) LIENS EXISTING ON THE EFFECTIVE DATE
SCHEDULE 6.19(d) CONTINGENT OBLIGATIONS
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This Third Amended and Restated Credit Agreement, dated as of March 17,
2003 (the "Effective Date"), is entered into by and among THE XXXX GROUP INC., a
Louisiana corporation (the "Borrower"), the Subsidiaries of the Borrower listed
on the signature pages hereto as Guarantors (together with each other Person who
subsequently becomes a Guarantor, collectively the "Guarantors"), the banks and
other financial institutions listed on the signature pages hereto under the
caption "Lenders" (together with each other Person who becomes a Lender,
collectively the "Lenders"), and CREDIT LYONNAIS NEW YORK BRANCH, individually
as a Lender and as administrative agent for the other Lenders (in such capacity
together with any other Person who becomes the agent, the "Agent").
WHEREAS, the Borrower, the Guarantors, the banks and other financial
institutions party thereto, Bank One, NA, as administrative agent, Firstar Bank,
N.A., as syndication agent, CLNY, as documentation agent, Union Planters Bank,
N.A., as co-agent, and Banc One Capital Markets, Inc., as lead arranger and sole
book runner are parties to that certain Second Amended and Restated Credit
Agreement dated February 28, 2002 (the "Second Amended and Restated Credit
Agreement"); and
WHEREAS, the parties desire to amend and restate the Second Amended and
Restated Credit Agreement in its entirety;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acceptable Security Interest" means a security interest which (i)
exists in favor of the Agent for its benefit and the ratable benefit of the
Lenders, (ii) is superior to all Liens or rights of any other Person in the
Property encumbered thereby, other than Liens permitted by Section 6.15, (iii)
secures the Obligations and (iv) is perfected and enforceable.
"Accounts" has the meaning stated in the New York Uniform Commercial
Code in effect from time to time.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the Effective Date, by which the Borrower
or any of its Subsidiaries (i) acquires from a third party that is not a
Subsidiary any going concern business or all or substantially all of the assets
of any Person that is not a Subsidiary, or division thereof, whether through
purchase of assets, merger or otherwise or (ii) directly or indirectly acquires
from a third party that is not a Subsidiary (in one transaction or as the most
recent transaction in a series of transactions) at least a majority (in number
of votes) of the securities of a corporation that is not a Subsidiary which have
ordinary voting power for the election of directors (other than securities
having such power
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only by reason of the happening of a contingency) or a majority (by percentage
or voting power) of the outstanding ownership interests of a Person other than a
corporation that is not a Subsidiary.
"Advance" means a borrowing hereunder, (i) in respect of any Loan other
than a Swing Line Loan, (x) made by the Lenders on the same Borrowing Date, or
(y) converted or continued by the Lenders on the same date of conversion or
continuation, consisting, in either case, of the aggregate amount of the several
Loans of the same Type and, in the case of Eurodollar Loans, for the same
Interest Period, and (ii) in respect of a Swing Line Loan, a borrowing made by
the Swing Line Lender.
"Affected Lender" is defined in Section 2.20.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Agent" means CLNY in its capacity as contractual representative of the
Lenders pursuant to Article X, and not in its individual capacity as a Lender,
and any successor Agent appointed pursuant to Article X.
"Aggregate Commitment" means the total of the Revolving Credit
Commitment of all the Lenders (including the Swing Line Lender's Swing Line
Commitment), and the Facility LC Commitment of all of the Lenders, in each case,
as reduced from time to time pursuant to the terms hereof, which amount as of
the Effective Date is a maximum of $250,000,000.
"Aggregate Facility LC Commitment" means the sum of all of the Lenders'
Facility LC Commitments, which totals a maximum of $250,000,000 as of the
Effective Date.
"Aggregate Revolving Credit Commitment" means the sum of all of the
Lenders' Revolving Credit Commitments, which, subject to the limitations of the
Aggregate Commitment, total a maximum of $250,000,000 as of the Effective Date,
reducing from time to time as set forth herein, or as the same may be increased
pursuant to Section 2.1.1(b) hereof.
"Aggregate Outstanding Credit Exposure" means, at any time, the
aggregate of the Outstanding Credit Exposure of all the Lenders (including the
Swing Line Lender).
"Agreed Currencies" means (i) Dollars, (ii) so long as such currencies
remain Eligible Currencies, Australian Dollars, British Pounds Sterling,
Canadian Dollars, and Euros, (iii) India Rupees and Qatar Riyals (a) only so
long as such currency remains an Eligible Currency and (b) only for purposes of
a Facility LC which supports an Existing Facility LC that was issued in such
currency, and (iv) any other Eligible Currency which the Borrower requests the
Agent to include as an Agreed Currency hereunder and which is acceptable to all
of the Lenders. For the purposes of this definition, each of the specific
currencies referred to in clauses (ii) and (iii), above, shall
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mean and be deemed to refer to the lawful currency of the jurisdiction referred
to in connection with such currency, e.g., "Australian Dollars" means the lawful
currency of Australia.
"Agreement" means this Third Amended and Restated Credit Agreement, as
it may be renewed, extended, amended, restated or modified and in effect from
time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Corporate Base Rate for such day and (ii) the sum
of the Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Fee Rate" means, at any time, the percentage rate per annum
at which commitment fees are accruing on the unused portion of the Aggregate
Commitment (excluding the Swing Line Commitment) at such time as set forth in
the Pricing Schedule.
"Applicable LC Fee Rate" means, at any time, the percentage rate per
annum for LC Fees at such time as set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" of any Person, means any of the President, Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, Senior Vice
President, Treasurer, Vice President or Secretary of such Person.
"Available Aggregate Commitment" means, at any time, the Aggregate
Commitment then in effect minus the Aggregate Outstanding Credit Exposure at
such time.
"Borrower" means The Xxxx Group Inc., a Louisiana corporation, and its
permitted successors and assigns.
"Borrowing Base" means an amount determined by the Borrower based upon
the sum of the Dollar Amount of:
(i) 85% of Eligible Receivables unpaid not more than 30 days after the
date of the original invoice; plus
(ii) 80% of Eligible Receivables unpaid more than 30 days but not more
than 60 days after the date of the original invoice; plus
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(iii) 60% of Eligible Receivables unpaid more than 60 days but not more
than 90 days after the date of the original invoice; plus
(iv) without duplication of amounts in clauses (i) through (iii) above,
20% of the amount billed representing retainage and reasonably acceptable to the
Agent; plus
(v) 40% of Costs in Excess of Xxxxxxxx as set forth in the most
recently delivered financial statements of the Borrower and its Subsidiaries;
plus
(vi) 40% of Eligible Inventory.
"Borrowing Base Certificate" means a borrowing base certificate in
substantially the form of Exhibit 6.1(k).
"Borrowing Date" means a date on which a Credit Extension is made
hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means a day (other than a Saturday or Sunday) on which
banks generally are open in New York, New York for the conduct of substantially
all of their commercial lending activities and on which dealings in United
States dollars are carried on in the London interbank market.
"Calculation Period" means a four quarter period ending on the date of
the Borrower's fiscal quarter end or fiscal year end for which the relevant
calculation is being made.
"Capital Expenditures" means, without duplication, any expenditures for
any purchase or other acquisition of any asset which would be classified as a
fixed or capital asset on a consolidated balance sheet of the Borrower and its
Subsidiaries prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
including, without limitation, any preferred stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants or options to purchase any of the foregoing.
"Cash Equivalent Investments" means (i) short-term obligations of, or
fully guaranteed by, the United States of America, (ii) commercial paper rated
A-1 or better by S&P or P-1 or better by Xxxxx'x, (iii) demand deposit accounts
maintained in the ordinary course of business, (iv) certificates of deposit
issued by and time deposits with commercial banks (whether domestic
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or foreign) having capital and surplus in excess of $100,000,000, (v)
investments in Eurodollars not in excess of $15,000,000 in the aggregate at any
one time outstanding, issued by any bank or trust company having capital,
surplus and undivided profits aggregating at least $100,000,000 and whose long
term certificates of deposit are, at the time of acquisition thereof by Borrower
or any Subsidiary, rated A-1 or better by S&P or P-1 or better by Xxxxx'x, and
(vi) investments by Foreign Subsidiaries in short term investments, in
connection with the cash management programs of such Foreign Subsidiaries,
provided that (a) such investments in excess of $10,000,000 in the aggregate
shall be with funds held by institutions rated AA (or AAm) or better by S&P or
A2 (or its equivalent) or better by Xxxxx'x or otherwise acceptable to the Agent
and Required Lenders; provided further in each case of clauses (i) through (vi)
above, that the same provides for payment of both principal and interest (and
not principal alone or interest alone) and is not subject to any contingency
regarding the payment of principal or interest.
"Change" has the meaning specified in Section 3.2.
"Change in Control" means an event or series of events by which (i) any
"person" (as such term is used in Section 13(d) and 14(d) of the Exchange Act),
or related persons constituting a "group" (as such term is used in Rule 13d-5
under the Exchange Act) is or becomes or has the absolute, unconditional right
to become the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act), directly or indirectly, of 25% or more of the total voting power
of the voting stock of the Borrower; (ii) the Borrower consolidates with or
merges into another Person or conveys, transfers or leases all or substantially
all of its assets to any Person, or any Person consolidates with, or merges
into, the Borrower in a transaction not otherwise permitted hereunder; (iii) the
Borrower conveys, transfers or leases all or substantially all of its assets to
any Person; (iv) the stockholders of the Borrower approve any plan of
liquidation or dissolution of the Borrower; or (v) during any period of twelve
consecutive months, individuals who, at the beginning of such period,
constituted the board of directors of the Borrower (together with any new
director whose election by the Borrower's board of directors or whose nomination
for election by the Borrower's stockholders was approved by a vote of at least a
majority of the directors then still in office who either were directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason (other than due to death or
disability) to constitute a majority of the board of directors of the Borrower
then in office.
"CLNY" means Credit Lyonnais New York Branch, in its individual
capacity, and its successors and assigns.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral" means Accounts, Inventory, and General Intangibles,
including, without limitation, intellectual property and contracts, stock and
all other items described as collateral in any of the Collateral Documents,
including without limitation, all deposit accounts, plus all proceeds thereof,
but excluding all real estate, plants, parts and equipment.
"Collateral Documents" means, collectively, any and all documents
executed as security for the Obligations, as the same may be amended, including
without limitation the following
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documents: (i) security and pledge agreement executed by Borrower and the
Guarantors creating (A) a first and prior lien in favor of the Agent for the
ratable benefit of the Lenders on all of such Persons' Accounts, Inventory,
General Intangibles, the proceeds and products thereof and all other personal
property, including, without limitation, all inter-company notes and receivables
and (B) a first and prior lien in favor of the Agent for the ratable benefit of
the Lenders on, among other Collateral, all of the issued and outstanding shares
of the Borrower's or such Guarantor's Domestic Subsidiaries and 66% of the
issued and outstanding shares of the Borrower's or such Guarantor's Foreign
Subsidiaries that are owned by the Borrower or a Domestic Subsidiary, together
with any security and pledge agreement to be executed by the Borrower or any
Guarantor and delivered to the Agent pursuant to Section 6.23 hereof, (ii) the
Guaranty, (iii) Uniform Commercial Code financing statements relating to the
above described security and pledge agreements, (iv) stock powers executed in
blank by the Borrower and any Guarantor, as applicable, relating to the shares
of stock of its Subsidiaries pledged by the above described security and pledge
agreements, and (v) stock certificates for all of Borrowers' and its
Subsidiaries' shares of stock pledged by the above described security and pledge
agreements.
"Collateral Shortfall Amount" has the meaning specified in Section 8.1.
"Commitment" means, for each Lender, the Revolving Credit Commitment
and the Facility LC Commitment for such Lender.
"Computation Date" is defined in Section 2.19.13.
"Confidential Information Memorandum" means the Confidential
Information Memorandum dated October 2002 (together with all amendments,
supplements and subsequent updates thereto) and furnished to the Lenders in
connection with the syndication of the Commitments made under this Agreement.
"Consolidated Interest Expense" means, for any Person, with reference
to any period, the actual interest expense of such Person and its Subsidiaries
calculated on a consolidated basis for such period excluding any amortization of
financing fees incurred in connection with this Agreement and excluding any non
cash interest expense related to the XXXXx.
"Consolidated Net Income" means, for any Person, with reference to any
period, the net income (or loss) of such Person and its Subsidiaries calculated
according to Agreement Accounting Principles on a consolidated basis for such
period, excluding any such net income attributable to any Investment in any
Person that is not a Subsidiary except to the extent of cash distributions from
such Person to the Borrower or its Subsidiaries.
"Consolidated Net Worth" means at any time the consolidated
stockholders' equity of the Borrower and its Subsidiaries calculated on a
consolidated basis as of such time plus any preferred stock of the Borrower and
its Subsidiaries to the extent it has not been redeemed for Indebtedness, as
determined in accordance with Agreement Accounting Principles.
"Consolidated Total Indebtedness" means at any time, all Indebtedness,
and all Contingent Obligations that are interest bearing or to which interest is
attributable or to which interest accrues, including guarantees and Financial
Letters of Credit, of the Borrower and its Subsidiaries calculated on a
consolidated basis as of such time.
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"Consolidated Total Net Cash" means the sum of (i) accounts in
accordance with Agreement Accounting Principles classified as unrestricted (A)
cash or cash equivalents, (B) marketable securities, or (C) other Cash
Equivalent Investments less (ii) Advances under this Agreement.
"Consolidated Total Net Indebtedness" means at any time, (i)
Consolidated Total Indebtedness less (ii) the principal balance of any
Indebtedness, the proceeds of which are being held as restricted cash in
accordance with Agreement Accounting Principles for the purpose of redeeming the
XXXXx.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any limited recourse or recourse
note or other obligation, comfort letter, operating agreement, take-or-pay
contract or the obligations of any such Person as general partner of a
partnership with respect to the liabilities of the partnership, but excluding
contingent liabilities in respect of Performance Letters of Credit.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or any
of its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Conversion/Continuation Notice" has the meaning specified in Section
2.9.
"Corporate Base Rate" means a rate per annum equal to the prime rate of
interest quoted by CLNY as its prime rate in effect at its principal office in
New York City (which is not necessarily the lowest rate charged to any customer)
from time to time, changing when and as said corporate base rate changes.
"Costs in Excess of Xxxxxxxx" means all costs and estimated earnings in
excess of xxxxxxxx on uncompleted contracts subject to an Acceptable Security
Interest and otherwise reasonably acceptable to the Agent. For purposes of
determining Costs in Excess of Xxxxxxxx, it shall be assumed that all Costs in
Excess of Xxxxxxxx of the Borrower or any of the Guarantors and shown on the
consolidated balance sheet of the Borrower for the applicable period is subject
to an Acceptable Security Interest.
"Credit Extension" means the making of an Advance or the issuance of a
Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an Advance or the
issuance date for a Facility LC.
"CLS" means Credit Lyonnais Securities, in its capacity as a Joint
Arranger.
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"Debt Incurrence" means any issuance by the Borrower or any of its
Subsidiaries of any Indebtedness after the Effective Date other than Permitted
Indebtedness and other Indebtedness permitted under Section 6.11.
"Debt Incurrence Proceeds" means, with respect to any Debt Incurrence,
all cash and Cash Equivalent Investments received by the Borrower or any of its
Subsidiaries from such Debt Incurrence or such Indebtedness, as the case may be,
after payment of, or provision for, all underwriter fees and expenses, SEC and
blue sky fees, printing costs, fees and expenses of accountants, lawyers and
other professional advisors, brokerage commissions and other out-of-pocket fees
and expenses actually incurred in connection with such Debt Issuance or such
Indebtedness, as the case may be.
"Default" means an event described in Article VII.
"Dollar Amount" of any currency at any date shall mean (i) the amount
of such currency if such currency is Dollars or (ii) the equivalent in Dollars
of any amount of such currency if such currency is any currency other than
Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Agent for such currency on the London market at
11:00 a.m., London time, on or as of the most recent Computation Date provided
for in Section 2.19.13.
"Domestic Subsidiary" means any Subsidiary of Borrower that is formed
under the laws of the United States of America or any state.
"EBITDA" means, for any Person for any period, the Consolidated Net
Income of such Person for that period plus, to the extent deducted from revenues
in determining Consolidated Net Income, without duplication (i) Consolidated
Interest Expense, (ii) expense for taxes paid or accrued, (iii) depreciation,
(iv) amortization and (v) other non-cash expenses for such period, including,
without limitation, any amortization of financing fees incurred in connection
with this Agreement and any non-cash interest expense relating to the XXXXx,
minus, to the extent included in Consolidated Net Income, other non-cash income,
all calculated for such Person on a consolidated basis.
"Effective Date" has the meaning given in the preamble hereto.
"Eligible Currency" means any currency other than Dollars (i) that is
readily available, (ii) that is freely traded, (iii) in which deposits are
customarily offered to banks in the London interbank market, (iv) which is
convertible into Dollars in the international interbank market and (v) as to
which an Equivalent Amount may be readily calculated. If, after the designation
by the Lenders of any currency as an Agreed Currency, (x) currency control or
other exchange regulations are imposed in the country in which such currency is
issued with the result that different types of such currency are introduced, (y)
such currency is, in the determination of the Agent, no longer readily available
or freely traded or (z) in the determination of the Agent, an Equivalent Amount
of such currency is not readily calculable, the Agent shall promptly notify the
Lenders and the Borrower, and such currency shall no longer be an Agreed
Currency until such time as all of the Lenders agree to reinstate such currency
as an Agreed Currency.
-8-
"Eligible Inventory" means, at any time, items of Inventory of the
Borrower and its Subsidiaries held by such Persons for sale in the ordinary
course of business for the Borrower's and its Subsidiaries' fabrication and
manufacturing segments and is subject to an Acceptable Security Interest and
otherwise reasonably acceptable to the Agent, not to exceed $100,000,000. For
purposes of determining Eligible Inventory, it shall be assumed that all
Inventory owned by the Borrower or any of the Guarantors and shown on the
consolidated balance sheet of the Borrower for the applicable period is subject
to an Acceptable Security Interest.
"Eligible Receivables" means, at any time, the unpaid portion of all
Receivables payable to the Borrower or any of the Guarantors that are subject to
an Acceptable Security Interest and otherwise reasonably acceptable to the
Agent. For purposes of determining Eligible Receivables, it shall be assumed
that all Receivables owned by the Borrower or any of the Guarantors and shown on
the consolidated balance sheet of the Borrower for the applicable period is
subject to an Acceptable Security Interest. Notwithstanding the foregoing,
"Eligible Receivables" shall exclude (i) all Receivables that remain unpaid more
than 90 days from the invoice date, (ii) the amount of all discounts,
allowances, rebates, credits and adjustments to such Receivables, (iii) all
contra accounts, setoffs, defenses or counterclaims asserted by or available to
the Persons obligated on such Receivables, (iv) all such Receivables owed by
Persons that are insolvent or the subject of any bankruptcy or insolvency
proceedings of any kind, and (v) such Receivable arises out of any transaction
with any Subsidiary, Affiliate, officer or employee of the Borrower or by any
other Person in which the Borrower may have an equity interest.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
"Equity Issuance" means any issuance of equity securities (including
any preferred equity securities) by the Borrower or any of its Subsidiaries
other than equity securities issued (i) to the Borrower or one of its
Subsidiaries, and (ii) pursuant to employee or director and officer stock option
plans in the ordinary course of business.
"Equity Issuance Proceeds" means, with respect to any Equity Issuance,
all cash and Cash Equivalent Investments received by the Borrower or any of its
Subsidiaries from such Equity Issuance after payment of, or provision for, all
underwriter fees and expenses, SEC and blue sky fees, printing costs, fees and
expenses of accountants, lawyers and other professional advisors, brokerage
commissions and other out-of-pocket fees and expenses actually incurred in
connection with such Equity Issuance.
"Equivalent Amount" of any currency with respect to any amount of
Dollars at any date shall mean the equivalent in such currency of such amount of
Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Agent for such other
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currency at 11:00 a.m., London time, on the date on or as of which such amount
is to be determined.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Loan" means a Loan which, except as otherwise provided in
Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (A) the LIBOR
applicable to such Interest Period, divided by (B) one minus the Eurodollar
Reserve Percentage applicable to such Interest Period, plus (ii) the Applicable
Margin; provided, that in no event shall the Eurodollar Rate exceed the Highest
Lawful Rate. The Eurodollar Rate shall be rounded to the next higher multiple of
1/16 of 1% if the rate is not such a multiple.
"Eurodollar Reserve Percentage" means for any Interest Period for
Eurodollar Loans the maximum reserve percentage (expressed as a decimal, rounded
upward, if necessary, to the nearest 1/100th of one percent) as determined by
the Agent in effect on the date the LIBOR for such Interest Period is determined
(whether or not applicable to any Lender) under regulations issued from time to
time by the Federal Reserve Board for determining the maximum reserve
requirement (including basic, emergency, supplemental and other marginal reserve
requirements) with respect to liabilities or assets consisting of or including
Eurocurrency liabilities having a term equal to such Interest Period. Each
determination by the Agent of the Eurodollar Reserve Percentage shall be
conclusive and binding, absent manifest error.
"Exchange Act" means the Securities Exchange Act of 1934, as in effect
on the Effective Date.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or (ii) the jurisdiction
in which the Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Existing Facility LCs" means, collectively, the letters of credit
issued under the Second Amended and Restated Credit Agreement listed on Schedule
2.19.
"Facility LC" has the meaning specified in Section 2.19.1.
"Facility LC Application" has the meaning specified in Section 2.19.3.
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"Facility LC Collateral Account" has the meaning specified in Section
2.19.11.
"Facility LC Commitment" means the Commitment of each Lender to
participate in Facility LCs issued by an Issuer in the amount not exceeding that
set forth opposite its signature below or as set forth in any assignment
executed pursuant to Section 12.3.1, as modified from time to time pursuant to
the terms hereof.
"Facility Termination Date" means March 17, 2006 or any earlier date on
which the Aggregate Commitment is reduced to zero or otherwise terminated
pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 11:00 a.m. New
York, New York time on such day on such transactions received by the Agent from
three Federal funds brokers of recognized standing selected by the Agent in its
sole discretion.
"Fee Letter" means that certain letter agreement dated March 4, 2003
among the Borrower, the Agent and CLS which sets forth the fees to be paid to
the Agent and CLS.
"Financial Contract" of a Person means (i) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics, (ii) any agreements, devices or
arrangements providing for payments related to fluctuations of interest rates,
exchange rates, forward rates or commodity prices, including, but not limited
to, interest rate swap or exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts or warrants or (iii) any other similar
contract.
"Financial Letter of Credit" means a Letter of Credit qualifying as a
"financial guarantee-type letter of credit" under 12 CFR Part 3, Appendix A,
Section 3(b)(1)(i) or any successor U.S. Comptroller of the Currency regulation
and issued by an Issuer under the terms of this Agreement.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) the Applicable Margin, in each case
changing when and as the Alternate Base Rate or the Applicable Margin changes;
provided, that in no event shall the Floating Rate exceed the Highest Lawful
Rate.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the Floating Rate.
"Floating Rate Loan" means a Loan which, except as otherwise provided
in Section 2.11, bears interest at the Floating Rate.
"Foreign Subsidiary" means any Subsidiary of Borrower that is organized
under the laws of any jurisdiction other than the United States of America or a
state thereof.
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"Fronting Fee" is defined in Section 2.19.4.
"General Intangibles" has the meaning stated in the New York Uniform
Commercial Code in effect from time to time including, without limitation, all
Costs in Excess of Xxxxxxxx, all contract rights, rights to receive payments of
money, chooses in action, causes of action, judgments, tax refunds and tax
refund claims, patents, trademarks, trade names, copyrights, licenses,
franchises, computer programs, software, goodwill, customer and supplier
contracts, interests in general or limited partnerships, joint ventures or
limited liability companies, reversionary interests in pension and profit
sharing plans and reversionary, beneficial and residual interests in trusts,
leasehold interests in real or personal property, rights to receive rentals of
real or personal property and guarantee and indemnity claims.
"Guarantors" means collectively all of the Borrower's Domestic
Subsidiaries that are Material Subsidiaries as of the Effective Date and any
other Domestic Subsidiary of Borrower that shall become a guarantor hereunder
pursuant to Section 6.23.
"Guaranty" means that certain Guaranty dated as of the Effective Date
executed by the Guarantors in favor of the Agent, for the ratable benefit of the
Lenders, and each guaranty executed pursuant to Section 6.23 hereof, as each of
such may be amended or modified and in effect from time to time.
"Highest Lawful Rate" means, with respect to each Lender, the maximum
nonusurious interest rate, if any, that at any time or from time to time may be
contracted for, taken, reserved, charged or received on the principal amount of
the Obligations under laws applicable to such Lender which are presently in
effect or, to the extent allowed by law, under such applicable laws which may
hereafter be in effect and which allow a higher maximum nonusurious interest
rate than applicable laws now allow.
"Indebtedness" of a Person means, without duplication, such Person's
(i) obligations for borrowed money, (ii) obligations representing the deferred
purchase price of Property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade in the applicable jurisdiction), (iii) obligations, whether or not
assumed, secured by Liens or payable out of the proceeds or production from
Property now or hereafter owned or acquired by such Person, (iv) obligations
which are evidenced by notes, acceptances, or other instruments, (v) obligations
of such Person to purchase or repurchase securities, accounts or other Property
arising out of or in connection with the sale of the same or substantially
similar securities or Property, (vi) Capitalized Lease Obligations, (vii)
Off-Balance Sheet Liabilities, (viii) Net Xxxx-to-Market Exposure under
Financial Contracts, (ix) reimbursement obligations in respect of Financial
Letters of Credit (but excluding reimbursement obligations in respect of
Performance Letters of Credit) and (x) any other obligation for borrowed money
which in accordance with Agreement Accounting Principles would be shown as a
liability on the consolidated balance sheet of such Person.
"Index Debt" means senior, unsecured, long-term indebtedness for
borrowed money of the Borrower that is not guaranteed by any other Person or
subject to any other credit enhancement.
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"Interest Period" means, with respect to a Eurodollar Advance, a period
of one, two, three or six months commencing on a Business Day selected by the
Borrower pursuant to this Agreement. Such Interest Period shall end on the day
which corresponds numerically to such date one, two, three or six months
thereafter, provided, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such
Interest Period shall end on the last Business Day of such next, second, third
or sixth succeeding month. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Inventory" has the meaning stated in the New York Uniform Commercial
Code in effect from time to time, including, without limitation, all goods held
for sale or lease, or furnished or to be furnished under contracts of service,
or consumed in the applicable party's business, raw materials, intermediates,
work in process, packaging materials, finished goods, semi-finished inventory,
scrap inventory, manufacturing supplies and spare parts (to the extent not
covered by purchase money liens of manufacturers), all such goods that have been
returned to or repossessed by or on behalf of the Borrower or a Guarantor, as
applicable, and all such goods released to the Borrower, a Guarantor or to third
parties under trust receipts or similar documents.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than Accounts arising
in the ordinary course of business on terms customary in the trade in the
applicable jurisdiction) or contribution of capital by such Person; stocks,
bonds, mutual funds, partnership interests, notes, debentures or other
securities owned by such Person; any deposit accounts and certificate of deposit
owned by such Person; and structured notes, derivative financial instruments and
other similar instruments or contracts owned by such Person.
"Issuer" means CLNY or any Lender (or any subsidiary or affiliate
designated by CLNY or such Lender) in its capacity as issuer of Facility LCs
hereunder.
"LC Fee" is defined in Section 2.19.4.
"LC Obligations" means, at any time, the sum, without duplication, of
(i) the aggregate undrawn stated amount under all Facility LCs outstanding at
such time, plus (ii) the aggregate unpaid amount at such time of all
Reimbursement Obligations.
"LC Payment Date" has the meaning specified in Section 2.19.5.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent,
the office, branch, subsidiary or affiliate of such Lender or the Agent listed
on the signature pages hereof or on a Schedule or otherwise selected by such
Lender or the Agent pursuant to Section 2.17.
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"Letter of Credit" of a Person means a letter of credit which is issued
upon the application of such Person or upon which such Person is an account
party or for which such Person is in any way liable.
"Leverage Ratio" has the meaning specified in Section 6.22.1.
"LIBOR" means for any Interest Period for Eurodollar Loans, the per
annum rate of interest determined by the Agent to be the arithmetic mean
(rounded upward, if necessary, to the nearest 1/100th of one percent) of the
offered quotations appearing on Telerate Page 3750 (or if such Telerate page
shall not be available, any successor or similar service selected by the Agent).
If none of such Telerate Page 3750 or any successor or similar service is
available, "LIBOR" applicable to any Interest Period for Eurodollar Loans shall
be the per annum rate (rounded upward, if necessary, to the nearest 1/100th of
one percent) determined by the Agent based upon rates quoted at approximately
10:00 a.m. (London time) (or as soon thereafter as practicable) on the day two
Business Days prior to the first day of such Interest Period for the offering by
the Agent to leading dealers in the London interbank Dollar market of Dollar
deposits for delivery on the first day of such Interest Period, in immediately
available funds and having a term comparable to such Interest Period and in an
amount comparable to the principal amount of the respective Eurodollar Rate Loan
to which such Interest Period relates. Each determination by the Agent of LIBOR
shall be conclusive and binding, absent manifest error.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's loan made
pursuant to Article II (or any conversion or continuation thereof).
"Loan Documents" means this Agreement, the Collateral Documents, the
Facility LC Applications, any Notes issued pursuant to Section 2.13, all
documents required under Article IV, and all other documents and instruments
executed in connection with this Agreement or the Obligations.
"XXXXx" has the meaning specified in Section 6.11(i).
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), or results of operations
of the Borrower and its Subsidiaries taken as a whole, (ii) the ability of the
Borrower and the Guarantors taken as a whole to perform their respective
obligations under the Loan Documents to which any of them is a party, or (iii)
the validity or enforceability of any of the Loan Documents or the rights or
remedies of the Agent, an Issuer or the Lenders thereunder.
"Material Indebtedness" has the meaning specified in Section 7.5.
"Material Subsidiary" shall mean a Subsidiary of Borrower having: (i)
assets of $500,000 or more or (ii) annual cash flow of $500,000 or more.
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"Modify" and "Modification" have the meaning specified in Section
2.19.1.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Net Xxxx-to-Market Exposure" of a Person means, as of any date of
determination, and determined in accordance with Agreement Accounting
Principles, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Financial Contracts. "Unrealized losses"
means the fair market value of the cost to such Person of replacing such
Financial Contract as of the date of determination (assuming the Financial
Contract was to be terminated as of that date), and "unrealized profits" means
the fair market value of the gain to such Person of replacing such Financial
Contract as of the date of determination (assuming such Financial Contract was
to be terminated as of that date).
"Non-Financed Capital Expenditures" means, without duplication, any
Capital Expenditures other than that portion of such Capital Expenditures
financed with (i) operating leases, (ii) Capitalized Leases or (iii) purchase
money Indebtedness permitted under Section 6.11.
"Non-Recourse Indebtedness" means Indebtedness of the Borrower or any
of its Subsidiaries (i) in respect of which neither the Borrower nor any of its
Subsidiaries (other than Special Purpose Subsidiaries) shall have any liability
whatsoever, whether direct or indirect, contingent or otherwise, and (ii) the
provider of which shall have no recourse to any assets of the Borrower and its
Subsidiaries (other than the assets for which such Indebtedness was incurred,
the proceeds (including, without limitation, proceeds from associated contracts
and insurance) of, and improvements, accessories and upgrades to, such assets
and the ownership interests of any Special Purpose Subsidiary that owns, whether
directly or indirectly, such assets), other than Special Purchase Subsidiaries
(as to which recourse of any kind or nature is allowed), each as determined by
the Agent in its reasonable discretion.
"Non-U.S. Lender" has the meaning specified in Section 3.5(d).
"Note" means any promissory note issued at the request of a Lender
pursuant to Section 2.13(c) in the form of Exhibit 2.13(d).
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, Swing Line Loans, all Reimbursement Obligations, Rate
Hedging Obligations owing to a Lender or any Affiliate of a Lender, all accrued
and unpaid fees and all expenses, reimbursements, indemnities and other
obligations of the Borrower and the Guarantors to the Lenders or to any Lender,
the Agent, an Issuer or any indemnified party arising under the Loan Documents.
"Off-Balance Sheet Liability" of a Person means (i) any repurchase
obligation or liability of such Person with respect to accounts or notes
receivable sold by such Person, (ii) any liability under any Sale and Leaseback
Transaction which is not a Capitalized Lease, (iii) any liability
-15-
under any so-called "synthetic lease" transaction (a transaction that is treated
as an operating lease under Agreement Accounting Principles but a Capitalized
Lease for federal income tax purposes) entered into by such Person, or (iv) any
obligation arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the balance sheets of such Person, but excluding from this clause
(iv) operating leases.
"Operating Lease" of a Person means any lease of Property (other than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
"Outstanding Credit Exposure" means (i) as to any Lender at any time,
the sum of (x) the aggregate principal amount of its Loans outstanding at such
time, plus (y) an amount equal to its Pro Rata Share of the LC Obligations at
such time, and (ii) as to the Swing Line Lender only, at any time, the aggregate
principal amount of outstanding Swing Line Loans at such time.
"Other Taxes" has the meaning specified in Section 3.5(b).
"Participants" has the meaning specified in Section 12.2.1.
"Payment Date" means the last Business Day of each month of February,
May, August and November from and including the Effective Date through and
including the Facility Termination Date.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Performance Letter of Credit" means a Letter of Credit qualifying as a
"performance-based standby letter of credit" under 12 CFR Part 3, Appendix A,
Section 3(b)(2)(i) or any successor U.S. Comptroller of the Currency regulation
and issued by an Issuer under the terms of this Agreement.
"Permitted Business" means the businesses of Borrower and its
Subsidiaries carried on as of the Effective Date and any businesses, services or
activities incident or related thereto.
"Permitted Business Investments" means:
(i) loans and other extensions of credit to officers, directors
and employees of Borrower or any Subsidiary for travel,
entertainment, moving and similar expenses or advances made in
direct furtherance and in the ordinary course of the business
of Borrower or the Subsidiaries, provided that the aggregate
principal amount of loans and other extensions of credit made
pursuant to this clause (i) does not exceed $1,500,000 at any
one time outstanding;
(ii) loans to employees for signing bonuses in the ordinary course
of business of Borrower and its Subsidiaries;
-16-
(iii) Investments in joint ventures operating a Permitted Business
not to exceed 10% of Borrower's Consolidated Net Worth unless
such Investment could reasonably be expected to have a
Material Adverse Effect;
(iv) Loans and other extensions of credit to an officer or employee
of Borrower or a Subsidiary extended in connection with hiring
that Person that is the functional equivalent of a signing
bonus and is to be forgiven over time if said Person continues
his or her employment;
(v) Investments by Foreign Subsidiaries in other Foreign
Subsidiaries;
(vi) Investments by Borrower in Domestic Subsidiaries and
Investments by Domestic Subsidiaries in Borrower; and
(vii) Investments by Borrower in Foreign Subsidiaries, which
Investments are effected after the Effective Date, such
Investments not to exceed $10,000,000 in the aggregate
outstanding at any one time, and to be evidenced by a
promissory note or other similar document that is pledged to
the Agent as Collateral; and
(viii) Investments by Subsidiaries in Borrower.
"Permitted Financial Investments" means the following kinds of
instruments:
(i) receivables arising from the sale of goods and services in the
ordinary course of business of Borrower or any Subsidiaries;
(ii) currency or commodity price hedging agreements, using
customary ISDA swap documentation or comparable documentation,
entered into with a Lender for the purpose of hedging actual
exposure on the currency or commodity price risks of its
business and not speculation;
(iii) Capital Stock or obligations or securities received in
settlement of debts (created in the ordinary course of
business) owing to Borrower or any Subsidiary;
(iv) Investments in Capital Stock of publicly traded companies
provided that if there is Sufficient Liquidity at the time of
incurrence, the aggregate Investment therein shall not exceed
$10,000,000; otherwise no further Investments therein in
excess of $5,000,000 in the aggregate shall be made; and
(v) Investments in XXXXx permitted under Section 6.10.
"Permitted Indebtedness" shall mean without duplication (i) deferred
taxes and other expenses incurred in the ordinary course of business; (ii)
Indebtedness of a Domestic Subsidiary to Borrower, another Domestic Subsidiary
or a Foreign Subsidiary; (iii) Indebtedness of a Foreign Subsidiary to a Foreign
Subsidiary; (iv) Indebtedness of Borrower to a Domestic Subsidiary or a Foreign
Subsidiary, so long as such Indebtedness is subordinated to all of Borrower's or
its Subsidiaries' Indebtedness to Lenders pursuant to the Subordination
Agreement; (v) Indebtedness constituting the net obligations of a Person as of
the date of a
-17-
required calculation under a Rate Hedging Agreement in the ordinary course of
business and not for the purposes of speculation; (vi) reimbursement obligations
on Letters of Credit permitted under Section 6.20, and (vii) subject to the
Agent's consent at the time of incurrence, Non-Recourse Indebtedness.
"Permitted Liens" means any of the following:
(i) Liens for taxes, assessments or governmental charges or levies
on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are
being contested in good faith and by appropriate proceedings
and for which adequate reserves in accordance with Agreement
Accounting Principles shall have been set aside on its books;
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of
obligations not more than 60 days past due or which are being
contested in good faith by appropriate proceedings and for
which adequate reserves shall have been set aside on its
books;
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation;
(iv) deposits or Liens 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,
including, without limitation such deposits or Liens for the
benefit of member insurance companies of the American
International Companies ("AIC") or their respective Affiliates
or such other sureties as may be required from time to time in
the ordinary course of business; further provided that
Borrower may provide any such surety with access to the
premises, projects and equipment of Borrower that are related
to the bonding obligations of such surety as necessary to
allow such surety to enforce its rights under in accordance
with applicable laws; further provided that such access shall
not be construed as the granting of a Lien on, nor shall any
Liens granted in favor of such surety encumber, Eligible
Inventory, Eligible Receivables or Costs in Excess of
Xxxxxxxx.
(v) utility easements, building and zoning restrictions, minor
defects or irregularities in title and such other encumbrances
or charges against real property as are of a nature generally
existing with respect to properties of a similar character and
which do not in any material way adversely affect the
marketability of the same or interfere with the use thereof in
the business of the Borrower or its Subsidiaries;
(vi) judgment and attachment liens not giving rise to a Default or
liens created by or existing from any litigation or legal
proceeding that are being contested in good faith by
appropriate proceedings, promptly instituted and diligently
conducted,
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and for which adequate reserves have been made to the extent
required by Agreement Accounting Principles in respect of a
claim not to exceed $500,000;
(vii) liens in favor of collecting or payor banks having a right of
setoff, revocation, refund or chargeback in favor of
collecting or payor banks with respect to money or instruments
of the Borrower or any of its Subsidiaries on deposit with or
in possession of such bank; and
(viii) customary set off rights and related financial settlement
procedures under Rate Hedging Obligations entered into for the
purpose of hedging and not for speculation;
provided, that the term "Permitted Liens" shall not include any Lien securing
Indebtedness.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Projections" is defined in Section 4.1(a)(xvi).
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Pro Rata Share" means, with respect to a Lender, a portion equal to a
fraction the numerator of which is such Lender's Commitment and the denominator
of which is the Aggregate Commitment.
"Purchasers" has the meaning specified in Section 12.3.1.
"Qualified Stock" means, with respect to any Person, any common stock
of such Person or a Subsidiary of such Person.
"Rate Hedging Agreement" means an agreement, device or arrangement
entered into with any Lender or any Affiliate of a Lender providing for payments
which are related to fluctuations of interest rates, exchange rates or forward
rates, including, but not limited to, dollar-denominated or cross-currency
interest rate exchange agreements, forward currency exchange agreements,
interest rate cap or collar protection agreements, forward rate currency or
interest rate options, puts and warrants.
"Rate Hedging Obligation" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions
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therefor), under (i) any and all Rate Hedging Agreements, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any Rate
Hedging Agreement.
"Receivables" means and includes, as to any Person, all of such
Person's then owned or existing and future acquired or arising (i) Accounts,
(ii) rights to payment evidenced by chattel paper, documents or an instrument,
(iii) rights or claims to receive money that are General Intangibles, (iv)
rights or claims to the payment of money or other forms of consideration of any
kind including, but not limited to, letters of credit and the right to receive
payment thereunder, and all other debts, obligations and liabilities in whatever
form from any Person and guaranties, security and Liens securing payment
thereof, and (v) cash and non-cash proceeds of any of the foregoing.
"Refunded Swing Line Loans" has the meaning specified in Section
2.1.2(a).
"Regulations U, T and X" means the corresponding regulation of the
Board of Governors of the Federal Reserve System as from time to time in effect
and any successor or other regulation or official interpretation of said Board
of Governors, and all official rulings and interpretations thereunder or
thereof.
"Reimbursement Obligations" means, at any time, the aggregate of all
obligations of the Borrower then outstanding under Section 2.19 to reimburse an
Issuer for amounts paid by such Issuer in respect of any one or more drawings
under Facility LCs.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Reports" has the meaning specified in Section 9.6.
"Required Lenders" means Lenders in the aggregate having more than 60%
of the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding more than 60% of the aggregate Outstanding
Credit Exposure.
"Revolving Credit Commitment" means, for each Lender, the obligation of
such Lender to make Revolving Credit Loans, other than Swing Line Loans, to
Borrower in an amount not exceeding the amount set forth opposite its signature
below or as set forth in any assignment executed pursuant to Section 12.3.1, as
modified from time to time pursuant to the terms hereof.
"Revolving Credit Loan" means a loan made under Section 2.1 or Section
2.2, but shall not include a participation in a Facility LC.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
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"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person to a transferee together with the leasing back of such
Property from such transferee by such Person as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Secured Obligations" means the Obligations.
"Xxxx EBITDA" means, for any period, EBITDA for the Borrower and its
Subsidiaries. In calculating Xxxx EBITDA, (i) for any Acquisition permitted
hereunder by Borrower or a Subsidiary of any Person or assets during a
Calculation Period for which EBITDA is calculated (A) the EBITDA of such Person
or assets for the trailing twelve (12) months immediately preceding the
Acquisition shall be included in the first such calculation with respect to such
Person or assets and (B) in any subsequent calculation, to the extent such
Person or asset's EBITDA is not consolidated with Borrower's under Agreement
Accounting Principles for a full Calculation Period, the actual EBITDA of such
Person or assets for the most recent period prior to the time it was acquired by
Borrower or a Subsidiary shall be added to the EBITDA of Borrower to reach a
total of a full Calculation Period's EBITDA for such Person or assets being a
part of the calculation of Borrower's EBITDA; and (ii) Xxxx EBITDA shall be
reduced by EBITDA attributable to any assets sold during the applicable
Calculation Period.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Special Purpose Subsidiary" means any Subsidiary of the Borrower whose
principal purpose is to incur Non-Recourse Indebtedness or to become an owner of
interests in a Person created to conduct the business activities for which such
Indebtedness was incurred, and substantially all the fixed assets of such
Subsidiary or Person are those fixed assets being financed (or to be financed)
in whole or in part by such Indebtedness.
"Subordination Agreement" means the Intercompany Subordination
Agreement among the Borrower, all Foreign Subsidiaries, all Domestic
Subsidiaries and the Agent dated as of the Effective Date.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower.
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"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property which (i) represents more than 10% of
the consolidated assets of the Borrower and its Subsidiaries as would be shown
in the consolidated financial statements of the Borrower and its Subsidiaries as
at the beginning of the twelve-month period ending with the month in which such
determination is made, or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Borrower and its
Subsidiaries as reflected in the financial statements referred to in clause (i)
above.
"Sufficient Liquidity" means that at any time (i) during the period
from the Effective Date until May 1, 2004, (A) the amount of Consolidated Total
Net Cash at such time is equal to or greater than $100,000,000 and (B) the
aggregate amount of the remaining unused portion of the lesser of (1) the
Aggregate Revolving Credit Commitment or (2) the Borrowing Base at such time is
equal to or greater than $50,000,000; and (ii) after May 1, 2004 (A) the amount
of Consolidated Total Net Cash at such time is equal to or greater than
$75,000,000 and (B) the aggregate amount of the remaining unused portion of the
lesser of (1) the Aggregate Revolving Credit Commitment or (2) the Borrowing
Base at such time is equal to or greater than $50,000,000.
"Supermajority Lenders" means Lenders in the aggregate having more than
66 2/3% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding more than 66 2/3% of the aggregate
Outstanding Credit Exposure.
"Swing Line Commitment" means the Swing Line Lender's obligation to
make Swing Line Loans pursuant to Section 2.1.2.
"Swing Line Lender" means CLNY in its capacity as provider of the Swing
Line Loans.
"Swing Line Loan" or "Swing Line Loans" has the meaning specified in
Section 2.1.2.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes.
"Transferee" has the meaning specified in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Eurodollar Advance.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
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"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities (excluding directors' qualifying shares) of
which shall at the time be owned or controlled, directly or indirectly, by such
Person or one or more Wholly-Owned Subsidiaries of such Person, or by such
Person and one or more Wholly-Owned Subsidiaries of such Person, or (ii) any
partnership, limited liability company, association, joint venture or similar
business organization 100% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1 Commitments.
2.1.1 Loan Commitment.
(a) From and including the Effective Date and prior to the
Facility Termination Date, each Lender severally agrees, on the terms
and conditions set forth in this Agreement, to (i) make Loans to the
Borrower and (ii) participate in Facility LCs issued upon the request
of the Borrower, provided that, after giving effect to the making of
each such Loan and the issuance of each such Facility LC, (A) such
Lender's Outstanding Credit Exposure shall not exceed its Commitment;
(B) the total Facility LCs outstanding shall not exceed the Aggregate
Facility LC Commitment; (C) the total Revolving Credit Loans
outstanding shall not exceed the Aggregate Revolving Credit Commitment;
and (D) the Aggregate Outstanding Credit Exposure shall not exceed the
lesser of (1) the Aggregate Commitment and (2) the Borrowing Base.
Subject to the terms of this Agreement, the Borrower may borrow, repay
and reborrow at any time prior to the Business Day prior to the
Facility Termination Date. All Commitments shall expire on the Facility
Termination Date. An Issuer will issue Facility LCs hereunder on the
terms and conditions set forth in Section 2.19.
(b) At any time on or before the first anniversary of the
Effective Date, the Borrower may, at its option and subject to the
conditions described in this Section, without the consent of the
Lenders but subject to the consent of the Agent, increase the Aggregate
Commitment by adding to this Agreement one or more commercial banks or
other financial institutions (who shall, upon completion of the
requirements stated in this Section 2.1.1(b), constitute Lenders
hereunder), or by allowing one or more Lenders to increase their
Commitments hereunder, so that such added and increased Commitments
shall equal the increase in Aggregate Commitments effectuated pursuant
to this Section 2.1.1(b); provided that (i) without the consent of all
the Lenders, no increase in Aggregate Commitments pursuant to this
Section 2.1.1(b) shall result in the Aggregate Commitments exceeding
$300,000,000 less the aggregate amount of reductions
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made pursuant to Section 2.5(b), (ii) no more than three increases to
the Aggregate Commitment shall be permitted, and (iii) no Lenders'
Commitment amount shall be increased without the consent of such
Lender. Borrower may exercise its option to so increase the Aggregate
Commitment only if the following conditions are satisfied:
(i) no Default or Unmatured Default exists hereunder,
and the Borrower shall have delivered a certificate to Agent
from an officer of Borrower stating that no Default or
Unmatured Default exists;
(ii) the representations and warranties of the
Borrower contained in Article V shall be true and correct
except to the extent any such representation or warranty is
stated to relate solely to an earlier date, in which case such
representation or warranty shall have been true and correct on
such earlier date;
(iii) the Guarantors shall have consented to such
increase in writing; and
(iv) the Borrower shall execute new Notes evidencing
the increased Commitments of the Lenders, at the Lenders'
request.
The Borrower shall give the Agent ten Business Days' notice of the
Borrower's intention to increase the Aggregate Commitment pursuant to
this Section 2.1.1(b). Such notice shall specify each new commercial
bank or other financial institution, if any, the changes in amounts of
Commitments that will result, and such other information as is
reasonably requested by the Agent. Each new commercial bank or other
financial institution, and each Lender agreeing to increase its
Commitment, shall execute and deliver to the Agent a document in form
and substance satisfactory to the Agent pursuant to which it becomes a
party hereto or increases its Commitment, as the case may be, which
document, in the case of a new commercial bank or other financial
institution, shall (among other matters) specify the Lending
Installation of such new commercial bank or other financial
institution. Upon execution and delivery of such documents, such new
commercial bank or other financial institution shall constitute a
"Lender" hereunder with a Revolving Credit Commitment and Facility LC
Commitment as specified therein, or such Lender's Revolving Credit
Commitment and Facility LC Commitment shall increase as specified
therein, as the case may be. Notwithstanding the foregoing, after
giving effect to this Section, the terms and conditions hereof shall
remain substantially the same as on the Effective Date. Further, none
of the Lenders are obligated to increase their Commitments to comply
with this Section, and no Lender's Commitment will be increased without
written consent from such Lender.
(c) The parties hereto agree that any additional credit
commitments received after the Effective Date from a new commercial
bank or financial institution in connection with an increase of the
Aggregate Commitment pursuant
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to Section 2.1.1(b) shall be applied as follows: (i) 50% of such
commitments shall be applied to increase the then exiting Aggregate
Commitments pursuant to the provisions contained in Section 2.1.1(b),
and (ii) 50% of such commitments shall be applied to reduce ratably any
of the then existing Commitments of the Lenders which are greater than
or equal to $40,000,000 until such Commitments have been reduced to
$35,000,000 and thereafter, to reduce ratably all of the then existing
Commitments of the Lenders.
2.1.2 Swing Line Commitment.
(a) Subject to the terms and conditions hereof, the Swing Line
Lender agrees at any time and from time to time on and after the
Effective Date and prior to the Facility Termination Date, to make
Swing Line loans (each a "Swing Line Loan" and collectively, the "Swing
Line Loans") to the Borrower in an aggregate principal amount at any
one time outstanding not to exceed $25,000,000, which Swing Line Loans
(i) shall be made and maintained pursuant to one or more Advances
comprised of Floating Rate Advances and which shall not be entitled to
be converted into Eurodollar Advances, (ii) shall be made in the
minimum amount of $1,000,000 (or if less, in the aggregate amount of
the remaining unused portion of the Aggregate Revolving Credit
Commitment), and (iii) may be repaid and, so long as no Default or
Unmatured Default exists hereunder, reborrowed, at the option of the
Borrower, in accordance with the provisions hereof. Swing Line Loans
shall constitute "Loans" for all purposes hereunder, except they shall
be held by the Swing Line Lender (subject to Section 2.1.2(b) below)
and, only for purposes of calculating the commitment fee under Section
2.5, shall not be considered a utilization of the Commitment of any
Lender hereunder. Notwithstanding the foregoing, the Aggregate
Outstanding Credit Exposure shall not exceed the lesser of (A) the
Aggregate Commitment and (B) the Borrowing Base.
(b) If any Swing Line Loan is not repaid when due, the Swing
Line Lender shall give notice to the Agent to request each Lender,
including the Swing Line Lender, to make a Loan as a Floating Rate
Advance in an amount equal to the product of such Lender's Pro Rata
Share times the outstanding principal balance of such Swing Line Loan
(the "Refunded Swing Line Loan") outstanding on the date such notice is
given; provided that the provision of this subsection shall not affect
the obligation of the Borrower to prepay Swing Line Loans in accordance
with Section 2.2. Each Lender shall make the proceeds of
such Loan available to the Agent for the account of the Swing Line
Lender on the next Business Day following such request, in immediately
available funds. The proceeds of such Loans shall be immediately
applied to repay the Refunded Swing Line Loan.
(c) At any time before or after a Default or Unmatured
Default, if the Commitments shall have expired or be terminated while
any Swing Line Loan is outstanding, each Lender, at the sole option of
the Swing Line Lender, shall either (A) notwithstanding the expiration
or termination of the Commitments, make a
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Loan as a Floating Rate Advance, which such Loan shall be deemed a
"Loan" for all purposes of this Agreement and the other Loan Documents,
or (B) be deemed, without further action by any Person, to have
purchased from the Swing Line Lender a participation in such Swing Line
Loan, in either case in an amount equal to the product of such Lender's
Pro Rata Share times the outstanding principal balance of such Swing
Line Loan. The Agent shall notify each such Lender of the amount of
such Loan or participation, and such Lender will transfer to the Agent
for the account of the Swing Line Lender on the next Business Day
following such notice, in immediately available funds, the amount of
such Loan or participation.
(d) If any such Lender shall not have so made its Loan or its
percentage participation available to the Agent pursuant to this
Section 2.1.2, such Lender agrees to pay interest thereon for each day
from such date until the date such amount is paid at the lesser of (i)
the Federal Funds Effective Rate for such day for the first three days
and thereafter the interest rate applicable to the Loan, and (ii) the
Highest Lawful Rate. Whenever, at any time after the Agent has received
from any Lender such Lender's Loan or participating interest in a Swing
Line Loan, the Agent receives any payment on account thereof, the Agent
will pay to such Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Lender's Loan or participating
interest was outstanding and funded), which payment shall be subject to
repayment by such Lender if such payment received by the Agent is
required to be returned. Each Revolving Credit Lender's obligation to
make the Loans or purchase such participating interests pursuant to
this Section 2.1.2 shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (A) any
set-off, counterclaim, recoupment, defense or other right which such
Lender or any other Person may have against the Swing Line Lender, the
Agent or any other Person for any reason whatsoever; (B) the occurrence
or continuance of a Default or an Unmatured Default or the termination
of the Commitments; (C) the occurrence of any Material Adverse Effect;
(D) any breach of this Agreement by the Borrower or any other Lender;
or (E) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing. Each Swing Line Loan, once so
participated by any Lender, shall cease to be a Swing Line Loan with
respect to that amount for purposes of this Agreement, but shall
continue to be a Loan.
2.2 Required Payments, Termination. The Borrower shall make the
following mandatory payments:
(a) The Aggregate Outstanding Credit Exposure and all other
unpaid Obligations shall be paid in full by the Borrower on the
Facility Termination Date;
(b) Each Swing Line Loan shall be paid in full on the fifth
Business Day from the date such Swing Line Loan was made by the Swing
Line Lender;
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(c) Notwithstanding anything to the contrary contained in this
Agreement or in any other Loan Document, the Aggregate Outstanding
Credit Exposure shall not exceed the lesser of (i) the Aggregate
Commitment and (ii) the Borrowing Base. The Lenders shall never be
required to make any Advance or issue or participate in any Facility
LC, and the Swing Line Lender shall never be required to make any Swing
Line Loan, that would cause the Aggregate Outstanding Credit Exposure
to exceed the lesser of (A) the Aggregate Commitment and (B) the
Borrowing Base, and no Lender shall be required to make any Advance or
issue or participate in any Facility LC that would cause such Lender's
Outstanding Credit Exposure to exceed its individual, total Commitment.
If the Aggregate Outstanding Credit Exposure exceeds the lesser of (1)
the Aggregate Commitment and (2) the Borrowing Base, the Borrower
shall, within three Business Days after the earlier of (x) receiving
written notice thereof from the Agent or (y) actual knowledge of such
deficiency by an officer of the Borrower, repay the principal of the
Revolving Credit Loans in an amount equal to such excess. If after
giving effect to any such principal repayment there shall be in
existence a Collateral Shortfall Amount, Borrower shall immediately pay
to the Agent such Collateral Shortfall Amount in immediately available
funds, which funds shall be held in the Facility LC Collateral Account.
(d) The Borrower shall prepay the Swing Line Loans, or if the
Swing Line Loans have been repaid in full, prepay the Revolving Credit
Loans, by an amount equal to:
(i) 100% of the Debt Incurrence Proceeds that the
Borrower or any of its Subsidiaries receives from each Debt
Incurrence after the Effective Date upon receipt of such Debt
Incurrence Proceeds;
(ii) 100% of the Equity Issuance Proceeds that the
Borrower or any of its Subsidiaries receives from each Equity
Issuance after the Closing Date if such Equity Issuance
Proceeds are not utilized for Acquisitions or other general
business purposes within 90 days after the date of each such
Equity Issuance; or
(iii) the total amount of any insurance proceeds or
condemnation award received by the Borrower or any of its
Subsidiaries in excess of $5,000,000 by reason of theft, loss,
physical destruction or damage, condemnation or any other
similar event with respect to any property or assets of the
Borrower or any of its Subsidiaries if such insurance proceeds
are not applied or contractually committed to rebuild, restore
or replace the damaged or destroyed property within 90 days of
the receipt thereof.
2.3 Ratable Loans. Each Advance hereunder, other than Advance of Swing
Line Loans, shall consist of Loans made from the several Lenders ratably
according to their Pro Rata Shares.
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2.4 Types of Advances. The Advances (other than Advances made in
respect of a Swing Line Loan which must be Floating Rate Advances) may be
Floating Rate Advances or Eurodollar Advances, or a combination thereof,
selected by the Borrower in accordance with Section 2.8 and Section 2.9.
2.5 Commitment Fee, Reductions in Aggregate Commitment.
(a) The Borrower agrees to pay to the Agent for the account of
each Lender according to its Pro Rata Share a commitment fee at a per
annum rate equal to the Applicable Fee Rate on the average daily unused
portion of Aggregate Commitment from the date hereof to and including
the Facility Termination Date, payable quarterly in arrears on each
Payment Date hereafter and on the Facility Termination Date.
(b) The Borrower may permanently reduce the Aggregate
Commitment in whole, or in part by reducing each of the Aggregate
Revolving Credit Commitment and the Aggregate Facility LC Commitment
ratably among the Lenders in integral multiples of $5,000,000, upon at
least three Business Day's written notice to the Agent, which notice
shall specify the amount of any such reduction, provided, however, that
(i) the amount of the Aggregate Commitment may not be reduced below the
Aggregate Outstanding Credit Exposure; (ii) the amount of the Aggregate
Revolving Credit Commitment shall not be reduced below the amount of
outstanding Revolving Credit Loans, and, (iii) the Aggregate Facility
LC Commitment shall not be reduced below the amount of the LC
Obligations. All accrued commitment fees shall be payable on the
effective date of any termination of the obligations of the Lenders to
make Credit Extensions hereunder.
2.6 Minimum Amount of Each Advance. Each Eurodollar Advance shall be in
the minimum amount of $2,500,000 (and in multiples of $500,000 if in excess
thereof), and each Floating Rate Advance other than those constituting Swing
Line Loans, shall be in the minimum amount of $2,500,000 (and in multiples of
$500,000 if in excess thereof), provided, however, that any Floating Rate
Advance may be in the amount of the remaining unused portion of the Aggregate
Revolving Credit Commitment.
2.7 Optional Principal Payments. The Borrower may from time to time pay
or prepay, without penalty or premium, all outstanding Floating Rate Advances,
or, in a minimum aggregate amount of $2,500,000 or any integral multiple of
$500,000 in excess thereof, any portion of the outstanding Floating Rate
Advances after giving notice to the Agent of such prepayment no later than 1:00
p.m. New York time one Business Day prior to such prepayment. The Borrower may
from time to time pay or prepay, subject to the payment of any funding
indemnification amounts required by Section 3.4 but without penalty or premium,
all outstanding Eurodollar Advances, or, in a minimum aggregate amount of
$2,500,000 or any integral multiple of $500,000 in excess thereof, any portion
of the outstanding Eurodollar Advances after giving notice to the Agent of such
prepayment no later than 1:00 p.m. New York time three Business Days prior to
such prepayment.
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2.8 Method of Selecting Types and Interest Periods for New Advances.
2.8.1 Loans. The Borrower shall select the Type of Advance
and, in the case of each Eurodollar Advance, the Interest Period
applicable thereto from time to time. The Borrower shall give the Agent
irrevocable notice (a "Borrowing Notice") not later than 10:00 a.m. New
York time on the Borrowing Date of each Floating Rate Advance and three
Business Days before the Borrowing Date for each Eurodollar Advance,
specifying:
(a) the Borrowing Date, which shall be a Business Day,
of such Advance,
(b) the aggregate amount of such Advance,
(c) the Type of Advance selected, and
(d) in the case of each Eurodollar Advance, the
Interest Period applicable thereto.
The Agent shall promptly notify each Lender of the receipt of a
Borrowing Notice. Not later than 12:00 p.m. New York time on each
Borrowing Date, each Lender shall make available its Loan or Loans in
funds immediately available in New York, New York to the Agent at its
address specified pursuant to Article XIII. The Agent will make the
funds so received from the Lenders available to the Borrower at the
Agent's aforesaid address. The Borrower shall be entitled to have a
maximum of five separate Eurodollar Advances hereunder for all Loans
outstanding at any one time.
2.8.2 Swing Line Loans. Whenever the Borrower requires an
Advance under the Swing Line Loans, it shall give written notice
thereof (or telephonic notice promptly confirmed in writing) to the
Swing Line Lender not later than 10:00 a.m. New York, New York time on
the date of such Advance. Each notice shall be irrevocable and shall
specify the aggregate principal amount of such Advance and the
Borrowing Date of such Advance (which shall be a Business Day). No
later than 12:00 p.m. New York, New York time on the requested date,
the Swing Line Lender shall make available to the Borrower in
immediately available funds the amount of such Advance at the
Borrower's general deposit account maintained with the Swing Line
Lender, or as otherwise directed by the Borrower.
2.9 Conversion and Continuation of Outstanding Advances. Floating Rate
Advances shall continue as Floating Rate Advances unless and until such Floating
Rate Advances are converted into Eurodollar Advances pursuant to this Section
2.9 or are repaid in accordance with Section 2.2 or Section 2.7. Each Eurodollar
Advance shall continue as a Eurodollar Advance until the end of the then
applicable Interest Period therefor, at which time such Eurodollar Advance shall
be automatically converted into a Floating Rate Advance unless (a) such
Eurodollar Advance is or was repaid in accordance with Section 2.7 or (b) the
Borrower shall have given the Agent a Conversion/Continuation Notice (as defined
below) requesting that, at the end of such Interest Period, such Eurodollar
Advance continue as a Eurodollar Advance for the same or another Interest
Period. Subject to the terms of Section 2.6, the Borrower may elect from time to
time to convert all or any part of a Floating Rate Advance into a Eurodollar
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Advance. The Borrower shall give the Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of a Floating Rate Advance
into a Eurodollar Advance or continuation of a Eurodollar Advance not later than
11:00 a.m. New York time at least three Business Days prior to the date of the
requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to
be converted or continued, and
(iii) the amount of such Advance which is to be converted into
or continued as a Eurodollar Advance and the duration of the Interest
Period applicable thereto.
Advances under the Swing Line Loan shall at all times remain Floating Rate
Advances, and may not be converted into Eurodollar Advances.
2.10 Change in Interest Rate, etc. Each Floating Rate Advance shall
bear interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is automatically converted from a
Eurodollar Advance into a Floating Rate Advance pursuant to Section 2.9, to but
excluding the date it is paid or is converted into a Eurodollar Advance (and on
which date, if a conversion has occurred, the Eurodollar Rate is charged), at a
rate per annum equal to the Floating Rate for such day. Changes in the rate of
interest on that portion of any Advance maintained as a Floating Rate Advance
will take effect simultaneously with each change in the Alternate Base Rate or
Applicable Margin, as applicable. Each Eurodollar Advance shall bear interest on
the outstanding principal amount thereof from and including the first day of the
Interest Period applicable thereto to the last day of such Interest Period at
the interest rate determined by the Agent as applicable to such Eurodollar
Advance based upon the Borrower's selections under Section 2.8 and Section 2.9
and otherwise in accordance with the terms hereof. Changes in the rate of
interest on that portion of any Advance maintained as a Eurodollar Advance will
take effect simultaneously with each change in the Applicable Margin regardless
of whether such date falls during an existing Interest Period. No Interest
Period may end after the Facility Termination Date.
2.11 Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.8 or Section 2.9, during the continuance of a
Default or Unmatured Default the Required Lenders may, at their option, by
notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that no
Advance may be made as, converted into or continued as a Eurodollar Advance.
During the continuance of a Default the Required Lenders may, at their option,
by notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that (i)
each Eurodollar Advance shall bear interest for the remainder of the applicable
Interest Period at the lesser of (x) the Eurodollar Rate calculated by adding
the Applicable Margin for Level V (as set forth on the Pricing Schedule) plus 2%
per annum and (y) the Highest
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Lawful Rate, (ii) each Floating Rate Advance shall bear interest at a rate per
annum equal to the lesser of (x) the Floating Rate calculated by adding the
Applicable Margin for Level V plus 2% per annum and (y) the Highest Lawful Rate
and (iii) the LC Fee shall be calculated by using the Applicable Margin for
Level V increased by 2% per annum, provided that, during the continuance of a
Default under Section 7.6 or Section 7.7, the interest rates set forth in
clauses (i) and (ii) above and the increase in the LC Fee set forth in clause
(iii) above shall be applicable to all Credit Extensions without any election or
action on the part of the Agent or any Lender.
2.12 Method of Payment. All payments of the Obligations hereunder shall be made,
without setoff, deduction, or counterclaim, in immediately available funds to
the Agent at the following address: Credit Lyonnais New York Branch, 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or by wire transfer to the Agent in
accordance with Agent's written instructions), or at any other Lending
Installation of the Agent specified in writing by the Agent to the Borrower, by
noon (local time) on the date when due and shall (except in the case of
Reimbursement Obligations for which an Issuer has not been fully indemnified by
the Lenders, or as otherwise specifically required hereunder) be applied ratably
by the Agent among the Lenders. Each payment delivered to the Agent for the
account of any Lender shall be delivered promptly by the Agent to such Lender in
the same type of funds that the Agent received at its address specified pursuant
to Article XIII or at any Lending Installation specified in a notice received by
the Agent from such Lender. The Agent is hereby authorized to charge the account
of the Borrower maintained with CLNY for each payment of principal, interest,
Reimbursement Obligations and fees as it becomes due hereunder. Each reference
to the Agent in this Section 2.12 shall also be deemed to refer, and shall apply
equally, to an Issuer, in the case of payments required to be made by the
Borrower to an Issuer pursuant to Section 2.19.6.
2.13 Noteless Agreement, Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender
from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder.
(b) The Agent shall also maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and
the Interest Period with respect thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from
the Borrower to each Lender hereunder, (iii) the original stated amount
of each Facility LC and the amount of LC Obligations outstanding at any
time, and (iv) the amount of any sum received by the Agent hereunder
from the Borrower and each Lender's share thereof.
(c) The entries maintained in the accounts maintained pursuant
to Section 2.13(a) and Section 2.13(b) above shall be prima facie
evidence of the existence and amounts of the Obligations therein
recorded, provided, however, that the failure of the Agent or any
Lender to maintain such accounts or any error therein shall not in any
manner affect the obligation of the Borrower to repay the Obligations
in accordance with their terms.
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(d) Any Lender may request that its Loans be evidenced by a
promissory note (a "Note"). In such event, the Borrower shall prepare,
execute and deliver to such Lender a Note payable to the order of such
Lender in the form of Exhibit 2.13(d) attached hereto. Thereafter, the
Loans evidenced by such Note and interest thereon shall at all times
(including after any assignment pursuant to Section 12.3) be
represented by one or more Notes payable to the order of the payee
named therein or any assignee pursuant to Section 12.3, except to the
extent that any such Lender or assignee subsequently returns any such
Note for cancellation and requests that such Loans once again be
evidenced as described in Section 2.13(a) and Section 2.13(b) above.
2.14 Telephonic Notices. The Borrower hereby authorizes the Lenders and
the Agent to extend, convert or continue Advances, effect selections of Types of
Advances and to transfer funds based on telephonic notices made by any person or
persons the Agent or any Lender in good faith believes to be acting on behalf of
the Borrower, it being understood that the foregoing authorization is
specifically intended to allow Borrowing Notices and Conversion/Continuation
Notices to be given telephonically. The Borrower agrees to deliver promptly to
the Agent a written confirmation, if such confirmation is requested by the Agent
or any Lender, of each telephonic notice signed by an Authorized Officer of the
Borrower. If the written confirmation differs in any material respect from the
action taken by the Agent and the Lenders, the records of the Agent and the
Lenders shall govern absent manifest error.
2.15 Interest Payment Dates, Interest and Fee Basis. Interest accrued
on each Floating Rate Advance shall be payable on each Payment Date, commencing
with the first such date to occur after the Effective Date, on any date on which
the Floating Rate Advance is prepaid, whether due to acceleration or otherwise,
and at maturity. Interest accrued on that portion of the outstanding principal
amount of any Floating Rate Advance converted into a Eurodollar Advance on a day
other than a Payment Date shall be payable on the date of conversion. Interest
accrued on each Eurodollar Advance shall be payable in arrears on the last day
of its applicable Interest Period, on any date on which the Eurodollar Advance
is prepaid, whether by acceleration or otherwise, and at maturity. Interest
accrued on each Eurodollar Advance having an Interest Period longer than three
months shall also be payable on the last day of each three-month interval during
such Interest Period, and upon any prepayment. Interest on Floating Rate
Advances shall be calculated for actual days elapsed on the basis of a
365/366-day year. Interest on Eurodollar Advances, commitment fees and LC Fees
shall be calculated for actual days elapsed on the basis of a 360-day year.
Interest shall be payable for the day an Advance is made but not for the day of
any payment on the amount paid if payment is received prior to noon (local time)
at the place of payment. If any payment of principal of or interest on an
Advance shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest in connection with such payment. Notwithstanding the foregoing, the
Borrower will pay to the Agent, for the account of each Lender, interest at the
applicable rate in accordance with Section 2.11.
2.16 Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt
thereof, the Agent will notify each Lender of the contents of each Aggregate
Commitment reduction notice, Commitment increase notice, Borrowing Notice,
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Conversion/Continuation Notice, and repayment notice received by it hereunder.
Promptly after notice from an Issuer, the Agent will notify each Lender of the
contents of each request for issuance of a Facility LC hereunder. The Agent will
notify each Lender of the interest rate applicable to each Eurodollar Advance
promptly upon determination of such interest rate and will give each Lender
prompt notice of each change in the Alternate Base Rate.
2.17 Lending Installations. Each Lender may book its Loans and its
participation in any LC Obligations and an Issuer may book the Facility LCs at
any Lending Installation selected by such Lender or such Issuer, as the case may
be, and may change its Lending Installation from time to time. All terms of this
Agreement shall apply to any such Lending Installation and the Loans, Facility
LCs, participations in LC Obligations and any Notes issued hereunder shall be
deemed held by each Lender or each Issuer, as the case may be, for the benefit
of any such Lending Installation. Each Lender and each Issuer may, by written
notice to the Agent and the Borrower in accordance with Article XIII, designate
replacement or additional Lending Installations through which Loans will be made
by it or Facility LCs will be issued by it and for whose account Loan payments
or payments with respect to Facility LCs are to be made.
2.18 Non-Receipt of Funds by the Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (a) in the case of a Lender, the
proceeds of a Loan or (b) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders, that it does not
intend to make such payment, the Agent may assume that such payment has been
made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Agent, the recipient of such payment shall, on demand by the
Agent, repay to the Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three days and,
thereafter, the interest rate applicable to the relevant Loan or (y) in the case
of payment by the Borrower, the interest rate applicable to the relevant Loan.
2.19 Facility LCs.
2.19.1 Issuance. The parties hereto acknowledge that on and
after the Effective Date the Existing Facility LCs shall be Facility
LCs issued by an Issuer pursuant to this Agreement. Facility LCs issued
hereunder may be issued in any Agreed Currency. Each Issuer hereby
agrees, on the terms and conditions set forth in this Agreement, to
issue Financial Letters of Credit and Performance Letters of Credit
(each, a "Facility LC") and to renew, extend, increase, decrease or
otherwise modify each Facility LC ("Modify," and each such action a
"Modification"), from time to time from and including the Effective
Date and prior to fifteenth Business Day prior to the Facility
Termination Date upon the request of the Borrower; provided that
immediately after each such Facility LC is issued or Modified, (i) the
aggregate Dollar Amount of the outstanding LC Obligations shall not
exceed the Aggregate Facility LC Commitment and (ii) the Aggregate
Outstanding Credit Exposure shall not exceed the lesser of (A) the
Aggregate Commitment and (B) the Borrowing Base. No Facility LC issued
on or after the
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Effective Date shall have an expiry date later than the earlier of (x)
the fifth Business Day prior to the Facility Termination Date and (y)
one year after its issuance; provided that any Facility LC may provide
for the renewal thereof for additional one-year periods (which shall in
no event extend beyond the fifth Business Day prior to the Facility
Termination Date).
2.19.2 Participations. Immediately upon the issuance or
Modification by an Issuer of a Facility LC in accordance with this
Section 2.19, such Issuer shall be deemed, without further action by
any party hereto, to have unconditionally and irrevocably sold to each
Lender, and each Lender shall be deemed, without further action by any
party hereto, to have unconditionally and irrevocably purchased from
such Issuer, an undivided interest and participation in such Facility
LC (and each Modification thereof and the related LC Obligations in
proportion to its Pro Rata Share), the Obligations of the Borrower in
respect thereof, and the liability of such Issuer thereunder, in an
amount equal to the full amount of such Facility LC multiplied by such
Lender's Commitment percentage under the Facilities.
2.19.3 Notice. Subject to Section 2.19.1, the Borrower shall
give the applicable Issuer and the Agent, notice prior to 10:00 a.m.
New York, New York time at least five Business Days prior to the
proposed date of issuance or Modification of each Facility LC,
specifying the beneficiary, the proposed date of issuance (or
Modification) and the expiry date of such Facility LC, and describing
the proposed terms of such Facility LC and the nature of the
transactions proposed to be supported thereby. Upon receipt of such
notice, such Issuer shall promptly notify the Agent, and the Agent
shall promptly notify each Lender, of the contents thereof and of the
amount of such Lender's participation in such proposed Facility LC. The
issuance or Modification by such Issuer of any Facility LC shall, in
addition to the conditions precedent set forth in Article IV (the
satisfaction of which such Issuer shall have no duty to ascertain), be
subject to the conditions precedent that such Facility LC shall be
satisfactory to such Issuer and that the Borrower shall have executed
and delivered such application agreement and/or such other instruments
and agreements relating to such Facility LC as such Issuer shall have
reasonably requested (each, a "Facility LC Application"). In the event
of any conflict between the terms of this Agreement and the terms of
any Facility LC Application, the terms of this Agreement shall control.
2.19.4 LC Fees. The Borrower shall pay to the Agent, for the
account of the Lenders ratably in accordance with their respective Pro
Rata Shares, a fee on each Facility LC at a per annum rate equal to the
Applicable LC Fee Rate in the Pricing Schedule attached hereto
multiplied times the outstanding amount of such Facility LC available
for drawing, such fee to be payable in quarterly arrears to the Agent
for the ratable benefit of the Lenders (including each Issuer), plus
(without duplication of the fees provided for in connection with the
Fronting Fee (as defined below)), documentation and processing charges
and other standard costs of issuance (such fee an "LC Fee"). The
Borrower shall also pay to each Issuer for its own account (a) at the
time of issuance of each Facility LC, a fronting fee (the "Fronting
Fee") equal to .125% per annum multiplied times the face amount of such
Facility LC, and (b) documentary and processing charges in connection
with the issuance or Modification of and draws under
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Facility LCs in accordance with such Issuer's standard schedule for
such charges as in effect from time to time with respect to the
issuance, amendment, cancellation, negotiation or transfer of each
Letter of Credit and each drawing made thereunder. For purposes of
calculating the LC Fee and Fronting Fees hereunder, the face amount of
each Facility LC made in an Agreed Currency other than Dollars shall be
at any time the Dollar Amount of such Facility LC as determined on the
most recent Computation Date with respect to such Facility LC.
2.19.5 Administration, Reimbursement by Lenders. Upon receipt
from the beneficiary of any Facility LC of any demand for payment under
such Facility LC, the applicable Issuer shall notify the Agent and the
Agent shall promptly notify the Borrower and each other Lender as to
the amount to be paid by such Issuer as a result of such demand and the
proposed payment date (the "LC Payment Date"). The responsibility of
each Issuer to the Borrower and each Lender shall be only to determine
that the documents (including each demand for payment) delivered under
each Facility LC issued by such Issuer in connection with such
presentment shall be in conformity in all material respects with such
Facility LC. Each Issuer shall endeavor to exercise the same care in
the issuance and administration of the Facility LCs issued by it as it
does with respect to letters of credit in which no participations are
granted, it being understood that in the absence of any gross
negligence or willful misconduct by such Issuer, each Lender shall be
unconditionally and irrevocably liable without regard to the occurrence
of any Default or any condition precedent whatsoever, to reimburse such
Issuer on demand for (a) such Lender's Pro Rata Share of the Dollar
Amount of each payment made by such Issuer under each Facility LC to
the extent such amount is not reimbursed by the Borrower pursuant to
Section 2.19.6 below, plus (b) interest on the foregoing amount to be
reimbursed by such Lender, for each day from the date of such Issuer's
demand for such reimbursement (or, if such demand is made after 10:00
a.m. New York, New York time on such date, from the next succeeding
Business Day) to the date on which such Lender pays the amount to be
reimbursed by it, at a rate of interest per annum equal to the Federal
Funds Effective Rate for the first three days and, thereafter, at a
rate of interest equal to the rate applicable to Floating Rate
Advances.
2.19.6 Reimbursement by Borrower. The Borrower shall be
irrevocably and unconditionally obligated to reimburse each Issuer on
or before the applicable LC Payment Date for any amounts to be paid by
such Issuer upon any drawing under any Facility LC, without
presentment, demand, protest or other formalities of any kind, in the
currency in which such Facility LC was issued; provided that neither
the Borrower nor any Lender shall hereby be precluded from asserting
any claim for direct (but not consequential) damages suffered by the
Borrower or such Lender to the extent, but only to the extent, caused
by (a) the willful misconduct or gross negligence of such Issuer in
determining whether a request presented under any Facility LC issued by
it complied with the terms of such Facility LC or (b) such Issuer's
failure to pay under any Facility LC issued by it after the
presentation to it of a request strictly complying with the terms and
conditions of such Facility LC. All Reimbursement Obligations shall
bear interest, payable on demand, for each day until paid at a rate per
annum equal to (i) the rate applicable to Floating Rate Advances for
such day if such day falls on or before the applicable LC Payment Date
and (ii) the sum of 2% plus the rate applicable to Floating
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Rate Advances for such day if such day falls after such LC Payment
Date. All payments to be made by the Borrower hereunder in any currency
other than Dollars shall be made in such currency on the date due in
such funds as may then be customary for the settlement of international
transactions in such currency for the account of such Issuer, at its
Lending Installation for such currency. Each Issuer will pay to each
Lender ratably in accordance with its Pro Rata Share the Dollar Amount
of all amounts received by it from the Borrower for application in
payment, in whole or in part, of the Reimbursement Obligation in
respect of any Facility LC issued by such Issuer, but only to the
extent such Lender has made payment to such Issuer in respect of such
Facility LC pursuant to Section 2.19.5. Subject to the terms and
conditions of this Agreement (including without limitation the
submission of a Borrowing Notice in compliance with Section 2.8 and the
satisfaction of the applicable conditions precedent set forth in
Article IV), the Borrower may request an Advance hereunder for the
purpose of satisfying any Reimbursement Obligation. Notwithstanding the
foregoing provisions of this Section, if, after the issuance of any
Facility LC in any currency other than Dollars, currency control or
exchange regulations are imposed in the country which issues such
currency with the result that the type of currency in which the
Facility LC was issued (the "Original Currency") no longer exists or
the Borrower is not able to make payment to such Issuer in such
Original Currency, then all payments to be made by the Borrower
hereunder in such currency shall instead be made when due in Dollars in
an amount equal to the Dollar Amount (as of the date of repayment) of
such payment due, it being the intention of the parties hereto that the
Borrower take all risks of the imposition of any such currency control
or exchange regulations.
2.19.7 Obligations Absolute. The Borrower's obligations under
this Section 2.19 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense
to payment that the Borrower may have or have had against any Issuer,
any Lender or any beneficiary of a Facility LC. The Borrower further
agrees with each Issuer and each Lender that the Issuers and the
Lenders shall not be responsible for, and the Borrower's Reimbursement
Obligation in respect of any Facility LC shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even if such documents should in fact prove to be
in any or all respects invalid, fraudulent or forged, or any dispute
between or among the Borrower, any of its Affiliates, the beneficiary
of any Facility LC or any financing institution or other party to whom
any Facility LC may be transferred or any claims or defenses whatsoever
of the Borrower or of any of its Affiliates against the beneficiary of
any Facility LC or any such transferee. No Issuer shall be liable for
any error, omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in connection
with any Facility LC. The Borrower agrees that any action taken or
omitted by any Issuer or any Lender under or in connection with each
Facility LC and the related drafts and documents, if done without gross
negligence or willful misconduct, shall be binding upon the Borrower
and shall not put any Issuer or any Lender under any liability to the
Borrower. Nothing in this Section 2.19.7 is intended to limit the right
of the Borrower to make a claim against any Issuer for damages as
contemplated by the proviso to the first sentence of Section 2.19.6.
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2.19.8 Actions of Issuer. Each Issuer shall be entitled to
rely, and shall be fully protected in relying, upon any Facility LC,
draft, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or
Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by such Issuer. Each Issuer
shall be fully justified in failing or refusing to take any action
under this Agreement unless it shall first have received such advice or
concurrence of the Required Lenders as it reasonably deems appropriate
or it shall first be indemnified to its reasonable satisfaction by the
Lenders against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such action.
Notwithstanding any other provision of this Section 2.19, each Issuer
shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement in accordance with a request of the
Required Lenders, and such request and any action taken or failure to
act pursuant thereto shall be binding upon the Lenders and any future
holders of a participation in any Facility LC.
2.19.9 Indemnification. The Borrower hereby agrees to
indemnify and hold harmless each Lender, each Issuer and the Agent, and
their respective directors, officers, agents and employees from and
against any and all claims and damages, losses, liabilities, costs or
expenses which such Lender, such Issuer or the Agent may incur (or
which may be claimed against such Lender, such Issuer or the Agent by
any Person whatsoever) by reason of or in connection with the issuance,
execution and delivery or transfer of or payment or failure to pay
under any Facility LC or any actual or proposed use of any Facility LC,
including, without limitation, any claims, damages, losses,
liabilities, costs or expenses which such Issuer may incur by reason of
or in connection with (a) the failure of any other Lender to fulfill or
comply with its obligations to such Issuer hereunder (but nothing
herein contained shall affect any rights the Borrower may have against
any defaulting Lender) or (b) by reason of or on account of such Issuer
issuing any Facility LC which specifies that the term "Beneficiary"
included therein includes any successor by operation of law of the
named Beneficiary, but which Facility LC does not require that any
drawing by any such successor Beneficiary be accompanied by a copy of a
legal document, satisfactory to such Issuer, evidencing the appointment
of such successor Beneficiary, provided that the Borrower shall not be
required to indemnify any Lender, any Issuer or the Agent for any
claims, damages, losses, liabilities, costs or expenses to the extent,
but only to the extent, caused by (i) the willful misconduct or gross
negligence of any Issuer or (ii) any Issuer's failure to pay under any
Facility LC after the presentation to it of a request strictly
complying with the terms and conditions of such Facility LC. Nothing in
this Section 2.19.9 is intended to limit the obligations of the
Borrower under any other provision of this Agreement.
2.19.10 Lenders' Indemnification. Each Lender shall, ratably
in accordance with its Pro Rata Share, indemnify each Issuer, its
affiliates and their respective directors, officers, agents and
employees (to the extent not reimbursed by the Borrower) against any
cost, expense (including reasonable counsel fees and disbursements),
claim, demand, action, loss or liability (except such as result from
such indemnitees' gross negligence or willful misconduct or such
Issuer's failure to pay under any Facility LC after the
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presentation to it of a request strictly complying with the terms and
conditions of the Facility LC) that such indemnitees may suffer or
incur in connection with this Section 2.19 or any action taken or
omitted by such indemnitees hereunder.
2.19.11 Facility LC Collateral Account. The Borrower agrees
that it will, upon the request of the Agent or the Required Lenders and
until the final expiration date of any Facility LC and thereafter as
long as any amount is payable to any Issuer or the Lenders in respect
of any Facility LC, maintain a special interest bearing collateral
account pursuant to arrangements satisfactory to the Agent (the
"Facility LC Collateral Account") at the Agent's office at the address
specified pursuant to Article III, in the name of the Borrower but
under the sole dominion and control of the Agent, for the benefit of
the Lenders and in which such Borrower shall have no interest other
than as set forth in Section 8.1. The Borrower hereby pledges, assigns
and grants to the Agent, on behalf of and for the ratable benefit of
the Lenders and the Issuers, a security interest in all of the
Borrower's right, title and interest in and to all funds which may from
time to time be on deposit in the Facility LC Collateral Account to
secure the prompt and complete payment and performance of the
Obligations. Nothing in this Section 2.19.11 shall either obligate the
Agent to require the Borrower to deposit any funds in the Facility LC
Collateral Account or limit the right of the Agent to release any funds
held in the Facility LC Collateral Account in each case other than as
required by Section 8.1.
2.19.12 Rights as a Lender. In its capacity as a Lender, an
Issuer shall have the same rights and obligations as any other Lender.
2.19.13 Agreed Currency Provisions. The Agent will determine
the Dollar Amount of the LC Obligations as of (a) the date five
Business Days prior to the proposed date of issuance or Modification
and (b) on and as of the last Business Day of each fiscal quarter of
the Borrower and on any other Business Day at the Agent's reasonable
discretion or upon instruction by the Required Lenders. Each day upon
or as of which the Agent determines Dollar Amounts as described in the
preceding clauses (a) and (b) is herein described as a "Computation
Date". If at any time the Dollar Amount of the sum of the aggregate
principal amount of all outstanding LC Obligations (calculated, with
respect to those LC Obligations denominated in Agreed Currencies other
than Dollars, as of the most recent Computation Date) exceeds the
lesser of (i) the Aggregate Facility LC Commitment or (ii) the
Borrowing Base, the Borrower shall immediately make deposits to the
Facility LC Collateral Account to the extent of the Collateral
Shortfall Amount.
2.20 Replacement of Lender. If the Borrower is required pursuant to
Section 3.1, Section 3.2 or Section 3.5 to make any additional payment to any
Lender or if any Lender's obligation to make or continue, or to convert Floating
Rate Advances into, Eurodollar Advances shall be suspended pursuant to Section
3.3 (any Lender so affected an "Affected Lender"), the Borrower may elect, if
such amounts continue to be charged or such suspension is still effective, to
replace such Affected Lender as a Lender party to this Agreement, provided that
no Default or Unmatured Default shall have occurred and be continuing at the
time of such replacement, and provided further that, concurrently with such
replacement, (a) another bank or other entity which is reasonably satisfactory
to the Borrower and the Agent shall agree, as of such date, to purchase for cash
the Advances and other Obligations due to the Affected Lender pursuant to an
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assignment substantially in the form of Exhibit 12.3.1 and to become a Lender
for all purposes under this Agreement and to assume all obligations of the
Affected Lender which as to the Affected Lender shall be terminated as of such
date and to comply with the requirements of Section 12.3 applicable to
assignments, and (b) the Borrower shall pay to such Affected Lender in same day
funds on the day of such replacement all interest, fees and other amounts then
accrued but unpaid to such Affected Lender by the Borrower hereunder to and
including the date of termination, including without limitation payments due to
such Affected Lender under Section 3.1, Section 3.2 and Section 3.5.
ARTICLE III
YIELD PROTECTION; TAXES
3.1 Yield Protection.
(a) If any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive (whether or not having the
force of law), or any interpretation or administration thereof by any
governmental or quasi-governmental authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender or applicable Lending Installation
with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency:
(i) subjects any Lender or any applicable Lending
Installation or any Issuer to any Taxes, or changes the basis
of taxation of payments (other than with respect to Excluded
Taxes) to any Lender or any Issuer in respect of its
Eurodollar Loans, Facility LCs or participations therein, or
(ii) imposes or increases or deems applicable any
reserve, assessment, insurance charge, special deposit or
similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender or any
applicable Lending Installation or any Issuer (other than
reserves and assessments taken into account in determining the
interest rate applicable to Eurodollar Advances), or
(iii) imposes any other condition the result of which
is to increase the cost to any Lender or any applicable
Lending Installation or any Issuer of making, funding or
maintaining its Eurodollar Loans, or of issuing or
participating in Facility LCs, or reduces any amount
receivable by any Lender or any applicable Lending
Installation or any Issuer in connection with its Eurodollar
Loans, Facility LCs or participations therein, or requires any
Lender or any applicable Lending Installation or any Issuer to
make any payment calculated by reference to the amount of
Eurodollar Loans, Facility LCs or participations therein held
or interest or LC Fees received by it, by an amount deemed
material by such Lender or any Issuer as the case may be,
and the result of any of the foregoing is to increase the cost to such
Lender or applicable Lending Installation or such Issuer, as the case
may be, of making or maintaining its
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Eurodollar Loans, Commitment, or of issuing or participating in
Facility LCs or to reduce the return received by such Lender or
applicable Lending Installation or such Issuer, as the case may be, in
connection with such Eurodollar Loans, Commitment, Facility LCs or
participations therein, then, within 3 days of demand by such Lender or
such Issuer, as the case may be, the Borrower shall pay such Lender or
such Issuer, as the case may be, such additional amount or amounts as
will compensate such Lender or such Issuer, as the case may be, for
such increased cost or reduction in amount received. A Lender claiming
compensation under this section shall notify the Borrower in writing of
such claim, and shall only be entitled to compensation under this
Section 3.1 for increased costs occurring (A) from and after the date
of such notice until the events giving rise to such claim have ceased
to exist, and (B) during the one hundred twenty (120) day period
preceding the date the Borrower receives notice from Agent or such
Lender setting forth the described claim for compensation.
(b) Borrower may, if obligated to make a payment under this
Section 3.1, require the Lender(s) collecting such payment to (i) to
the extent reasonably possible, change its Lending Installation to a
different location so as to minimize such payment obligation, so long
as such designation would not, in the judgment of such Lender, result
in an increase in costs to such Lender, or (ii) sell its interests
herein to a Lender or other Person reasonably satisfactory to Agent in
accordance with Section 12.3.
3.2 Changes in Capital Adequacy Regulations.
(a) If a Lender or an Issuer determines the amount of capital
required or expected to be maintained by such Lender or such Issuer,
any Lending Installation of such Lender or such Issuer, or any
corporation controlling such Lender or such Issuer is increased as a
result of a Change, then, within 3 days of demand by such Lender or
such Issuer, the Borrower shall pay such Lender or such Issuer the
amount necessary to compensate for any shortfall in the rate of return
on the portion of such increased capital which such Lender or such
Issuer determines is attributable to this Agreement, its Outstanding
Credit Exposure or its Commitment to make Loans and issue or
participate in Facility LCs, as the case may be, hereunder (after
taking into account such Lender's or such Issuer's policies as to
capital adequacy). "Change" means (i) any change after the Effective
Date of this Agreement in the Risk-Based Capital Guidelines or (ii) any
adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation,
or directive (whether or not having the force of law) after the
Effective Date which affects the amount of capital required or expected
to be maintained by any Lender or any Issuer or any Lending
Installation or any corporation controlling any Lender or any Issuer.
"Risk-Based Capital Guidelines" means (i) the risk-based capital
guidelines in effect in the United States on the Effective Date,
including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United
States implementing the July 1988 report of the Basle Committee on
Banking Regulation and Supervisory Practices Entitled "International
Convergence of Capital Measurements and Capital Standards," including
transition rules, and any amendments to such regulations adopted prior
to the Effective Date. A Lender claiming compensation under this
section shall notify the Borrower in writing of such claim, and shall
only be entitled to compensation under this Section 3.2 for increased
costs as a
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result of a Change occurring (A) from and after the date of such notice
until the events giving rise to such claim have ceased to exist, and
(B) during the one hundred twenty (120) day period preceding the date
the Borrower receives notice from Agent or such Lender setting forth
the described claim for compensation resulting from such Change.
(b) Borrower may, if obligated to make a payment under this
Section 3.2, require the Lender(s) collecting such payment to (i) to
the extent reasonably possible, change its Lending Installation to a
different location so as to minimize such payment obligation, so long
as such designation is not, in the judgment of such Lender,
disadvantageous to such Lender, or (ii) sell its interests herein to a
Lender or other Person reasonably satisfactory to Agent in accordance
with Section 12.3.
3.3 Availability of Types of Advances. If any Lender determines that
maintenance of its Eurodollar Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or if the Required Lenders determine that (a) deposits
of a type and maturity appropriate to match fund Eurodollar Advances are not
available or (b) the interest rate applicable to Eurodollar Advances does not
accurately reflect the cost of making or maintaining Eurodollar Advances, then
the Agent shall suspend the availability of Eurodollar Advances and require any
affected Eurodollar Advances to be repaid or converted to Floating Rate
Advances, subject to the payment of any funding indemnification amounts required
by Section 3.4.
3.4 Funding Indemnification. If any payment of a Eurodollar Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Eurodollar
Advance is not made on the date specified by the Borrower for any reason other
than default by the Lenders, the Borrower will indemnify each Lender for any
loss or cost incurred by it resulting therefrom, including, without limitation,
any loss or cost in liquidating or employing deposits acquired to fund or
maintain such Eurodollar Advance.
3.5 Taxes.
(a) All payments by the Borrower to or for the account of any
Lender, any Issuer or the Agent hereunder or under any Note or Facility
LC Application shall be made free and clear of and without deduction
for any and all Taxes. If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder to any
Lender, any Issuer or the Agent, (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
3.5) such Lender, any Issuer or the Agent (as the case may be) receives
an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions,
(iii) the Borrower shall pay the full amount deducted to the relevant
authority in accordance with applicable law and (iv) the Borrower shall
furnish to the Agent the original copy of a receipt evidencing payment
thereof within 30 days after such payment is made.
(b) In addition, the Borrower hereby agrees to pay any present
or future stamp or documentary taxes and any other excise or property
taxes, charges or similar levies which
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arise from any payment made hereunder or under any Note or Facility LC
Application or from the execution or delivery of, or otherwise with
respect to, this Agreement or any Note or Facility LC Application
("Other Taxes").
(c) The Borrower hereby agrees to indemnify the Agent, each
Issuer and each Lender for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed on
amounts payable under this Section 3.5) paid by the Agent, each Issuer
or such Lender and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. Payments due under
this indemnification shall be made within 30 days of the date the Agent
or such Lender makes demand therefor pursuant to Section 3.6.
(d) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof (each a "Non-U.S. Lender")
agrees that it will, not less than ten Business Days after the date it
becomes a Lender, (i) deliver to each of the Borrower and the Agent two
duly completed copies of United States Internal Revenue Service Form
W-8BEN or W-8ECI or replacement or successor forms as the case may be,
certifying in either case that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any
United States federal income taxes, and (ii) deliver to each of the
Borrower and the Agent a United States Internal Revenue Form W-8 or W-9
when it becomes a Lender, as the case may be, and certify that it is
entitled to an exemption from United States backup withholding tax.
Each Non-U.S. Lender further undertakes to deliver to each of the
Borrower and the Agent (A) renewals or additional copies of such form
(or any successor form) on or before the date that such form expires or
becomes obsolete, and (B) after the occurrence of any event requiring a
change in the most recent forms so delivered by it, such additional
forms or amendments thereto as may be reasonably requested by the
Borrower or the Agent. All forms or amendments described in the
preceding sentence shall certify that such Lender is entitled to
receive payments under this Agreement without deduction or withholding
of any United States federal income taxes, unless an event (including
without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise
be required which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such form
or amendment with respect to it and such Lender advises the Borrower
and the Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax.
(e) For any period during which a Non-U.S. Lender has failed
to provide the Borrower with an appropriate form pursuant to Section
3.5(c) above (unless such failure is due to a change in treaty, law or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, occurring subsequent to the date
on which a form originally was required to be provided), such Non-U.S.
Lender shall not be entitled to indemnification under this Section 3.5
with respect to Taxes imposed by the United States; provided that,
should a Non-U.S. Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because of its
failure to deliver a form required under Section 3.5(c) above, the
Borrower shall take
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such steps as such Non-U.S. Lender shall reasonably request to assist
such Non-U.S. Lender to recover such Taxes.
(f) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this
Agreement or any Note pursuant to the law of any relevant jurisdiction
or any treaty shall deliver to the Borrower (with a copy to the Agent),
at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a
reduced rate.
(g) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country or any
political subdivision thereof asserts a claim that the Agent did not
properly withhold tax from amounts paid to or for the account of any
Lender (because the appropriate form was not delivered or properly
completed, because such Lender failed to notify the Agent of a change
in circumstances which rendered its exemption from withholding
ineffective, or for any other reason), such Lender shall indemnify the
Agent fully for all amounts paid, directly or indirectly, by the Agent
as tax, withholding therefor, or otherwise, including penalties and
interest, and including taxes imposed by any jurisdiction on amounts
payable to the Agent under this subsection, together with all costs and
expenses related thereto (including attorneys fees and time charges of
attorneys for the Agent, which attorneys may be employees of the
Agent). The obligations of the Lenders under this Section 3.5(g) shall
survive the payment of the Obligations and termination of this
Agreement.
(h) In the event that Borrower reimburses any Lender or the
Agent for any Taxes or pays any Taxes on any Lender's or the Agent's
behalf pursuant to this Section 3.5 and such Lender or Agent thereafter
receives any refund or credit of such Taxes, such Lender or Agent shall
promptly pay Borrower the amount of any such refund or credit.
3.6 Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Loans to reduce any liability of the Borrower to such
Lender under Section 3.1, Section 3.2 and Section 3.5 or to avoid the
unavailability of Eurodollar Advances under Section 3.3, so long as such
designation is not, in the judgment of such Lender, disadvantageous to such
Lender. Each Lender shall deliver a written statement of such Lender to the
Borrower (with a copy to the Agent) as to the amount due, if any, under Section
3.1, Section 3.2, Section 3.4 or Section 3.5. Such written statement shall set
forth in reasonable detail the calculations upon which such Lender determined
such amount and shall be presumed correct in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a
Eurodollar Loan shall be calculated as though each Lender funded its Eurodollar
Loan through the purchase of a deposit of the type and maturity corresponding to
the deposit used as a reference in determining the Eurodollar Rate applicable to
such Loan, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement of any Lender shall be
payable on demand after receipt by the Borrower of such written statement. The
obligations of the Borrower under Section 3.1, Section 3.2, Section 3.4 and
Section 3.5 shall survive payment of the Obligations and termination of this
Agreement.
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3.7 Effect of Yield Protection. The provisions of Section 3.1, Section
3.2, Section 3.3, Section 3.4, Section 3.5 and Section 3.6 shall be interpreted
in the broadest possible terms to include any increased costs, payments or
reduced income for any reason, including but specifically not by way of
limitation, due to taxes, capital adequacy provisions, reserve requirements,
withholding obligations, costs due to the payment of any sums on a date other
than the regularly scheduled date or for any other reason. The Borrower does
hereby indemnify and hold harmless the Agent and each Lender for all such costs
and does hereby agree to pay same or cover the Agent's or any Lender's expenses
or losses in regard to same. The Borrower shall pay such sums to the Agent or to
any Lender as are necessary to mitigate all such items. This obligation is in
addition to all other Obligations of the Borrower hereunder.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Effectiveness. This Agreement shall not be effective until
satisfaction of the following conditions precedent:
(a) Closing Documents. The Borrower shall have furnished the
following to the Agent each in form and substance satisfactory to the
Agent and with sufficient copies for the Lenders, where appropriate,
executed by the relevant Person:
(i) Copies of the articles or certificate of
incorporation or organization, as applicable, of the Borrower
and its Domestic Subsidiaries that are Material Subsidiaries,
together with all amendments, certified by the appropriate
governmental officer in such Person's jurisdiction of
organization or at Borrower's option, by an appropriate
officer of Borrower or the relevant Subsidiary.
(ii) Copies, certified by the Secretary or Assistant
Secretary of the Borrower and its Domestic Subsidiaries that
are Material Subsidiaries, as applicable, of their respective
by-laws, operating or other management agreement.
(iii) Copies, certified by the Secretary or Assistant
Secretary of the Borrower and its Domestic Subsidiaries that
are Material Subsidiaries, as applicable, along with
certificates of good standing and existence or authority to do
business as a foreign entity, as applicable, of resolutions of
their respective boards of directors or members and of any
other body authorizing the execution of the Loan Documents to
which such Person is a party.
(iv) Incumbency certificates, executed by the
Secretary or Assistant Secretary of the Borrower and its
Domestic Subsidiaries that are Material Subsidiaries, as
applicable, which shall identify by name and title and bear
the signatures of the Authorized Officers and any other
officers or managers of the Borrower and its Domestic
Subsidiaries authorized to sign the Loan Documents to which
such Person is a party, upon which certificates the Agent and
the Lenders shall be entitled to rely until informed of any
change in writing by the Borrower.
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(v) A certificate, signed by an Authorized Officer
officer of each Guarantor that is a Material Subsidiary
certifying that on the initial Credit Extension Date such
Guarantor is solvent, which certificate shall be,
substantially in the form of Exhibit 4.1(a)(v) hereto.
(vi) A written opinion or opinions of the Borrower's
counsel, addressed to the Lenders and covering such matters as
may be required by Agent, in form and substance reasonably
satisfactory to the Agent.
(vii) Any Notes requested by a Lender pursuant to
Section 2.13 payable to the order of each such requesting
Lender.
(viii) Written money transfer instructions, in
substantially the form of Exhibit 4.1(a)(viii), addressed to
the Agent and signed by an Authorized Officer, together with
such other related money transfer authorizations as the Agent
may have reasonably requested.
(ix) This Agreement.
(x) The Collateral Documents.
(xi) The Guaranty.
(xii) The Subordination Agreement.
(xiii) The insurance certificate described in Section
5.21.
(xiv) Lien searches on the Borrower and each Guarantor
in the jurisdictions requested by the Agent, together with
waivers from the holders of any Liens (other than Permitted
Liens) as deemed necessary by the Lenders.
(xv) A listing of all Investments in excess of
$1,000,000 by the Borrower or a Domestic Subsidiary in any
Foreign Subsidiary.
(xvi) A certificate from the chief financial officer
of the Borrower addressed to the Agent and each of the
Lenders, which shall be in form and in substance reasonably
satisfactory to the Agent and shall reaffirm that as of the
Effective Date the Borrower and its Subsidiaries' business and
financial plan for the years 2003 through 2005, together with
the assumptions upon which those projections were based (the
"Projections"), prepared by the Borrower and included in the
Confidential Information Memorandum are true and correct in
all material respects based upon the assumptions stated
therein and the information reasonably available to such
officer at the time such Projections were made and shall
describe any changes therein and state that such changes are
not, individually or in the aggregate, materially adverse to
the Agent and the Lenders.
(xvii) A certificate from the chief financial officer
of the Borrower addressed to the Agent and each of the
Lenders, which shall be in form and in
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substance reasonably satisfactory to the Agent, regarding the
matters set forth in Section 5.22.
(xviii) A third party audit report of the Company and
its Subsidiaries' Accounts for the period ended August 31,
2002 in form and substance reasonably satisfactory to the
Agent.
(xix) An initial Borrowing Base Certificate in
accordance with the provisions of Section 6.1.
(xx) Such other documents as any Lender or its counsel
may have reasonably requested.
(b) Material Adverse Effect. There shall not have occurred, in
the reasonable discretion of the Agent or Required Lenders, a Material
Adverse Effect in respect of the Borrower and its Subsidiaries on a
consolidated basis since August 31, 2002.
(c) Litigation. No litigation shall be pending that (i) has
resulted in or requests an injunction or restraining order prohibiting
the Loan, or (ii) could reasonably be expected, if adversely decided,
to result in a Material Adverse Effect on Borrower.
(d) Pro Forma Compliance. The calculation shown on Schedule
4.1(d) shall be true and correct and the Borrower shall be in pro forma
and historical compliance with all covenants contained in Article VI
hereof, including specifically, without limitation, those contained in
Section 6.22.
(e) Fees and Expenses.
(i) All fees, costs, and expenses of CLNY and its
affiliates (including, without limitation, legal fees and
expenses of counsel to the Agent) to be paid on the Effective
Date shall have been paid.
(ii) The Borrower shall have paid to the Agent and
CLS, for their respective accounts, the fees agreed to
pursuant to the terms of the Fee Letter, or as otherwise
agreed from time to time.
(iii) The Borrower shall have paid to the Agent, for
respective accounts of each of the Lenders, the upfront fees
set forth in the Confidential Information Memorandum.
(f) Financial Statements. The Agent and the Lenders shall have
received true and correct copies of the financial statements referred
to in Section 5.4.
(g) Collateral Documents. The Agent shall have received all
appropriate evidence required by the Agent in its sole discretion
necessary to determine that arrangements have been made for the Agent
for the benefit of Lenders to have a valid and perfected first priority
security interest in the Collateral, including, without limitation, the
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delivery to the Agent of such financing statements under the Uniform
Commercial Code for filing in such jurisdictions as the Agent may
require.
(h) Availability. On the Effective Date and immediately after
giving effect to the initial Advances, the Agent shall be satisfied
with the sufficiency of the unused availability under the Aggregate
Revolving Credit Commitment to meet the ongoing working capital needs
of the Borrower and its Subsidiaries after the Effective Date.
(i) Termination of Second Amended and Restated Credit
Agreement. The Agent and the Lenders shall have received sufficient
evidence indicating that simultaneously with the making of the initial
Advances hereunder, the obligations of the Borrower and the Guarantors
under the Second Amended and Restated Credit Agreement and the Liens
securing the same shall have been assigned to the Agent for the benefit
of the Lenders and continue to encumber the same types of Property and
all obligations of the Borrower and the lenders under the Second
Amended and Restated Credit Agreement shall be terminated (including,
without limitation, any obligations of any Subsidiary of the Borrower
in respect of guaranties and security agreements executed in connection
with such Second Amended and Restated Credit Agreement but excluding
any obligations which expressly survive the repayment of the amounts
owing under the Second Amended and Restated Credit Agreement, and
excluding any letters of credit the repayment of which are supported by
a Facility LC issued under this Agreement).
(j) Bond Offering. The Borrower shall have consummated the
private placement of its Senior Notes due 2010 in the face amount of at
least $250,000,000, the proceeds of which are used to refinance the
XXXXx or held as restricted cash for the purposes of redeeming the
XXXXx.
(k) Letters of Credit. The Borrower shall have either (i)
caused all letters of credit issued by a lender under the Second
Amended and Restated Credit Agreement to be either (i) supported by a
Facility LC issued under this Agreement or (ii) deposited with such
lenders, as security, an amount of cash equal to the full aggregate
undrawn amount of all letters of credit issued by such lender under the
Second Amended and Restated Credit Agreement.
4.2 Each Credit Extension. In addition to the above, the Lenders shall
not be required to make any Credit Extension unless on the applicable Credit
Extension Date:
(a) There exists no Default or Unmatured Default.
(b) The representations and warranties contained in Article V
are true and correct as of such Credit Extension Date except to the
extent any such representation or warranty is stated to relate solely
to an earlier date, in which case such representation or warranty shall
have been true and correct on and as of such earlier date.
(c) Agent has received a Borrowing Notice.
(d) All legal matters incidental to the making of such Credit
Extension shall be satisfactory to the Lenders and their counsel.
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(e) Borrower has and has caused the Guarantors to execute and
deliver this Agreement to the Agent.
4.3 Reaffirmations of Warranties. Each Borrowing Notice or request for
issuance of a Facility LC with respect to each such Credit Extension shall
constitute a representation and warranty by the Borrower that the conditions
contained in Section 4.1 and Section 4.2 have been satisfied. Any Lender may
require a duly completed compliance certificate in substantially the form of
Exhibit 6.1(d) as a condition to making a Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower for itself and each of its Domestic Subsidiaries
represents and warrants to the Lenders that:
5.1 Existence and Standing. Each of the Borrower and its Subsidiaries
is a corporation, partnership (in the case of Subsidiaries only) or limited
liability company duly and properly incorporated or organized, as the case may
be, validly existing and (to the extent such concept applies to such entity) in
good standing under the laws of its jurisdiction of incorporation or
organization and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted, except where the failure to so
qualify would not have a Material Adverse Effect.
5.2 Authorization and Validity. The Borrower and each of its
Subsidiaries has the requisite power and authority and legal right to execute
and deliver the Loan Documents to which it is a party and to perform its
obligations thereunder. The execution and delivery by the Borrower and each of
its Subsidiaries of the Loan Documents to which it is a party and the
performance of its respective obligations thereunder have been duly authorized
by proper corporate proceedings, and the Loan Documents to which the Borrower
and each of its Subsidiaries is a party constitute legal, valid and binding
obligations of such Person enforceable against such Person in accordance with
their terms, except as enforceability may be limited by bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights generally.
5.3 No Conflict; Government Consent. Neither the execution and delivery
by the Borrower or any of its Domestic Subsidiaries of any of the Loan Documents
to which it is a party, nor the consummation of the transactions therein
contemplated, nor compliance with the provisions thereof will violate (a) any
law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on the Borrower or any of its Material Subsidiaries, except for such
violations or defaults as would not have a Material Adverse Effect or (b) the
Borrower's or any Subsidiary's articles or certificate of incorporation,
partnership agreement, certificate of partnership, articles or certificate of
organization, by-laws, or operating or other management agreement, as the case
may be, or (c) the provisions of any indenture, instrument or agreement to which
the Borrower or any of its Subsidiaries is a party or is subject, or by which
it, or its Property, is bound, or conflict with or constitute a default
thereunder, or result in, or require, the creation or imposition of any Lien in,
of or on the Property of the Borrower or any Subsidiary
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pursuant to the terms of any such indenture, instrument or agreement, except for
such conflicts, violations or defaults as would not have a Material Adverse
Effect. No order, consent, adjudication, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by, or
other action in respect of any governmental or public body or authority, or any
subdivision thereof, which has not been obtained by the Borrower or any of its
Domestic Subsidiaries, is required to be obtained by the Borrower or any of its
Subsidiaries in connection with the execution and delivery of the Loan
Documents, the borrowings under this Agreement, the payment and performance by
the Borrower of the Obligations, the performance by any Material Subsidiary of
its obligations under its Guaranty or the legality, validity, binding effect or
enforceability of any of the Loan Documents.
5.4 Financial Statements. (a) The audited consolidated balance sheets
of the Borrower and its Subsidiaries as at August 31, 2001 and August 31, 2002
and the related consolidated statements of income, cash flow, and retained
earnings of the Borrower and its Subsidiaries for each of the fiscal years then
ended, copies of which have been furnished to the Agent, and (b) all
subsequently provided consolidated financial statements of the Borrower and its
Subsidiaries heretofore delivered to the Agent and the Lenders were prepared in
accordance with generally accepted accounting principles in effect on the date
such statements were prepared and fairly present, in all material respects, the
consolidated financial condition and operations of the Borrower and its
Subsidiaries at such date and the consolidated results of their operations for
the period then ended. The Projections were prepared by the Borrower in good
faith, based on assumptions that the Borrower believes are reasonable as of the
Effective Date.
5.5 Material Adverse Change. Since August 31, 2002, and except for
matters disclosed by the Borrower in writing in filings with the United States
Securities and Exchange Commission between August 31, 2002 and the date hereof,
there has been no change in the business, Property, condition (financial or
otherwise) or results of operations of the Borrower and its Subsidiaries taken
as a whole which could reasonably be expected to have a Material Adverse Effect.
5.6 Taxes. The Borrower and each of its Domestic Subsidiaries have
filed all United States federal tax returns and all other tax returns which are
required to be filed and have paid all taxes due pursuant to said returns or
pursuant to any assessment received by the Borrower or any of its Subsidiaries,
except (a) such taxes, if any, as are being contested in good faith and as to
which adequate reserves have been provided in accordance with Agreement
Accounting Principles and as to which no Lien exists, and (b) for such failures
to file or failures to pay as could not have a Material Adverse Effect. No tax
liens have been filed with respect to any such taxes. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries in respect of any
taxes or other governmental charges are adequate in all material respects in
accordance with Agreement Accounting Principles.
5.7 Litigation and Contingent Obligations. Except as disclosed on
Schedule 5.7, there is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the knowledge of any of their executive
officers, threatened against or affecting the Borrower or any of its
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect or which seeks to prevent, enjoin or delay the making of any Credit
Extensions. Except as disclosed on Schedule 5.7, other than any liability
incident to any litigation, arbitration or
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proceeding which could not reasonably be expected to have a Material Adverse
Effect, the Borrower has no material contingent obligations not provided for or
disclosed in the financial statements referred to in Section 5.4 which should be
disclosed under Agreement Accounting Principles.
5.8 Subsidiaries. Schedule 5.8 contains an accurate list of all
Subsidiaries of the Borrower as of the date of this Agreement, setting forth for
each Subsidiary (a) such Subsidiary's jurisdiction of incorporation or
organization, (b) the percentage of such Subsidiary's Capital Stock or other
ownership interests owned by the Borrower or any other Subsidiary, (c) the
principal places of business and the chief executive offices of such Subsidiary,
(d) the locations of any inventory or equipment owned by such Subsidiary and (e)
whether each of such Subsidiaries is a Material Subsidiary and if such
Subsidiary is a Material Subsidiary, any past names or d/b/a's used by such
Subsidiary during the two (2) years prior to the Effective Date. All of the
issued and outstanding shares of Capital Stock or other ownership interests of
such Subsidiaries have been (to the extent such concepts are relevant with
respect to such ownership interests) duly authorized and issued and are fully
paid and non-assessable.
5.9 ERISA. The Unfunded Liabilities of all Single Employer Plans do not
in the aggregate exceed $2,000,000. Neither the Borrower nor any other member of
the Controlled Group has incurred, or is reasonably expected to incur, any
withdrawal liability to Multiemployer Plans in excess of $2,000,000 in the
aggregate. Each Plan complies in all material respects with all applicable
requirements of law and regulations, no Reportable Event has occurred with
respect to any Plan that could have a Material Adverse Effect, neither the
Borrower nor any other member of the Controlled Group has withdrawn from any
Multiemployer Plan or initiated steps to do so, and no steps have been taken to
reorganize or terminate any Plan.
5.10 Accuracy of Information. No information, exhibit or report
furnished by the Borrower or any of its Subsidiaries to the Agent or to any
Lender in connection with the negotiation of, or compliance with, the Loan
Documents contained any material misstatement of fact or omitted to state a
material fact or any fact necessary to make the statements contained therein not
misleading.
5.11 Regulation U, T and X. The Loans and other transactions
contemplated hereunder will not violate the provisions of Regulations U, T or X.
5.12 Material Agreements. Except as disclosed on Schedule 5.12, neither
the Borrower nor any Subsidiary is a party to any loan transaction or guaranty
of the Indebtedness of another Person as of the Effective Date. Neither the
Borrower nor any Subsidiary is a party to any agreement or instrument or subject
to any charter or other corporate restriction which could reasonably be expected
to have a Material Adverse Effect. Neither the Borrower nor any Subsidiary is in
default in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in (a) any agreement to which it is a party,
which default could reasonably be expected to have a Material Adverse Effect or
(b) any agreement or instrument evidencing or governing Indebtedness in excess
of $2,000,000.
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5.13 Compliance With Laws. The Borrower and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property except where the
failure to so comply could not have a Material Adverse Effect.
5.14 Ownership of Properties. Except as set forth on Schedule 5.14, on
the Effective Date, the Borrower and its Subsidiaries will have good title, free
of all Liens other than those permitted by Section 6.15, to all of the Property
and assets reflected in the Borrower's most recent consolidated financial
statements provided to the Agent as owned by the Borrower and its Subsidiaries.
5.15 Plan Assets; Prohibited Transactions. The Borrower is not an
entity deemed to hold "plan assets" within the meaning of 29 C.F.R. Section
2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan (within the meaning of Section
4975 of the Code), and neither the execution of this Agreement nor the making of
Credit Extensions hereunder gives rise to a prohibited transaction that could
have a Material Adverse Effect within the meaning of Section 406 of ERISA or
Section 4975 of the Code.
5.16 Environmental Matters. In the ordinary course of its business, the
officers of the Borrower consider the effect of Environmental Laws on the
business of the Borrower and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to the Borrower
due to Environmental Laws. On the basis of this consideration, the Borrower has
concluded that any noncompliance, if any, of Borrower or any of its Subsidiaries
with Environmental Laws could not reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary has received any notice
to the effect that its operations are not in material compliance with any of the
requirements of applicable Environmental Laws or are the subject of any federal
or state investigation evaluating whether any remedial action is needed to
respond to a release of any toxic or hazardous waste or substance into the
environment, which non-compliance or remedial action could reasonably be
expected to have a Material Adverse Effect.
5.17 Investment Company Act. Neither the Borrower nor any Subsidiary is
an "investment company" or a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940, as amended.
5.18 Public Utility Holding Company Act. Neither the Borrower nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
5.19 No Default. On the Effective Date, no Default or Unmatured Default
will have occurred or be continuing.
5.20 Post-Retirement Benefits. The present value of the expected cost
of post-retirement medical and insurance benefits payable by the Borrower and
its Subsidiaries to its
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employees and former employees, as estimated by the Borrower in accordance with
procedures and assumptions deemed reasonable by the Required Lenders, does not
exceed $2,000,000.
5.21 Insurance. The certificate signed by the President or Chief
Financial Officer of the Borrower, that attests to the existence and adequacy
of, and summarizes, the property and casualty insurance program carried by the
Borrower with respect to itself and its Subsidiaries and that has been furnished
by the Borrower to the Agent and the Lenders, is complete and accurate in all
material respects. This summary includes the insurer's or insurers' name(s),
policy number(s), expiration date(s), amount(s) of coverage, type(s) of
coverage, exclusion(s), and deductibles. This summary also includes similar
information, and describes any reserves, relating to any self-insurance program
that is in effect.
5.22 Solvency.
(a) After giving effect to the application of the proceeds of
the Credit Extension on the Effective Date, (i) the fair value of the
assets of the Borrower and its Subsidiaries on a consolidated basis, at
a fair valuation, will exceed the debts and liabilities, subordinated,
contingent or otherwise, of the Borrower and its Subsidiaries on a
consolidated basis; (ii) the present fair saleable value of the
Property of the Borrower and its Subsidiaries on a consolidated basis
will be greater than the amount that will be required to pay the
probable liability of the Borrower and its Subsidiaries on a
consolidated basis on their debts and other liabilities, subordinated,
contingent or otherwise, as such debts and other liabilities become
absolute and matured; (iii) the Borrower and its Subsidiaries on a
consolidated basis will be able to pay their debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities
become absolute and matured; and (iv) the Borrower and its Subsidiaries
on a consolidated basis will not have unreasonably small capital with
which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted after the
Effective Date and as of the Effective Date.
(b) The Borrower does not intend to, or to permit any of its
Subsidiaries to, and does not believe that it or any of its
Subsidiaries will, incur debts beyond its ability to pay such debts as
they mature, taking into account the timing of and amounts of cash to
be received by it or any such Subsidiary and the timing of the amounts
of cash to be payable on or in respect of its Indebtedness or the
Indebtedness of any such Subsidiary.
5.23 Bond Obligations. As of the date set forth on Schedule 5.23,
neither the Borrower nor any of its Domestic Subsidiaries have any reimbursement
or guaranty obligations owing to bonding companies except as described on
Schedule 5.23 attached hereto.
5.24 Intellectual Property. The Borrower and each of its Subsidiaries
has obtained rights to use all patents, trademarks, service marks, trade names,
copyrights, licenses and other intellectual property rights, except for such
rights the failure to obtain any of which would not reasonably be expected to
have a Material Adverse Effect.
5.25 Post-Closing Requirements. Within sixty days after the Effective
Date, the Borrower shall deliver to the Agent the documents identified on
Schedule 5.25, each in form and
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substance satisfactory to the Agent and with sufficient copies for the Lenders,
where appropriate, executed by the relevant Person. If any Receivable is subject
to the Assignment of Claims Act of 1940, as amended from time to time, or any
applicable law now or hereafter existing similar in effect thereto, or to any
provision prohibiting the assignment or requiring notice of or consent to such
assignment with respect to any Receivable, the Borrower shall, upon the request
of either the Agent or the Required Lenders, have such Receivables duly assigned
to the Agent in compliance with all applicable governmental requirements so that
the Agent is recognized by the applicable account debtor to have all of the
rights of an assignee of such Receivable.
5.26 Revisions or Updates to the Schedules. Should any of the
information or disclosures provided on any of the schedules originally attached
hereto become outdated or incorrect in any material respect, the Borrower from
time to time shall deliver to the Agent and the Lenders such revisions or
updates to such schedule(s) whereupon such schedules shall be deemed to be
amended by such revisions or updates, as may be necessary or appropriate to
update or correct such schedule(s), provided that, notwithstanding the
foregoing, no such revisions or updates shall be deemed to have amended,
modified, or superseded any such schedules as originally attached hereto, or to
have cured any breach of warranty or representation resulting from the
inaccuracy or incompleteness of any such schedules, unless and until the Agent
and the Required Lenders shall have accepted in writing such revisions or
updates to any such schedules.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1 Financial Reporting. The Borrower will maintain, for itself and
each Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, and furnish to the
Lenders:
(a) Within 90 days after the close of each of its fiscal
years, an unqualified audit report certified by independent certified
public accountants acceptable to the Lenders, it being understood that
the Borrower's auditors as of the Effective Date are acceptable to the
Agent and the Lenders, prepared in accordance with Agreement Accounting
Principles on a consolidated basis for itself and its Subsidiaries,
including balance sheets as of the end of such period, related profit
and loss and statement of stockholders' equity, and a statement of cash
flows, accompanied by a certificate of said accountants that, in the
course of their examination necessary for their certification of the
foregoing, they have obtained no knowledge of any Default or Unmatured
Default under any of the terms, covenants, provisions or conditions of
Section 6.22 insofar as they relate to accounting matters, or if, in
the opinion of such accountants, any Default or Unmatured Default shall
exist, stating the nature and status thereof and within 150 days after
the close of each of its fiscal years, a management letter prepared by
said accountants.
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(b) Within 45 days after the close of the first three
quarterly periods of each of its fiscal years and within 90 days of the
end of the final fiscal quarter, for itself and its Subsidiaries,
consolidated unaudited balance sheets as at the close of each such
quarterly period and consolidated profit and loss and a statement of
cash flows for the period from the beginning of such fiscal year to the
end of such quarter, together with a certification by its Chief
Executive Officer and its Chief Financial Officer in accordance with
the Xxxxxxxx-Xxxxx Act of 2002.
(c) As soon as available, but in any event prior to the
beginning of each fiscal year of the Borrower, a copy of the plan and
forecast (including a projected consolidated balance sheet, income
statement and cash flow statement) of the Borrower for the upcoming
fiscal year and, if requested by the Required Lenders, as soon as
available, but in any event prior to the beginning of third fiscal
quarter for such fiscal year, an updated copy of the plan and forecast
(including a projected consolidated balance sheet, income statement and
cash flow statement) of the Borrower for the remaining six months of
such fiscal year.
(d) Together with the financial statements required under
Section 6.1(a) and Section 6.1(b), a compliance certificate in
substantially the form of Exhibit 6.1(d) signed by the Chief Financial
Officer of the Borrower showing the calculations necessary to determine
compliance with this Agreement and stating that no Default or Unmatured
Default exists, or if any Default or Unmatured Default exists, stating
the nature and status thereof.
(e) Within 270 days after the close of each fiscal year, a
statement of the Unfunded Liabilities of each Single Employer Plan,
certified as correct by an actuary enrolled under ERISA.
(f) As soon as possible and in any event within 10 days after
the Borrower knows that any Reportable Event has occurred with respect
to any Plan, a statement, signed by the Chief Financial Officer of the
Borrower, describing said Reportable Event and the action which the
Borrower proposes to take with respect thereto.
(g) As soon as possible and in any event within 10 days after
receipt by the Borrower, a copy of (i) any notice or claim to the
effect that the Borrower or any of its Subsidiaries is or may be liable
to any Person as a result of the release by the Borrower, any of its
Subsidiaries, or any other Person of any toxic or hazardous waste or
substance into the environment, and (ii) any notice alleging any
violation of any federal, state or local environmental, health or
safety law or regulation by the Borrower or any of its Subsidiaries,
which in each case (A) could reasonably be expected to have a Material
Adverse Effect, or (B) could result in liability to the Borrower or any
of is Subsidiaries in excess of $2,000,000.
(h) Promptly upon the furnishing thereof to the shareholders
of the Borrower, copies of all financial statements, reports and proxy
statements so furnished.
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(i) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other regular
reports, except for those filed on Form S-8, which the Borrower or any
of its Subsidiaries files with the Securities and Exchange Commission.
(j) Promptly upon request by the Agent or the Required
Lenders, such information as may be reasonably required to facilitate
an annual on site inspection and audit of Borrower's Property.
(k) Together with the financial statements required under
Section 6.1(a) and Section 6.1(b), a Borrowing Base Certificate signed
by the Chief Financial Officer of the Borrower.
(l) Together with the financial statements required under
Section 6.1(a) and Section 6.1(b), a Backlog Report, in form attached
hereto as Exhibit 6.1(l) and signed by the Chief Financial Officer of
the Borrower.
(m) Such other information (including non-financial
information) as the Agent or any Lender may from time to time
reasonably request.
6.2 Use of Proceeds. The Borrower will use the proceeds of the Advances
and the Letters of Credit solely (i) to refinance certain Indebtedness of the
Borrower arising under the Second Amended and Restated Credit Agreement, and to
support letters of credit outstanding as of the Effective Date under the Second
Amended and Restated Credit Agreement, (ii) for the Borrower's and its
Subsidiaries' working capital and general corporate purposes, including the
issuance of the Facility LCs, (iii) to make Acquisitions permitted hereunder,
and (iv) any other uses approved by the Lenders in accordance herewith. Such
purposes will not violate and are otherwise consistent with the terms of the
Loan Documents and all laws, rules and regulations, including Regulations T, U
and X. The Borrower will not, nor will it permit any Subsidiary to, use any of
the proceeds of the Advances to purchase or carry any "margin stock" (as defined
in Regulation U).
6.3 Notice of Default. The Borrower will, and will cause each
Subsidiary to, give prompt notice in writing to the Lenders of the occurrence of
any Default or Unmatured Default and of any other development, financial or
otherwise, which could reasonably be expected to have a Material Adverse Effect.
6.4 Conduct of Business; Books and Records. The Borrower will, and will
cause each Subsidiary to, carry on and conduct its business in substantially the
same manner and in substantially the same fields of enterprise as it is
presently conducted, shall maintain books and records thereof in accordance with
Agreement Accounting Principles and its current practice, and shall do all
things necessary to remain duly incorporated or organized, validly existing and
(to the extent such concept applies to such entity) in good standing as a
domestic corporation, partnership or limited liability company in its
jurisdiction of incorporation or organization, as the case may be, and maintain
all requisite authority to conduct its business in each jurisdiction in which
its business is conducted except for (a) mergers and consolidations of
Subsidiaries with and into Borrower or any Domestic Subsidiaries, to the extent
permitted under Section 6.12
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hereof, (b) the dissolution or liquidation of Subsidiaries if the net proceeds
from any such dissolution are paid to Borrower or any Domestic Subsidiary, and
(c) any failure of a Subsidiary to be in good standing where such failure could
not have a Material Adverse Effect. In addition to the foregoing, the Borrower
will, and will cause each Subsidiary to, maintain complete and accurate books
and records with respect to the Collateral, and furnish to the Agent, with
sufficient copies for each of the Lenders, such reports relating to the
Collateral as the Agent shall from time to time reasonably request. The Borrower
will, and will cause each Subsidiary to, give prompt notice in writing to the
Agent and the Lenders of any event with respect to its Property that would
result in the total amount of any insurance proceeds or condemnation award
payable to the Borrower or any of its Subsidiaries in excess of $5,000,000.
6.5 Taxes. The Borrower will, and will cause each Subsidiary to, timely
file complete and correct United States federal and applicable foreign, state
and local tax returns required by law and pay when due all taxes, assessments
and governmental charges and levies upon it or its income, profits or Property,
except those which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves have been set aside in accordance
with Agreement Accounting Principles and with respect to which no Lien exists.
At any time that the Borrower or any of its Subsidiaries is organized as a
limited liability company, each such limited liability company will qualify for
partnership tax treatment under United States federal tax law.
6.6 Insurance. The Borrower will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on
all their Property in such amounts and covering such risks as is consistent with
sound business practice, including, without limitation, general liability
insurance and fire and extended coverage insurance on all Inventory, and in each
case, (a) with such deductibles and with such self-insurance provisions as are
customarily maintained by similar businesses, (b) naming the Agent as loss payee
or as an additional insured, as appropriate, for the benefit of the Lenders and,
in any case consistent with the requirements of the Collateral Documents and (c)
providing that said insurance will not be terminated except after at least 30
days' written notice from the insurance company to the Agent. The Borrower will
furnish to any Lender upon request full information as to the insurance carried.
6.7 Compliance with Laws. The Borrower will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject including,
without limitation, all Environmental Laws and ERISA except for such failures to
comply as could not reasonably be expected to have a Material Adverse Effect.
6.8 Maintenance of Properties. The Borrower will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition, and in the case of any
Inventory, in saleable condition, and make all necessary and proper repairs,
renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times, except that the foregoing
shall not apply to Property disposed of by Borrower in accordance with Section
6.13 hereof.
6.9 Inspection. The Borrower will, and will cause each Subsidiary to,
permit the Agent and the Lenders, by their respective representatives and
agents, to inspect any of the
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Property, books and financial records of the Borrower and each Subsidiary, to
examine and make copies of the books of accounts and other financial records of
the Borrower and each Subsidiary, and to discuss the affairs, finances and
accounts of the Borrower and each Subsidiary with, and to be advised as to the
same by, their respective officers at such reasonable times and intervals as the
Agent or any Lender may designate.
6.10 Dividends. The Borrower will not, nor will it permit any
Subsidiary to, declare or pay any dividends or make any distributions on its
Capital Stock (other than stock splits, dividends payable in its own Capital
Stock) or redeem, repurchase or otherwise acquire or retire any of its Capital
Stock at any time outstanding, except that (a) any Subsidiary may declare and
pay dividends or make distributions to the Borrower or to any Wholly-Owned
Subsidiary, (b) Borrower may redeem or repurchase its Capital Stock at any time
after May 1, 2004 (i) up to $50,000,000 so long as there is Sufficient Liquidity
after giving effect to any such redemption or repurchase or (ii) $10,000,000
otherwise, and (c) the Borrower may redeem or repurchase the XXXXx at any time
after the Effective Date (i) so long as there is Sufficient Liquidity after
giving effect to any such redemption or repurchase, (ii) so long as such
redemption or repurchases is made solely with its own Capital Stock, (iii) so
long as such redemptions or repurchases as are effected while there is not
Sufficient Liquidity do not exceed $10,000,000 or (iv) with the Debt Incurrence
Proceeds received in connection with the private placement of its Senior Notes
due 2010. Notwithstanding the foregoing, the provisions of this Section 6.10
shall not prohibit purchases of common stock by Borrower or its Subsidiaries or
a trust pursuant to an employee benefit plan or the cashless exercise of stock
options or warrants to purchase common stock of Borrower by Borrower or a trust
that in each case has been approved by the Board of Directors of Borrower.
6.11 Indebtedness. The Borrower will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(a) Indebtedness created hereunder.
(b) Indebtedness, including, without limitation, contingent
liabilities, existing on the Effective Date and described in Schedule
6.11(b).
(c) Secured or unsecured Indebtedness incurred in the ordinary
course of business in connection with the acquisition of Property by
the Borrower, or any Subsidiary (excluding Indebtedness assumed on any
assets acquired pursuant to an Acquisition), provided that such
Indebtedness shall not exceed the value of the Property so acquired,
and in any event, the aggregate amount of such purchase money
Indebtedness incurred since the Effective Date shall not exceed
$50,000,000 in the aggregate and any Lien securing any such
Indebtedness shall attach only to the Property so acquired.
(d) Secured or unsecured Indebtedness assumed by the Borrower
or a Subsidiary in connection with an Acquisition permitted hereunder
and not discharged on the Effective Date which, in the aggregate since
the Effective Date, shall not exceed $50,000,000; provided that such
Indebtedness was not created or increased in anticipation of such
Acquisition and any Lien securing any such secured Indebtedness shall
attach only to the Property securing such Indebtedness prior to its
assumption.
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(e) Permitted Indebtedness.
(f) Indebtedness of Foreign Subsidiaries to the Borrower or a
Domestic Subsidiary incurred to facilitate the operations and funding
of said Foreign Subsidiaries not to exceed the sum of (i) such
Indebtedness to the extent outstanding on the Effective Date and
described on Schedule 6.11(b) plus (b) $25,000,000 in the aggregate
outstanding at any one time, provided all such Indebtedness is
evidenced by promissory notes that become part of the Collateral in a
manner reasonably satisfactory to the Agent.
(g) Indebtedness of Foreign Subsidiaries to non-Affiliates of
Borrower in a principal amount not to exceed $30,000,000.
(h) Indebtedness that constitutes a renewal, refinancing or
extension of any Indebtedness referred to in this Section 6.11;
provided that (i) no Lien existing at the time of such renewal,
refinancing or extension shall be extended to cover any property not
already subject to such Lien, and (ii) the principal amount of any
Indebtedness renewed, refinanced or extended shall not exceed the
amount of such Indebtedness outstanding immediately prior to such
renewal, refinancing or extension.
(i) To the extent not refinanced by Indebtedness permitted by
subsection (k) below, Indebtedness evidenced by those certain liquid
yield option notes due 2021 in an amount not in excess of $790,000,000
in face value, more particularly described in that certain Offering
Memorandum dated April 26, 2001 in the form provided to the Agent (the
"XXXXx") and guarantees of such Indebtedness by Subsidiaries of the
Borrower.
(j) The contingent liability evidenced by a guaranty executed
by the Borrower to guarantee obligations of one of its Foreign
Subsidiaries under a $30,000,000 credit facility for working capital
and letters of credit; provided that the obligations of Borrower under
such guaranty shall not exceed $30,000,000 plus accrued unpaid
interest.
(k) unsecured Indebtedness and guarantees of such Indebtedness
by Subsidiaries of the Borrower, including, without limitation, the
Indebtedness evidenced by the Senior Notes due 2010, in an amount not
to exceed $300,000,000, the proceeds of which are used to refinance the
XXXXx or held as restricted cash for the purposes of redeeming the
XXXXx.
Notwithstanding anything in this Agreement to the contrary, the
aggregate amount of Indebtedness permitted under Section 6.11(c), Section
6.11(d), and Section 6.11(f) and Investments permitted under Section 6.14(k)
shall not exceed $100,000,000 at any time during any consecutive twelve-month
period.
6.12 Merger. The Borrower will not, nor will it permit any Subsidiary
to, merge or consolidate with or into any other Person, except that if at the
time thereof and immediately after giving effect thereto no Default or Unmatured
Default shall have occurred and be continuing, (a) any Subsidiary may merge into
or be consolidated with the Borrower in a transaction in which the Borrower is
the surviving Person, (b) any Subsidiary may merge into or be consolidated with
any Domestic Subsidiary in a transaction in which the surviving entity is a
Domestic Subsidiary,
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(c) any Foreign Subsidiary may merge into or be consolidated with any Foreign
Subsidiary and (d) mergers and consolidations constituting Acquisitions
permitted under Section 6.24.
6.13 Sale of Assets. The Borrower will not, nor will it permit any
Material Subsidiary to, lease, sell or otherwise dispose of (in one transaction
or in a series of transactions) its Property to any other Person, except:
(a) Sales of Inventory in the ordinary course of business.
(b) Sales, leases or other dispositions by Borrower or any
Subsidiary of obsolete, underutilized, damaged or defective Property or
equipment that is no longer used or useful in the business of Borrower
or its Subsidiaries.
(c) Any sale, lease or other disposition (i) from the Borrower
to any Guarantor, (ii) from any Domestic Subsidiary that is not a
Guarantor to the Borrower, another Domestic Subsidiary or any Foreign
Subsidiary, (iii) from any Guarantor to the Borrower or any other
Guarantor, (iv) from any Foreign Subsidiary to the Borrower, another
Foreign Subsidiary or any Domestic Subsidiary, or (v) from the Borrower
or any of its Subsidiaries to the Borrower or any other Subsidiary in
the ordinary course of business, in an aggregate amount not to exceed
$5,000,000 during any fiscal year, without the Agent's prior written
consent.
(d) Licenses (but not a sale, lease or other transfer) by the
Borrower or any Subsidiary of patents, trademarks, copyrights, know-how
or other intellectual property to any other Person in the ordinary
course of business.
(e) The sale of other assets in any fiscal year in an
aggregate amount not to exceed 10% of Borrower's tangible net worth as
of the end of the immediately preceding fiscal year of the Borrower and
calculated pursuant to Agreement Accounting Principles.
(f) Sale of real property by LandBank Properties, L.L.C. and
its Subsidiaries in the ordinary course of business.
6.14 Investments and Acquisitions. The Borrower will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments in, Foreign
Subsidiaries), or commitments therefor, or to create any Subsidiary (except in
accordance with Section 6.23 and Section 6.24) or to become or remain a partner
in any partnership or joint venture, or to make any Acquisition of any Person,
except:
(a) Cash Equivalent Investments.
(b) Investments in existence on the Effective Date and
described in Schedule 6.14(b) in an amount not greater than the amount
thereof on the Effective Date.
(c) Acquisitions permitted under Section 6.24.
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(d) Investments in corporate debt obligations rated AA- or
better by S&P or Aa3 or better by Xxxxx'x and maturing not more than
twenty four (24) months from the date of acquisition thereof.
(e) Investments in money market funds rated AAm or better by
S&P and having assets greater than $500,000,000.
(f) Repurchase agreements, which shall be collateralized for
at least 100% of face value, issued by any of the Lenders or any other
bank or trust company organized under the laws of the United States or
any state thereof, which bank or trust company (other than the Lenders
to which such restrictions shall not apply) is a member of both the
Federal Deposit Insurance Corporation and the Federal Reserve System
and is rated B or better by Xxxxxxxx Bank Watch Service (all of which
must mature within twelve (12) months from the time of acquisition
thereof).
(g) Settlement accounts between the Borrower and its Domestic
Subsidiaries or its Domestic Subsidiaries and other Domestic
Subsidiaries.
(h) Property and buildings necessary to the operations of the
Borrower and its Subsidiaries.
(i) Permitted Business Investments.
(j) Permitted Financial Investments.
(k) Investments by Borrower or any Subsidiary thereof in any
Person to the extent the consideration paid consists solely of
Qualified Stock of Borrower, unless the nature of such Investment could
reasonably be expected to cause a Material Adverse Effect.
(l) Investments not otherwise permitted above, provided that
if there is Sufficient Liquidity at the time of incurrence, the
aggregate amount (at original cost) of all such Investments of the
Borrower and all of its Subsidiaries shall never exceed $50,000,000;
provided further, however, that if there is not Sufficient Liquidity at
the time of such Investment, then no further Investments in excess of
$10,000,000 in the aggregate shall be made.
6.15 Liens. The Borrower will not, nor will it permit any Subsidiary
to, create, incur, or suffer to exist any Lien in, of or on the Property of the
Borrower or any of its Subsidiaries, nor will it covenant with any other Person
not to grant such a Lien to the Agent, except:
(a) Permitted Liens.
(b) Liens in favor of the Agent, for the benefit of the
Lenders, granted pursuant to any Collateral Document.
(c) Liens existing on the Effective Date and described in
Schedule 6.15(c).
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(d) Liens incurred in connection with any Acquisition
permitted under Section 6.24; provided that such Liens shall encumber
only the Property so acquired.
(e) Liens securing Indebtedness permitted under Section
6.11(c), Section 6.11(d) or Section 6.11(h) and only to the extent the
Liens are limited by such sections.
(f) Any renewal, extension or replacement of any Lien referred
to in Section 6.15(c) and Section 6.15(d) above; provided that no Lien
arising or existing as a result of such extension, renewal or
replacement shall be extended to cover any property not theretofore
subject to the Lien being extended, renewed or replaced and provided
further that the principal amount of the Indebtedness secured thereby
shall not exceed the principal amount of the Indebtedness so secured at
the time of such extension, renewal or replacement.
Except as otherwise provided above, the Borrower will not, and will not permit
any of Subsidiary to, create, assume, incur or suffer to exist, any Lien on or
in respect of any Property of the Borrower or its Subsidiaries, whether now
owned or hereafter acquired, including, without limitation, real estate, plants,
parts and equipment, and Collateral for which a perfected security interest
cannot be obtained under the Collateral Documents or applicable law.
6.16 Affiliates. The Borrower will not, and will not permit any
Subsidiary to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate except in the ordinary course of business and
pursuant to the reasonable requirements of the Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the Borrower or
such Subsidiary than the Borrower or such Subsidiary would obtain in a
comparable arms-length transaction, provided this Section 6.16 shall not
prohibit inter-company transfers not otherwise restricted hereunder.
6.17 Prepayment of Other Indebtedness. The Borrower will not, and will
not permit any Subsidiary to (a) make voluntary prepayments of principal or
interest on any other of the Borrower's or such Subsidiary's Indebtedness except
(i) as expressly provided herein, (ii) prepayments of principal or interest
secured by liens on Property sold in accordance with Section 6.13 hereof, or
(iii) in an amount not to exceed $5,000,000 in the aggregate for Borrower and
its Subsidiaries during any fiscal year of Borrower during the term hereof; or
(b) amend or obtain or grant a waiver of any term of any of such Indebtedness,
without the prior written consent of the Required Lenders other than in respect
of inter-company transfers or inter-company Indebtedness not otherwise
prohibited hereunder.
6.18 Sale of Accounts. The Borrower will not, nor will it permit any
Subsidiary to, sell or otherwise dispose of any notes receivable or Accounts,
with or without recourse; provided that the foregoing shall not limit or
restrict compromises of doubtful or disputed accounts in the ordinary course of
business of Borrower and the Subsidiaries.
6.19 Contingent Obligations. The Borrower will not, nor will it permit
any Subsidiary to, make or suffer to exist any Contingent Obligation (including,
without limitation, any Contingent Obligation with respect to the obligations of
a Subsidiary), except for:
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(a) endorsement of instruments for deposit or collection in
the ordinary course of business,
(b) Reimbursement Obligations,
(c) the Guaranty,
(d) guaranties and other Contingent Obligations listed on
Schedule 6.19(d) attached hereto,
(e) guaranties by Borrower or any of its Subsidiaries made in
the ordinary course of business of any payment to a vendor of goods or
services to the Borrower or its Subsidiaries or guaranties by Borrower
of any obligations of the Subsidiaries owed to any customer of Borrower
or a Subsidiary made with respect to the performance by Borrower or
such Subsidiary of a contract for the sale of goods or the delivery of
services to such customer,
(f) such Contingent Obligations as would be permitted to be
incurred if such Contingent Obligations were incurred as Indebtedness
by such Borrower or any such Subsidiary under Section 6.11, and
(g) reimbursement or guaranty obligations owing to bonding
companies issuing bonds on behalf of the Company or any of its
Subsidiaries incurred in the ordinary course of the Company's business.
6.20 Letters of Credit. The Borrower will not, nor will it permit any
Subsidiary to, apply for or become liable upon or in respect of any Letter of
Credit other than (a) Facility LCs and (b) Performance Letters of Credit in an
amount not to exceed $50,000,000 in the aggregate for Borrower and its
Subsidiaries provided that the account party's reimbursement obligations with
respect to such Letters of Credit (other than Facility LCs issued hereunder) are
unsecured.
6.21 Financial Contracts. The Borrower will not, nor will it permit any
Subsidiary to, enter into or remain liable upon any Financial Contract, except
Rate Hedging Agreements made for nonspeculative purposes.
6.22 Financial Covenants.
6.22.1 Leverage Ratio. As of the end of each fiscal quarter of
the Borrower, beginning with the fiscal quarter ending May 31, 2003,
the Borrower will not permit the ratio of (a) Consolidated Total Net
Indebtedness to (b) Xxxx EBITDA, for the Calculation Period (the
"Leverage Ratio"), to be greater than (i) from the Effective Date until
May 31, 2004, 3.50 to 1.0 and (ii) thereafter, 2.75 to 1.00.
6.22.2 Fixed Charge Coverage Ratio. As of the end of each
fiscal quarter of the Borrower, beginning with the fiscal quarter
ending May 31, 2003, the Borrower will not permit the ratio, for the
Calculation Period, of (a) the sum of (i) Xxxx EBITDA less (ii)
Non-Financed Capital Expenditures to (b) the sum of (i) Consolidated
Interest Expense plus (ii) mandatory scheduled principal payments on
any Indebtedness (other than the
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XXXXx) plus (iii) expenses for cash taxes, each for such Calculation
Period, to be less than 2.00 to 1.0.
6.22.3 Minimum Consolidated Net Worth. The Borrower will at
all times maintain Consolidated Net Worth of not less than the sum of
(a) $620,000,000, plus (b) 50% of Consolidated Net Income (if positive)
earned in each fiscal quarter ending subsequent to the Effective Date,
plus (c) 80% of any Equity Issuance Proceeds.
6.22.4 Capital Expenditures. The Borrower will not, nor will
it permit its Subsidiaries, in the aggregate to, expend, or be
committed to expend, in excess of 25% of Xxxx EBITDA for Capital
Expenditures including all Capitalized Leases, during any one fiscal
year of the Borrower, calculated at fiscal year end and on a
non-cumulative basis in the aggregate for the Borrower and its
Subsidiaries excluding Acquisitions otherwise permitted under this
Agreement.
6.22.5 Minimum EBITDA. As of the end of each fiscal quarter of
the Borrower, beginning with the fiscal quarter ending May 31, 2003,
the Borrower will not permit EBITDA for the Borrower and its
Subsidiaries for the Calculation Period to be less than $135,000,000.
6.23 Subsidiaries. The Borrower will, and will cause each of its
Domestic Subsidiaries to, cause any Person (whether now existing or hereafter
created) becoming a Material Subsidiary that is or becomes a Domestic Subsidiary
of the Borrower (a) to execute, in form and substance satisfactory to the Agent,
a guaranty in favor of the Agent for the benefit of the Lenders sufficient to
obligate such Subsidiary for repayment of all or a portion of the Obligations
and (b) to execute, in form and substance satisfactory to the Agent, a security
agreement and/or other security instruments in favor of the Agent for the
benefit of the Lenders sufficient to pledge all or a portion of such
Subsidiary's assets as would constitute Collateral as security for the
Obligations. The Borrower and each Subsidiary shall have pledged at all times to
the Agent for the benefit of the Lenders 100% of Borrower's and a Domestic
Subsidiary's ownership interest in any Domestic Subsidiary that is a Material
Subsidiary and 66% of Borrower's and a Domestic Subsidiary's ownership interest
in any Foreign Subsidiary that is a Material Subsidiary pursuant to a pledge
agreement in form and substance satisfactory to the Agent.
6.24 Acquisitions. For Acquisitions for which (a) the aggregate cash
consideration (defined as total net cash to be paid, plus Indebtedness and
Contingent Obligations to be assumed in connection with any Acquisition, plus
the Acquisition costs associated with such Acquisition) is less than $50,000,000
and (b) the aggregate cash consideration for all Acquisitions, including the
Acquisition in question, during the previous 12-month period is less than
$150,000,000, the consent of the Lenders shall not be required so long as (i)
the acquisition target is in the same or similar line of business as Borrower
and its Subsidiaries; (ii) the Borrower or a Domestic Subsidiary is the
surviving entity holding one hundred percent (100%) of the Capital Stock or
ownership interests in the Acquisition target; (iii) a substantial portion of
the Borrower's executive management team as of the Effective Date (to include in
all cases the chief executive officer and the chief financial officer of the
Borrower) is the surviving management team; (iv) no Default or Unmatured Default
shall exist before or after any Acquisition; (v) all Acquisitions shall be
completed in accordance with applicable laws in all material respects; (vi)
Agent shall
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be provided with satisfactory opinions with regard to any Acquisition as it may
request; (vii) the terms of Section 6.23 are satisfied; (viii) the board of
directors of the Acquisition target approves the Acquisition and (ix) there is
Sufficient Liquidity after giving effect to any such Acquisition on a pro forma
basis; provided, however, that the Borrower may make Acquisitions for which the
aggregate cash consideration (defined as total net cash to be paid, plus
Indebtedness and Contingent Obligations to be assumed in connection with any
Acquisition, plus the Acquisition costs associated with such Acquisition) is
less than $15,000,000 during any fiscal year without the consent of the Lenders
provided that the conditions set forth in (i) through (viii) above are
satisfied.
6.25 Limitation on Leases. The Borrower will not, and will not allow
its Subsidiaries to incur, on a consolidated basis, Operating Leases requiring
total payments of more than $25,000,000 per annum excluding Operating Leases
recorded in the Borrower's financial statements as cost of sales and fully
reimbursable to the Borrower by non-affiliated third parties on arm's length
terms.
6.26 XXXXx Interest Expense. Neither Borrower nor any of its
Subsidiaries shall pay cash interest expense with respect to the XXXXx.
6.27 XXXXx Indenture. Borrower shall not amend or agree to any
amendment of the indenture dated May 1, 2001 under which the XXXXx are issued,
without the prior written consent of the Required Lenders.
6.28 Name, Fiscal Year and Accounting Method. The Borrower shall not,
and shall not permit any of its Subsidiaries to, change its name, fiscal year or
method of accounting except as required by Agreement Accounting Principles;
provided, however, any of the Borrower and its Subsidiaries may change its name
if the Borrower has given the Agent 30 days prior written notice of such name
change and taken such action as Agent deems reasonably necessary to continue the
perfection of the Liens securing payment of the Secured Obligations.
6.29 Agreements Restricting Liens and Distributions. The Borrower shall
not, nor shall it permit any of its Subsidiaries to, create or otherwise cause
or suffer to exist any prohibition, encumbrance or restriction which prohibits
or otherwise restricts (a) the ability of any Subsidiary to (i) pay dividends or
make other distributions or pay any Indebtedness owed to the Borrower or any
Subsidiary of the Borrower, (ii) make loans or advances to the Borrower or any
Subsidiary of the Borrower, or (iii) transfer any of its Properties to the
Borrower or any Subsidiary of the Borrower or (b) the ability of the Borrower or
any Subsidiary of the Borrower to create, incur, assume or suffer to exist any
Lien upon its Property to secure the Obligations or to become a guarantor of the
Obligations, other than prohibitions or restrictions existing under or by reason
of: (i) this Agreement and the other Loan Documents; (ii) applicable Legal
Requirements; (iii) customary non-assignment provisions entered into in the
ordinary course of business and consistent with past practices; (iv) any
restriction or encumbrance with respect to a Subsidiary of the Borrower imposed
pursuant to an agreement which has been entered into for the sale or disposition
of all or substantially all of the Capital Stock or assets of such Subsidiary,
so long as such sale or disposition is permitted under this Agreement; (v) any
restriction arising under the credit facility permitted under Sections 6.11(g)
or 6.11(j) and (vi) Liens, prohibitions or restrictions permitted by Section 6.1
and any documents or instruments governing the terms of
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any Indebtedness or other obligations secured by any such Liens, provided that
such prohibitions or restrictions apply only to the Property subject to such
Liens.
6.30 Further Assurances in General. The Borrower shall, and shall cause
each of its Subsidiaries to, protect and perfect the Liens contemplated by the
Collateral Documents. The Borrower at its expense shall, and shall cause each of
its Subsidiaries to, promptly execute and deliver all such other and further
documents, agreements and instruments in compliance with or accomplishment of
the covenants and agreements of the Borrower or any of its Subsidiaries in the
Loan Documents.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1 Any representation or warranty made or deemed made by or on behalf
of the Borrower or any of its Subsidiaries to the Lenders or the Agent under or
in connection with this Agreement, any Credit Extension, or any certificate or
information delivered in connection with this Agreement or any other Loan
Document shall be materially false on the date as of which made.
7.2 Nonpayment of (a) principal when due, (b) interest within three (3)
days of when due on any Loan, (c) nonpayment of any Reimbursement Obligation, or
(d) nonpayment of any commitment fee, LC Fee or other obligations under any of
the Loan Documents after the same becomes due.
7.3 The breach by the Borrower of any of the terms or provisions of
Section 6.2, Section 6.3, or Sections 6.10 through 6.31.
7.4 The breach by the Borrower (other than a breach which constitutes a
Default under another Section of this Article VII) of any of the terms or
provisions of this Agreement which is not remedied within fifteen (15) days.
7.5 Failure of the Borrower or any of its Subsidiaries or any
Subsidiary to pay when due any Indebtedness aggregating in excess of $5,000,000
("Material Indebtedness"); or the default by the Borrower or any of its
Subsidiaries in the performance (beyond the applicable grace period with respect
thereto, if any) of any term, provision or condition contained in any agreement
under which any such Material Indebtedness was created or is governed, or any
other event shall occur or condition exist, the effect of which default or event
is to cause, or to permit the holder or holders of such Material Indebtedness to
cause, such Material Indebtedness to become due prior to its stated maturity; or
any Material Indebtedness of the Borrower or any of its Subsidiaries shall be
declared to be due and payable or required to be prepaid or repurchased (other
than by a regularly scheduled payment) prior to the stated maturity thereof; or
the Borrower or any of its Subsidiaries shall not pay, or admit in writing its
inability to pay, its debts generally as they become due.
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7.6 The Borrower or any of its Subsidiaries shall
(a) have an order for relief entered with respect to it under
the Federal bankruptcy laws as now or hereafter in effect,
(b) make an assignment for the benefit of creditors,
(c) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or
similar official for it or any Substantial Portion of its Property,
(d) institute any proceeding seeking an order for relief under
the Federal bankruptcy laws as now or hereafter in effect or seeking to
adjudicate it a bankrupt or insolvent, or seeking dissolution, winding
up, liquidation, reorganization, arrangement or composition of it or
its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed
against it,
(e) take any corporate or partnership action to authorize or
effect any of the foregoing actions set forth in this Section 7.6 or
(f) fail to contest in good faith any appointment or
proceeding described in Section 7.7.
7.7 Without the application, approval or consent of the Borrower or any
of its Subsidiaries, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any of its Subsidiaries or any
Substantial Portion of its Property, or a proceeding described in Section 7.6(c)
shall be instituted against the Borrower or any of its Subsidiaries and such
appointment continues undischarged or such proceeding continues undismissed or
unstayed for a period of 30 consecutive days.
7.8 Any court, government or governmental agency shall condemn, seize
or otherwise appropriate, or take custody or control of, all or any portion of
the Property of the Borrower or any Guarantor which, when taken together with
all other Property of the Borrower or such Guarantor so condemned, seized,
appropriated, or taken custody or control of, during the twelve-month period
ending with the month in which any such action occurs, constitutes a Substantial
Portion.
7.9 The Borrower or any of its Subsidiaries shall fail within 30 days
to pay, bond or otherwise discharge one or more (a) judgments or orders for the
payment of money in excess of $2,000,000 (or the equivalent thereof in
currencies other than U.S. Dollars) in the aggregate, or (b) nonmonetary
judgments or orders which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, which judgment(s), in any such case,
is/are not stayed on appeal or otherwise being appropriately contested in good
faith.
7.10 The Unfunded Liabilities of all Single Employer Plans shall exceed
in the aggregate $5,000,000 or any Reportable Event shall occur in connection
with any Plan.
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7.11 The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the Borrower or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds $5,000,000 or requires
payments exceeding $1,000,000 per annum.
7.12 The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years of each such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an amount
exceeding $5,000,000.
7.13 The Borrower or any of its Subsidiaries shall (a) be the subject
of any proceeding or investigation pertaining to the release by the Borrower,
any of its Subsidiaries or any other Person of any toxic or hazardous waste or
substance into the environment, or (b) violate any Environmental Law, which, in
the case of an event described in clause (a) or clause (b), could reasonably be
expected to have a Material Adverse Effect.
7.14 Any Change in Control shall occur.
7.15 The occurrence of any "default," as defined in any Loan Document
(other than this Agreement) or the breach of any of the terms or provisions of
any Loan Document (other than this Agreement), which default or breach continues
beyond any period of grace therein provided.
7.16 Any Guaranty shall fail to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Guaranty, or any Guarantor shall fail to comply with any
of the terms or provisions of any Guaranty to which it is a party, or any
Guarantor shall deny that it has any further liability under any Guaranty to
which it is a party, or shall give notice to such effect.
7.17 Any Collateral Document shall for any reason fail to create a
valid and perfected first priority security interest in any collateral purported
to be covered thereby, except as permitted by the terms of any Collateral
Document, or any Collateral Document shall fail to remain in full force or
effect or any action shall be taken to discontinue or to assert the invalidity
or unenforceability of any Collateral Document, or the Borrower or any
Subsidiary shall fail to comply with any of the terms or provisions of any
Collateral Document.
7.18 The representations and warranties set forth in Section 5.15 shall
at any time not be true and correct.
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7.19 The Borrower or any Subsidiary shall fail to pay when due any
obligation aggregating in excess of $5,000,000 under any Operating Lease, with
respect to a Letter of Credit, or any Contingent Obligation.
7.20 Nonpayment by the Borrower of any Rate Hedging Obligation when due
or the breach by the Borrower of any term, provision or condition contained in
any Rate Hedging Agreement.
7.21 The occurrence of a default or an event of default under the
Indenture dated May 1, 2001 under which the XXXXx are issued or any other event
which would allow all or any of the holders of the XXXXx to declare the XXXXx to
be immediately due and payable.
7.22 Any failure to cure any Borrowing Base deficiency in accordance
with Section 2.2(c).
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration; Facility LC Collateral Account.
(a) If any Default described in Section 7.6 or Section 7.7
occurs and is continuing, the obligations of the Lenders to make Credit
Extensions hereunder and the obligation and power of each Issuer to
issue Facility LCs shall automatically terminate and the Obligations
shall immediately become due and payable without any election or action
on the part of the Agent, any Issuer or any Lender and the Borrower
will be and become thereby unconditionally obligated, without any
further notice, act or demand, to pay to the Agent an amount in
immediately available funds, which funds shall be held in the Facility
LC Collateral Account, equal to the difference of (i) the amount of LC
Obligations at such time, less (ii) the amount on deposit in the
Facility LC Collateral Account at such time which is free and clear of
all rights and claims of third parties and has not been applied against
the Obligations (such difference, the "Collateral Shortfall Amount").
If any other Default occurs and is continuing, the Required Lenders (or
the Agent with the consent of the Required Lenders) may (A) terminate
or suspend the obligations of the Lenders to make Credit Extensions
hereunder and the obligation and power of each Issuer to issue Facility
LCs, or declare the Obligations and any affected Lender may declare the
Rate Hedging Obligations to be due and payable, or both, whereupon the
Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which the
Borrower hereby expressly waives, and (B) upon notice to the Borrower
and in addition to the continuing right to demand payment of all
amounts payable under this Agreement, make demand on the Borrower to
pay, and the Borrower will, forthwith upon such demand and without any
further notice or act, pay to the Agent the Collateral Shortfall
Amount, which funds shall be deposited in the Facility LC Collateral
Account.
(b) If at any time while any Default has occurred and is
continuing, the Agent determines that the Collateral Shortfall Amount
at such time is greater than zero, the
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Agent may make demand on the Borrower to pay, and the Borrower will,
forthwith upon such demand and without any further notice or act, pay
to the Agent the Collateral Shortfall Amount, which funds shall be
deposited in the Facility LC Collateral Account.
(c) The Agent may at any time or from time to time after funds
are deposited in the Facility LC Collateral Account, apply such funds
to the payment of the Obligations and any other amounts as shall from
time to time have become due and payable by the Borrower to the Lenders
or the Issuers under the Loan Documents.
(d) At any time while any Default has occurred and is
continuing, neither the Borrower nor any Person claiming on behalf or
of through the Borrower shall have any right to withdraw any of the
funds held in the Facility LC Collateral Account. After all of the
Obligations have been indefeasibly paid in full and the Aggregate
Commitment has been terminated, any funds remaining, in the Facility LC
Collateral Account shall be returned by the Agent to the Borrower or
paid to whomever may be legally entitled thereto at such time.
(e) If, within 30 days after acceleration of the maturity of
the Obligations or termination of the obligations of the Lenders to
make Credit Extensions and the obligation and power of the Issuers to
issue Facility LCs hereunder as a result of any Default (other than any
Default as described in Section 7.6 or Section 7.7 with respect to the
Borrower) and before any judgment or decree for the payment of the
Obligations due shall have been obtained or entered, the Required
Lenders (in their sole discretion) shall so direct, and the Agent
shall, by notice to the Borrower, rescind and annul such acceleration
and/or termination.
8.2 Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or waiving any
Default hereunder; provided, however, that:
(a) no such supplemental agreement shall modify the definition
of "Borrowing Base" or reduce the percentage specified in the
definition of "Supermajority Lenders" without the consent of
Supermajority Lenders;
(b) no such supplemental agreement shall, without the consent
of the Lender directly affected thereby:
(i) reduce the amount or postpone or extend the
mandatory payments required under Section 2.2 or any other
regularly scheduled payment of principal of any Loan or any
payment date for, or forgive all or any portion of the
principal amount thereof or any Reimbursement Obligation
related thereto, or reduce the rate or extend the time of
payment of interest or fees on any Loan or any Reimbursement
Obligations related thereto;
(ii) increase the amount of such Lender's Revolving
Credit Commitment or the Facility LC Commitment;
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(iii) reduce the amount of such Lender's Revolving
Credit Commitment or the Facility LC Commitment, except as
otherwise provided in Section 2.5(b); or
(iv) Amend Section 11.2;
(c) no such supplemental agreement shall, with the consent of
all of the Lenders:
(i) extend the Facility Termination Date, or extend
the expiry date of any Facility LC to a date after the
Facility Termination Date;
(ii) reduce the percentage specified in the
definition of "Required Lenders";
(iii) increase the amount of the Aggregate
Commitment, the Revolving Credit Commitment or the Facility LC
Commitment or permit the Borrower to assign its rights under
this Agreement, except as otherwise provided in Section
2.1.1(b);
(iv) amend this Section 8.2;
(v) release any Guarantor of any Credit Extension or,
except as provided in the Collateral Documents, release any
substantial part of the Collateral during any calendar year.
For purposes of this subsection, "substantial" means any
Collateral, the aggregate book value of which is worth an
amount equal to or greater than ten percent (10%) of the
tangible net worth of Borrower calculated pursuant to
Agreement Accounting Principles and as of the immediately
preceding fiscal quarter end;
(d) No amendment of any provision of this Agreement relating
to the Agent shall be effective without the written consent of the
Agent; and
(e) No amendment of any provision relating to any Issuer shall
be effective without the written consent of such Issuer.
Notwithstanding the foregoing, the Agent may waive payment of the fee
required under Section 12.3.2 without obtaining the consent of any
other party to this Agreement.
8.3 Preservation of Rights. No delay or omission of the Lenders, the
Issuers or the Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Credit Extension notwithstanding the existence of a
Default or the inability of the Borrower to satisfy the conditions precedent to
such Credit Extension shall not constitute any waiver or acquiescence. Any
single or partial exercise of any such right shall not preclude other or further
exercise thereof or the exercise of any other right, and no waiver, amendment or
other variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by the Lenders required
pursuant to Section 8.2, and then only to the extent in
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such writing specifically set forth. All remedies contained in the Loan
Documents or by law afforded shall be cumulative and all shall be available to
the Agent, the Issuers and the Lenders until the Obligations have been paid in
full.
ARTICLE IX
GENERAL PROVISIONS
9.1 Survival of Representations. All representations and warranties of
the Borrower contained in this Agreement shall survive the making of the Credit
Extensions herein contemplated.
9.2 Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, neither any Issuer nor any Lender shall be
obligated to extend credit to the Borrower in violation of any limitation or
prohibition provided by any applicable statute or regulation.
9.3 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.4 Entire Agreement. The Loan Documents embody the entire agreement
and understanding among the Borrower, the Agent, the Issuers and the Lenders and
supersede all prior agreements and understandings among the Borrower, the Agent,
the Issuers and the Lenders relating to the subject matter thereof other than
the Fee Letter. In the event of any conflict between the terms of this Agreement
and those of any other Loan Document, the terms of this Agreement shall control,
subject to the provisions of Section 9.15.
9.5 Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns, provided, however, that the parties
hereto expressly agree that CLS shall enjoy the benefits of the provisions of
Section 9.6, Section 9.9 and Section 10.11 to the extent specifically set forth
therein and shall have the right to enforce such provisions on its own behalf
and in its own name to the same extent as if it were a party to this Agreement.
9.6 Expenses; Indemnification.
(a) The Borrower shall reimburse the Agent and CLS for any
costs, internal charges and out-of-pocket expenses (including
attorneys' and accountants' fees and time charges of attorneys and
accountants for the Agent, which attorneys may be employees of the
Agent) paid or incurred by the Agent or CLS in connection with the
preparation, negotiation, execution, delivery, syndication, review,
amendment, modification, and administration of the Loan Documents. The
Borrower also agrees to reimburse the Agent, CLS, the Issuers and the
Lenders for any costs, internal charges and out-of-pocket
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expenses (including attorneys' fees and time charges of attorneys for
the Agent, CLS, the Issuers and the Lenders, which attorneys may be
employees of the Agent, CLS, the Issuers or the Lenders) paid or
incurred by the Agent, CLS, the Issuers or any Lender in connection
with the collection and enforcement of the Loan Documents. Expenses
being reimbursed by the Borrower under this Section include, without
limitation, the cost and expense of an annual on site inspection and
audit of Borrower's Inventory (or any other collateral the subject of
the Collateral Documents) and costs and expenses incurred in connection
with the Reports described in the following sentence. The Borrower
acknowledges that from time to time the Agent may prepare and may
distribute to the Lenders (but shall have no obligation or duty to
prepare or to distribute to the Lenders) certain audit reports (the
"Reports") pertaining to the Borrower's assets for internal use
by the Agent from information furnished to it by or on behalf of the
Borrower, after the Agent has exercised its rights of inspection
pursuant to this Agreement.
(b) The Borrower hereby further agrees to indemnify the Agent,
CLS, the Issuers and each Lender, its directors, officers and employees
against all losses, claims, damages, penalties, judgments, liabilities
and expenses (including, without limitation, all expenses of litigation
or preparation therefor whether or not the Agent, CLS, the Issuers or
any Lender is a party thereto) which any of them may pay or incur
arising out of or relating to this Agreement, the other Loan Documents,
the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Credit
Extension hereunder, including any of such arising from any of said
indemnified parties' own negligence or under any doctrine of strict
liability, except to the extent that they are determined in a final
non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the party
seeking indemnification. The obligations of the Borrower under this
Section 9.6 shall survive the termination of this Agreement.
(c) Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the Agent may furnish one to each of
the Lenders.
9.7 Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles, except that any calculation or determination which is to be made on
a consolidated basis shall be made for the Borrower and all its Subsidiaries,
including those Subsidiaries, if any, which are unconsolidated on the Borrower's
audited financial statements.
9.8 Severability of Provisions. Any provision in any Loan Document that
is held to be inoperative, unenforceable, or invalid in any jurisdiction shall,
as to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
9.9 Nonliability of Lenders. The relationship between the Borrower on
the one hand and the Lenders, the Issuers and the Agent on the other hand shall
be solely that of borrower and
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lender. Neither the Agent, CLS, any Issuer nor any Lender shall have any
fiduciary responsibilities to the Borrower. Neither the Agent, CLS, any Issuer
nor any Lender undertakes any responsibility to the Borrower to review or inform
the Borrower of any matter in connection with any phase of the Borrower's
business or operations. The Borrower agrees that neither the Agent, CLS, any
Issuer nor any Lender shall have liability to the Borrower (whether sounding in
tort, contract or otherwise) for losses suffered by the Borrower in connection
with, arising out of, or in any way related to, the transactions contemplated
and the relationship established by the Loan Documents, or any act, omission or
event occurring in connection therewith, unless it is determined in a final
non-appealable judgment by a court of competent jurisdiction that such losses
resulted from the gross negligence or willful misconduct of the party from which
recovery is sought. Neither the Agent, CLS, any Issuer nor any Lender shall have
any liability with respect to, and the Borrower hereby waives, releases and
agrees not to xxx for, any special, indirect or consequential damages suffered
by the Borrower in connection with, arising out of, or in any way related to the
Loan Documents or the transactions contemplated thereby.
9.10 Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (a) to its Affiliates and to other Lenders and
their respective Affiliates, (b) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee, (c) to regulatory
officials, (d) to any Person as required by law, regulation, or legal process,
(e) to any Person in connection with any legal proceeding to which such Lender
is a party, (f) to such Lender's direct or indirect contractual counterparties
in swap agreements or to legal counsel, accountants and other professional
advisors to such counterparties, and (g) permitted by Section 12.4.
9.11 Nonreliance. Each Lender hereby represents that it is not relying
on or looking to any margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) for the repayment of the Credit
Extensions provided for herein.
9.12 Disclosure. Each party hereto (a) acknowledges and agrees that the
Agent, CLS, any Issuer or any Lender and/or their respective Affiliates from
time to time may hold other investments in, make other loans to or have other
relationships with the Borrower and its Subsidiaries, and (b) waive any
liability of any such party to any other party hereto, respectively, arising out
of or resulting from such investments, loans or relationships other than
liabilities arising out of the gross negligence or willful misconduct of the
party holding such investment, making such other loan or having such other
relationship with the Borrower and its Subsidiaries.
9.13 Interest. Each provision in this Agreement and each other Loan
Document is expressly limited so that in no event whatsoever shall the amount
paid, or otherwise agreed to be paid, to the Agent or any Lender, or charged,
contracted for, reserved, taken or received by the Agent or any Lender, for the
use, forbearance or detention of the money to be loaned under this Agreement or
any Loan Document or otherwise (including any sums paid as required by any
covenant or obligation contained herein or in any other Loan Document which is
for the use, forbearance or detention of such money), exceed that amount of
money which would cause the effective rate of interest to exceed the Highest
Lawful Rate, and all amounts owed under this Agreement and each other Loan
Document shall be held to be subject to reduction to the effect that such
amounts so paid or agreed to be paid, charged, contracted for, reserved, taken
or received which are for the use, forbearance or detention of money under this
Agreement or such
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Loan Document shall in no event exceed that amount of money which would cause
the effective rate of interest to exceed the Highest Lawful Rate. Anything
herein or in any Note or any other Loan Document to the contrary
notwithstanding, the Borrower shall not be required to pay unearned interest and
the Borrower shall not be required to pay interest on the Obligations at a rate
in excess of the Highest Lawful Rate, and if the effective rate of interest
which would otherwise be payable hereunder, under such Note or such Loan
Documents would exceed the Highest Lawful Rate, or if any Lender or the holder
of such Note shall receive any unearned interest or shall receive monies that
are deemed to constitute interest which would increase the effective rate of
interest payable by the Borrower hereunder or under such Note or other Loan
Documents to a rate in excess of the Highest Lawful Rate, then (a) the amount of
interest which would otherwise be payable by the Borrower shall be reduced to
the amount allowed under applicable law and (b) any unearned interest paid by
the Borrower or any interest paid by the Borrower in excess of the Highest
Lawful Rate shall in the first instance be credited on the principal of the
Obligations of the Borrower (or if all such Obligations shall have been paid in
full, refunded to the Borrower). It is further agreed that, without limitation
of the foregoing, all calculations of the rate of interest contracted for,
reserved, taken, charged or received by any Lender under the Notes and the
Obligations and under the other Loan Documents are made for the purpose of
determining whether such rate exceeds the Highest Lawful Rate, and shall be
made, to the extent permitted by usury laws applicable to such Lender, by
amortizing, prorating and spreading in equal parts during the period of the full
stated term of the Notes and this Agreement all interest at any time contracted
for, charged or received by such Lender in connection therewith. Furthermore, in
the event that the maturity of any Obligation is accelerated or in the event of
any required or permitted prepayment, then such consideration that constitutes
interest under applicable law may never include more than the maximum amount
allowed by applicable law and excess interest, if any, provided for in this
Agreement, any Note or otherwise shall be canceled automatically as of the date
of such acceleration or prepayment and, if theretofore paid, shall be refunded
to the Borrower.
9.14 Excess Share Certificates. The Agent and the Lenders acknowledge
that circumstances have required that the Borrower deliver to Agent such stock
certificates of Foreign Subsidiaries, and in some cases, while the Borrower has
agreed to pledge to the Agent and the Lenders only 66% of the Capital Stock of
first tier Foreign Subsidiaries, the Borrower has in fact delivered to Agent
stock certificates representing, in some cases, 100% of the Capital Stock of
certain Foreign Subsidiaries. Lender and Agent acknowledge and agree that in no
event shall Agent or any Lender be deemed to have (and they each hereby disclaim
and deny) any Lien upon, security interest in or claim upon any shares of
Capital Stock in excess of 66% thereof, and the Agent and the Lenders agree to
surrender such stock certificates as may evidence more than 66% of the Capital
Stock of any Foreign Subsidiary to the Borrower upon request of Borrower, in
exchange for a stock certificate representing 66% of the Capital Stock of any
such Foreign Subsidiary.
9.15 Survival of Prior Agreements. The rights and privileges afforded
the Agent and CLS in the Fee Letter and in that letter agreement dated March 4,
2003 among CLS, the Agent and the Borrower, shall survive the execution of this
Agreement and the Effective Date and Agent and CLS shall continue to be entitled
to the benefits thereof.
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9.16 Guarantor's Acknowledgment and Consent. The Borrower is a party to
certain Collateral Documents pursuant to which the Borrower has created Liens in
favor of the Agent on certain Collateral to secure the Obligations. Each of the
Guarantors party hereto is a party to certain Collateral Documents and the
Guaranty, pursuant to which each such Guarantor has (a) guarantied the
Obligations and (b) created Liens in favor of the Agent on behalf of the Lenders
on certain Collateral to secure the Secured Obligations. The Collateral
Documents and the Guaranty are collectively referred to herein as the "Credit
Support Documents."
Each Guarantor hereby acknowledges that it has reviewed the
terms and provisions of this Agreement, the Collateral Documents and the
Guaranty and consents to the further amendment of the Second Amended and
Restated Credit Agreement pursuant to this Agreement. Each Guarantor hereby
confirms that each Credit Support Document to which it is a party or otherwise
bound and all Collateral encumbered thereby will continue to guaranty or secure,
as the case may be, to the fullest extent possible the payment and performance
of all "Secured Obligations," as the case may be (in each case as such terms are
defined in the applicable Credit Support Document), including without limitation
the payment and performance of all such "Obligations," "Guaranteed Debt" or
"Secured Obligations," as the case may be, in respect of the Obligations of the
Borrower now or hereafter existing under or in respect of this Agreement and the
Notes.
Each Guarantor acknowledges and agrees that any of the Credit
Support Documents to which it is a party or otherwise bound shall continue in
full force and effect and that all of its obligations thereunder shall be valid
and enforceable and shall not be impaired or limited by the execution or
effectiveness of this Agreement. Each Guarantor represents and warrants that all
representations and warranties contained in this Agreement and the other Credit
Support Documents to which it is a party or otherwise bound are true, correct
and complete in all material respects on and as of the date hereof to the same
extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material respects on and as of
such earlier date.
Each Guarantor acknowledges and agrees that nothing in this
Agreement or any other Loan Document shall be deemed to require the consent of
such Guarantor to any future amendments to this Agreement.
9.17 Existing Indebtedness. The Borrower, the Agent and the Lenders
have agreed that (i) this Agreement is an amendment and restatement of the
Second Amended and Restated Credit Agreement, not a new or substitute credit
agreement or novation of the Second Amended and Restated Credit Agreement, (ii)
each reference to an "Advance" or a "Facility LC" shall include each Advance
made and each Facility LC issued heretofore under the Second Amended and
Restated Credit Agreement as well as each Advance made and each Facility LC
issued hereafter under this Agreement, and (iii) advances made on the Effective
Date by the Lenders to or for the benefit of the Borrower were used to finance
the purchase by the Agent, on behalf of the Lenders, of the indebtedness and
obligations of the Borrower to Bank One, NA and the other lenders under the
Second Amended and Restated Credit Agreement.
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ARTICLE X
THE AGENT
10.1 Appointment; Nature of Relationship. CLNY is hereby appointed by
each of the Lenders as its contractual representative (herein referred to as the
"Agent") hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Agent to act as the contractual representative of
such Lender with the rights and duties expressly set forth herein and in the
other Loan Documents. The Agent agrees to act as such contractual representative
upon the express conditions contained in this Article X. Notwithstanding the use
of the defined term "Agent," it is expressly understood and agreed that the
Agent shall not have any fiduciary responsibilities to any Lender by reason of
this Agreement or any other Loan Document and that the Agent is merely acting as
the contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Agent (a) does not
hereby assume any fiduciary duties to any of the Lenders, (b) is a
"representative" of the Lenders within the meaning of Section 9-105 of the
Uniform Commercial Code and (c) is acting as an independent contractor, the
rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. Each of the Lenders hereby agrees to
assert no claim against the Agent on any agency theory or any other theory of
liability for breach of fiduciary duty, all of which claims each Lender hereby
waives.
10.2 Powers. The Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Agent by the terms of
each thereof, together with such powers as are reasonably incidental thereto.
The Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Agent.
10.3 General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
to the extent such action or inaction is determined in a final non-appealable
judgment by a court of competent jurisdiction to have arisen from the gross
negligence or willful misconduct of such Person.
10.4 No Responsibility for Loans, Recitals, etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into, or verify (a) any statement, warranty
or representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Agent; (d) the existence
or possible existence of any Default or Unmatured Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith; (f) the
value, sufficiency, creation, perfection or priority of any Lien in any
collateral security; or (g) the financial condition of the Borrower or any
guarantor of any of the Obligations or of any of the Borrower's or any such
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guarantor's respective Subsidiaries. The Agent shall have no duty to disclose to
the Lenders information that is not required to be furnished by the Borrower to
the Agent at such time, but is voluntarily furnished by the Borrower to the
Agent (either in its capacity as Agent or in its individual capacity).
10.5 Action on Instructions of Lenders. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders or 100% of the Lenders where required hereunder, and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders. The Lenders hereby acknowledge that the Agent
shall be under no duty to take any discretionary action permitted to be taken by
it pursuant to the provisions of this Agreement or any other Loan Document
unless it shall be requested in writing to do so by the Required Lenders. The
Agent shall be fully justified in failing or refusing to take any action
hereunder and under any other Loan Document unless it shall first be indemnified
to its satisfaction by the Lenders pro rata against any and all liability, cost
and expense that it may incur by reason of taking or continuing to take any such
action.
10.6 Employment of Agents and Counsel. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
10.7 Reliance on Documents; Counsel. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
10.8 Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (a) for any amounts not
reimbursed by the Borrower for which the Agent is entitled to reimbursement by
the Borrower under the Loan Documents, (b) for any other expenses incurred by
the Agent on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents
(including, without limitation, for any expenses incurred by the Agent in
connection with any dispute between the Agent and any Lender or between two or
more of the Lenders) and (c) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of the Loan Documents or
any other document delivered in connection therewith or the transactions
contemplated thereby (including, without limitation, for any such amounts
incurred by or asserted against the Agent in connection with any dispute between
the Agent and any Lender or between two or more of the Lenders), or the
enforcement of any of the terms of the Loan Documents or of any such other
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documents, including any of such arising from the Agent's own negligence or
under any doctrine of strict liability, provided that (i) no Lender shall be
liable for any of the foregoing to the extent any of the foregoing is found in a
final non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Agent and (ii)
any indemnification required pursuant to Section 3.5(f) shall, notwithstanding
the provisions of this Section 10.8, be paid by the relevant Lender in
accordance with the provisions thereof. The obligations of the Lenders under
this Section 10.8 shall survive payment of the Obligations and termination of
this Agreement.
10.9 Notice of Default. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Unmatured Default hereunder unless
the Agent has received written notice from a Lender or the Borrower referring to
this Agreement describing such Default or Unmatured Default and stating that
such notice is a "notice of default." In the event that the Agent receives such
a notice, the Agent shall give prompt notice thereof to the Lenders. Receipt by
Agent of a notice of termination from any of the Guarantors under the
"Termination" Section of the Guaranty shall be a notice of default.
10.10 Rights as a Lender. In the event the Agent is a Lender, the Agent
shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Credit Extensions as any Lender
and may exercise the same as though it were not the Agent, and the term "Lender"
or "Lenders" shall, at any time when the Agent is a Lender, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person. The Agent, in its
individual capacity, is not obligated to remain a Lender.
10.11 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, CLS or any other Lender and
based on the financial statements prepared by the Borrower and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Loan Documents.
Each Lender also acknowledges that it will, independently and without reliance
upon the Agent, CLS or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and the
other Loan Documents.
10.12 Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. The Agent may be removed at any time with or without cause
by written notice received by the Agent from the Required Lenders, such removal
to be effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint, on
behalf of the Borrower and the Lenders, a successor Agent. If no successor Agent
shall have been so appointed by the Required Lenders within thirty days after
the resigning Agent's giving notice of its intention to resign, then the
resigning Agent may appoint, on behalf of the Borrower and the
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Lenders, a successor Agent. Notwithstanding the previous sentence, the Agent may
at any time without the consent of the Borrower or any Lender, appoint any of
its Affiliates which is a commercial bank as a successor Agent hereunder. If the
Agent has resigned or been removed and no successor Agent has been appointed,
the Lenders may perform all the duties of the Agent hereunder and the Borrower
shall make all payments in respect of the Obligations to the applicable Lender
and for all other purposes shall deal directly with the Lenders. No successor
Agent shall be deemed to be appointed hereunder until such successor Agent has
accepted the appointment. Any such successor Agent shall be a commercial bank
having capital and retained earnings of at least $100,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning or removed Agent. Upon
the effectiveness of the resignation or removal of the Agent, the resigning or
removed Agent shall be discharged from its duties and obligations hereunder and
under the Loan Documents. After the effectiveness of the resignation or removal
of an Agent, the provisions of this Article X shall continue in effect for the
benefit of such Agent in respect of any actions taken or omitted to be taken by
it while it was acting as the Agent hereunder and under the other Loan
Documents. In the event that there is a successor to the Agent by merger, or the
Agent assigns its duties and obligations to an Affiliate pursuant to this
Section 10.12, then the term "Corporate Base Rate" as used in this Agreement
shall mean the prime rate, base rate or other analogous rate of the new Agent.
10.13 Agent's Fee. The Borrower agrees to pay to the Agent, for its own
account, the fees agreed to by the Borrower and the Agent pursuant to the Fee
Letter, or as otherwise agreed from time to time.
10.14 Delegation to Affiliates. The Borrower and the Lenders agree that
the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under Article IX and
Article X.
10.15 Execution of Collateral Documents. The Lenders hereby empower and
authorize the Agent to execute and deliver to the Borrower on their behalf the
Collateral Documents and all related financing statements and any financing
statements, agreements, documents or instruments as shall be necessary or
appropriate to effect the purposes of the Collateral Documents.
10.16 Collateral Releases. The Lenders hereby empower and authorize the
Agent to execute and deliver to the Borrower on their behalf any agreements,
documents or instruments as shall be necessary or appropriate to effect any
releases of Collateral which shall be permitted by the terms hereof or of any
other Loan Document or which shall otherwise have been approved by the Required
Lenders (or, if required by the terms of Section 8.2, all of the Lenders) in
writing.
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ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1 Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any Affiliate of any Lender to or for the credit or account of the Borrower may
be offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part hereof, shall then be due.
11.2 Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Outstanding Credit Exposure (other than payments
received pursuant to Section 3.1, Section 3.2, Section 3.4 or Section 3.5) in a
greater proportion than that received by any other Lender, such Lender agrees,
promptly upon demand, to purchase a portion of the Aggregate Outstanding Credit
Exposure held by the other Lenders so that after such purchase each Lender will
hold its Pro Rata Share of the Aggregate Outstanding Credit Exposure. If any
Lender, whether in connection with setoff or amounts which might be subject to
setoff or otherwise, receives collateral or other protection for its Obligations
or such amounts which may be subject to setoff, such Lender agrees, promptly
upon demand, to take such action necessary such that all Lenders share in the
benefits of such collateral ratably in proportion to their respective Pro Rata
Shares of the Aggregate Outstanding Credit Exposure. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (a) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (b) any assignment by any Lender must be made in compliance
with Section 12.3. Notwithstanding clause (b) of this Section, any Lender may at
any time, without the consent of the Borrower or the Agent, assign all or any
portion of its rights under this Agreement and any Note to a Federal Reserve
Bank; provided, however, that no such assignment to a Federal Reserve Bank shall
release the transferor Lender from its obligations hereunder. The Agent may
treat the Person which made any Credit Extension or which holds any Note as the
owner thereof for all purposes hereof unless and until such Person complies with
Section 12.3 in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with the Agent. Any assignee
or transferee of the rights to any Credit Extension or any Note agrees by
acceptance of such transfer or assignment to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the owner of the rights to any Credit Extension (whether or not a
Note has been issued in evidence thereof),
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shall be conclusive and binding on any subsequent holder, transferee or assignee
of the rights to such Credit Extension.
12.2 Participations.
12.2.1 Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time sell to one or more banks or other entities
("Participants") participating interests in any Outstanding Credit
Exposure of such Lender, any Note held by such Lender, any Commitment
of such Lender or any other interest of such Lender under the Loan
Documents. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan
Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, such Lender shall remain the owner of its Outstanding
Credit Exposure and the holder of any Note issued to it in evidence
thereof for all purposes under the Loan Documents, all amounts payable
by the Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrower and
the Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under the Loan
Documents.
12.2.2 Voting Rights. Each Lender shall retain the sole right
to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other
than any amendment, modification or waiver with respect to any Credit
Extension or Commitment in which such Participant has an interest which
forgives principal, interest, or any Reimbursement Obligation or
reduces the interest rate or fees payable with respect to any such
Credit Extension or Commitment, extends the Facility Termination Date,
postpones any date fixed for any regularly-scheduled payment of
principal of or interest on any Loan in which such Participant has an
interest, or any regularly-scheduled payment of fees on any such Credit
Extension or Commitment, releases any guarantor of any such Credit
Extension or releases any collateral held in the Facility LC Collateral
Account (except in accordance with the terms hereof) or all or
substantially all of any other collateral, if any, securing any such
Credit Extension.
12.2.3 Benefit of Setoff. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in
Section 11.1 in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the
Loan Documents, provided that each Lender shall retain the right of
setoff provided in Section 11.1 with respect to the amount of
participating interests sold to each Participant. The Lenders agree to
share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each
Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with Section 11.2 as if
each Participant were a Lender.
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12.3 Assignments.
12.3.1 Permitted Assignments. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any
time assign to one or more banks or other entities ("Purchasers") all
or any part of its rights and obligations under the Loan Documents,
provided any such assignment must be of a Pro Rata Share of both the
Revolving Credit Commitment and the Facility LC Commitment of such
assignor. Such assignment shall be substantially in the form of Exhibit
12.3.1 or in such other form as may be agreed to by the parties
thereto. The consent of the Borrower and the Agent shall be required
prior to an assignment becoming effective with respect to a Purchaser
which is not a Lender or an Affiliate thereof; provided if a Default
has occurred and is continuing, the consent of the Borrower shall not
be required. Such consent shall not be unreasonably withheld or
delayed; provided, however, that in the event that the prospective
assignee is unable or unwilling to deliver to the Borrower Forms W-8BEN
or W-8ECI (or successor forms, as applicable) demonstrating such
assignee's exemption from United States Taxes with respect to all
interest payments to be made to such assignee hereunder, then such
inability or unwillingness shall constitute a reasonable basis for
refusing to consent to such transfer. Each such assignment with respect
to a Purchaser which is not a Lender or an Affiliate thereof shall
(unless each of the Borrower and the Agent otherwise consents) be in an
amount not less than the lesser of (i) $5,000,000 or (ii) the remaining
amount of the assigning Lender's Commitment (calculated as at the date
of such assignment) or outstanding Credit Extensions (if the applicable
Commitment has been terminated), and after giving effect thereto, the
assigning Lender shall have Commitments or outstanding Credit
Extensions (if the applicable Commitment has been terminated) of at
least $5,000,000 or $0, in each case, unless otherwise agreed by the
Borrower and the Agent.
12.3.2 Effect; Effective Date. Upon (i) delivery to the Agent
of an assignment, together with any consents required by Section
12.3.1, and (ii) payment of a $3,500 fee to the Agent for processing
such assignment, such assignment shall become effective on the
effective date specified in such assignment. The assignment shall
contain a representation by the Purchaser to the effect that none of
the consideration used to make the purchase of the Commitment and
Outstanding Credit Exposure under the applicable assignment agreement
constitutes "plan assets" as defined under ERISA and that the rights
and interests of the Purchaser in and under the Loan Documents will not
be "plan assets" under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to
this Agreement and any other Loan Document executed by or on behalf of
the Lenders and shall have all the rights and obligations of a Lender
under the Loan Documents, to the same extent as if it were an original
party hereto, and no further consent or action by the Borrower, the
Lenders or the Agent shall be required to release the transferor Lender
with respect to the percentage of the Aggregate Commitment and
Outstanding Credit Exposure assigned to such Purchaser. Upon the
consummation of any assignment to a Purchaser pursuant to this Section
12.3.2, the transferor Lender, the Agent and the Borrower shall, if the
transferor Lender or the Purchaser desires that its Loans be evidenced
by Notes, make appropriate arrangements so that new Notes or, as
appropriate, replacement Notes are issued to such transferor Lender and
new Notes or, as appropriate, replacement Notes, are issued to such
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Purchaser, in each case in principal amounts reflecting their
respective Commitments, as adjusted pursuant to such assignment.
12.3.3 Dissenting Lender. If any Lender shall inform the Agent
that such Lender ("Dissenting Lender") will not consent to, or
otherwise agree with, any consent, waiver, amendment, supplement or
other modification of any provisions of this Agreement or any other
Loan Document, or that such Dissenting Lender will not otherwise agree
with the decisions made by the Purchasing Lender (as defined below),
the Lenders, the Agent and the Borrower hereby agree that CLNY (or any
successor Agent pursuant to the terms hereof) in its individual
capacity as a Lender (the "Purchasing Lender") may, but shall not be
obligated to, with the Borrower's consent, (a) purchase all of the
Dissenting Lenders' rights and obligations under the Loan Documents
pursuant to an assignment substantially in the form of Exhibit 12.3.1
or in such other form as may be agreed to by the parties thereto for
cash consideration equal to 100% of the outstanding Advances, interest,
fees and other amounts then accrued but unpaid to such Dissenting
Lender, (b) assume all obligations of the Dissenting Lender under the
Loan Documents which obligations as to the Dissenting Lender shall be
terminated as of such date, and (c) to comply with the requirements of
Section 12.3 applicable to such assignments; provided that, the
Borrower's consent required under this Section shall not be
unreasonably withheld and shall not be required if an Event of Default
has occurred and is continuing.
12.4 Dissemination of Information. The Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries, including
without limitation any information contained in any Reports; provided that each
Transferee and prospective Transferee agrees to be bound by Section 9.10 of this
Agreement.
12.5 Tax Treatment. If any interest in any Loan Document is transferred
to any Transferee which is organized under the laws of any jurisdiction other
than the United States or any State thereof, the transferor Lender shall cause
such Transferee, concurrently with the effectiveness of such transfer, to comply
with the provisions of Section 3.5(c).
ARTICLE XIII
NOTICES
13.1 Notices. Except as otherwise permitted by Section 2.14 with
respect to borrowing notices, all notices, requests and other communications to
any party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (a)
in the case of the Borrower or the Agent, at its address or facsimile number set
forth on the signature pages hereof or in the case of electronic transmission,
to the electronic addresses given to the Agent in writing prior to the date
hereof, (b) in the case of any Lender, at its address or facsimile number set
forth on its signature page hereof or (c) in the case of any party, at such
other address or facsimile number as such party may hereafter specify for the
purpose by notice to the Agent and the Borrower in accordance with the
provisions of this
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Section 13.1. Each such notice, request or other communication shall be
effective (i) if given by facsimile transmission, when transmitted to the
facsimile number specified in this Section and confirmation of receipt is
received, (ii) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid, or (iii)
if given by any other means, when delivered (or, in the case of electronic
transmission, received) at the address specified in this Section; provided that
notices to the Agent under Article II shall not be effective until received.
13.2 Change of Address. The Borrower, the Agent and any Lender may each
change the address for service of notice upon it by a notice in writing to the
other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Agent, and the Lenders and each party has notified the Agent by facsimile
transmission or telephone that it has taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION;
WAIVER OF JURY TRIAL
15.1 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE
STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS. WITHOUT LIMITATION OF THE FOREGOING, NOTHING IN THIS AGREEMENT, OR IN THE
NOTES OR IN ANY OTHER LOAN DOCUMENT SHALL BE DEEMED TO CONSTITUTE A WAIVER OF
ANY RIGHTS WHICH ANY LENDER MAY HAVE UNDER APPLICABLE FEDERAL LEGISLATION
RELATING TO THE AMOUNT OF INTEREST WHICH SUCH LENDER MAY CONTRACT FOR, TAKE,
RECEIVE OR CHARGE IN RESPECT OF THE LOAN AND THE LOAN DOCUMENTS, INCLUDING ANY
RIGHT TO TAKE, RECEIVE, RESERVE AND CHARGE INTEREST AT THE RATE ALLOWED BY THE
LAW OF THE STATE WHERE ANY LENDER IS LOCATED.
15.2 CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE
COURT SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
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PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES
ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT, ANY
ISSUER OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF
ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE
AGENT, ANY ISSUER OR ANY LENDER OR ANY AFFILIATE OF THE AGENT, ANY ISSUER OR ANY
LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT
IN NEW YORK, NEW YORK.
15.3 WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT, EACH ISSUER AND
EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
15.4 Judgment Currency. If for the purposes of obtaining judgment in
any court it is necessary to convert a sum due from the Borrower hereunder in
the currency expressed to be payable herein (the "specified currency") into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase the specified
currency with such other currency at the Agent's main New York office on the
Business Day preceding that on which final, non-appealable judgment is given.
The obligations of the Borrower in respect of any sum due to any Lender, any
Issuer or the Agent hereunder shall, notwithstanding any judgment in a currency
other than the specified currency, be discharged only to the extent that on the
Business Day following receipt by such Lender, such Issuer or the Agent (as the
case may be) of any sum adjudged to be so due in such other currency such
Lender, such Issuer or the Agent (as the case may be) may in accordance with
normal, reasonable banking procedures purchase the specified currency with such
other currency. If the amount of the specified currency so purchased is less
than the sum originally due to such Lender, such Issuer or the Agent, as the
case may be, in the specified currency, the Borrower agrees, to the fullest
extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender, such Issuer or the
Agent, as the case may be, against such loss, and if the amount of the specified
currency so purchased exceeds (a) the sum originally due to any Lender, any
Issuer or the Agent, as the case may be, in the specified currency and (b) any
amounts shared with other Lenders as a result of allocations of such excess as a
disproportionate payment to such Lender under Section 11.2, such Lender, such
Issuer or the Agent, as the case may be, agrees to remit such excess to the
Borrower.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK. SIGNATURE PAGES FOLLOW.]
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IN WITNESS WHEREOF, the Borrower, the Guarantors, the Lenders and the
Agent have executed this Agreement as of the date first above written.
THE XXXX GROUP INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Xxxxxx X. Xxxx
Executive Vice President and
Chief Financial Officer
Address: 0000 Xxxxx Xxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
Signature page to
Third Amended and Restated Credit Agreement
GUARANTORS:
WHIPPANY VENTURE I, L.L.C
By: /s/ XXX XXXXXXX
---------------------------------------
Name: Xxx Xxxxxxx
---------------------------------------
Title: Secretary
---------------------------------------
XXXX CONSTRUCTORS, INC.
By: /s/ XXXXXXX X. XXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------------
Title: President
---------------------------------------
STONE & XXXXXXX MICHIGAN, INC.
By: /s/ XXXX X. XXXXXXX
---------------------------------------
Xxxx X. Xxxxxxx
Secretary
SO-XXXX GAS CO., LLC
BY ITS SOLE MEMBER,
EMCON/OWT, INC.
By: /s/ XXXXXX X. XXXX
---------------------------------------
Xxxxxx X. Xxxx
Executive Vice President, Assistant
Treasurer and Assistant Chief Financial
Officer
EMCON/OWT, INC.
By: /s/ XXXXXX X. XXXX
---------------------------------------
Xxxxxx X. Xxxx
Executive Vice President, Assistant
Treasurer and Assistant Chief Financial
Officer
Signature page to
Third Amended and Restated Credit Agreement
GUARANTORS (CONTINUED):
AMERICAN PLASTIC PIPE AND
SUPPLY, L.L.C.
LFG SPECIALTIES, L.L.C.
XXXX ENVIRONMENTAL &
INFRASTRUCTURE, INC.
XXXX FACILITIES, INC.
XXXX INFRASTRUCTURE, INC.
XXXX PROPERTY HOLDINGS, INC.
STONE & XXXXXXX - IT RUSSIA
MANAGEMENT CONSULTANTS, INC.
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Xxxxxx X. Xxxx
Executive Vice President and Treasurer
STONE & XXXXXXX - JSC MANAGEMENT
CONSULTANTS, INC.
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Xxxxxx X. Xxxx
Senior Vice President and Treasurer
XXXX BENECO, INC.
XXXX E & I INVESTMENT HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Xxxxxx X. Xxxx
Executive Vice President
POWER TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Xxxxxx X. Xxxx
Vice President and Assistant Treasurer
Signature page to
Third Amended and Restated Credit Agreement
GUARANTORS (CONTINUED):
X.X. XXXX, INC.
C.B.P. ENGINEERING CORP.
FIELD SERVICES, INC.
PROSPECT INDUSTRIES (HOLDINGS) INC.
XXXX A/DE, INC.
XXXX ALLOY PIPING PRODUCTS, INC.
XXXX CAPITAL, INC.
XXXX CONNEX, INC.
XXXX ENVIRONMENTAL, INC.
XXXX FABRICATORS, INC.
XXXX FCI, INC.
XXXX FVF, INC.
XXXX GLOBAL ENERGY SERVICES, INC.
XXXX GRP OF CALIFORNIA
XXXX HEAT, INC.
XXXX INDUSTRIAL SUPPLY CO., INC.
XXXX INTELLECTUAL PROPERTY
HOLDINGS, INC.
XXXX INTERNATIONAL, INC.
XXXX XX HOLDINGS, L.L.C.
XXXX MAINTENANCE, INC.
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Xxxxxx X. Xxxx
Vice President and Treasurer
S C XXXXX, L.L.C.
BY ITS SOLE MEMBER,
STONE & XXXXXXX, INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Xxxxxx X. Xxxx
Vice President and Treasurer
Signature page to
Third Amended and Restated Credit Agreement
GUARANTORS (CONTINUED):
XXXX MANAGED SERVICES, INC.
XXXX MANAGEMENT SERVICES
ONE, INC.
XXXX NAPTECH, INC.
XXXX PIPE XXXXXXX, INC.
XXXX PIPE SUPPORTS, INC.
XXXX POWER SERVICES GROUP, L.L.C.
XXXX POWER SERVICES, INC.
XXXX PROCESS AND INDUSTRIAL
GROUP, INC.
XXXX PROCESS FABRICATORS, INC.
XXXX SERVICES, L.L.C.
XXXX SSS FABRICATORS, INC.
XXXX SUNLAND FABRICATORS, INC.
XXXX WORD INDUSTRIES
FABRICATORS, INC.
STONE & XXXXXXX ASIA, INC.
STONE & XXXXXXX HOLDING ONE, INC.
STONE & XXXXXXX HOLDING TWO, INC.
STONE & XXXXXXX INTERNATIONAL
HOLDINGS, INC.
STONE & XXXXXXX INTERNATIONAL, INC.
STONE & XXXXXXX MANAGEMENT
CONSULTANTS, INC.
STONE & WEBSTER MASSACHUSETTS, INC.
STONE & XXXXXXX PROCESS
TECHNOLOGY, INC.
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Xxxxxx X. Xxxx
Vice President and Treasurer
STONE & XXXXXXX SERVICES, L.L.C.
STONE & XXXXXXX, INC.
SWINC ACQUISITION FIVE, L.L.C.
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Xxxxxx X. Xxxx
Vice President and Treasurer
Signature page to
Third Amended and Restated Credit Agreement
GUARANTORS (CONTINUED):
STONE & XXXXXXX CONSTRUCTION
SERVICES, L.L.C.
STONE & XXXXXXX CONSTRUCTION, INC.
By: /s/ Xxxxxx X. Xxxx
---------------------------------------
Xxxxxx X. Xxxx
President
ARLINGTON AVENUE E VENTURE, LLC
BY ITS SOLE MEMBER,
LANDBANK PROPERTIES, L.L.C.
By: /s/ X.X. Xxxxxxxx, Xx.
--------------------------------
X.X. Xxxxxxxx, Xx.
Chief Executive Officer
and Chairman
CAMDEN ROAD VENTURE, LLC
BY ITS SOLE MEMBER,
LANDBANK PROPERTIES, L.L.C.
By: /s/ X.X. Xxxxxxxx, Xx.
--------------------------------
X.X. Xxxxxxxx, Xx.
Chief Executive Officer
and Chairman
GREAT SOUTHWEST PARKWAY
VENTURE, LLC
BY ITS SOLE MEMBER,
LANDBANK PROPERTIES, L.L.C.
By: /s/ X. X. Xxxxxxxx, Xx.
--------------------------------
X.X. Xxxxxxxx, Xx.
Chief Executive Officer
and Chairman
Signature page to
Third Amended and Restated Credit Agreement
GUARANTORS (CONTINUED):
LANDBANK PROPERTIES, L.L.C.
XXXX ENVIRONMENTAL LIABILITY
SOLUTIONS, L.L.C.
THE LANDBANK GROUP, INC.
By: /s/ X.X. Xxxxxxxx, Xx.
---------------------------------------
X.X. Xxxxxxxx, Xx.
Chief Executive Officer and Chairman
BENICIA NORTH GATEWAY II, L.L.C.
XXXXXXXX WETLANDS, L.L.C.
XX XXXXXXX XX, L.L.C.
JERNEE MILL ROAD, L.L.C.
KATO ROAD II, L.L.C.
XXX I, L.L.C.
LANDBANK XXXXX, L.L.C.
MILLSTONE RIVER WETLAND
SERVICES, L.L.C.
XXXXXXX VENTURE I, L.L.C.
OTAY MESA VENTURES II, L.L.C.
PLATTSBURG VENTURE, L.L.C.
RARITAN VENTURE I, L.L.C.
XXXX CALIFORNIA, L.L.C.
XXXX CMS, INC.
XXXX REMEDIATION SERVICES, L.L.C.
By: /s/ X.X. Xxxxxxxx, Xx.
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X.X. Xxxxxxxx, Xx.
President
Signature page to
Third Amended and Restated Credit Agreement
CREDIT LYONNAIS NEW YORK BRANCH,
as Agent, and as a Lender
By: /s/ XXXXXXX XXXXXXXX
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
-----------------------------------
Title: Senior Vice President
-----------------------------------
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx-Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
E-Mail: xxxxxx.xxxxxx-xxxxxx@xxxxxxxxxx.xxx
with a copy to:
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, VP
Telephone: 000-000-0000
Telecopy: 713-890-8668
E-Mail: xxxxxx.xxxxxxx@xxxxxxxxxx.xxx
COMMITMENT: $40,000,000
Signature page to
Third Amended and Restated Credit Agreement
BNP PARIBAS,
as a Lender
By: /s/ XXXXX XXXXXX
-----------------------------------
Name: Xxxxx Xxxxxx
-----------------------------------
Title: Associate
-----------------------------------
By: /s/ XXXXXX XXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxx
-----------------------------------
Title: Vice President
-----------------------------------
Address: 0000 Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
E-Mail: xxxxx.xxxxxx@xxxxxxxx.xxxxxxxxxx.xxx
COMMITMENT: $40,000,000.00
Signature page to
Third Amended and Restated Credit Agreement
CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH,
as a Lender
By: /s/ XXXX X'XXXX
----------------------------------
Name: XXXX X'XXXX
----------------------------------
Title: DIRECTOR
----------------------------------
Address:
By: /s/ XXXXXXXXX XXXXXXX
----------------------------------
Name: XXXXXXXXX XXXXXXX
----------------------------------
Title: ASSOCIATE
----------------------------------
Address:
COMMITMENT: $40,000,000.00
Signature page to
Third Amended and Restated Credit Agreement
XXXXXX TRUST AND SAVINGS BANK,
as a Lender
By: /s/ XXXXXXX X. VEIL
----------------------------------
Name: Xxxxxxx X. Veil
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Title: Vice President
----------------------------------
Address:
COMMITMENT: $40,000,000.00
Signature page to
Third Amended and Restated Credit Agreement
U.S. BANK NATIONAL ASSOCIATION
as a Lender
By: /s/ XXXXX XXXXXXXX
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Name: Xxxxx Xxxxxxxx
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Title: Vice President
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Address: U.S. Bank National Association
7th & Washington, 0xx Xxxxx
XX-XX-X0XX
Xx. Xxxxx, XX 00000
Att: Credit Manager - Xxxx
COMMITMENT: $35,000,000.00
Signature page to
Third Amended and Restated Credit Agreement
UNION PLANTERS BANK, N.A.
as a Lender
By: /s/ XXXX X. XXXXXXXX
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Name: Xxxx X. Xxxxxxxx
----------------------------------
Title: Senior Vice President
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Address: 0000 Xxxxxxxxx Xxxxxxx
Xxxxx Xxxxx, XX 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
E-Mail: xxxx.xxxxxxxx@xxxxx.xxx
COMMITMENT: $30,000,000.00
Signature page to
Third Amended and Restated Credit Agreement
UBS AG, CAYMAN ISLANDS BRANCH
as a Lender
By: /s/ XXXXXXX SAINT
----------------------------------
Name: Xxxxxxx Saint
Title: Associate Director
By: /s/ XXXXXXXX X'XXXXX
----------------------------------
Name: Xxxxxxxx X'Xxxxx
Title: Director
Address:
UBS AG, Cayman Islands Branch
X/X XXX XX
000 Xxxxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Attention: Vladimira Holeckova
Fax: 000.000.0000
COMMITMENT: $25,000,000.00
Signature page to
Third Amended and Restated Credit Agreement
PRICING SCHEDULE
=============================================================================================================
Level Rating Levels Applicable Applicable ABR LC Fee Commitment Fee
LIBOR Margin Margin
------------- --------------------- ------------------ ----------------- ----------------- ------------------
I BBB+/Baa1 1.00% 0% 1.00% 0.250%
------------- --------------------- ------------------ ----------------- ----------------- ------------------
II BBB/Baa2 1.50% 0% 1.50% 0.375%
------------- --------------------- ------------------ ----------------- ----------------- ------------------
III BBB-/Baa3 2.00% 0.50% 2.00% 0.500%
------------- --------------------- ------------------ ----------------- ----------------- ------------------
IV BB+/Ba1 2.50% 1.00% 2.50% 0.500%
------------- --------------------- ------------------ ----------------- ----------------- ------------------
V Less than BB+/Ba1 3.00% 1.50% 3.00% 0.625%
=============================================================================================================
The Applicable Margin and Applicable Fee Rate shall be determined in
accordance with the foregoing table based upon the ratings by Xxxxx'x and S&P,
respectively, applicable on such date to the Loans. For purposes of the
foregoing, (a) if neither Xxxxx'x nor S&P shall have in effect a rating for the
Loans (other than by reason of the circumstances referred to in the last
sentence of this definition), then the level shall be based upon the ratings by
Xxxxx'x and S&P, respectively, applicable on such date to the Index Debt; (b) if
either Xxxxx'x or S&P (but not both) shall have in effect a rating for the
Loans, then the level shall be based upon that rating; (c) if neither Xxxxx'x
nor S&P shall have in effect a rating for the Loans or the Index Debt (other
than by reason of the circumstances referred to in the last sentence of this
definition), then the level shall be deemed to be Level V; (d) if the ratings
established or deemed to have been established by Xxxxx'x and S&P for the Loans
or the Index Debt, as the case may be, shall fall within different Levels, the
Applicable Margin and Applicable Fee Rate shall be based on the higher of the
two ratings unless one of the two ratings is two or more Levels lower than the
other, in which case the Applicable Margin and Applicable Fee Rate shall be
determined by reference to the Level next above that of the lower of the two
ratings; and (e) if the ratings established or deemed to have been established
by Xxxxx'x or S&P for the Loans or the Index Debt, as the case may be, shall be
changed (other than as a result of a change in the rating system of Xxxxx'x or
S&P), such change shall be effective as of the date on which it is first
announced or published by the applicable rating agency or, in the absence of
such announcement or publication, on the effective date of such rating as
determined by the Agent. Each change in the Applicable Margin and Applicable Fee
Rate shall apply during the period commencing on the effective date of such
change and ending on the date immediately preceding the effective date of the
next such change. If the rating system of Xxxxx'x or S&P shall change, or if
both such rating agencies shall cease to be in the business of rating corporate
debt obligations, the Borrower and the Lenders shall negotiate in good faith to
amend this definition to reflect such changed rating system or the
unavailability of ratings from such rating agencies and, pending the
effectiveness of any such amendment, the Applicable Margin and Applicable Fee
Rate shall be determined by reference to the rating most recently in effect
prior to such change or cessation.
Exhibits and Schedules - Page 1
EXHIBIT 2.13(d)
NOTE
[DATE]
The Xxxx Group Inc., a Louisiana corporation (the "Borrower"), promises
to pay to the order of ____________________________________ (the "Lender") the
aggregate unpaid principal amount of all Loans made by the Lender to the
Borrower pursuant to Article II of the Agreement (as hereinafter defined), in
immediately available funds at the main office of Credit Lyonnais New York
Branch, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, together with
interest on the unpaid principal amount hereof at the rates and on the dates set
forth in the Agreement. The Borrower shall pay the principal of and accrued and
unpaid interest on the Loans in full on the Facility Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or otherwise record in accordance with its usual practice, the
date and amount of each Loan and the date and amount of each principal payment
hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the Third Amended and Restated Credit Agreement dated as of
March 17, 2003 (which, as it may be amended or modified and in effect from time
to time, is herein called the "Agreement"), among the Borrower, the lenders
party thereto, including the Lender and Credit Lyonnais New York Branch, as an
Issuer and as Agent. Reference is hereby made to this Agreement for a statement
of the terms and conditions governing this Note, including the terms and
conditions under which this Note may be prepaid or its maturity date
accelerated. This Note is secured pursuant to the Collateral Documents and
guaranteed pursuant to the Guaranty, all as more specifically described in the
Agreement, and reference is made thereto for a statement of the terms and
provisions thereof. Capitalized terms used herein and not otherwise defined
herein are used with the meanings attributed to them in the Agreement.
THE XXXX GROUP INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Exhibits and Schedules - Page 2
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF _______________,
DATED _______________,
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
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Exhibits and Schedules - Page 3
EXHIBIT 4.1(a)(v)
FORM OF GUARANTORS' SOLVENCY CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Solvency Certificate is furnished pursuant to that certain
Guaranty dated as of March 17, 2003 (as amended, modified, renewed or extended
from time to time, the "Guaranty") executed by the Guarantors set forth on the
signature pages hereof (each a "Guarantor") to the Agent for the benefit of the
Lenders party to that certain Third Amended and Restated Credit Agreement dated
March 17, 2003 (as amended, modified, renewed or extended from time to time, the
"Agreement") among The Xxxx Group Inc., as the Borrower, Credit Lyonnais New
York Branch, as a Lender, the Agent and an Issuer and the Lenders party thereto.
Unless otherwise defined herein, capitalized terms used in this Solvency
Certificate have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am a duly elected Authorized Officer of each of the Guarantors;
2. (i) Immediately after the consummation of the transactions to occur
on the date hereof and immediately following the making of each Credit
Extension, if any, made on the date hereof and after giving effect to the
application of the proceeds of such Credit Extension, (a) the fair value of the
assets of each Guarantor and its respective Subsidiaries on a consolidated
basis, at a fair valuation, will exceed the debts and liabilities, subordinated,
contingent or otherwise, of such Guarantor and its respective Subsidiaries on a
consolidated basis; (b) the present fair saleable value of the Property of each
Guarantor and its respective Subsidiaries on a consolidated basis will be
greater than the amount that will be required to pay the probable liability of
such Guarantor and its respective Subsidiaries on a consolidated basis on their
debts and other liabilities, subordinated, contingent or otherwise, as such
debts and other liabilities become absolute and matured; (c) each Guarantor and
its respective Subsidiaries on a consolidated basis will be able to pay their
debts and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) each Guarantor and its
respective Subsidiaries on a consolidated basis will not have unreasonably small
capital with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted after the date
hereof.
(ii) Each Guarantor does not intend to, or to permit any of its
respective Subsidiaries to, and does not believe that it or any of its
respective Subsidiaries will, incur debts beyond its ability to pay such debts
as they mature, taking into account the timing of and amounts of cash to be
received by it or any such Subsidiary and the timing of the amounts of cash to
be payable on or in respect of its Indebtedness or the Indebtedness of any such
Subsidiary.
Exhibits and Schedules - Page 4
Executed on behalf of each Guarantor by the undersigned, a duly
authorized officer of each Guarantor, this _____ day of _______________, 2002.
[GUARANTOR]
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
Exhibits and Schedules - Page 5
EXHIBIT 4.1(a)(VII)
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To Credit Lyonnais New York Branch, as Agent (the "Agent") under the Credit
Agreement Described Below.
Re: Third Amended and Restated Credit Agreement, dated March 17, 2003 (as
the same may be amended or modified, the "Credit Agreement"), among The
Xxxx Group Inc., a Louisiana corporation (the "Borrower"), the Lenders
named therein, the Issuers and the Agent. Capitalized terms used herein
and not otherwise defined herein shall have the meanings assigned
thereto in the Credit Agreement.
The Agent is specifically authorized and directed to act upon the
following standing money transfer instructions with respect to the proceeds of
Advances or other extensions of credit from time to time until receipt by the
Agent of a specific written revocation of such instructions by the Borrower,
provided, however, that the Agent may otherwise transfer funds as hereafter
directed in writing by the Borrower in accordance with Section 13.1 of the
Credit Agreement or based on any telephonic notice made in accordance with
Section 2.14 of the Credit Agreement.
Facility Identification Number(s) [TO BE DETERMINED]
Customer/Account Name: Xxxx Group Inc.
Transfer Funds To: Credit Lyonnais New York Branch
ABA Number:
------------------------
For Account No.
Reference/Attention To:
-----------------------------------
Authorized Officer (Customer Representative) Date
---------------------------------------------------
---------------------------------------------------------- --------------------------------------------------------
(Please Print) Signature
Bank Officer Name Date
---------------------------------------------------
---------------------------------------------------------- --------------------------------------------------------
(Please Print) Signature
---------------------------------------------------------- --------------------------------------------------------
(DELIVER COMPLETED FORM TO CREDIT SUPPORT STAFF FOR IMMEDIATE PROCESSING)
Exhibits and Schedules - Page 6
EXHIBIT 6.1(d)
COMPLIANCE CERTIFICATE
[date]
To: The Lenders party to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain Third
Amended and Restated Credit Agreement dated as of March 17, 2003 (as amended,
modified, renewed or extended from time to time, the "Agreement") among The Xxxx
Group Inc., a Louisiana corporation (the "Borrower"), the lenders party thereto
and Credit Lyonnais New York Branch, as Agent for the Lenders and as an Issuer.
Unless otherwise defined herein, capitalized terms used in this Compliance
Certificate have the meanings attributed to them in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected chief financial officer of the Borrower.
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Borrower and its Subsidiaries during the accounting period
covered by the attached financial statements.
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below.
4. Schedule I attached hereto sets forth financial data and
computations evidencing the Borrower's compliance with certain covenants of the
Agreement, all of which data and computations are true, complete and correct.
6. Schedule II attached hereto sets forth the various reports and
deliveries which are required at this time under the Agreement, the Collateral
Documents and the other Loan Documents and the status of compliance.
Described below are the exceptions, if any, to paragraph 3 listing the
nature and stating the condition or event which constitutes a Default or
Unmatured Default, the period during which it has existed and the action which
the Borrower has taken, is taking, or proposes to take with respect to each such
condition or event:
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Exhibits and Schedules - Page 7
The foregoing certifications, together with the schedules attached
hereto and the financial statements delivered with this Certificate in support
hereof, are made and delivered this _____ day of _______________, _____.
The Xxxx Group Inc.
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
Exhibits and Schedules - Page 8
SCHEDULE I TO COMPLIANCE CERTIFICATE
COMPLIANCE AS OF _________, ____ WITH
PROVISIONS OF SECTION 6.22 OF
THE AGREEMENT
Exhibits and Schedules - Page 9
SCHEDULE II TO COMPLIANCE CERTIFICATE
REPORTS AND DELIVERIES CURRENTLY DUE
Exhibits and Schedules - Page 10
EXHIBIT 6.1(k)
BORROWING BASE CERTIFICATE
[date]
To: The Lenders party to the
Credit Agreement Described Below
This Borrowing Base Certificate is furnished pursuant to that certain
Third Amended and Restated Credit Agreement dated as of March 17, 2003 (as
amended, modified, renewed or extended from time to time, the "Agreement") among
The Xxxx Group Inc., a Louisiana corporation (the "Borrower"), the lenders party
thereto and Credit Lyonnais New York Branch, as Agent for the Lenders and as an
Issuer. Unless otherwise defined herein, capitalized terms used in this
Borrowing Base Certificate have the meanings attributed to them in the
Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected chief financial officer of the Borrower.
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Borrower and its Subsidiaries during the accounting period
covered by the attached calculations.
3. Schedule I attached hereto sets forth the amounts and calculations
regarding the Borrowing Base, all of which amounts and calculations are true,
complete and correct as of the date of this Borrowing Base Certificate and were
made in accordance with the terms of the Agreement.
The foregoing certifications, together with the schedules attached
hereto and the financial statements delivered with this Certificate in support
hereof, are made and delivered this _____ day of _______________, _____.
The Xxxx Group Inc.
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
Exhibits and Schedules - Page 11
SCHEDULE I TO BORROWING BASE CERTIFICATE
(a) Eligible Receivables unpaid not more than
30 days after the date of the original invoice.................................$___________
(b) = (a) x 0.85 =.................................................................$___________
(c) Eligible Receivables unpaid more than
30 days but not more than 60 days after the date
of the original invoice........................................................$___________
(d) = (c) x 0.80 = ................................................................$___________
(e) Eligible Receivables unpaid more than
60 days but not more than 90 days after the date
of the original invoice........................................................$___________
(f) = (e) x 0.60 = ................................................................$___________
(g) amount billed representing retainage (without duplication
of amounts in A, C, or E above)................................................$___________
(h) = (f) x 0.20 =.................................................................$___________
(i) Costs in Excess of Xxxxxxxx*...................................................$___________
(j) = (i) x 0.40...................................................................$___________
(k) Eligible Inventory**...........................................................$___________
(l) = (k) x 0.40...................................................................$___________
BORROWING BASE = (b) + (d) + (f) + (h) + (j) + (l) =....................................$___________
------------
* As set forth in the most recently delivered financial statements of the
Borrower and its Subsidiaries.
** Which amount may not exceed $100,000,000
Exhibits and Schedules - Page 12
EXHIBIT 6.1(l)
BACKLOG REPORT
XXXX GROUP, INC.
MAJOR PROJECTS CONSOLIDATED PROGRESS TO DATE
AS OF _____________________________
INCLUDES PROJECTS WITH $10 MILLION OR MORE IN BACKLOG
($ IN 000's)
PROJECT PROJECT FORECASTED TOTAL
CUSTOMER BUSINESS LOCATION SCOPE FIRM REVENUE COSTS
-------------------------------------------------------------------------------------
COSTS & EARNINGS XXXXXXXX
TOTAL EARNED COSTS TO EARNED IN EXCESS IN EXCESS OF
CUSTOMER GROSS MARGIN REVENUE DATE GROSS MARGIN OF XXXXXXXX COSTS & EARNINGS
------------------------------------------------------------------------------------------------------------------
Exhibits and Schedules - Page 13
EXHIBIT 12.3.1
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
_______________ ___________________(the "Assignor") and
_________________________ (the "Assignee") is dated as of _____________, 20___.
The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit Agreement
(which, as it may be amended, modified, renewed or extended from time to time is
herein called the "Credit Agreement") described in Item 1 of Schedule 1 attached
hereto ("Schedule 1"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents, such that after giving effect to such
assignment the Assignee shall have purchased pursuant to this Assignment
Agreement the percentage interest specified in Item 3 of Schedule 1 of all
outstanding rights and obligations under the Credit Agreement and the other Loan
Documents relating to the facilities listed in Item 3 of Schedule 1. The
aggregate Commitment (or Loans, if the applicable Commitment has been
terminated) purchased by the Assignee hereunder is set forth in Item 4 of
Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of Schedule
1 or two Business Days (or such shorter period agreed to by the Agent) after
this Assignment Agreement, together with any consents required under the Credit
Agreement, are delivered to the Agent. In no event will the Effective Date occur
if (i) the payments required to be made by the Assignee to the Assignor on the
Effective Date are not made on the proposed Effective Date and (ii) the payment
of the recordation fee, described in Section 5 of this Assignment Agreement, is
not made to the Agent on or before the Effective Date. If the Assignee is not
incorporated under the laws of the United States of America or a state thereof,
the Effective Date will not occur unless the Assignee delivers to the Borrower
and the Agent concurrently with the Effective Date two duly completed copies of
United States Internal Revenue Service Form W-8BEN or W-8ECI (or replacement or
successor forms, as the case may be), certifying in either case that the
Assignee is entitled to receive payments under the Loan Documents without
deduction or withholding of any United States federal income taxes.
4. PAYMENT OBLIGATIONS. In consideration for the sale and assignment of
Outstanding Credit Exposure hereunder, the Assignee shall pay the Assignor, on
the Effective Date, the amount agreed to by the Assignor and the Assignee. On
and after the Effective Date, the Assignee shall be entitled to receive from the
Agent all payments of principal, interest, Reimbursement Obligations and fees
with respect to the interest assigned hereby. The Assignee will promptly remit
to the Assignor any interest on Credit Extensions and fees received from the
Agent which relate to the portion of the Commitment or Outstanding Credit
Exposure assigned
Exhibits and Schedules - Page 14
to the Assignee hereunder for periods prior to the Effective Date and not
previously paid by the Assignee to the Assignor. In the event that either party
hereto receives any payment to which the other party hereto is entitled under
this Assignment Agreement, then the party receiving such amount shall promptly
remit it to the other party hereto.
5. RECORDATION FEE. The Assignor and Assignee each agree to pay
one-half of the recordation fee required to be paid to the Agent in connection
with this Assignment Agreement unless otherwise specified in Item 6 of Schedule
1.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that (i) it is the legal and
beneficial owner of the interest being assigned by it hereunder, (ii) such
interest is free and clear of any adverse claim created by the Assignor and
(iii) the execution and delivery of this Assignment Agreement by the Assignor is
duly authorized. It is understood and agreed that the assignment and assumption
hereunder are made without recourse to the Assignor and that the Assignor makes
no other representation or warranty of any kind to the Assignee. Neither the
Assignor nor any of its officers, directors, employees, agents or attorneys
shall be responsible for (i) the due execution, legality, validity,
enforceability, genuineness, sufficiency or collectibility of any Loan Document,
including without limitation, documents granting the Assignor and the other
Lenders a security interest in assets of the Borrower or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
property, books or records of the Borrower, (vi) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any collateral securing
or purporting to secure the Credit Extensions or (vii) any mistake, error of
judgment, or action taken or omitted to be taken in connection with the Credit
Extensions or the Loan Documents.
7. REPRESENTATIONS AND UNDERTAKINGS OF THE ASSIGNEE. The Assignee (i)
confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements requested by the Assignee and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment Agreement, (ii) agrees that
it will, independently and without reliance upon the Agent, the Assignor or any
other Lender and based on such documents and information at it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents, (iii) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under the Loan Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto, (iv) confirms
that the execution and delivery of this Assignment Agreement by the Assignee is
duly authorized, (v) agrees that it will perform in accordance with their terms
all of the obligations which by the terms of the Loan Documents are required to
be performed by it as a Lender, (vi) agrees that its payment instructions and
notice instructions are as set forth in the attachment to Schedule 1, (vii)
confirms that none of the funds, monies, assets or other consideration being
used to make the purchase and assumption hereunder are "plan assets" as defined
under ERISA and that its rights, benefits and interests in and under the Loan
Documents will not be "plan assets" under ERISA, (viii) agrees to indemnify and
hold the Assignor harmless
Exhibits and Schedules - Page 15
against all losses, costs and expenses (including, without limitation,
reasonable attorneys' fees) and liabilities incurred by the Assignor in
connection with or arising in any manner from the Assignee's non-performance of
the obligations assumed under this Assignment Agreement, and (ix) if applicable,
attaches the forms prescribed by the Internal Revenue Service of the United
States certifying that the Assignee is entitled to receive payments under the
Loan Documents without deduction or withholding of any United States federal
income taxes.
8. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of New York and the
United States of America.
9. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall be
the address set forth in the attachment to Schedule 1.
10. COUNTERPARTS; DELIVERY BY FACSIMILE. This Assignment Agreement may
be executed in counterparts. Transmission by facsimile of an executed
counterpart of this Assignment Agreement shall be deemed to constitute due and
sufficient delivery of such counterpart and such facsimile shall be deemed to be
an original counterpart of this Assignment Agreement.
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto
have executed this Assignment Agreement by executing Schedule 1 hereto as of the
date first above written.
Exhibits and Schedules - Page 16
SCHEDULE 1
TO ASSIGNMENT AGREEMENT
1. Description and Date of Credit Agreement: Third Amended and Restated
Credit Agreement dated as of March 17, 2003 among The Xxxx Group Inc., the
lenders party thereto, and Credit Lyonnais New York Branch, as Agent
2. Date of Assignment Agreement: _______________, 20_____
3. Amounts (As of Date of Item 2 above):
Revolving Credit Facility LC
Commitment Commitment
a. Assignee's percentage of each Facility purchased ______________% ______________%
under the Assignment Agreement*
b. Amount of each Facility purchased under the $______________ $______________
Assignment Agreement*
4. Assignee's Commitment (or Outstanding Credit Exposure $______________ $______________
with respect to terminated Commitments) purchased
hereunder:
5. Proposed Effective Date: _______________, 20_____
6. Non-standard Recordation Fee
Arrangement N/A**
[ASSIGNOR/ASSIGNEE
TO PAY 100% OF FEE]
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
----------------------------------- -----------------------------------
Name: Name:
----------------------------------- -----------------------------------
Title: Title:
----------------------------------- -----------------------------------
Exhibits and Schedules - Page 17
ACCEPTED AND CONSENTED ACCEPTED AND CONSENTED
TO *** BY TO*** BY
THE XXXX GROUP INC. CREDIT LYONNAIS NEW YORK BRANCH,
AS AGENT
By: By:
----------------------------------- -----------------------------------
Name: Name:
----------------------------------- -----------------------------------
Title: Title:
----------------------------------- -----------------------------------
* Percentage taken to 10 decimal places
** If fee is split 50-50, pick N/A as option
*** Delete if not required by Credit Agreement
Exhibits and Schedules - Page 18
ATTACHMENT TO SCHEDULE 1 TO ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMATION SHEET
Attach Assignor's Administrative Information Sheet,
which must include notice addresses for the Assignor
and the Assignee
(Sample form shown below)
ASSIGNOR INFORMATION
CONTACT:
Name: Telephone No.:
------------------------------ --------------------
Fax No.: Telex No.:
--------------------------- ------------------------
Answerback:
-----------------------
PAYMENT INFORMATION:
Name & ABA # of Destination Bank:
---------------------------------------------
---------------------------------------------
Account Name & Number for Wire Transfer:
--------------------------------------
--------------------------------------
Other Instructions:
-----------------------------------------------------------
-------------------------------------------------------------------------------
ADDRESS FOR NOTICES FOR ASSIGNOR:
---------------------------------------------
---------------------------------------------
---------------------------------------------
ASSIGNEE INFORMATION
CREDIT CONTACT:
Name: Telephone No.:
-------------------------------- --------------------
Fax No.: Telex No.:
----------------------------- ------------------------
Answerback:
-----------------------
KEY OPERATIONS CONTACTS:
Booking Installation: Booking Installation:
---------------- -------------
Name: Name:
-------------------------------- -----------------------------
Telephone No.: Telephone No.:
----------------------- --------------------
Fax No.: Fax No.:
----------------------------- --------------------------
Telex No.: Telex No.:
--------------------------- ------------------------
Answerback: Answerback:
-------------------------- -----------------------
Exhibits and Schedules - Page 19
PAYMENT INFORMATION:
Name & ABA # of Destination Bank:
---------------------------------------------
---------------------------------------------
Account Name & Number for Wire Transfer:
--------------------------------------
--------------------------------------
Other Instructions:
-----------------------------------------------------------
-------------------------------------------------------------------------------
Address for Notices for Assignee:
---------------------------------------------
---------------------------------------------
---------------------------------------------
Exhibits and Schedules - Page 20
AGENT INFORMATION
Assignee will be called promptly upon receipt of the signed agreement.
INITIAL FUNDING CONTACT: SUBSEQUENT OPERATIONS CONTACT:
Name: Name:
Telephone No.: ( ) Telephone No.: ( )
---- -------- ---- --------
Fax No.: ( ) Fax No.: ( )
---- -------- ---- --------
CLNY Telex No.:
-----------------
INITIAL FUNDING STANDARDS:
Libor - Fund 2 days after rates are set.
CLNY WIRE INSTRUCTIONS:
ADDRESS FOR NOTICES FOR CLNY:
Exhibits and Schedules - Page 21
