EXHIBIT 10.2
================================================================================
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
December 29, 2004
(as amended and restated as of February 16, 2005)
among
SYMBOL TECHNOLOGIES, INC.
The Lenders Party Hereto,
JPMORGAN CHASE BANK, N.A.
as Administrative Agent and Collateral Agent
and
FLEET NATIONAL BANK.
as Syndication Agent
---------------------------
X.X. XXXXXX SECURITIES INC.
and BANC OF AMERICA SECURITIES LLC,
as Co-Lead Arrangers and Joint Bookrunners
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
SECTION 1.01. Defined Terms.................................................... 1
SECTION 1.02. Classification of Loans and Borrowings........................... 26
SECTION 1.03. Terms Generally.................................................. 26
SECTION 1.04. Accounting Terms; GAAP........................................... 27
SECTION 1.05. References to Agreements......................................... 27
ARTICLE II
The Credits
SECTION 2.01. Commitments...................................................... 27
SECTION 2.02. Loans and Borrowings............................................. 27
SECTION 2.03. Requests for Borrowings.......................................... 28
SECTION 2.04. Swingline Loans.................................................. 29
SECTION 2.05. Letters of Credit................................................ 30
SECTION 2.06. Funding of Borrowings............................................ 35
SECTION 2.07. Interest Elections............................................... 35
SECTION 2.08. Termination and Reduction of Commitments......................... 37
SECTION 2.09. Repayment of Loans; Evidence of Debt............................. 37
SECTION 2.10. Amortization of Term Loans....................................... 38
SECTION 2.11. Prepayment of Loans.............................................. 39
SECTION 2.12. Fees ............................................................ 40
SECTION 2.13. Interest ........................................................ 41
SECTION 2.14. Alternate Rate of Interest....................................... 42
SECTION 2.15. Increased Costs.................................................. 42
SECTION 2.16. Break Funding Payments........................................... 44
SECTION 2.17. Taxes ........................................................... 44
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs...... 46
SECTION 2.19. Mitigation Obligations; Replacement of Lenders................... 47
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers............................................. 48
SECTION 3.02. Authorization; Enforceability.................................... 48
SECTION 3.03. Governmental Approvals; No Conflicts............................. 49
SECTION 3.04. Financial Condition; No Material Adverse Change.................. 49
SECTION 3.05. Properties....................................................... 49
SECTION 3.06. Litigation and Environmental Matters............................. 50
SECTION 3.07. Compliance with Laws and Agreements.............................. 50
SECTION 3.08. Investment and Holding Company Status............................ 50
SECTION 3.09. Taxes ........................................................... 50
SECTION 3.10. ERISA ........................................................... 51
SECTION 3.11. Disclosure....................................................... 51
SECTION 3.12. Subsidiaries..................................................... 51
SECTION 3.13. Insurance........................................................ 51
SECTION 3.14. Labor Matters.................................................... 51
SECTION 3.15. Solvency ........................................................ 52
SECTION 3.16. Security Interests............................................... 52
SECTION 3.17. Use of Proceeds.................................................. 53
SECTION 3.18. Federal Reserve Regulation....................................... 53
ARTICLE IV
Conditions
SECTION 4.01. Effective Date................................................... 53
SECTION 4.02. Each Credit Event................................................ 55
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information....................... 56
SECTION 5.02. Notices of Material Events....................................... 57
SECTION 5.03. Information Regarding Collateral................................. 58
SECTION 5.04. Existence; Conduct of Business................................... 59
SECTION 5.05. Payment of Obligations........................................... 59
SECTION 5.06. Maintenance of Properties........................................ 59
SECTION 5.07. Insurance........................................................ 59
SECTION 5.08. Books and Records; Inspection and Audit Rights................... 59
SECTION 5.09. Compliance with Laws............................................. 59
SECTION 5.10. Use of Proceeds and Letters of Credit............................ 60
SECTION 5.11. Additional Subsidiaries.......................................... 60
SECTION 5.12. Further Assurances............................................... 60
SECTION 5.13. Deferred Collateral Requirement.................................. 60
SECTION 5.14. Significant Subsidiaries......................................... 61
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness; Certain Equity Securities.......................... 61
SECTION 6.02. Liens ........................................................... 63
SECTION 6.03. Fundamental Changes.............................................. 63
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions........ 64
SECTION 6.05. Asset Sales...................................................... 65
SECTION 6.06. Sale and Leaseback Transactions.................................. 66
SECTION 6.07. Hedging Agreements............................................... 66
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness............ 67
SECTION 6.09. Transactions with Affiliates..................................... 68
SECTION 6.10. Restrictive Agreements........................................... 68
SECTION 6.11. Amendment of Material Documents.................................. 68
SECTION 6.12. Pension Schemes.................................................. 69
SECTION 6.13. Fixed Charge Coverage Ratio...................................... 69
SECTION 6.14. Leverage Ratio................................................... 69
SECTION 6.15. Senior Leverage Ratio............................................ 69
SECTION 6.16. Unrestricted Domestic Cash....................................... 69
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices ......................................................... 74
SECTION 9.02. Waivers; Amendments.............................................. 75
SECTION 9.03. Expenses; Indemnity; Damage Waiver............................... 77
SECTION 9.04. Successors and Assigns........................................... 78
SECTION 9.05. Survival ........................................................ 81
SECTION 9.06. Counterparts; Integration; Effectiveness......................... 81
SECTION 9.07. Severability..................................................... 82
SECTION 9.08. Right of Setoff.................................................. 82
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process....... 82
SECTION 9.10. WAIVER OF JURY TRIAL............................................. 83
SECTION 9.11. Headings ........................................................ 83
SECTION 9.12. Confidentiality.................................................. 83
SECTION 9.13. Interest Rate Limitation......................................... 84
SECTION 9.14. Patriot Act...................................................... 84
SECTION 9.15. Collateral Release Event......................................... 84
SECTION 9.16. Symbolease, Inc.................................................. 85
SECTION 9.17. Parallel Debt.................................................... 85
SCHEDULES:
Schedule 2.01(A) -- Initial Commitments
Schedule 2.01(B) -- Commitments on Amendment Effective Date
Schedule 2.05 -- Existing Letters of Credit
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 5.03 -- Annual Perfection Information
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.10 -- Existing Restrictive Agreements
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of Xxxxxx & Xxxxxxx LLP
Exhibit B-2 -- Form of Opinion of Xxxxx Xxxx, General Counsel
Exhibit C -- Form of Collateral Agreement
Exhibit D -- Form of Affiliate Subordination Agreement
AMENDED AND RESTATED CREDIT AGREEMENT dated as of
December 29, 2004, as amended and restated as of February 16,
2005, among SYMBOL TECHNOLOGIES, INC., the LENDERS party
hereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent and
Collateral Agent, and FLEET NATIONAL BANK, as Syndication
Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Acknowledgment and Consent" means the Acknowledgment and Consent
dated as of February 16, 2005, among the Borrower, Symbolease, Inc., the
Administrative Agent and The Bank of Tokyo-Mitsubishi, New York Branch, as agent
for Victory Receivables Corporation, as Purchaser under the Receivables Purchase
Agreement.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMorgan Chase Bank, N.A. in its
capacity as administrative agent for the Lenders hereunder and in its capacity
as Collateral Agent. References to the "Administrative Agent" shall also include
JPMorgan Chase Bank, N.A. or any other Affiliate of JPMorgan Chase Bank, N.A.
acting in its capacity as "Security Trustee", "Trustee" or "Agent" under any
Security Document relating to collateral provided under the laws of any United
Kingdom jurisdiction, or acting in any similar capacity under any other Security
Document under the laws of any jurisdiction.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
2
"Affiliate Subordination Agreement" means an agreement in the form
of Exhibit D hereto among the Borrower, Subsidiaries that have made or will make
loans or advances to Loan Parties and the Administrative Agent.
"Agreement" means this Credit Agreement, as modified, amended or
restated from time to time.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, as the case may
be.
"Amendment Effective Date" has the meaning assigned to such term in
the First Amendment.
"Applicable Margin" means, for any day with respect to any ABR Loan
or Eurodollar Loan that is a Revolving Loan or a Term Loan the applicable rate
per annum set forth below under the caption "Eurodollar Spread" or "ABR Spread",
as the case may be, based upon the Leverage Ratio as of the most recent
determination date; provided that until the Borrower shall have delivered the
financial statements and certificate required by Section 5.01(b) and Section
5.01(c) for the fiscal quarter ended June 30, 2005, the "Applicable Rate" will
be the applicable rate per annum set forth below in Category 3:
Eurodollar ABR
Leverage Ratio: Spread Spread
------------------------------------- ----------- ------
Category 1
Less than 0.50 to 1.00 1.25% .25%
Category 2
Greater than or equal to 0.50 to 1.00
but less than 1.00 to 1.00 1.50% .50%
Category 3
Greater than or equal to 1.00 to 1.00
but less than 2.00 to 1.00 1.75% .75%
Category 4
Greater than or equal to 2.00 2.00% 1.00%
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's fiscal year
based upon the Borrower's consolidated financial statements delivered pursuant
to Section 5.01(a) or (b) and (ii) each change in the Applicable Margin
resulting from a change in the Leverage Ratio shall be effective during the
period commencing on and including the date of delivery to the Administrative
Agent of such consolidated financial statements accompanied by the compliance
certificate required by Section 5.01(c) indicating such change and ending on the
date immediately preceding the effective date of the next such
3
change; provided that the Leverage Ratio shall be deemed to be in Category 4 (A)
at any time that an Event of Default has occurred and is continuing or (B) at
the option of the Administrative Agent or at the request of the Required Lenders
if the Borrower fails to deliver the consolidated financial statements required
to be delivered by it pursuant to Section 5.01(a) or (b), during the period from
the expiration of the time for delivery thereof until such consolidated
financial statements are delivered.
"Applicable Percentage" means, with respect to any Revolving Lender,
the percentage of the total Revolving Commitments represented by such Lender's
Revolving Commitment. If the Revolving Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
"Approved Fund" has the meaning assigned to such term in Section
9.04.
"Asset Group Pensions Scheme" means any occupational pension scheme
(as defined in section 1 of the Xxxxxxx Xxxxxx Xxx 0000 (UK)) in respect of
which the Borrower or any Subsidiary is or has been an employer for the purposes
of sections 38 to 51 of the Pensions Xxx 0000 (UK).
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04(b)), and accepted by the Administrative
Agent, in the form of Exhibit A or any other form approved by the Administrative
Agent.
"Attributable Debt" means, on any date, in respect of any lease of
the Borrower or any Subsidiary entered into as part of a Sale and Leaseback
Transaction subject to Section 6.06, (i) if such lease is a Capital Lease
Obligation, the capitalized amount thereof that would appear on a balance sheet
of such Person prepared as of such date in accordance with GAAP and (ii) if such
lease is not a Capital Lease Obligation, the capitalized amount of the remaining
lease payments under such lease that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP if such lease were
accounted for as a Capital Lease Obligation.
"Bank of Tokyo Securitization" means the Receivables Purchase
Agreement among Symbolease, Inc., Symbolease Funding LLC, Victory Receivables
Corporation and The Bank of Tokyo-Mitsubishi, Ltd., New York Branch together
with the other documents executed in connection therewith, in each case as
amended or supplemented from time to time, pursuant to which certain
Subsidiaries of the Borrower obtain financing in respect of certain lease
receivables of such Subsidiaries.
"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower" means Symbol Technologies, Inc., a Delaware corporation.
"Borrowing" means borrowings by the Borrower consisting of (a) Loans
of the same Class and Type, made, converted or continued on the same date and,
in the
4
case of Eurodollar Loans, as to which a single Interest Period is in effect or
(b) a Swingline Loan.
"Bridge Loan Agreement" means the Bridge Loan Agreement dated as of
September 9, 2004, among the Borrower, certain Subsidiaries, various lenders and
JPMorgan Chase Bank, N.A.
"Borrowing Request" means a request by the Borrower for a Borrowing
in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Capital Expenditures" means, for any period, without duplication,
the additions to property, plant or equipment and other capital expenditures
(including, to the extent capitalized, amounts relating to research and
development or systems enhancements) of the Borrower and its consolidated
Subsidiaries that are (or should be) set forth in a consolidated statement of
cash flows of the Borrower for such period prepared in accordance with GAAP.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Lease Principal Payments" means, for any period, amounts
recorded or required to be recorded as principal payments of Capital Lease
Obligations on the consolidated financial statements of the Borrower prepared in
accordance with GAAP.
"Change of Control" means the occurrence of any of the following
events:
(a) any "person" (as such term is used in Section 13(d) and 14(d) of
the Exchange Act) is or becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of
this clause (a) such person shall be deemed to have "beneficial ownership"
of all shares that any such person has the right to acquire, whether such
right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 35% of the total voting power of the
Voting Stock of the Borrower (for purposes of this clause (a), such person
shall be deemed to beneficially own any Voting Stock of a specified person
held by any other Person (the "parent entity") if such person is the
beneficial owner (as defined above), directly or indirectly, of more than
35% of the voting power of the Voting Stock of such parent entity);
5
(b) individuals who on the Effective Date constituted the Board of
Directors (together with any new directors whose election by such Board of
Directors or whose nomination for election by the stockholders of the
Borrower was approved by a vote of a majority of the directors of the
Borrower then still in office who were either directors on the Effective
Date or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors then in office;
(c) the adoption of a plan relating to the liquidation or
dissolution of the Borrower; or
(d) the occurrence of a "Change in Control" or "Change of Control"
as defined in any indenture or other agreement governing Material
Indebtedness of the Borrower.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such
Lender or by such Lender's or such Issuing Bank's holding company, if any) with
any request, guideline or directive (whether or not having the force of law) of
any Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Term Loans or Swingline Loans and, when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Commitment or Term Loan
Commitment.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means any "Collateral", as such term is defined in the
Collateral Agreement or any Foreign Pledge Agreement and any assets in respect
of which a Lien is created in favor of the Collateral Agent pursuant to any
Security Document.
"Collateral Agent" means JPMorgan Chase Bank, N.A., in its capacity
as collateral agent for the Lenders under any Loan Document and as security
trustee under any security trust deed and related security documents governed by
the laws of the United Kingdom.
"Collateral Agreement" means the Guarantee and Collateral Agreement
among, the Borrower, the Subsidiary Loan Parties and the Collateral Agent,
substantially in the form of Exhibit C.
"Collateral and Guarantee Requirement" means the requirement that:
6
(a) the Administrative Agent shall have received from each Loan
Party either (i) a counterpart of the Collateral Agreement duly executed
and delivered on behalf of such Loan Party or (ii) in the case of any
Person that becomes a Loan Party after the Effective Date, a supplement to
the Collateral Agreement, in the form specified therein, duly executed and
delivered on behalf of such Loan Party;
(b) all outstanding Equity Interests of each Material Domestic
Subsidiary and of each Significant Foreign Subsidiary (other than Symbol
Technologies Holdings Limited) owned by or on behalf of any Loan Party
shall have been pledged pursuant to the Collateral Agreement and/or a
Foreign Pledge Agreement (except that the Loan Parties shall not be
required to pledge more than 65% of the outstanding voting Equity
Interests of any Significant Foreign Subsidiary other than Symbol de
Mexico, S. de X.X. de C.V. (all the Equity Interests in which that are
held by the Borrower shall be pledged)) and the Collateral Agent shall
have received (i) certificates or other instruments, if any, representing
all such Equity Interests, together with undated stock powers or other
instruments of transfer with respect thereto endorsed in blank (which
stock powers or other instruments, with respect to all such Equity
Interests of Symbol de Mexico, S. de X.X. de C.V., shall be governed by
New York law), (ii) a counterpart of the Trust Agreement duly executed and
delivered by the Borrower and (iii) any other documents or instruments
required to be delivered to the Collateral Agent in accordance with the
relevant Security Documents;
(c) upon the request of the Administrative Agent, all outstanding
non-voting Equity Interests and 65% of the outstanding voting Equity
Interests of Symbol Technologies Holdings Limited shall be subject to a
Memorandum of Deposit-Australian Shares in a form and substance reasonably
acceptable to the Collateral Agent, and the Collateral Agent shall have
received certificates or other instruments, if any, representing all such
Equity Interests, together with stock powers or other instruments of
transfer with respect thereto endorsed in blank;
(d) the Administrative Agent shall have received from Symbol de
Mexico, S. de X.X. de C.V. ("Mexico") a duly executed and delivered
Guarantee of the Obligations in form and substance satisfactory to the
Administrative Agent; provided, however, that if Mexico shall at any time
as a result of a transaction permitted under this Agreement become a
"controlled foreign corporation" under the Code, or a subsidiary of such a
controlled foreign corporation, and the Collateral and Guarantee
Requirement shall otherwise be satisfied at such time, such Guarantee
shall be terminated and the Collateral Agent is hereby authorized and
directed to take such actions and deliver such documents as may be
required to evidence or effect such termination; and
(e) all documents and instruments required by law or reasonably
requested by the Collateral Agent to be filed, registered or recorded to
create the Liens intended to be created by the Collateral Agreement and
perfect such Liens to the extent required by, and with the priority
required by, the Collateral Agreement or any such Foreign Pledge
Agreement, shall have been filed, registered or recorded
7
or delivered to the Collateral Agent for filing, registration or
recording, and the Collateral Agent shall have received such opinions of
counsel, addressed to it and the Lenders and from counsel reasonably
acceptable to it, as it may reasonably require with respect to the
authorization, validity, enforceability and priority of such Liens.
Notwithstanding the foregoing, after the occurrence of the Collateral Release
Event, the Collateral and Guarantee Requirement will not require that Liens be
granted or maintained with respect to any assets of the Borrower or its
Subsidiaries or that any Equity Interests owned by them be pledged to the
Collateral Agent, and the Collateral and Guarantee Requirement will only require
that the Loan Parties provide the Guarantees of the Obligations contemplated by
the Collateral Agreement. After the occurrence of the Collateral Release Event,
the Collateral Agent shall, at the request of the Borrower, and is hereby
authorized by the Lenders to, execute and deliver an amendment to the Collateral
Agreement, which shall be reasonably acceptable in form and substance to the
Collateral Agent, to eliminate the provisions thereof (and of the form of
supplement thereto) dealing with the grant of Liens or pledge of Equity
Interests or other assets, which amendment shall not require the consent of the
Lenders.
"Collateral Release Event" means the occurrence of a date on which
the Borrower's senior, unsecured non-credit enhanced Long-Term Indebtedness is
rated BBB- or better, with a stable outlook or better, by S&P and Baa3 or
better, with a stable outlook or better, by Xxxxx'x.
"Commitment" means a Revolving Commitment or Term Loan Commitment,
or any combination thereof (as the context requires).
"Commitment Fee Rate" means a rate per annum of 0.50%, except that
the Commitment Fee Rate shall mean a rate of 0.375% per annum on any day after
the delivery of financial statements under Section 5.01(a) in respect of the
fiscal year ending December 31, 2005 on which the Leverage Ratio is less than
0.50 to 1.00.
"Commitment Letter" means the Commitment Letter dated December 29,
2004, among the Borrower, JPMorgan Chase Bank, N.A., X.X. Xxxxxx Securities
Inc., Fleet National Bank and Banc of America Securities LLC, the attachments
thereto and the other letter agreements referred to therein.
"Consolidated EBITDA" means, with respect to any period,
Consolidated Net Income for such period, plus, (a) without duplication and to
the extent deducted in calculating such Consolidated Net Income, the sum of (i)
all income tax expense of the Borrower and its consolidated Subsidiaries, (ii)
Consolidated Interest Expense, (iii) depreciation and amortization expense of
the Borrower and its consolidated Subsidiaries (excluding amortization expense
attributable to a prepaid item that was paid in cash in a prior period) and (iv)
all other non-cash charges and non-cash expenses of the Borrower and its
consolidated Subsidiaries (excluding any such non-cash charge or expense to the
extent that it represents an accrual of or reserve for cash expenditures in any
future period) less all non-cash items of income of the Borrower and its
consolidated
8
Subsidiaries (other than accruals of revenue in the ordinary course of
business); and minus (b) without duplication and to the extent included in
determining such Consolidated Net Income, any extraordinary gains for such
period, all determined on a consolidated basis in accordance with GAAP.
Notwithstanding the foregoing, the provision for taxes based on the
income or profits of, and the depreciation and amortization and non-cash charges
of, a Subsidiary shall be added to Consolidated Net Income to compute EBITDA
only to the extent (and in the same proportion, including by reason of minority
interests) that the net income or loss of such Subsidiary was included in
calculating Consolidated Net Income and only if a corresponding amount would be
permitted at the date of determination to be dividended to the Borrower by such
Subsidiary without prior approval (that has not been obtained), pursuant to the
terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to such
Subsidiary and its stockholders.
For purposes of determining Consolidated EBITDA for any period, if
the Borrower acquires all or substantially all the Equity Interests or assets of
another Person during such period for aggregate consideration in excess of
$25,000,000, or sells or transfers any Subsidiary, all or substantially all the
assets of a Subsidiary or other assets constituting a business operation during
such period for aggregate consideration in excess of $25,000,000, Consolidated
EBITDA will be determined on a pro forma basis giving effect to such acquisition
or disposition as if it had occurred on the first day of such period.
"Consolidated Interest Expense" means, for any period, the gross
interest expense of the Borrower and its Subsidiaries for such period, as
determined in accordance with GAAP; provided, however, that, solely for purposes
of Section 6.13, any non-cash interest expense in respect of the SAILs Debt
shall be excluded from the calculation of "Consolidated Interest Expense" (to
the extent otherwise included therein).
"Consolidated Net Income" means, for any period, the net income or
loss of the Borrower and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income of any Person (other than the Borrower) in which any
other Person (other than the Borrower or any Subsidiary or any director holding
qualifying shares in compliance with applicable law) owns an Equity Interest,
except to the extent of the amount of dividends or other distributions actually
paid to the Borrower or any of the Subsidiaries during such period, and (b) the
income or loss of any Person accrued prior to the date it becomes a Subsidiary
or is merged into or consolidated with the Borrower or any Subsidiary or the
date that such Person's assets are acquired by the Borrower or any Subsidiary.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
9
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Deferred Collateral Requirement" means the satisfaction of (a) the
Collateral and Guarantee Requirement insofar as it requires the pledge, pursuant
to a Foreign Pledge Agreement or otherwise, of Equity Interests of the following
Significant Foreign Subsidiaries: Symbol Technologies UK Limited, Symbol
Technologies Japan, Inc. (formerly known as Olympus Symbol, Inc.) and Symbol
Technologies, B.V., (b) the entering into and perfection of a security interest
under the Mexican Pledge Agreement, and (c) subparagraph (d) of the Collateral
and Guarantee Requirement. Execution and delivery of the Collateral Agreement by
the Borrower or any Domestic Subsidiary that owns any such Equity Interests of
such Significant Foreign Subsidiaries is not, however, subject to deferral
hereunder as part of the Deferred Collateral Requirement.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"dollars" or "$" refers to lawful money of the United States of
America.
"Domestic Subsidiary" means each Subsidiary that is not a Foreign
Subsidiary.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
10
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender, an Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction (or any political subdivision thereof) under
the laws of which (or of a political subdivision of which) such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction described in clause (a) above and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.19(b)), any withholding tax that (i) is in effect and would
apply to amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending office), except
to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to any withholding tax
pursuant to Section 2.17(a), or (ii) is attributable to such Foreign Lender's
failure to comply with Section 2.17(e).
11
"Existing Credit Agreement" means the Credit Agreement, dated as of
November 17, 2003, as amended, among the Borrower, the lenders party thereto and
Fleet National Bank, as administrative agent for such lenders.
"Existing Letters of Credit" means the letters of credit issued for
the account of the Borrower under the Existing Credit Agreement prior to the
Effective Date and set forth on Schedule 2.05.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"First Amendment" means First Amendment dated as of February 16,
2005, among the Required Lenders, the Administrative Agent, the Borrower and the
Subsidiaries of the Borrower party thereto.
"Fixed Charge Coverage Ratio" means, for any period, the ratio of
(a) the Consolidated EBITDA for such period minus the amount of Capital
Expenditures of the Borrower and the consolidated Subsidiaries for such period
to (b) the sum for such period of (i) Consolidated Interest Expense, (ii)
Capital Lease Principal Payments and amortization payments with respect to
Long-Term Indebtedness and (iii) the aggregate amount of Taxes paid in cash by
the Borrower and its Subsidiaries.
"Foreign Lender" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Pledge Agreement" means a pledge agreement, debenture or
other Security Document securing any of the Obligations that is governed by the
law of a jurisdiction other than the United States and is reasonably
satisfactory in form and substance to the Collateral Agent.
"Foreign Subsidiary" means any Subsidiary that is organized under
the laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, applied on a basis consistent
with the
12
audited consolidated financial statements of the Borrower for the fiscal year
ended December 31, 2003.
"Governmental Authority" means the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness of the payment
thereof, (c) to maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or (d) as an account party in respect
of any letter of credit or letter of guaranty issued to support such
Indebtedness; provided, that the term Guarantee shall not include endorsements
for collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, polychlorinated biphenyls, radon
gas, infectious or medical wastes and all other substances or wastes of any
nature regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Immaterial Domestic Subsidiary" means at any date any Domestic
Subsidiary, which, (a) on a consolidated basis with its Subsidiaries, (i) did
not have aggregate revenues during the period of four consecutive fiscal
quarters most recently ended on or prior to such date in respect of which
financial statements have been delivered pursuant to Section 5.01 of $50,000 or
more and (ii) did not have total assets as of the last day of the most recent
fiscal quarter in respect of which financial statements have been delivered
pursuant to Section 5.01 of $50,000 or more, (b) does not own any patents,
trademarks, copyrights or other intellectual property, (c) does not engage in
any substantial business activities and (d) does not directly own any Equity
Interests in a Significant Foreign Subsidiary.
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness and other obligations of such Person (i) for the payment of
borrowed money
13
or (ii) evidenced by bonds, notes, debentures, loan agreements, credit
agreements or similar instruments or agreements, (b) all Capital Lease
Obligations of such Person, (c) all obligations of such Person to pay the
deferred purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business), (d) all Indebtedness of
others secured by a Lien on any assets of such Person, whether or not such
Indebtedness is assumed by such Person, (e) all obligations in respect of
letters of credit (if drawn or supporting obligations that constitute
Indebtedness) and bankers' acceptances and (f) all Guarantees of payment or
collection of any obligation described in clauses (a), (b), (c), (d) and (e)
above of any other Person. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent such Person is liable therefor as a result
of such Person's ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such Person is
not liable therefor.
Notwithstanding the foregoing, in connection with the purchase by
the Borrower or any Restricted Subsidiary of any business, the term
"Indebtedness" will exclude post-closing payment adjustments to which the seller
many become entitled to the extent such payment is determined by a final closing
balance sheet or such payment depends on the performance of such business after
the closing; provided, however, that at the time of closing, the amount of any
such payment is not determinable and, to the extent such payment thereafter
becomes fixed and determined, the amount is paid within 30 days thereafter.
"Indemnified Taxes" means Taxes other than Excluded Taxes and Other
Taxes.
"Information Memorandum" means the Confidential Information
Memorandum relating to the Borrower and the Transactions to be prepared in
connection with the syndication of the credit facilities hereunder.
"Intercreditor Agrement" means the Intercreditor Agreement dated as
of February 16, 2005, among Symbolease, Inc., as Originator under the Purchase
and Sale Agreement and the Receivables Purchase Agreement, the Collateral Agent
and The Bank of Tokyo-Mitsubishi, Ltd., New York Branch, as Agent under the
Receivables Purchase Agreement.
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing or Term Borrowing in accordance with
Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of
14
such Interest Period and (c) with respect to any Swingline Loan, the day that
such Loan is required to be repaid.
"Interest Period" means, with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter (or twelve months thereafter if, at the time of the
relevant Borrowing, all Lenders participating therein agree to make an interest
period of such duration available), as the Borrower may elect; provided, that
(i) if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day and
(ii) any Interest Period that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made
and thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Investment" means purchasing, holding or acquiring (including
pursuant to any merger or consolidation with any Person that was not a wholly
owned Subsidiary prior to such merger) any Equity Interests in or evidences of
indebtedness or other securities (including any option, warrant or other right
to acquire any of the foregoing) of, or making or permitting to exist any loans
or advances to, Guaranteeing any obligations of, or making or permitting to
exist any investment or any other interest in, any other Person, or purchasing
or otherwise acquiring (in one transaction or a series of transactions) any
assets of any other Person constituting a business unit. The amount, as of any
date of determination, of any Investment shall be the original cost of such
Investment (including any Indebtedness of a Person existing at the time such
Person becomes a Subsidiary in connection with any Investment and any
Indebtedness assumed in connection with any acquisition of assets), plus the
cost of all additions, as of such date, thereto and minus the amount, as of such
date, of any portion of such Investment repaid to the investor in cash or
property as a repayment of principal or a return of capital (including pursuant
to any sale or disposition of such Investment), as the case may be, but without
any other adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment. In determining the
amount of any Investment or repayment involving a transfer of any property other
than cash, such property shall be valued at its fair market value at the time of
such transfer.
"Issuing Banks" means JPMorgan Chase Bank, N.A., Fleet National Bank
(which is the Issuing Bank with respect to the Existing Letters of Credit) and
any other Lender designated as an Issuing Bank in accordance with the provisions
of Section 2.05(i), in each case, in its capacity as the issuer of Letters of
Credit hereunder, and its successors in such capacity as provided in Section
2.06(i). An Issuing Bank may, in its discretion, arrange for one or more Letters
of Credit, as the case may be, to be issued by Affiliates of such Issuing Bank,
in which case the term "Issuing Bank" shall include any such Affiliate with
respect to Letters of Credit issued by such Affiliate.
15
"LC Disbursement" means a payment made by an Issuing Bank pursuant
to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any Revolving Lender
at any time shall be its Applicable Percentage of the aggregate LC Exposures at
such time.
"Lenders" means the Persons listed on Schedule 2.01(A) and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, including the Persons listed on Schedule 2.01(B), other than any
such Person that ceases to be a party hereto pursuant to an Assignment and
Acceptance. Unless the context otherwise requires, the term "Lenders" includes
the Swingline Lender.
"Letter of Credit" means each Existing Letter of Credit and any
letter of credit issued pursuant to this Agreement.
"Leverage Ratio" means, on any date, the ratio of (a) Total
Indebtedness as of such date to (b) Consolidated EBITDA for the period of four
consecutive fiscal quarters of the Borrower most recently ended on or prior to
such date.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service) (rounded upward to the nearest
1/100 of 1% per annum) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available for any reason, then the "LIBO Rate" with respect to
such Eurodollar Borrowing for such Interest Period shall be the rate per annum
at which dollar deposits of $5,000,000 are offered by the principal office of
the Administrative Agent in London to prime banks in the London interbank market
at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period with a maturity equal to such Interest
Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement, the Collateral Agreement, the
Foreign Pledge Agreements and the other Security Documents.
"Loan Parties" means the Borrower and the Subsidiary Loan Parties.
16
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement.
"Long-Term Indebtedness" means any Indebtedness (including in
respect of Capital Lease Obligations) that, in accordance with GAAP, constitutes
(or, when incurred, constituted) a long-term liability.
"Material Adverse Effect" means any event, condition or circumstance
that has had or could reasonably be expected to have a material adverse effect
on (a) the business, assets, condition (financial or otherwise), results of
operations or liabilities (including contingent liabilities) of the Borrower and
the Subsidiaries, taken as a whole, (b) the ability of any Loan Party to perform
any of its material obligations under any Loan Document or (c) the material
rights of or benefits available to the Administrative Agent and the Lenders
under any Loan Document.
"Material Domestic Subsidiary" means, at any time, each Domestic
Subsidiary that is not an Immaterial Domestic Subsidiary at such time.
"Material Indebtedness" means Indebtedness or obligations in respect
of one or more Hedging Agreements of any one or more of the Borrower and its
Subsidiaries in an aggregate principal amount exceeding $10,000,000. For
purposes of determining Material Indebtedness, the "principal amount" of the
obligations of the Borrower or any Subsidiary in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that the Borrower or such Subsidiary would be required
to pay if such Hedging Agreement were terminated at such time.
"Mexican Pledge Agreement" means the pledge agreement dated as of or
after the Amendment Effective Date, among the Borrower, Symbol de Mexico, S de
X.X. de C.V. and the Collateral Agent, in the Equity Interests of Symbol de
Mexico, S de X.X. de C.V. owned by the Borrower, which shall be governed by
Mexican law and shall be perfected pursuant to the requirements of Mexican law.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event (a) the cash
proceeds received in respect of such event including (i) any cash received in
respect of any non-cash proceeds, but only as and when received, (ii) in the
case of a casualty, insurance proceeds, and (iii) in the case of a condemnation
or similar event, condemnation awards and similar payments, net of (b) the sum
of (i) all fees and out-of-pocket expenses paid by the Borrower and the
Subsidiaries to third parties (other than Affiliates) in connection with such
event, (ii) in the case of a sale, transfer or other disposition of an asset
(including pursuant to a sale and leaseback transaction or a casualty or a
condemnation or similar proceeding), the amount of all payments required to be
made by the Borrower and the Subsidiaries as a result of such event to repay
Indebtedness (other than Loans)
17
secured by such asset or otherwise subject to mandatory prepayment as a result
of such event, (iii) the amount of all taxes paid (or estimated to be payable)
by the Borrower and the Subsidiaries, and the amount of any reserves established
by the Borrower and the Subsidiaries to fund contingent liabilities reasonably
estimated to be payable, in each case during the year that such event occurred
or the next succeeding year and that are directly attributable to such event (in
the case of amounts referred to in clause (b)(iii), as determined reasonably and
in good faith by a Financial Officer and, in the case of reserves, established
in accordance with GAAP); provided, however, that any reversal of any reserve
referred to in clause (b)(iii) will be deemed to be Net Proceeds received at the
time and in the amount of such reversal. For purposes of this definition,
proceeds received by any Subsidiary of the Borrower other than a wholly owned
Subsidiary shall be deemed to be Net Proceeds received by the Borrower only in
an amount proportionate to the Equity Interest owned by the Borrower in such
Subsidiary receiving such proceeds.
"Obligations" means (i) the obligations of the Borrower hereunder to
pay the principal of and interest on the Loans, to reimburse the LC
Disbursements and to pay all other monetary obligations of the Borrower,
including in respect of fees, costs, expenses, indemnities and penalties, to the
Lenders and the Issuing Banks in their capacities as such under this Agreement
or any other Loan Document, (ii) all other "Obligations" as such term is defined
in the Collateral Agreement and (iii) all obligations of the Loan Parties under
the Collateral Agreement.
"Other Taxes" means any and all present or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made by or on account of any obligation of the
Borrower under any Loan Document or from the execution, delivery or enforcement
of, or otherwise with respect to, any Loan Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Pensions Notice" means (a) a contribution notice issued under
section 38 or section 47 of the Pensions Act 2004 (UK) or (b) a financial
support direction issued under section 43 of the Pensions Act 2004 (UK), in each
case issued by the Pensions Regulator to the Borrower or any Subsidiary in
respect of an Asset Group Pensions Scheme.
"Pensions Regulator" means the Pensions Regulator to be established
under section 1 of the Pensions Xxx 0000 (UK).
"Perfection Certificate" means a certificate in the form of Exhibit
II to the Collateral Agreement or any other form approved by the Collateral
Agent.
"Permitted Acquisition" means any acquisition (by merger,
consolidation or otherwise) by the Borrower or a Subsidiary of all or
substantially all the assets of, or all or substantially all the Equity
Interests in, a Person or division or line of business of a Person, if (a) at
the time thereof and immediately after giving effect thereto, no Default
18
shall have occurred and is continuing, (b) each Material Domestic Subsidiary
resulting from such acquisition (and which survives such acquisition), shall be
a Subsidiary Loan Party and the Equity Interests of each Subsidiary resulting
from such acquisition that is a Material Domestic Subsidiary or Significant
Foreign Subsidiary owned by a Loan Party shall be owned directly by the Borrower
and/or Subsidiary Loan Parties and shall have been (or within 5 Business Days
(or such longer period as may be reasonably acceptable to the Administrative
Agent) after such acquisition shall be) pledged pursuant to the Collateral
Agreement or a Foreign Pledge Agreement (subject to the limitations of the
pledge of Equity Interests of Significant Foreign Subsidiaries owned by a Loan
Party set forth in the definition of "Collateral and Guarantee Requirement"),
(c) the Collateral and Guarantee Requirement shall have been (or within 5
Business Days (or such longer period as may be reasonably acceptable to the
Administrative Agent) after such acquisition shall be) satisfied with respect to
each such Subsidiary that is a Subsidiary Loan Party, (d) the Borrower is in
compliance, on a pro forma basis after giving effect to such acquisition, with
the Sections 6.13 and 6.14, recomputed as of the last day of the most recently
ended fiscal quarter of the Borrower for which financial statements are
available, as if such acquisition had occurred on the first day of the relevant
period for testing compliance, (e) prior to the time such acquisition or any
offer to make such acquisition is publicly announced, such acquisition has been
(i) approved by the board of directors or other appropriate governing body of
the Person being acquired (or the assets of which are being acquired) or (ii)
recommended for approval by such board of directors or governing body to the
shareholders, member, partners, or other owner of such Person, as required under
applicable law or by the certificate of incorporation and by-laws or other
organizational documents of such Person or (iii) otherwise agreed by the
requisite shareholders, members, partners or owners of such Person, as required
under applicable law or by the certificate of incorporation and by-laws or other
organizational documents of such Person, (f) substantially all of the business
of the Person or division or line of business being acquired is a Permitted
Business, and (g) prior to the time such acquisition is consummated (or within 5
Business Days thereafter or such longer period as may be allowed by the
Administrative Agent in connection with clauses (b) and/or (c) above), the
Borrower has delivered to the Administrative Agent an officer's certificate
confirming compliance with the requirements set forth in clauses (a), (b), (c),
(e) and (f) above, together with all relevant financial information (to the
extent available and in the Borrower's possession) for the Person or assets
acquired and reasonably detailed calculations demonstrating satisfaction of the
requirement set forth in clause (d) above.
"Permitted Acquisition Consideration" shall mean, with respect to
any Permitted Acquisition, without duplication, (a) all cash paid by the
Borrower or any of its Subsidiaries in connection with such Permitted
Acquisition, including purchase price, transaction costs, fees and other
expenses incurred by the Company or such Subsidiary in connection with such
Permitted Acquisition, (b) all Indebtedness created, and all Indebtedness
assumed or acquired, by the Borrower or any of its Subsidiaries in connection
with such Permitted Acquisition, including, without limitation, the maximum
amount of any purchase price to be paid pursuant to any "earn out" provision
contained in the applicable purchase agreements related to such Permitted
Acquisition, and (c) the deferred portion of the purchase price or any other
costs paid by the Borrower or any of its Subsidiaries in connection with such
Permitted Acquisition, including, but not limited
19
to, amounts paid in respect of consulting agreements and non-compete agreements.
For purposes of this definition, if any "earn out" provision in any purchase
agreement for any Permitted Acquisition does not provide for a maximum payment,
the amount to be calculated pursuant to subsection (b) of this definition with
respect to the maximum amount of any purchase price to be paid pursuant to any
"earn out" provision, shall be determined by the Administrative Agent, on a
reasonable basis, on the basis of the projections provided to the Administrative
Agent.
"Permitted Business" means a business of the same type engaged in by
the Borrower and the Subsidiaries on the Effective Date or a business ancillary
or otherwise closely related thereto.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes, assessments, or other
governmental charges or levies that are not yet due or are being contested
in compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, landlord's and other like Liens imposed by law, arising in
the ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with
Section 5.05;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or similar regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary
course of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are
backed by the full faith and
20
credit of the United States of America), in each case maturing within one
year from the date of acquisition thereof;
(b) Investments in demand and time deposit accounts and certificates
of deposit maturing within 180 days of the date of acquisition thereof
issued by a bank or trust company which is organized under the laws of the
United States of America, any State thereof or any foreign country
recognized by the United States of America, and which bank or trust
company has capital surplus and undivided profits aggregating in excess of
$500,000,000 (or the foreign currency equivalent thereof) and has
outstanding debt which is rated "A" (or such similar equivalent rating) or
higher by a least one nationally recognized statistical rating
organization (as defined in Rule 436 under the Securities Act or 1933) or
any money-market fund sponsored by a registered broker dealer or mutual
fund distributor;
(c) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (a) above entered
into with a bank matting the qualifications described in clause (b) above;
(d) investments in commercial paper, maturing not more than 90 days
after the date of acquisition, issued by a corporation (other than an
Affiliate of the Borrower) organized and in existence under the laws of
the United States of America or any foreign country recognized by the
United States of America with a rating at the time as of which any
investment therein is made of "P-1" (or higher) according to Xxxxx'x or
"A-1" (or higher) according to Standard & Poor's;
(e) investments in securities with maturities of six months or less
from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least "A"
by Standard & Poor's or "A" by Xxxxx'x; and
(f) Investments in money market mutual funds that (i) comply with
the criteria set forth in Rule 2a-7 adopted by the SEC under the
Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by
Xxxxx'x and (iii) have portfolio assets in excess of $2,000,000,000.
"Permitted Subordinated Indebtedness" means Indebtedness of the
Borrower, the payment of which is subordinated to the Borrower's obligations in
respect of the Obligations on market terms reasonably acceptable to the
Administrative Agent, and which Indebtedness (a) is unsecured, (b) is not
Guaranteed by any Subsidiary other than by Subsidiary Loan Parties on a
subordinated basis on market terms reasonably acceptable to the Administrative
Agent, and (c) does not mature or require any amortization payment to be made
prior to the date that is six months after the Revolving Maturity Date.
21
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prepayment Event" means any sale, transfer, assignment, sublease or
other disposition (including pursuant to a sale and leaseback transaction) of
any property or asset of the Borrower or any Subsidiary, other than (i) sales,
transfers or dispositions referred to in clauses (a) and (b) of Section 6.05 and
(ii) sales, transfers, assignments and other dispositions resulting in aggregate
cumulative Net Proceeds received in any fiscal year not exceeding $15,000,000.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMorgan Chase Bank, N.A., as its prime rate in effect at
its principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Principal Issuing Bank" means, at any time, JPMorgan Chase Bank,
N.A., and each other Issuing Bank that at such time has outstanding Letters of
Credit with an aggregate undrawn amount in excess of $5,000,000.
"Purchase and Sale Agreement" means the Purchase and Sale Agreement
dated as of September 29, 2000, as amended or supplemented from time to time,
between Symbolease, Inc. and Symbolease Funding LLC.
"Receivables Purchase Agreement" means the Receivables Purchase
Agreement dated as of September 29, 2000, among Symbolease, Inc., Symbolease
Funding LLC, Victory Receivables Corporation and The Bank of Tokyo-Mitsubishi,
Ltd., New York Branch.
"Refinancing Indebtedness" means Indebtedness issued or incurred
(including by means of the extension or renewal of existing Indebtedness) to
extend, renew or refinance existing Indebtedness ("Refinanced Debt"); provided
that (i) such extending, renewing or refinancing Indebtedness is in an original
aggregate principal amount not greater than the aggregate principal amount of,
and unpaid interest on, the Refinanced Debt plus the amount of any premiums paid
thereon and fees and expenses associated therewith, (ii) such Indebtedness has
the same or later maturity and the same or longer weighted average life than the
Refinanced Debt, (iii) if the Refinanced Debt or any Guarantees thereof are
subordinated to the Obligations, such Indebtedness and any Guarantees thereof
are subordinated to the Obligations on terms no less favorable in any
significant respect to the holders of the Obligations than the subordination
terms of such Refinanced Debt or Guarantees thereof (and no Loan Party that has
not guaranteed such
22
Refinanced Debt guarantees such Indebtedness), (iv) such Indebtedness contains
covenants and events of default and is benefited by Guarantees (if any) which,
taken as a whole, are not materially less favorable to the Borrower than the
covenants and events of default of or Guarantees (if any) in respect of such
Refinanced Debt, (v) if such Refinanced Debt or any Guarantees thereof are
secured, such Indebtedness and any Guarantees thereof are either unsecured or
secured only by such assets as secured the Refinanced Debt and Guarantees
thereof and (vi) if such Refinanced Debt and any Guarantees thereof are
unsecured, such Indebtedness and Guarantees thereof are also unsecured.
"Register" has the meaning assigned to such term in Section 9.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving
Exposures, Term Loans and unused Commitments representing more than 50% of the
sum of the total Revolving Exposures, outstanding Term Loans and unused
Commitments at such time.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) to any Person other than the
Borrower or any Loan Party with respect to any Equity Interests in the Borrower
or any Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any Equity Interests in the Borrower or any Subsidiary or any option, warrant or
other right to acquire any such Equity Interests in the Borrower or any
Subsidiary.
"Revolving Availability Period" means the period from and including
the Effective Date to but excluding the earlier of the Revolving Maturity Date
and the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as
an amount representing the maximum aggregate amount of such Lender's Revolving
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender's Revolving Commitment is set forth on Schedule 2.01(A). The
amount of each Lender's Revolving Commitment as of the Amendment Effective Date
is set forth on Schedule 2.01(B), or in the Assignment and Acceptance pursuant
to which such Lender shall have assumed its Revolving Commitment, as applicable.
The initial aggregate amount of the Lenders' Revolving Commitments is
$150,000,000.
23
"Revolving Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans and
its LC Exposure and Swingline Exposure at such time.
"Revolving Lender" means a Lender with a Revolving Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"Revolving Loan" means a Loan made pursuant to clause (c) of Section
2.01.
"Revolving Maturity Date" means December 30, 2009.
"S&P" means Standard & Poor's.
"SAILs Debt" means the Shared Appreciation Income Linked Securities
exchangeable debt of the Borrower, the outstanding amount of which at any time
shall be the amount reflected on the consolidated balance sheet of the Borrower
dated as of the date of determination and prepared in accordance with GAAP.
"Sale and Leaseback Transaction" has the meaning assigned to such
term in Section 6.06.
"SAP Financing" means the installment payment financing provided to
the Borrower with respect to a software license to it from SAP America, Inc. by
Fleet Business Credit, LLC, pursuant to a Master Installment Payment Agreement
dated as of March 31, 2004.
"SEC" means the Securities and Exchange Commission.
"SEC Documents" has the meaning ascribed to such term in Section
3.04(c).
"Security Documents" means the Collateral Agreement, the Trust
Agreement, each Foreign Pledge Agreement, the Acknowledgment and Consent, the
Intercreditor Agreement and each other security agreement or other instrument or
document executed and delivered pursuant to Section 5.12 to secure any of the
Obligations.
"Senior Indebtedness" means at any time, Total Indebtedness at such
time, except (to the extent counted in Total Indebtedness) Permitted
Subordinated Debt.
"Senior Leverage Ratio" means, on any date, the ratio of (a) Senior
Indebtedness as of such date to (b) Consolidated EBITDA for the period of four
consecutive fiscal quarters of the Borrower most recently ended on or prior to
such date.
"Significant Foreign Subsidiary" means on any date (a) each of the
Subsidiaries identified on Schedule 3.12 as a Significant Foreign Subsidiary and
(b) any
24
other Foreign Subsidiary (i) Equity Interests in which are directly owned by any
Loan Party and (ii) which, taken together with its consolidated subsidiaries,
(A) accounts for 5.0% or more of the consolidated total assets of the Borrower,
(B) accounts for 5.0% or more of the shareholders' equity of the Borrower, (C)
accounted for 5.0% or more of total revenues of the Borrower for the
four-fiscal-quarter period immediately preceding the date of determination or
(D) has been designated by the Borrower in writing to the Administrative Agent
as a Significant Foreign Subsidiary pursuant to Section 5.14, which designation
has not subsequently been withdrawn.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or, in the case
of a partnership, more than 50% of the general partnership interests are, as of
such date, owned, controlled or held by the parent and/or one or more
subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower. Notwithstanding
the foregoing, until the termination of the Bank of Tokyo Securitization,
Symbolease Funding LLC will not be deemed a Subsidiary for purposes hereof or be
required to become a Subsidiary Loan Party.
"Subsidiary Loan Party" means (i) each Material Domestic Subsidiary,
(ii) each Domestic Subsidiary that owns Equity Interests of any Material
Domestic Subsidiary and (iii) each other Domestic Subsidiary that executes and
delivers the Collateral Agreement.
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Revolving Lender at any time shall be its Applicable Percentage of the
total Swingline Exposure at such time.
25
"Swingline Lender" means JPMorgan Chase Bank, N.A., in its capacity
as lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Lender" means a Lender with a Term Loan Commitment or an
outstanding Term Loan.
"Term Loan" means a Loan made pursuant to clause (a) of Section
2.01.
"Term Loan Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make a Term Loan hereunder on the
Effective Date, expressed as an amount representing the maximum principal amount
of the Term Loan to be made by such Lender hereunder, as such commitment may be
(a) reduced from time to time pursuant to Section 2.09 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Term Loan
Commitment is set forth on Schedule 2.01(A). The amount of each Lender's Term
Loan Commitment as of the Amendment Effective Date is set forth on Schedule
2.01(B), or in the Assignment and Acceptance pursuant to which such Lender shall
have assumed its Term Loan Commitment, as applicable. The aggregate amount of
the Lenders' Term Loan Commitments on the Effective Date is $100,000,000.
"Term Loan Maturity Date" means December 30, 2007.
"Total Indebtedness" means, as of any date, (a) the aggregate
principal amount of Indebtedness of the Borrower and the Subsidiaries
outstanding as of such date, in the amount that would be reflected on a balance
sheet of the Borrower and the Subsidiaries prepared as of such date on a
consolidated basis in accordance with GAAP, less (b) to the extent it would be
reflected on such consolidated balance sheet as Indebtedness and provided that
the existing settlement options and Hedging Agreements relating to the SAILs
Debt remain in place, the principal amount of the SAILs Debt.
"Transactions" means the execution, delivery and performance by each
Loan Party of the Loan Documents to which it is to be a party, the borrowing of
Loans, the use of the proceeds thereof and the issuance of Letters of Credit
hereunder.
"Trust Agreement" means a trust agreement dated as of February 16,
2005, among the Administrative Agent, as security trustee thereunder, and the
Borrower, in form and substance reasonably acceptable to the Administrative
Agent.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
26
"Unrestricted Domestic Cash" means, on any date, the aggregate
amount of cash and cash equivalents of the Borrower and the Domestic
Subsidiaries (but not Foreign Subsidiaries ) that would be reflected on a
consolidated balance sheet of the Borrower and the Subsidiaries as of such date
prepared in accordance with GAAP, minus without duplication (i) any amounts of
such cash or cash equivalents that are subject to a Lien (including any
Permitted Encumbrance), escrow arrangement, deposit arrangement, or other
contractual or legal restriction on the use or disposition thereof by the
Borrower or the Domestic Subsidiaries and (ii) the amount of Net Proceeds from
Prepayment Events that are required pursuant to Section 2.11(c) to be used to
repay Term Loans or to purchase assets or effect Permitted Acquisitions that
have not been so applied as of such date.
"Voting Stock" of a Person means all classes of Equity Interests of
such Person then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes
of this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications in Section 6.11 or as otherwise set
forth herein), (b) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (c) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
27
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all accounting terms and all terms of a financial nature shall
be interpreted, all accounting determinations thereunder shall be made, and all
financial statements required to be delivered thereunder shall be prepared, in
accordance with GAAP; provided that, if the Borrower notifies the Administrative
Agent that the Borrower requests an amendment of any financial covenant to
eliminate or modify the effect of any change after the date hereof in GAAP or in
the application thereof on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an
amendment of the financial covenants for such purpose), regardless of whether
any such notice is given before or after such change in GAAP or in the
application thereof, then the Borrower's compliance with such covenant shall be
determined on the basis of GAAP as in effect and applied immediately before the
relevant change became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to the Borrower and the Required
Lenders.
SECTION 1.05. References to Agreements. A reference to an agreement
or other document "as in effect as of" a particular date, or words to similar
effect, shall be construed to refer to the particular words of such agreement or
document as of such date and shall not be construed as in anyway restricting the
ability of the parties thereto to amend, supplement or otherwise modify such
agreement or document (subject to any restrictions on such amendments,
supplements or modifications in Section 6.11 or as otherwise set forth herein).
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set
forth herein, each Lender agrees (a) to make a Term Loan to the Borrower on the
Effective Date in a principal amount not exceeding its Term Loan Commitment and
(b) to make Revolving Loans to the Borrower from time to time during the
Revolving Availability Period in an aggregate principal amount that will not
result in the sum of such Lender's Revolving Exposure exceeding such Lender's
Revolving Commitment. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans; provided, however, that not more than $100,000,000 of Revolving
Loans may be borrowed on the Effective Date. Amounts repaid in respect of Term
Loans may not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan (other than a
Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the
same Class and Type made by the Lenders ratably in accordance with their
Commitments of the applicable Class. The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and no
Lender shall be responsible for any other Lender's failure to make Loans as
required.
28
(b) Subject to Section 2.14, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith. Each Swingline Loan shall be an ABR
Loan. Each Lender at its option may make any Eurodollar Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $10,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that
is an integral multiple of $1,000,000 and not less than $5,000,000; provided
that an ABR Revolving Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the aggregate Revolving Commitments or that is
required to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.06(e). Each Swingline Loan shall be in an amount that is an integral
multiple of $500,000 and not less than $1,000,000. Borrowings of more than one
Type and Class may be outstanding at the same time; provided that there shall
not at any time be more than a total of 15 Eurodollar Revolving Borrowings
outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Revolving Maturity Date or Term Maturity Date, as applicable.
SECTION 2.03. Requests for Borrowings. To request a Revolving
Borrowing or Term Borrowing, the Borrower shall notify the Administrative Agent
of such request by telephone (a) in the case of a Eurodollar Borrowing, not
later than 11:00 a.m., New York City time, three Business Days before the date
of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than
11:00 a.m., New York City time, one Business Day before the date of the proposed
Borrowing; provided that any such notice of an ABR Revolving Borrowing to
finance the reimbursement of an LC Disbursement as contemplated by Section
2.06(e) may be given not later than 10:00 a.m., New York City time, on the date
of the proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving Borrowing
or Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
29
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
If no election as to the Type of Borrowing is specified, then the
requested Borrowing shall be an ABR Borrowing. If no Interest Period is
specified with respect to any requested Eurodollar Revolving Borrowing, then the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower from time to time during the Revolving Availability Period, in
an aggregate principal amount at any time outstanding that will not result in
(i) the aggregate principal amount of outstanding Swingline Loans exceeding
$10,000,000 or (ii) (x) the sum of the aggregate Revolving Exposures exceeding
(y) the aggregate Revolving Commitments; provided that the Swingline Lender
shall not be required to make a Swingline Loan to refinance an outstanding
Swingline Loan. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e), by remittance to the applicable Issuing Bank) by
3:00 p.m., New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon, New York City time, on any
Business Day require the Revolving Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding. Such notice
shall specify the aggregate amount of Swingline Loans in which Revolving Lenders
will participate. Promptly upon
30
receipt of such notice, the Administrative Agent will give notice thereof to
each Revolving Lender, specifying in such notice such Lender's Applicable
Percentage of such Swingline Loan or Loans. Each Revolving Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lender,
such Lender's Applicable Percentage of such Swingline Loan or Loans. Each
Revolving Lender acknowledges and agrees that its obligation to acquire
participations in Swingline Loans pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Each Revolving
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Revolving Lenders. The Administrative Agent shall notify
the Borrower of any participations in any Swingline Loan acquired pursuant to
this paragraph, and thereafter payments in respect of such Swingline Loan shall
be made to the Administrative Agent and not to the Swingline Lender. Any amounts
received by the Swingline Lender from the Borrower (or other party on behalf of
the Borrower) in respect of a Swingline Loan after receipt by the Swingline
Lender of the proceeds of a sale of participations therein shall be promptly
remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Revolving Lenders that shall have made their payments pursuant to this
paragraph and to the Swingline Lender, as their interests may appear. The
purchase of participations in a Swingline Loan pursuant to this paragraph shall
not relieve the Borrower of any default in the payment thereof.
SECTION 2.05. Letters of Credit. (a) Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of
Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the applicable Issuing Bank, at any time and from time
to time during the Revolving Availability Period. Each Existing Letter of Credit
shall be deemed to be a Letter of Credit for all purposes hereof and shall be
deemed to have been issued hereunder on the Effective Date. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, the
applicable Issuing Bank relating to any Letter of Credit, the terms and
conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank) to
the applicable Issuing Bank and the Administrative Agent (at least three
Business Days in advance of the requested date of
31
issuance, amendment, renewal or extension) a notice requesting the issuance of
such Letter of Credit or identifying the Letter of Credit to be amended, renewed
or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the
amount of such Letter of Credit, the name and address of the beneficiary
thereof, and such other information as shall be necessary to prepare, amend,
renew or extend such Letter of Credit. If requested by an Issuing Bank, the
Borrower also shall submit a letter of credit application on such Issuing Bank's
standard form in connection with any request for a Letter of Credit. A Letter of
Credit shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the Borrower shall be
deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension, (i) the aggregate LC Exposure will not exceed
$20,000,000 and (ii) the aggregate Revolving Exposures shall not exceed the
aggregate Revolving Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or prior
to the close of business on the earlier of (i) the date one year after the date
of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Revolving Maturity Date; provided,
however, that any Letter of Credit, may provide for automatic renewal on an
annual basis so long as any such Letter of Credit expires at or prior to the
date that is five Business Days prior to the Revolving Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Lenders, such
Issuing Bank hereby grants to each Revolving Lender, and each Revolving Lender
hereby acquires from such Issuing Bank, a participation in such Letter of Credit
equal to such Lender's Applicable Percentage of the aggregate amount available
to be drawn under such Letter of Credit. In consideration and in furtherance of
the foregoing, each Revolving Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for the account of the applicable
Issuing Bank, such Lender's Applicable Percentage of each LC Disbursement made
by such Issuing Bank and not reimbursed by the Borrower on the date due as
provided in paragraph (e) of this Section, or of any reimbursement payment
required to be refunded to the Borrower for any reason. Each Lender acknowledges
and agrees that its obligation to acquire participations pursuant to this
paragraph in respect of Letters of Credit is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit or the occurrence and continuance
of a Default or reduction or termination of the Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction
whatsoever. On the Effective Date and without further action by any party
hereto, each Issuing Bank that has issued an Existing Letter of Credit shall be
deemed to have granted to each Revolving Lender, and each Revolving Lender shall
be deemed to have acquired from such Issuing Bank, a participation in each such
Existing Letter of Credit in accordance with the foregoing provisions of this
paragraph.
32
(e) Reimbursement. If an Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on the date that
such LC Disbursement is made, if the Borrower shall have received notice of such
LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if
such notice has not been received by the Borrower prior to such time on such
date, then not later than 12:00 noon, New York City time, on (i) the Business
Day that the Borrower receives such notice, if such notice is received prior to
10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; provided that,
if such LC Disbursement is not less than $1,000,000 the Borrower may, subject to
the conditions to borrowing set forth herein, request in accordance with Section
2.03 or 2.05 that such payment be financed with an ABR Revolving Borrowing or
Swingline Loan in an equivalent amount and, to the extent so financed, the
Borrower's obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Borrowing or Swingline Loan. If the Borrower fails
to make such payment when due, the Administrative Agent shall notify each
Revolving Lender of the applicable LC Disbursement, the payment then due from
the Borrower in respect thereof and such Lender's Applicable Percentage thereof.
Promptly following receipt of such notice, each Revolving Lender shall pay to
the Administrative Agent its Applicable Percentage of the payment then due from
the Borrower, in the same manner as provided in Section 2.06 with respect to
Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to
the payment obligations of the Revolving Lenders), and the Administrative Agent
shall promptly pay to the applicable Issuing Bank the amounts so received by it
from the Revolving Lenders. Promptly following receipt by the Administrative
Agent of any payment from the Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the applicable Issuing
Bank or, to the extent that Revolving Lenders have made payments pursuant to
this paragraph to reimburse the applicable Issuing Bank, then to such Lenders
and such Issuing Bank as their interests may appear. Any payment made by a
Revolving Lender pursuant to this paragraph to reimburse the applicable Issuing
Bank for any LC Disbursement (other than the funding of ABR Revolving Loans or a
Swingline Loan as contemplated above) shall not constitute a Loan and shall not
relieve the Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the applicable Issuing Bank under a
Letter of Credit against presentation of a draft or other document that does not
comply with the terms of such Letter of Credit, or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the
33
provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. Neither
the Administrative Agent, the Lenders nor the applicable Issuing Bank, nor any
of their Related Parties, shall have any liability or responsibility by reason
of or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of
such Issuing Bank; provided that the foregoing shall not be construed to excuse
such Issuing Bank from liability to the Borrower to the extent of any direct
damages (as opposed to consequential damages, claims in respect of which are
hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by such Issuing Bank's failure to
exercise care when determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof. The parties hereto
expressly agree that, in the absence of gross negligence or willful misconduct
on the part of the applicable Issuing Bank (as finally determined by a court of
competent jurisdiction), such Issuing Bank shall be deemed to have exercised
care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, such Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) Disbursement Procedures. The applicable Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. The applicable Issuing
Bank shall promptly notify the Administrative Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether such
Issuing Bank has made or will make an LC Disbursement thereunder; provided that
any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse such Issuing Bank and the Revolving
Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If the applicable Issuing Bank shall make any
LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement
in full on the date such LC Disbursement is made (including with the proceeds of
an ABR Revolving Borrowing or a Swingline Borrowing requested in accordance with
paragraph (e) of this Section), the unpaid amount thereof shall bear interest,
for each day from and including the date such LC Disbursement is made to but
excluding the date that the Borrower reimburses such LC Disbursement at the rate
per annum then applicable to ABR Revolving Loans; provided that, if the Borrower
fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of
this Section, then Section 2.13(c) shall apply. Interest accrued pursuant to
this paragraph shall be for the account of the applicable Issuing Bank, except
that interest accrued on and after the date of payment by
34
any Revolving Lender pursuant to paragraph (e) of this Section to reimburse such
Issuing Bank shall be for the account of such Lender to the extent of such
payment.
(i) Addition and Replacement of Issuing Banks. An Issuing Bank may
be replaced at any time by written agreement among the Borrower, the replaced
Issuing Bank and the successor Issuing Bank, and acknowledged by the
Administrative Agent. The Administrative Agent shall notify the Lenders of any
such replacement of an Issuing Bank. At the time any such replacement shall
become effective, the Borrower shall pay all unpaid fees accrued for the account
of the replaced Issuing Bank pursuant to Section 2.12(b). From and after the
effective date of any such replacement, (i) the successor Issuing Bank shall
have all the rights and obligations of the applicable Issuing Bank under this
Agreement with respect to the Letters of Credit to be issued thereafter and (ii)
references herein to the term "Issuing Bank" shall be deemed to refer to such
successor or to any previous Issuing Bank, or to such successor and all previous
Issuing Banks, as the context shall require. After the replacement of an Issuing
Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it prior to such
replacement, but shall not be required to issue additional Letters of Credit. A
Revolving Lender may become an additional Issuing Bank hereunder if designated
by the Borrower pursuant to a written agreement between the Borrower and such
Revolving Lender and acknowledged by the Administrative Agent. The
administrative Agent shall notify the Revolving Lenders of any such additional
Issuing Banks. Notwithstanding the foregoing, the Borrower shall not designated
any Revolving Lender as an Issuing Bank if, after giving effect thereto, there
would be more than four issuing banks.
(j) Cash Collateralization. If (i) any Event of Default described in
clauses (a), (b), (h) or (i) of Article VII shall occur and be continuing or
(ii) the maturity of the Loans has been accelerated as a result of the
occurrence and continuance of any Event of Default, on the Business Day that the
Borrower receives notice from the Administrative Agent that the Required Lenders
(or, in the case of paragraph (ii), the Revolving Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) have demanded the
deposit of cash collateral pursuant to this paragraph, the Borrower shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash equal
to the total LC Exposure as of such date plus any accrued and unpaid interest
thereon; provided that the obligation to deposit such cash collateral shall
become effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to the Borrower described in clause (h) or (i) of
Article VII. Each such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Borrower
under this Agreement, and the Borrower hereby grants the Administrative Agent,
for the benefit of the Lenders, a security interest in all funds and investments
from time to time in such account to secure the payment and performance of the
Obligations. The Administrative Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any
interest earned on the investment of such deposits in Permitted Investments,
which investments shall be made
35
at the option and sole discretion of the Administrative Agent and at the
Borrower's risk and expense, such deposits shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys in
such account shall be applied by the Administrative Agent to reimburse the
Issuing Banks for LC Disbursements for which they have not been reimbursed and,
to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower in respect of the LC Exposure at such
time or, if the maturity of the Loans has been accelerated (but subject to the
consent of Revolving Lenders with LC Exposure representing greater than 50% of
the total LC Exposure), be applied to satisfy other obligations of the Borrower
under this Agreement. If the Borrower is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default
described above, such amount (to the extent not applied as aforesaid) shall be
returned to the Borrower within three Business Days after all such Events of
Default have been cured or waived or the Obligations have been paid in full and
the Letters of Credit have terminated or expired and all Commitments have
terminated or expired.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders; provided that Swingline Loans shall be made as provided
in Section 2.04. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting or transferring the amounts so received, in like
funds, to an account of the Borrower maintained with the Administrative Agent in
New York City and designated by the Borrower in the applicable Borrowing
Request; provided that ABR Revolving Loans made to finance the reimbursement of
an LC Disbursement as provided in Section 2.05(e) shall be remitted by the
Administrative Agent to the applicable Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from
a Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing and
Term Borrowing initially shall be of the Type specified in the applicable
Borrowing
36
Request and, in the case of a Eurodollar Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The Borrower may elect different
options with respect to different portions of the affected Borrowing, in which
case each such portion shall be allocated ratably among the Lenders holding the
Loans comprising such Borrowing, and the Loans comprising each such portion
shall be considered a separate Borrowing. This Section shall not apply to
Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02 and paragraph
(e) of this Section:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable
37
thereto, then, unless such Borrowing is repaid as provided herein, at the end of
such Interest Period such Borrowing shall be continued as a Eurodollar Borrowing
of one month's duration. Notwithstanding any contrary provision hereof, if any
Event of Default described in clauses (a), (b), (h) or (i) of Article VII shall
occur and be continuing and the Administrative Agent, at the request of the
Required Lenders, so notifies the Borrower, then, so long as such Event of
Default is continuing (i) no outstanding Borrowing may be converted to or
continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.08. Termination and Reduction of Commitments. (a) Unless
previously terminated, (i) the Term Loan Commitments shall terminate at 5:00
p.m., New York City time, on the Effective Date and (ii) the Revolving
Commitments shall terminate on the Revolving Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Revolving Commitments; provided that (i) each reduction of the
Revolving Commitments shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.11,
the sum of the aggregate Revolving Exposures would exceed the aggregate
Revolving Commitments.
(c) The Borrower shall notify the Administrative Agent in writing of
any election to terminate or reduce the Revolving Commitment under paragraph (b)
of this Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Revolving Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Revolving
Commitments shall be permanent. Each reduction of the Revolving Commitments
shall be made ratably among the Lenders in accordance with their Revolving
Commitments.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
of such Lender on the Revolving Maturity Date, (ii) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each Term
Loan of such Lender as provided in Section 2.10 and (iii) to the Swingline
Lender the then unpaid principal amount of each Swingline Loan on the earlier of
the Revolving Maturity Date and the first date after such Swingline Loan is made
that is the 15th or last day of a calendar month and is at least two Business
Days after such Swingline Loan is made; provided
38
that on each date that a Revolving Borrowing is made, the Borrower shall repay
all Swingline Loans that were outstanding on the date such Borrowing was
requested.
(b) 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, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent and the Borrower.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 9.04) be
represented by one or more promissory notes in such form payable to the order of
the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
SECTION 2.10. Amortization of Term Loans. (a) Subject to adjustment
pursuant to paragraph (c) of this Section, the Borrower shall repay Tranche A
Term Borrowings on each date set forth below in the aggregate principal amount
set forth opposite such date:
Date Amount
---- ------
December 15, 2005 $11,111,111
March 15, 2006 11,111,111
June 15, 2006 11,111,111
September 15, 2006 11,111,111
December 15, 2006 11,111,111
March 15, 2007 11,111,111
June 15, 2007 11,111,111
September 15, 2007 11,111,111
39
(b) To the extent not previously paid, all Term Loans shall be due
and payable on the Term Loan Maturity Date.
(c) Any prepayment of a Term Borrowing, including any mandatory
prepayments pursuant to Section 2.11, shall be applied to reduce ratably the
subsequent scheduled repayments of the Term Borrowings to be made pursuant to
this Section.
(d) Prior to any repayment of any Term Borrowings hereunder, the
Borrower shall select the Borrowing or Borrowings to be repaid and shall notify
the Administrative Agent by telephone (confirmed by telecopy) of such selection
not later than (i) 11:00 a.m., New York City time, three Business Days before
the scheduled date of such repayment, in the case of a Eurodollar Borrowing and
(ii) 11:00 a.m., New York City time one Business Day before the scheduled date
of such repayment, in the case of an ABR Borrowing. Each repayment of a
Borrowing shall be applied ratably to the Loans included in the repaid
Borrowing. Repayments of Term Borrowings shall be accompanied by accrued
interest on the amount repaid.
SECTION 2.11. Prepayment of Loans. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to the requirements of this Section.
(b) In the event and on each occasion that the sum of the aggregate
Revolving Exposures exceeds the total Revolving Commitments, the Borrower shall
prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings
are outstanding, deposit cash collateral in an account with the Administrative
Agent pursuant to Section 2.05(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that any Net Proceeds are
received by or on behalf of the Borrower or any Subsidiary in respect of any
Prepayment Event, the Borrower shall, within two Business Days after such Net
Proceeds are received, prepay Term Borrowings in an aggregate amount equal to
(i) 100% of such Net Proceeds, if the Leverage Ratio on the date of such receipt
is equal to or greater than .75 to 1.00, or (ii) 50% of such Net Proceeds, if
the Leverage Ratio on the date of such receipt is less than .75 to 1.00;
provided that, if the Borrower shall deliver to the Administrative Agent a
certificate of a Financial Officer to the effect that the Borrower and the
Subsidiaries either (x) intend to apply the Net Proceeds from such event (or a
portion thereof specified in such certificate), within 210 days after receipt of
such Net Proceeds, to acquire real property, equipment or other tangible assets
and intangible assets associated with such acquisition to be used in the
business of the Borrower and/or the Subsidiaries or to effect a Permitted
Acquisition in accordance with the terms of this Agreement, or (ii) desire to
have such Net Proceeds (or a portion thereof specified in such certificate)
credited against the amount of Acquisition Consideration for a Permitted
Acquisition actually paid during the period of 90 days immediately preceding the
date of receipt of such Net Proceeds (such amount of Net Proceeds not to exceed
the amount of such Acquisition Consideration paid during such period and not
previously subject to a credit hereunder) and, in each case, certifying that no
Default has occurred and is continuing, then no prepayment shall be required
pursuant to this paragraph in respect of the Net Proceeds in
40
respect of such event (or the portion of such Net Proceeds specified in such
certificate, if applicable) except, in the case of Net Proceeds specified
pursuant to clause (x) above, to the extent of any such Net Proceeds therefrom
that have not been so applied by the end of such 210-day period, at which time a
prepayment shall be required in an amount equal to 100% or 50%, as the case may
be, of such Net Proceeds from such event that have not been so applied.
(d) The Borrower shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, the principal amount of each Borrowing or portion
thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment; provided that, if a
notice of optional prepayment is given in connection with a conditional notice
of termination of the Revolving Commitments as contemplated by Section 2.08,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.08. Promptly following receipt of any such
notice (other than a notice relating solely to Swingline Loans), the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be
permitted in the case of an advance of a Borrowing of the same Type as provided
in Section 2.02, except as necessary to apply fully the required amount of a
mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to
the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest unpaid to the extent required by Section 2.13.
SECTION 2.12. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee,
which shall accrue at the Commitment Fee Rate on the average daily unused amount
of the Revolving Commitment of such Lender during the period from and including
the Effective Date to but excluding the date on which such Commitment
terminates. Accrued commitment fees shall be payable in arrears on the last day
of March, June, September and December of each year and on the date on which the
Revolving Commitments terminate, commencing on the first such date to occur
after the Effective Date. All commitment fees shall be computed on the basis of
a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). For purposes of computing
commitment fees with respect to Revolving Commitments, a Revolving Commitment of
a Lender shall be deemed to be used to the extent of the outstanding Revolving
Loans and the LC Exposure of such Lender (and the Swingline Exposure of such
Lender shall be disregarded for such purpose).
41
(b) The Borrower agrees to pay (i) to the Administrative Agent for
the account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Margin then in effect with respect to interest on Eurodollar Revolving Loans, on
the daily amount of such Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date on which
such Lender's Revolving Commitment terminates and the date on which such Lender
ceases to have any LC Exposure and (ii) to the applicable Issuing Bank a
fronting fee, which shall accrue at a rate per annum separately agreed to by the
Borrower and such Issuing Bank on the outstanding amount of Letters of Credit
issued by such Issuing Bank during the period from and including the Effective
Date to but excluding the later of the date of termination of the Revolving
Commitments and the date on which there ceases to be any outstanding Letters of
Credit issued by such Issuing Bank, as well as the applicable Issuing Bank's
standard and customary fees with respect to the issuance, amendment, renewal or
extension of any Letter of Credit or processing of drawings thereunder.
Participation fees and fronting fees accrued through and including the last day
of March, June, September and December of each year shall be payable on the
third Business Day following such last day, commencing on the first such date to
occur after the Effective Date; provided that all such fees shall be payable on
the date on which the Revolving Commitments terminate and any such fees accruing
after the date on which the Revolving Commitments terminate shall be payable on
written demand. Any other fees payable to the applicable Issuing Bank pursuant
to this paragraph shall be payable within 10 days after written demand. All
participation fees and fronting fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
in writing between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees, participation fees and prepayment fees, to the Lenders entitled
thereto. Fees paid shall not be refundable under any circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at the Alternate Base Rate
plus the Applicable Margin.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Margin.
(c) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount
42
shall bear interest, after as well as before judgment, at a rate per annum equal
to (i) in the case of overdue principal of any Loan, 2% plus the rate otherwise
applicable to such Loan as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR
Revolving Loans as provided in paragraph (a) of this Section, from the date
overdue until such amount is paid.
(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Revolving Commitments; provided that (i) interest
accrued pursuant to paragraph (c) of this Section shall be payable on written
demand, (ii) in the event of any repayment or prepayment of any Loan (other than
a prepayment of an ABR Revolving Loan prior to the end of the Revolving
Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(i) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate or LIBO Rate for such
Interest Period; or
(ii) the Administrative Agent is advised by the Required Lenders
that the Adjusted LIBO Rate for such Interest Period will not adequately
and fairly reflect the cost to such Lenders of making or maintaining their
Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.15. Increased Costs. (a) If any Change in Law shall:
43
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or an Issuing Bank; or
(ii) impose on any Lender or an Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans
made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
applicable Issuing Bank of participating in, issuing or maintaining any Letter
of Credit or to reduce the amount of any sum received or receivable by such
Lender or the applicable Issuing Bank hereunder (whether of principal, interest
or otherwise), then the Borrower will pay to such Lender or the applicable
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or such Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender or an Issuing Bank determines that any Change in
Law regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or such Issuing Bank's capital or on the capital
of such Lender's or such Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by such Issuing
Bank, to a level below that which such Lender or such Issuing Bank or such
Lender's or such Issuing Bank's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or such Issuing Bank's
policies and the policies of such Lender's or such Issuing Bank's holding
company with respect to capital adequacy), then from time to time the Borrower
will pay to such Lender or such Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or such Issuing Bank
or such Lender's or such Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth (i)
the amount or amounts necessary to compensate such Lender or such Issuing Bank
or its holding company, as the case may be, as specified in paragraph (a) or (b)
of this Section and (ii) that is such Lender's or Issuing Bank's customary
practice, from and after the date of such certificate, to charge its borrowers
for such increased costs incurred by such Lender or such Issuing Bank, as the
case may be, shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or such Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or an Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or such Issuing Bank's right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender or an Issuing
Bank pursuant to
44
this Section for any increased costs or reductions incurred more than 270 days
prior to the date that such Lender or such Issuing Bank, as the case may be,
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's or such Issuing Bank's intention to claim
compensation therefor; provided further that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the 270-day period
referred to above shall be extended to include the period of retroactive effect
thereof.
SECTION 2.16. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.08 or Section 2.11(d) and is revoked in accordance
therewith) or (d) the assignment of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto as a result of a request by the
Borrower pursuant to Section 2.19, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, such loss, cost or expense to any
Lender shall be deemed to equal an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted LIBO
Rate that would have been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest Period therefor (or,
in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on account of
any obligation of the Borrower hereunder or under any other Loan Document shall
be made free and clear of and without deduction for any Indemnified Taxes or
Other Taxes; provided that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.17) the Administrative Agent, Lender or Issuing Bank (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
45
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the applicable Issuing Bank, within 10 days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent, such Lender or such Issuing Bank, as the case may be,
on or with respect to any payment by or on account of any obligation of the
Borrower hereunder or under any other Loan Document (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section 2.17) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender or the applicable Issuing Bank,
or by the Administrative Agent on its own behalf or on behalf of a Lender or an
Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt, if any, issued by such Governmental Authority evidencing such payment,
a copy of the return, if any, reporting such payment or other evidence of such
payment reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate of withholding, provided that such
Foreign Lender has received written notice from the Borrower advising it of the
availability of such exemption or reduction and supplying all applicable
documentation provided by such jurisdiction.
(f) If the Administrative Agent or a Lender determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section 2.17, it shall pay
over such refund to the Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrower under this Section 2.17 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
reasonable out-of-pocket expenses of the Administrative Agent or such Lender and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided, that the Borrower, upon the
request of the Administrative Agent or such Lender, agrees to repay the amount
paid over to the Borrower (plus any interest imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender in the event
the
46
Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. This Section shall not be construed to require the
Administrative Agent or any Lender to make available its tax returns (or any
other information relating to its taxes which it deems confidential) to the
Borrower or any other Person.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) The Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
2.16 or 2.17, or otherwise) prior to the time expressly required hereunder or
under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 12:00 noon, New York City time), on the date when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, except payments to be made directly to an Issuing Bank or the
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons
entitled thereto and payments pursuant to other Loan Documents shall be made to
the Persons specified therein. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment under
any Loan Document shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments under each Loan Document shall be made in
dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, unreimbursed
LC Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Term Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Revolving Loans, Term Loans
and participations in LC Disbursements and Swingline Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans of other Lenders to the extent necessary so
that the
47
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans; provided that (i) if any such participations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Borrower
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). The Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower
in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or an Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the applicable
Issuing Bank, as the case may be, the amount due. In such event, if the Borrower
has not in fact made such payment, then each of the Lenders or such Issuing
Bank, as the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or 9.03(c),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
48
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous in any material respect to
such Lender. The Borrower hereby agrees to pay all reasonable out-of-pocket
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Commitment is being assigned, each Issuing Bank and the Swingline
Lender), which consent(s) shall not unreasonably be withheld or delayed, (ii)
such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and funded participations in LC Disbursements and
Swingline Loans, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal, funded participations and accrued interest and fees) or the Borrower
(in the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.15 or payments required
to be made pursuant to Section 2.17, such assignment will result in a material
reduction in such compensation or payments. A Lender shall not be required to
make any such assignment and delegation if, prior thereto, as a result of a
waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. The Borrower and each of its
Subsidiaries is duly organized, validly existing and, except where the failure
to do so, individually or in the aggregate, has not had and could not reasonably
be expected to result in a Material Adverse Effect, in good standing under the
laws of the jurisdiction of its incorporation or organization, as applicable,
has all requisite power and authority to carry on its business as now conducted
and, except where the failure to do so, individually or in the aggregate, has
not had and could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions to be
entered into by each Loan Party are within such Loan Party's corporate or other
49
organizational powers and have been duly authorized by all necessary corporate
or other organizational and, if required, stockholder action. This Agreement has
been duly executed and delivered by the Borrower and constitutes, and each other
Loan Document to which any Loan Party is to be a party, when executed and
delivered by such Loan Party, will constitute, a legal, valid and binding
obligation of the Borrower or such Loan Party (as the case may be), enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect and except filings necessary
to perfect Liens created or to be created under the Loan Documents, (b) will not
violate any applicable law or regulation or order of any Governmental Authority
or the charter, by-laws or other organizational documents of the Borrower or any
of its Subsidiaries, (c) will not violate or result in a default under any
indenture or any other material agreement or instrument binding upon the
Borrower or any of its Subsidiaries or its assets, or give rise to a right
thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of the Borrower or any of its Subsidiaries, except Liens created
under the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a)
The Borrower has heretofore furnished to the Lenders its consolidated balance
sheet and statements of operations, stockholders' equity and cash flows (i) as
of and for the fiscal year ended December 31, 2003, reported on by Deloitte &
Touche LLP, independent registered public accounting firm, and (ii) as of and
for the fiscal quarter ended September 30, 2004 and the portion of the fiscal
year then ended, certified by its chief financial officer. Such financial
statements present fairly, in all material respects, the financial position and
results of operations and cash flows of the Borrower and its consolidated
Subsidiaries as of such dates and for such periods in accordance with GAAP,
subject to year-end audit adjustments and the absence of footnotes in the case
of the statements referred to in clause (ii) above.
(b) Except as set forth in the Borrower's filings with the SEC
publicly available prior to December 15, 2004 (the "SEC Documents") or in the
Information Memorandum and except for Disclosed Matters, since December 31,
2003, there has been no event, condition or circumstance that has had or could
reasonably be expected to have a Material Adverse Effect.
SECTION 3.05. Properties. (a) Except as set forth in item 11 of the
Disclosed Matters, the Borrower and each of its Subsidiaries has good title to,
or valid leasehold interests in, all its real and personal property material to
its business, except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
50
(b) The Borrower and each of its Subsidiaries owns, or is licensed
to use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to the business of the Borrower and its Subsidiaries taken as
a whole, and to the knowledge of the Borrower, the use thereof by the Borrower
and its Subsidiaries does not infringe upon the rights of any other Person,
except for any such infringements that, individually or in the aggregate, has
not had and could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) Except as
set forth in the SEC Documents, there are no actions, suits or proceedings by or
before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
of its Subsidiaries (i) as to which there is a reasonable possibility of an
adverse determination and that, if adversely determined, could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect (other than the Disclosed Matters) or (ii) that involve any of the Loan
Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect to
other matters that, individually or in the aggregate, have not had and could not
reasonably be expected to result in a Material Adverse Effect, neither the
Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received written notice of any claim with
respect to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability.
SECTION 3.07. Compliance with Laws and Agreements. The Borrower and
each of its Subsidiaries is in compliance with all laws, regulations and orders
of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, has not had
and could not reasonably be expected to result in a Material Adverse Effect. No
Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither the
Borrower nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. The Borrower and each of its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) any Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so has not had and could not reasonably be expected to
result in a Material Adverse Effect.
51
SECTION 3.10. ERISA. (a) No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed by more than $25,000,000 the fair market value of the assets of such
Plan, and the present value of all accumulated benefit obligations of all Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $25,000,000 the fair
market value of the assets of all such Plans.
(b) Neither the Borrower nor any Subsidiary has established or
currently participates in, contributes to or assumes any liability in respect of
an "occupational pension scheme" (as defined in section 1 of the Xxxxxxx Xxxxxxx
Xxx 0000 (UK)) other than a "money purchase scheme" (as defined in section
181(1) of the Xxxxxxx Xxxxxxx Xxx 0000 (UK)).
SECTION 3.11. Disclosure. Neither the information included or to be
included in the Information Memorandum nor any of the other reports, financial
statements, certificates or other information furnished by or on behalf of any
Loan Party to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or any other Loan Document or delivered hereunder
or thereunder (as modified or supplemented by other written information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, taken as a whole, not misleading;
provided that, with respect to projected financial information, the Borrower
represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time when prepared.
SECTION 3.12. Subsidiaries. Schedule 3.12 sets forth the name of,
and the ownership interest of the Borrower in, each Subsidiary of the Borrower
and identifies each Material Domestic Subsidiary, each Significant Foreign
Subsidiary and each Foreign Subsidiary, in each case as of the Effective Date.
SECTION 3.13. Insurance. Schedule 3.13 sets forth a description of
all insurance maintained by or on behalf of the Borrower and its Subsidiaries as
of the Effective Date. As of the Effective Date, all premiums in respect of such
insurance have been paid. Such insurance is in full force and effect and of the
type that is customary for businesses of the character, nature and size of the
Borrower.
SECTION 3.14. Labor Matters. As of the Effective Date, there are no
strikes, lockouts or slowdowns against the Borrower or any Subsidiary pending
or, to the knowledge of the Borrower, threatened. The hours worked by and
payments made to employees of the Borrower and the Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Federal,
state, local or foreign law dealing
52
with such matters. The consummation of the Transactions will not give rise to
any right of termination or right of renegotiation on the part of any union
under any collective bargaining agreement to which the Borrower or any
Subsidiary is bound.
SECTION 3.15. Solvency. Immediately after the consummation of the
Transactions to occur on the Effective Date and immediately following the making
of each Loan made on the Effective Date and after giving effect to the
application of the proceeds of such Loans, (a) the fair value of the assets of
the Borrower and the other Loan Parties on a consolidated basis, at a fair
valuation, will exceed their debts and liabilities, subordinated, contingent or
otherwise; (b) the present fair saleable value of the property of the Borrower
and the other Loan Parties on a consolidated basis will be greater than the
amount that will be required to pay the probable liability of their debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) the Borrower and the other
Loan Parties 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) the Borrower and the other Loan
Parties on a consolidated basis will not have unreasonably small capital with
which to conduct the business in which they are engaged as such business is now
conducted and is proposed to be conducted following the Effective Date.
SECTION 3.16. Security Interests. (a) The Collateral Agreement is
effective to create in favor of the Collateral Agent for the ratable benefit of
the Secured Parties (as defined in the Collateral Agreement) a valid and
enforceable security interest in the Collateral (as defined therein) and the
proceeds thereof and (i) when the Collateral (as defined therein) constituting
certificated securities (as defined in the Uniform Commercial Code) is delivered
to the Collateral Agent thereunder together with instruments of transfer duly
endorsed in blank, the security interest of the Collateral Agent therein will
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the pledgors in such Collateral, prior and superior in right to
any other Person (it being understood that no representation is made under this
clause (i) as to (A) any such Collateral that is subject to a Foreign Pledge
Agreement or (B) the perfection or priority of any Lien to the extent that such
perfection or priority is determined under the law of a jurisdiction outside the
United States, which are covered by paragraph (b) below), and (ii) when
financing statements in appropriate form are filed in the offices specified in
the Perfection Certificate, the security interest of the Collateral Agent will
constitute a fully perfected Lien on and security interest in all right, title
and interest of the Grantors (as defined in the Collateral Agreement) in the
remaining Collateral (as defined therein) and the proceeds thereof to the extent
perfection can be obtained by filing Uniform Commercial Code financing
statements, prior and superior to the rights of any other Person.
(b) After execution and delivery thereof and the taking of the
actions specified for perfection therein, each Foreign Pledge Agreement will be
effective under applicable law to create in favor of the Collateral Agent for
the ratable benefit of the Secured Parties a valid and enforceable security
interest in the Collateral subject thereto, and will constitute a fully
perfected Lien on and security interest in all right, title and
53
interest of the Loan Parties in the collateral subject thereto, prior and
superior to the rights of any other Person.
(c) When the Collateral Agreement or a summary thereof is properly
filed in the United States Patent and Trademark Office and the United States
Copyright Office, and, with respect to Collateral in which a security interest
cannot be perfected by such filings, upon the proper filing of the financing
statements referred to in paragraph (a) above, the Collateral Agreement and such
financing statements shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the grantors thereunder in the
Intellectual Property (as defined in the Collateral Agreement), in each case
prior and superior in right to any other Person (it being understood that
subsequent recordings in the United States Patent and Trademark Office and the
United States Copyright Office may be necessary to perfect a lien on registered
trademarks and patents, trademark and patent applications and registered
copyrights acquired by the grantors after the date hereof).
SECTION 3.17. Use of Proceeds. The Borrower will use the proceeds of
the Loans and will request the issuance of Letters of Credit only for the
purposes set forth in Section 5.10.
SECTION 3.18. Federal Reserve Regulation. No part of the proceeds of
any of the Loans will be used for any purpose which violates or is inconsistent
with the provisions of Regulation T, U or X of the Board. None of Borrower or
any of its Subsidiaries is engaged or will engage, principally or as one of its
important activities, in the business of extending credit for the purpose of
"purchasing" or "carrying" any "margin stock" within the meaning of Regulation
U. As of the Effective Date, no more than 25% of the value of the assets of the
Borrower, or of the Borrower and its Subsidiaries taken as a whole, which are
subject to the restrictions contained in Article VI would constitute Margin
Stock. If the proceeds of any Loans are to be used in a manner which would cause
such Loans to be classified as "purpose credits" under Regulation U, then at the
time of the making of such Loans and at the time of the making of each Loan
thereafter (after applying the proceeds of all Loans then being or theretofore
made), no more than 25% of the value of the assets of the Borrower, or of the
Borrower and its Subsidiaries taken as a whole, which are subject to the
restrictions contained in Article VI shall constitute Margin Stock.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to make
Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party
54
or (ii) written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this Agreement) that
such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received favorable written
opinions (addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of Xxxxxx & Xxxxxxx L.L.P., counsel for the Borrower, and of
Xxxxx Xxxx, General Counsel of the Borrower, substantially in the forms of
Exhibit B-1 and Exhibit B-2, respectively. The Borrower hereby requests such
counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of each Loan Party,
the authorization of the Transactions and any other legal matters relating to
the Loan Parties, the Loan Documents or the Transactions, all in form and
substance reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the Chief Executive Officer or a
Financial Officer of the Borrower, confirming compliance with the conditions set
forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses
(including reasonable fees, charges and disbursements of counsel) required to be
reimbursed or paid by any Loan Party hereunder or under any other Loan Document.
(f) (i) The Collateral and Guarantee Requirement (other than the
Deferred Collateral Requirement) shall have been satisfied, (ii) the
Administrative Agent shall have received a completed Perfection Certificate
dated the Effective Date and signed by an executive officer or Financial Officer
of the Borrower, together with all attachments contemplated thereby (including
the results of searches under the Uniform Commercial Code), (iii) the Borrower
shall have delivered, and caused each Subsidiary Loan Party to deliver, to the
Collateral Agent all certificates, if any, representing Equity Interests
required to be pledged pursuant to the Collateral and Guarantee Requirement
(other than Equity Interests of Significant Foreign Subsidiaries the pledge of
which is covered by the Deferred Collateral Requirement) and (iv) the Collateral
Agent, for the ratable benefit of the Lenders, shall have a fully perfected
first priority Lien on, and security interest in, the Collateral (other than in
any Equity Interests of Significant Foreign Subsidiaries covered by the Deferred
Collateral Requirement).
(g) All consents and approvals required to be obtained from any
Governmental Authority or other Person in connection with the Transactions shall
have been obtained and shall be in full force and effect.
55
(h) The Existing Credit Agreement shall have been terminated and all
amounts outstanding or owed thereunder shall have been repaid or shall be repaid
substantially simultaneously with the making of the initial Loans hereunder and
all Liens and security interests securing obligations under the Existing Credit
Agreement shall have been released effective upon such repayment, in each case
pursuant to arrangements reasonably satisfactory to the Administrative Agent.
(i) All amounts outstanding or owed under the Bridge Loan Agreement
shall have been repaid or shall be repaid substantially simultaneously with the
making of the initial Loans hereunder pursuant to arrangements reasonably
satisfactory to the Administrative Agent.
(j) The Borrower and each Subsidiary that has made loans or advances
to any Loan party shall have executed and delivered the Affiliate Subordination
Agreement.
(k) Fleet Business Credit, LLC, shall have executed and delivered an
intercreditor agreement with the Administrative Agent, acting on behalf of the
Lenders, relating to the SAP Financing and the security therefor, on
substantially the same terms as the Intercreditor Agreement dated March 31,
2004, relating to the Existing Credit Agreement, and otherwise reasonably
satisfactory to the Administrative Agent.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of the Issuing Banks to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 12:00 p.m., New York City time, on
December 31, 2004 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to
make a Loan on the occasion of any Borrowing, and of an Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to receipt of the
request therefor in accordance herewith and to the satisfaction of the following
conditions:
(a) The representations and warranties of each Loan Party set forth
in the Loan Documents shall be true and correct in all material respects on and
as of the date of such Borrowing or the date of issuance, amendment, renewal or
extension of such Letter of Credit (or, if any such representation or warranty
is expressly stated to have been made only as of a specific date, as of such
specific date).
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
56
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower
but in any event not later than five days after the date on which the Borrower
files its related Annual Report on Form 10-K with the SEC, its audited
consolidated balance sheet and related audited statements of operations,
stockholders' equity and cash flows as of the end of and for such year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all reported on by Ernst & Young LLP or other independent registered public
accounting firm of recognized national standing (without a "going concern" or
like qualification or exception and without any qualification or exception as to
the scope of such audit) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP (it being understood that such
financial statements and opinion may be furnished, if included therein, in the
form of the Borrower's Annual Report on Form 10-K and any related Annual Report
delivered to stockholders and filed with the Securities and Exchange
Commission);
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower but in any event not later than
five days after the date on which the Borrower files its Quarterly Report on
Form 10-Q relating to such fiscal quarter with the SEC, its consolidated balance
sheet and related statements of operations, stockholders' equity and cash flows
as of the end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial condition
and results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP, subject to normal year-end audit
adjustments and the absence of footnotes (it being understood that such
financial statements may be furnished, if included therein, in the form of the
Borrower's Quarterly Report on Form 10-Q filed with the Securities and Exchange
Commission);
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the Borrower
(i) certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or proposed to be
taken with respect thereto, (ii) identifying
57
any Subsidiary formed or acquired during the most recent fiscal quarter covered
by such financial statements, and stating whether the Collateral and Guarantee
Requirement has been satisfied in respect of such Subsidiary, (iii) setting
forth reasonably detailed calculations identifying the Significant Foreign
Subsidiaries and Material Domestic Subsidiaries as of the end of the fiscal
quarters most recently ended, (iv) setting forth reasonably detailed
calculations demonstrating compliance with Sections 6.13, 6.14, 6.15 and 6.16
and (v) stating whether any change in GAAP or in the application thereof has
occurred since (A) with respect to the initial set of financial statements
delivered hereunder, the date of the Borrower's audited financial statements
referred to in Section 3.04, and (B) thereafter, the date of the Borrower's
previously delivered financial statements referred to in Section 5.01(a), and,
if any such change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on such
financial statements stating whether they obtained knowledge during the course
of their examination of such financial statements of any Default (which
certificate may be limited to the extent required by accounting rules or
guidelines);
(e) promptly after the same become publicly available, copies of all
periodic and current reports and proxy statements filed by the Borrower or any
Subsidiary with the SEC or distributed by the Borrower to its shareholders
generally; and
(f) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of, the
Borrower or any Subsidiary, or compliance with the terms of any Loan Document,
as the Administrative Agent or any Lender may reasonably request.
Reports and other information required to be delivered pursuant to subsections
(a), (b) and (e) of this Section 5.01 shall be deemed to have been delivered on
the date on which the Borrower posts such reports on its website at
xxx.xxxxxx.xxx or when such reports are posted on the SEC's website at
xxx.xxx.xxx; provided that the Borrower shall deliver to the Administrative
Agent at the time such financial statements are made available the certification
of a Financial Officer, as required by paragraph (b) above, and, in the case of
annual financial statements, the certification required by paragraph (c) above.
SECTION 5.02. Notices of Material Events. The Borrower will furnish
to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting the
Borrower or any Subsidiary that, if adversely determined, could reasonably be
expected to result in a Material Adverse Effect;
58
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding $10,000,000;
(d) (i) the receipt by the Borrower or any Subsidiary of a Pensions
Notice from the Pensions Regulator, (ii) the Borrower or any Subsidiary becoming
aware that the Pensions Regulator intends to start or has started any
investigation which the Borrower or such Subsidiary has reasonable grounds to
consider is reasonably likely to lead to the issue of a Pensions Notice to the
Borrower or any Subsidiary or (iii) any payment made by the Borrower or any
Subsidiary pursuant to a Pensions Notice (other than a Pensions Notice to which
paragraph (d)(i) applies) within 30 days of receipt of such Pensions Notice by
the Borrower or such Subsidiary; and
(e) any other event or occurrence that results in, or could
reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Information Regarding Collateral. (a) The Borrower
will furnish to the Administrative Agent prompt written notice of any change (i)
in any Loan Party's legal name, (ii) in any Loan Party's identity, form of
organization or jurisdiction of organization or (iii) in any Loan Party's
Federal Taxpayer Identification Number or identifying number (if any) assigned
by the jurisdiction of its organization. The Borrower agrees not to effect or
permit any change referred to in the preceding sentence unless all filings have
been made under the Uniform Commercial Code or otherwise that are required in
order for the Administrative Agent to continue at all times following such
change to have a valid, legal and perfected first priority security interest in
all the Collateral.
(b) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to clause (a) of
Section 5.01, the Borrower shall deliver to the Administrative Agent a
certificate of a Financial Officer of the Borrower (i) setting forth the
information required pursuant to Schedule 5.03 or confirming that there has been
no change in such information since the date of the Perfection Certificate
delivered on the Effective Date or the date of the most recent certificate
delivered pursuant to this Section and (ii) certifying that all appropriate
filings, recordings or registrations, including all refilings, rerecordings and
reregistrations, containing a description of the Collateral have been filed of
record in each governmental, municipal or other appropriate office in each
jurisdiction identified pursuant to clause (i) above to the extent necessary to
protect and perfect the security interests under the Collateral Agreement for a
period of not less than 18 months after the date of such certificate (except as
noted therein with respect to any continuation statements to be filed within
such period).
59
SECTION 5.04. Existence; Conduct of Business. The Borrower will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names material to the conduct of its business;
provided that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 6.03(a).
SECTION 5.05. Payment of Obligations. The Borrower will, and will
cause each of its Subsidiaries to, pay its Taxes and other material obligations
(other than Indebtedness), before the same shall become delinquent or in
default, except where (a) the validity or amount thereof is being contested in
good faith by appropriate proceedings, and the Borrower or such Subsidiary has
set aside on its books adequate reserves with respect thereto in accordance with
GAAP and (b) the failure to make payment could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 5.06. Maintenance of Properties. The Borrower will, and will
cause each of its Subsidiaries to, keep and maintain all property material to
the conduct of its business in good working order and condition, ordinary wear
and tear excepted. In addition, the Borrower will, and will cause each of its
Subsidiaries to, from time to time make or cause to be made all appropriate
repairs, renewals and replacements, except where the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.07. Insurance. The Borrower will, and will cause each of
its Subsidiaries to, maintain, with financially sound and reputable insurance
companies (a) insurance in such amounts (with no greater risk retention) and
against such risks as are customarily maintained by companies of established
repute engaged in the same or similar businesses operating in the same or
similar locations and (b) all insurance required to be maintained pursuant to
the Security Documents. The Borrower will furnish to the Lenders, upon request
of the Administrative Agent, information in reasonable detail as to the
insurance so maintained.
SECTION 5.08. Books and Records; Inspection and Audit Rights. The
Borrower will, and will cause each of its Subsidiaries to, keep proper books of
record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities. The
Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior written notice, to visit and inspect its properties, to examine
and make extracts from its books and records, and to discuss its affairs,
finances and condition with its officers and independent accountants, all at
such reasonable times during normal business hours and as often as reasonably
requested.
SECTION 5.09. Compliance with Laws. The Borrower will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
60
SECTION 5.10. Use of Proceeds and Letters of Credit. The proceeds of
the Term Loans and the Revolving Loans made on the Effective Date will be used
only for (a) the payment of amounts, including principal, interest, costs, fees
and expenses, outstanding or payable under the Existing Credit Agreement and the
Bridge Loan Agreement and (b) the payment of fees and expenses payable in
connection with the Transactions. The Revolving Loans made after the Effective
Date and Swingline Loans will be used only for general corporate purposes,
including working capital purposes. Letters of Credit will be issued only to
support payment obligations incurred in the ordinary course of business. No part
of the proceeds of any Loan will be used, whether directly or indirectly, for
any purpose that entails a violation of any of the Regulations of the Board,
including Regulations U and X.
SECTION 5.11. Additional Subsidiaries. If any Subsidiary is formed
or acquired after the Effective Date, the Borrower will, within three Business
Days after such Subsidiary is formed or acquired, notify the Administrative
Agent and the Lenders thereof and within 10 Business Days after such Subsidiary
is formed or acquired cause the Collateral and Guarantee Requirement to be
satisfied with respect to such Subsidiary (if it is a Subsidiary Loan Party) and
(unless the Collateral Release Event has occurred) with respect to any Equity
Interest in such Subsidiary, if it is a Material Domestic Subsidiary or a
Significant Foreign Subsidiary, owned by or on behalf of any Loan Party (subject
to the limits on Significant Foreign Subsidiaries set forth in clause (b) of the
definition of "Collateral and Guarantee Requirement" and in the Collateral
Agreement).
SECTION 5.12. Further Assurances. (a) The Borrower will, and will
cause each Subsidiary Loan Party to, execute any and all further documents,
agreements and instruments, and take all such further actions, which may be
required under any applicable law, or which the Administrative Agent or the
Required Lenders may reasonably request, to cause the Collateral and Guarantee
Requirement to be and remain satisfied, all at the expense of the Loan Parties.
(b) If any material assets (excluding any real property or
improvements thereto or any interest therein) are acquired by the Borrower or
any Subsidiary Loan Party after the Effective Date and prior to the Collateral
Release Event occurring (other than assets constituting Collateral under the
Collateral Agreement that become subject to the Lien of the Collateral Agreement
upon acquisition thereof), the Borrower will notify the Administrative Agent and
the Lenders thereof, and, if requested by the Administrative Agent or the
Required Lenders, the Borrower will cause such assets to be subjected to a Lien
securing the Obligations and will take, and cause the Subsidiary Loan Parties to
take, such actions as shall be necessary or reasonably requested by the
Administrative Agent to grant and perfect such Liens, including actions
described in paragraph (a) of this Section, all at the expense of the Loan
Parties.
SECTION 5.13. Deferred Collateral Requirement. The Borrower will
cause the Deferred Collateral Requirement to be fully satisfied by February 16,
2005 and will use its commercially reasonable efforts to cause such requirement
to be satisfied as far in advance of such date as reasonably practicable. In
connection with the satisfaction of the Deferred Collateral Requirement, the
Borrower will engage appropriate foreign
61
counsel reasonably acceptable to the Administrative Agent to prepare and deliver
to the Administrative Agent and the Lenders such opinions as to the Foreign
Pledge Agreements, the validity, perfection and enforceability of the security
interests to be created thereunder and such other matters relating thereto as
the Administrative Agent may reasonably request; provided that, if and to the
extent the Administrative Agent so agrees, such opinions may be furnished by
foreign counsel to the Administrative Agent and the Lenders rather than foreign
counsel to the Borrower.
SECTION 5.14. Significant Subsidiaries. The Borrower will from time
to time designate such Foreign Subsidiaries as Significant Foreign Subsidiaries
as shall be required so that at no time shall the Foreign Subsidiaries that are
not Significant Foreign Subsidiaries, taken together with their consolidated
subsidiaries, (A) account for 10% or more of the total consolidated assets of
the Borrower, (B) account for 10% or more of the shareholders' equity of the
Borrower, or (C) have accounted for 15% or more of total revenues of the
Borrower for the four-fiscal-quarter period immediately preceding the date of
determination, in each case after giving effect to the designation of any
Significant Foreign Subsidiary on any date as of which compliance with this
Section 5.14 is being determined.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable hereunder have been paid in
full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees with
the Lenders that:
SECTION 6.01. Indebtedness; Certain Equity Securities. (a) The
Borrower will not, and will not permit any Subsidiary to, create, incur, assume
or permit to exist any Indebtedness or any Attributable Debt in respect of Sale
and Leaseback Transactions, except:
(i) Indebtedness created under the Loan Documents and unsecured
Indebtedness of the Borrower, the Net Proceeds of which are used solely to
prepay Term Loans;
(ii) Indebtedness existing on the date hereof and, in the case of
Indebtedness owed to Persons other than the Borrower or Subsidiaries in a
principal amount in excess of $1,000,000, set forth on Schedule 6.01;
(iii) Permitted Subordinated Indebtedness; provided that such
Indebtedness is permitted pursuant to Section 6.14;
(iv) unsecured Indebtedness of the Borrower or any Domestic
Subsidiaries in addition to the Indebtedness permitted above and
Indebtedness of the Foreign Subsidiaries (other than Indebtedness owed to
the Borrower or Domestic
62
Subsidiaries); provided that the aggregate principal amount of
Indebtedness permitted by this clause shall not exceed $30,000,000 at any
time outstanding;
(v) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary; provided that (x) such
Indebtedness owed by any Loan Party is subordinated to the Obligations in
accordance with the provisions of an Affiliate Subordination Agreement
substantially in the form of Exhibit D hereto and (y) Indebtedness of any
Subsidiary that is not a Loan Party to the Borrower or any Subsidiary Loan
Party shall be subject to Section 6.04;
(vi) Indebtedness and Attributable Debt of the Borrower or any
Domestic Subsidiary incurred to finance the acquisition, construction or
improvement of any fixed or capital assets (other than capitalized
intangible assets), including Capital Lease Obligations, any Indebtedness
assumed in connection with the acquisition of any such assets or secured
by a Lien on any such assets prior to the acquisition thereof (or prior to
the acquisition of any Subsidiary holding such assets, provided that such
Indebtedness or Attributable Debt was not incurred in contemplation
thereof) and Attributable Debt in connection with Sale and Leaseback
Transactions permitted by Section 6.06, provided that (x) such
Indebtedness or Attributable Debt is incurred prior to or within 90 days
after such acquisition or the completion of such construction or
improvement, and (y) the amount of such Indebtedness or Attributable Debt
does not exceed the cost of acquiring, constructing or improving such
assets, and (z) the aggregate principal amount of Indebtedness permitted
by this clause (viii) and Attributable Debt in connection with Sale and
Leaseback Transactions permitted by Section 6.06, together with any
Refinancing Indebtedness in respect thereof permitted by clause (vii)
below, shall not exceed $20,000,000 at any time outstanding;
(vii) Refinancing Indebtedness in respect of the Indebtedness
provided by clauses (ii), and (vi);
(viii) Guarantees by the Borrower or other Loan Parties of
Indebtedness of Loan Parties or, to the extent permitted by Section
6.04(c), of Foreign Subsidiaries and Domestic Subsidiaries that are not
Subsidiary Loan Parties; and
(ix) (A) Indebtedness constituting "Purchase Advances" (as defined
in the Receivables Purchase Agreement as in effect on the Effective Date)
made under the Receivables Purchase Agreement under the Bank of Tokyo
Securitization as of the Effective Date and (B) Indebtedness incurred by
Symbolease, Inc. or Symbol Funding LLC from time to time under the Bank of
Tokyo Securitization, in each case to the extent permitted by Section
6.05(c).
(b) The Borrower will not permit any Domestic Subsidiary or
Significant Foreign Subsidiary to issue any preferred Equity Interests other
than to the Borrower or any Subsidiary; provided that, if the Collateral Release
Event has not yet occurred, any such preferred Equity Interests issued to the
Borrower or any Subsidiary Loan Party shall
63
be pledged pursuant to the terms of the Collateral Agreement or, in the case of
Equity Interests of Significant Foreign Subsidiaries, a Foreign Pledge
Agreement.
SECTION 6.02. Liens. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(i) Liens created under the Loan Documents;
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 6.02;
provided that any such Lien shall secure only Indebtedness or obligations
which it secures on the date hereof or any Refinancing Indebtedness
permitted in respect of any such Indebtedness or any refinancing of any
such other obligation not constituting Indebtedness that does not
significantly increase the amount thereof;
(iv) Liens on fixed or capital assets (other than intangible assets)
acquired, constructed or improved by the Borrower or any Subsidiary after
the date hereof; provided that (A) such security interests secure
Indebtedness permitted by clause (vi) of Section 6.01(a) or refinancings
thereof permitted by clause (vii) of Section 6.01(a), (B) such security
interests and the Indebtedness secured thereby are incurred prior to or
within 90 days after such acquisition or the completion of such
construction or improvement, (C) the Indebtedness secured thereby does not
exceed the cost of acquiring, constructing or improving such fixed or
capital assets and (D) such security interests shall not apply to any
other property or assets of the Borrower or any Subsidiary;
(v) Liens on assets of Subsidiaries acquired after the Effective
Date existing at the time of such acquisition and not incurred in
contemplation thereof securing Indebtedness permitted by Section
6.01(a)(vi);
(vi) Liens on assets of Foreign Subsidiaries securing Indebtedness
of Foreign Subsidiaries permitted by Section 6.01(a)(iv);
(vii) Liens on assets of Loan Parties not constituting Collateral
securing Indebtedness permitted by Section 6.01(a)(v) of such Loan Parties
owed to other Loan Parties; provided such Indebtedness and all related
collateral rights have been duly pledged under the Collateral Agreement;
and
(viii) Liens created from time to time under the Bank of Tokyo
Securitization on any "Secured Assets", as defined in the Intercreditor
Agreement.
SECTION 6.03. Fundamental Changes. (a) The Borrower will not, and
will not permit any Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
liquidate or dissolve,
64
except that, if at the time thereof and immediately after giving effect thereto
no Default shall have occurred and be continuing, (i) (a) any wholly owned
Domestic Subsidiary may merge or consolidate with the Borrower in a transaction
in which the Borrower is the surviving entity and (b) the Borrower may merge or
consolidate with any other Person so long as the Borrower is the surviving
entity or the surviving corporation (if the surviving corporation is not the
Borrower) shall be organized under the laws of a state of the United States of
America or the District of Columbia and shall assume all of the Loans and other
obligations of the Borrower under this Agreement pursuant to a written
instrument satisfactory to the Administrative Agent and shall cause to be
delivered such opinions of counsel satisfactory to the Administrative Agent as
the Administrative Agent shall reasonably request relating to such merger and
assumption, (ii) any Person may merge or consolidate with any Subsidiary in a
transaction in which the surviving entity is a Subsidiary and (if any party to
such merger is a Subsidiary Loan Party) is a Subsidiary Loan Party and (iii) any
Subsidiary (other than a Subsidiary Loan Party) may liquidate or dissolve if the
Borrower determines in good faith that such liquidation or dissolution is in the
best interests of the Borrower and is not materially disadvantageous to the
Lenders; provided, in each case that any such merger or consolidation involving
a Person that is not a wholly owned Subsidiary immediately prior to such merger
shall not be permitted unless also permitted by Section 6.04.
(b) Symbolease, Inc. will not engage in any business or activity
other than the ownership of all the outstanding Equity Interests in Symbol
Funding LLC, the leasing business presently conducted by it in connection with
the Bank of Tokyo Securitization and activities incidental thereto. Symbolease,
Inc. will not own or acquire any assets (other than Equity Interests in Symbol
Funding LLC, assets used in such leasing business or assets owned or acquired
pursuant to the Bank of Tokyo Securitization) or incur any liabilities (other
than liabilities under the Loan Documents, liabilities incurred consistent with
its past practices in such leasing business or pursuant to the Bank of Tokyo
Securitization, liabilities imposed by law, including tax liabilities and other
liabilities (not including Indebtedness) incidental to its existence and
permitted business and activities).
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries
to, purchase, hold, acquire, make or permit to exist any Investment, except:
(a) Permitted Investments;
(b) Investments (other than in Subsidiaries) existing on the date
hereof;
(c) Investments by the Borrower and its Subsidiaries in Equity
Interests in their Subsidiaries; provided that (i) any such Equity Interests
held by a Loan Party in a Material Domestic Subsidiary or a Significant Foreign
Subsidiary shall, if the Collateral Release Event has not yet occurred, be
pledged pursuant to the Collateral Agreement or a Foreign Pledge Agreement
(subject to the limitations applicable to Equity Interests of a Significant
Foreign Subsidiary referred to in the definition of "Collateral and Guarantee
Requirement") and (ii) the aggregate cumulative amount of Investments by Loan
Parties in, and loans and advances by Loan Parties to, and guarantees by Loan
Parties of
65
Indebtedness or other obligations of, Foreign Subsidiaries or Domestic
Subsidiaries that are not Subsidiary Loan Parties (excluding any such equity
Investments existing on the Effective Date and any such loans, advances or
guarantees existing on the Effective Date and set forth on Schedule 6.01), shall
not exceed $25,000,000 at any time outstanding; provided further, however, that
the Equity Interests in Symbol de Mexico, S. De X. X. De C.V. may be transferred
to any Subsidiary and the amount of such Investment shall be excluded in
determining compliance with such $25,000,000 limit;
(d) loans or advances made by the Borrower to any Subsidiary and
made by any Subsidiary to the Borrower or any other Subsidiary; provided that
(i) such loans or advances comply with the applicable provisions of Section
6.01(a) and (ii) the amount of such loans and advances made by Loan Parties to
Foreign Subsidiaries and Domestic Subsidiaries that are not Subsidiary Loan
Parties shall be subject to the limitation set forth in clause (c) above;
(e) Investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(f) Permitted Acquisitions; provided, however, that (i) no Permitted
Acquisition involving Permitted Acquisition Consideration in excess of
$20,000,000 will be effected without the prior written approval of the Required
Lenders and (ii) the cumulative aggregate amount of Permitted Acquisition
Consideration for all Permitted Acquisitions after the Effective Date shall not
exceed $50,000,000 in any fiscal year;
(g) Investments consisting of non-cash consideration permitted to be
received in respect of sales or dispositions of assets permitted by Section
6.05;
(h) other Investments in an aggregate cumulative amount not in
excess of $15,000,000; and
(i) Investments created by Symbolease, Inc. or Symbol Funding LLC
from time to time under the Bank of Tokyo Securitization.
SECTION 6.05. Asset Sales. The Borrower will not, and will not
permit any of its Subsidiaries to, sell, transfer, lease or otherwise dispose of
(in one transaction or a series of transactions) any asset, or any Equity
Interest owned by it, nor will the Borrower permit any of its Subsidiaries to
issue any additional Equity Interest in such Subsidiary (other than (x) in the
case of Symbol Technologies, C.V., to the Borrower or any Material Domestic
Subsidiary all the outstanding stock of which has been pledged pursuant to the
Collateral Agreement and (y) otherwise, to the Borrower or a Subsidiary),
except:
(a) sales of inventory, used or surplus equipment and Permitted
Investments in the ordinary course of business;
(b) sales, transfers and dispositions to the Borrower or a
Subsidiary; provided that (i) any such sales, transfers or dispositions
involving a Subsidiary
66
that is not a Loan Party shall be made in compliance with Section 6.09,
and (ii) the Loan Parties will not sell or transfer any Collateral (other
than any Equity Interests held by the Borrower in Symbol de Mexico, S. de
X.X. de C.V.) or any material intellectual property to Subsidiaries that
are not Subsidiary Loan Parties; and
(c) sales or transfers of "Pool Receivables" and "Related Assets"
(as each term is defined in the Receivables Purchase Agreement as in
effect on the Effective Date) and all proceeds of the foregoing under the
Purchase and Sale Agreement; provided that the aggregate principal amount
of "Purchase Advances" (as defined in the Receivables Purchase Agreement
as in effect on the Effective Date) made under the Receivables Purchase
Agreement in any period of four consecutive fiscal quarters shall not
exceed $15,000,000; and
(d) sales, transfers and other dispositions of assets (other than
Equity Interests in a Subsidiary) to Persons other than Affiliates that
are not permitted by any other clause of this Section; provided that the
cumulative aggregate fair market value of all assets sold, transferred or
otherwise disposed of in reliance upon this clause (d) (determined at the
time of any such sale or disposition and without regard to subsequent
changes in such value) shall not exceed $25,000,000;
provided that all sales, transfers, leases and other dispositions permitted
hereby (i) shall (except in the case of those permitted by clause (b) above) be
made for fair value and (ii) shall be made solely for consideration of which at
least 75% thereof is in cash or cash equivalents (provided that sales of
Permitted Investments shall be made solely for cash or cash equivalents).
SECTION 6.06. Sale and Leaseback Transactions. The Borrower will
not, and will not permit any of its Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereinafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
sold or transferred (a "Sale and Leaseback Transaction"), except for any such
sale of any fixed or capital assets that is made for cash consideration in an
amount not less than the cost of such fixed or capital asset and is consummated
within 90 days after the Borrower or such Subsidiary acquires or completes the
construction of such fixed or capital asset; provided that the amount of
Attributable Debt in respect of all such Sale and Leaseback Transactions, when
taken together with all other Indebtedness permitted by Section 6.01(a)(vi),
does not at any time exceed $20,000,000.
SECTION 6.07. Hedging Agreements. The Borrower will not, and will
not permit any of its Subsidiaries to, enter into any Hedging Agreement, other
than Hedging Agreements entered into in the ordinary course of business to hedge
or mitigate risks to which the Borrower or any Subsidiary is exposed in the
conduct of its business or the management of its liabilities.
67
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness.
(a) The Borrower will not, and will not permit any Subsidiary to, declare or
make, or agree to pay or make, directly or indirectly, any Restricted Payment,
or incur any obligation (contingent or otherwise) to do so, except (i) the
Borrower may declare and pay dividends with respect to its capital stock payable
solely in additional shares of its common stock, (ii) Subsidiaries may declare
and pay dividends ratably with respect to their capital stock, (iii) the
Borrower may make Restricted Payments consisting of repurchases of shares of its
common stock pursuant to or in connection with stock purchase plans for
employees of the Borrower and its Subsidiaries, in an aggregate amount in any
fiscal year not exceeding $5,000,000 plus the amount received from employees
during such fiscal year in payment of the purchase price of shares acquired by
them under such stock purchase plans, (iv) so long as no Default has occurred
and is continuing at the times such Restricted Payment is declared and paid, the
Borrower may pay cash dividends on its common stock in an aggregate amount not
exceeding $8,000,000 in any fiscal year and (v) so long as no Default has
occurred and is continuing at the time of any such repurchase, the Borrower may
effect cash repurchases of shares of its common stock in any period of four
consecutive fiscal quarters in an aggregate amount not in excess of (x)
$20,000,000 plus the aggregate amount of cash received by the Borrower during
such period from the exercise of employee stock options, provided that the
aggregate amount of shares repurchased pursuant to this subclause (v)(x) in any
such period shall not exceed the number of shares issued by the Borrower during
such period upon the exercise of employee stock options, plus (y)(1) an
additional $25,000,000, provided that (I) no repurchases may be made under this
clause (v)(y)(1) until the Borrower has delivered audited financial statements
for the fiscal year ending December 31, 2005, pursuant to Section 5.01(a), or at
any time when the Leverage Ratio is greater than 1.0 to 1.0 and (II) immediately
after giving effect to any such repurchases under this clause (v)(y)(1), the
Borrower's Unrestricted Domestic Cash will not be less than an amount equal to
$50,000,000 plus the amount of the outstanding Term Loans at such time, or (2)
any additional amount, provided that (A) no repurchases may be made under this
clause (v)(y)(2) until the Borrower has delivered audited financial statements
for the fiscal year ending December 31, 2005, pursuant to Section 5.01(a), or at
any time when any Term Loan remains outstanding or the Leverage Ratio is greater
than 1.0 to 1.0 and (B) immediately after giving effect to any such repurchases
under this clause (v)(y)(2), the Borrower's Unrestricted Domestic Cash will not
be less than $50,000,000 and the amount of the outstanding Revolving Loans at
such time will not exceed $25,000,000.
(b) The Borrower will not, and will not permit any Subsidiary to,
make or agree to pay or make, directly or indirectly, any payment or other
distribution (whether in cash, securities or other property) of or in respect of
principal of or interest on any Indebtedness (including the SAILs Debt), or any
payment or other distribution (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of any
Indebtedness (including the SAILs Debt), except:
(i) payment of Indebtedness created under the Loan Documents;
68
(ii) payment of regularly scheduled interest and principal payments
as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by
Section 6.01; and
(iv) payment of secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such
Indebtedness.
SECTION 6.09. Transactions with Affiliates. The Borrower will not,
and will not permit any Subsidiary to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (i) transactions in the ordinary course of business that are
at prices and on terms and conditions not less favorable to the Borrower or such
Subsidiary than could be obtained on an arm's-length basis from unrelated third
parties, (ii) transactions between or among the Borrower and the Subsidiary Loan
Parties not involving any other Affiliate, and (iii) Restricted Payments
permitted pursuant to Section 6.08 and (iv) transactions contemplated by the
Bank of Tokyo Securitization among the parties to the Receivables Purchase
Agreement as in effect on the Effective Date.
SECTION 6.10. Restrictive Agreements. The Borrower will not, and
will not permit any Subsidiary to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of the Borrower or any Subsidiary to
create, incur or permit to exist any Lien upon any of its property or assets, or
(b) the ability of any Subsidiary to pay dividends or other distributions with
respect to any shares of its capital stock or to make or repay loans or advances
to the Borrower or any other Subsidiary or to Guarantee Indebtedness of the
Borrower or any other Subsidiary; provided that (i) the foregoing shall not
apply to restrictions and conditions imposed by law or by any Loan Document,
(ii) the foregoing shall not apply to restrictions and conditions existing on
the date hereof identified on Schedule 6.10 (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such
restriction or condition), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness and (v) clause (a) of the foregoing shall not
apply to customary provisions in leases restricting the assignment or subletting
thereof.
SECTION 6.11. Amendment of Material Documents. The Borrower will
not, and will not permit any Subsidiary to, amend, modify or waive any of its
rights or increase its obligations under (a) its certificate of incorporation,
by-laws or other organizational documents or (b) the agreements and instruments
governing the SAILs Debt, the Bank of Tokyo Securitization or the SAP Financing,
in each case in any manner
69
that could reasonably be expected to adversely affect the interests of the
Lenders in any significant respect.
SECTION 6.12. Pension Schemes. The Borrower will not, and will not
permit any Subsidiary to, establish, participate in, contribute to or assume any
liability in respect of an "occupational pension scheme" (as defined in section
1 of the Xxxxxxx Xxxxxxx Xxx 0000 (UK)) other than a "money purchase scheme" (as
defined in section 181(1) of the Xxxxxxx Xxxxxxx Xxx 0000 (UK)).
SECTION 6.13. Fixed Charge Coverage Ratio. The Borrower will not
permit the Fixed Charge Coverage Ratio for any period of four consecutive fiscal
quarters to be less than 1.50 to 1.00.
SECTION 6.14. Leverage Ratio. The Borrower will not permit the
Leverage Ratio as of any date to exceed 2.50 to 1.00.
SECTION 6.15. Senior Leverage Ratio. The Borrower will not permit
the Senior Leverage Ratio to exceed (a) 1.75 to 1.00 on any date after the
Borrower has delivered audited financial statements for the fiscal year ending
December 31, 2005, on which the Leverage Ratio exceeds 2.00 to 1.00 or (b) 2.00
to 1.00 on any other date.
SECTION 6.16. Unrestricted Domestic Cash. The Borrower will not
permit Unrestricted Domestic Cash to be less than $25,000,000 on any date prior
to September 30, 2005 or to be less than $50,000,000 on any date on or after
September 30, 2005.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
(b) the Borrower or any Loan Party shall fail to pay any interest on
any Loan or any fee or other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement or any other Loan Document,
when and as the same shall come due and payable, and such failure shall continue
unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on
behalf of, the Borrower or any Subsidiary in or in connection with any Loan
Document or any amendment or modification thereof or waiver thereunder, or in
any report, certificate, financial statement or other document furnished in
writing pursuant to or in connection
70
with any Loan Document or any amendment or modification thereof or waiver
thereunder, shall prove to have been incorrect in any material respect when made
or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Article VI or in Sections 5.02, 5.04 (with
respect to the existence of the Borrower), or 5.11 (with respect to the
Collateral and Guarantee Requirement being satisfied concerning any new Domestic
Subsidiary or new Significant Foreign Subsidiary being formed or acquired) or
Section 5.13;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure shall
continue unremedied for a period of 30 days after written notice thereof from
the Administrative Agent to the Borrower (which notice will be given at the
request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of any
Material Indebtedness, when and as the same shall become due and payable after
giving effect to any applicable grace periods provided for in the document
governing such Material Indebtedness;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Indebtedness or any trustee or agent on its or
their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Subsidiary or its debts, or of a substantial
part of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Subsidiary or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be
entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily commence
any proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
71
conservator or similar official for the Borrower or any Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit in
writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $10,000,000 shall be rendered against the Borrower or any
Subsidiary or any combination thereof and the same shall remain undischarged for
a period of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to attach or
levy upon any assets of the Borrower or any Subsidiary to enforce any such
judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, would reasonably be expected to result in a Material Adverse Effect;
(m) any Guarantee or Lien purported to be created under any Security
Document shall cease to be, or shall be asserted by any Loan Party not to be, a
valid Guarantee or a valid and perfected Lien, with the priority required by the
applicable Security Document, except in the case of a Lien, (i) as a result of
the Administrative Agent's failure to maintain possession of any stock
certificates, promissory notes or other instruments delivered to it under the
Collateral Agreement or any Foreign Pledge Agreement or (ii) as a result of the
occurrence of the Collateral Release Event; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during (but only during) the continuance of such event, the Administrative Agent
may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or different
times: (i) terminate the Commitments, and thereupon the Commitments shall
terminate immediately, and (ii) declare the Loans then outstanding to be due and
payable in whole (or in part, in which case any principal not so declared to be
due and payable may thereafter be declared to be due and payable), and thereupon
the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of the Borrower
accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; and in case of any event with respect to the
Borrower described in clause (h) or (i) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
72
ARTICLE VIII
The Administrative Agent
Each of the Lenders and each Issuing Bank hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms of the Loan Documents,
together with such actions and powers as are reasonably incidental thereto. In
addition, to the extent required under the laws of any jurisdiction other than
the United States, each of the Lenders and the Issuing Banks hereby grants to
the Administrative Agent any required powers of attorney to execute any Security
Document governed by the laws of such jurisdiction on such Lender's or Issuing
Bank's behalf.
The bank serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
bank and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.02), and (c) except as
expressly set forth in the Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 9.02) or in the
absence of its own gross negligence or willful misconduct. The Administrative
Agent shall not be deemed to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent by the Borrower or a
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Loan Document, (iv) the
validity, enforceability, effectiveness or genuineness of any Loan Document or
any other agreement, instrument or document, or (v) the satisfaction of any
condition set
73
forth in Article IV or elsewhere in any Loan Document, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through its Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of each
of the Administrative Agent and any such sub-agent, and shall apply to their
activities in connection with the syndication of the credit facilities provided
for herein (including syndication after the Effective Date) as well as the
activities as Administrative Agent.
Subject to the appointment and acceptance of a successor to the
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Banks and the Borrower.
Upon any such resignation, the Required Lenders shall have the right, with the
Borrower's consent (which consent shall not be unreasonably withheld or
delayed), to appoint a successor. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Banks, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 9.03 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their Related Parties in respect of any actions taken or omitted
to be taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to
74
enter into this Agreement. Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking
action under or based upon this Agreement, any other Loan Document or related
agreement or any document furnished hereunder or thereunder.
The banks (or Affiliates thereof) identified in this Agreement as a
"documentation agent" or "syndication agent" shall not have any right, power,
liability, responsibility or duty under this Agreement other than those
applicable to all banks herein.
Each Lender acknowledges that in no event shall any Obligations in
respect of any Hedging Agreement, cash management services or "Card Programs"
(as defined in the Collateral Agreement), in each case provided by an Affiliate
of a Lender, constitute Obligations for the purpose of any Security Document
governed by the laws of The United Kingdom unless the documents evidencing such
Hedging Agreement, cash management services or Card Programs, as applicable,
contain the following language:
"We [name of hedging counterparty, cash management provider or
Card Programs provider] hereby confirm that by entering into this
[insert name of contract], we intend to be party to the Trust Agreement
(the "Trust Agreement") dated February 16, 2005, between, amongst
others, JPMorgan Chase Bank, N.A., as Security Trustee (the "Security
Trustee"), and the Secured Parties named therein, and (a) undertake to
perform all the obligations expressed in the Trust Agreement to be
assumed by a Secured Party, and (b) agree that we shall be bound by all
the provisions of the Trust Agreement, as if we had been an original
party thereto. We further agree that the Security Trustee may rely upon
our undertaking and agreement given herein."
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at Xxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxx
Xxxx 00000, Attention of Chief Financial Officer, Treasurer and General Counsel
(Telecopy No. (000) 000-0000)
(b) if to the Administrative Agent, to JPMorgan Chase Bank, N.A.,
Loan and Agency Services Group, 0000 Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000,
Attention of Xxxxxx X. Xxxxx (Telecopy No. (000) 000-0000), with a copy to
JPMorgan Chase
75
Bank, N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xx. Xxx
Xxxxxxxx (Telecopy No. (000) 000-0000);
(c) if to any Issuing Bank, to it at the address most recently
specified by it in a notice delivered to the Administrative Agent and the
Borrower;
(d) if to the Swingline Lender, to JPMorgan Chase Bank, N.A., Loan
and Agency Services Group, 0000 Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000,
Attention of Xxxxxx X. Xxxxx (Telecopy No. (000) 000-0000) with a copy to
JPMorgan Chase Bank, N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention
of Xx. Xxx Xxxxxxxx (Telecopy No. (000) 000-0000); and
(e) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, an Issuing Bank or any Lender in exercising any right or
power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing
Banks and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of any Loan Document or consent to
any departure by any Loan Party therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given. Without limiting the generality of the foregoing, the
making of a Loan or issuance of a Letter of Credit shall not be construed as a
waiver of any Default, regardless of whether the Administrative Agent, any
Lender or the applicable Issuing Bank may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or, in the case of any
other Loan Document, pursuant to an agreement or agreements in writing entered
into by the Administrative Agent and the Loan Party or Loan Parties that are
parties thereto, in each case with the consent of the Required Lenders; provided
that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan
or LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender
76
affected thereby, (iii) postpone the maturity of any Loan, or any scheduled date
of payment of the principal amount of any Term Loan under Section 2.10, or the
required date of reimbursement of any LC Disbursement, or any date for the
payment of any interest or fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of expiration
or reduction of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.18(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
consent of each affected Lender, (v) change any of the provisions of this
Section or the percentage set forth in the definition of "Required Lenders" or
any other provision of any Loan Document specifying the number or percentage of
Lenders (or Lenders of any Class) required to waive, amend or modify any rights
thereunder or make any determination or grant any consent thereunder, without
the written consent of each Lender (or each Lender of such Class, as the case
may be), (vi) release any Subsidiary Loan Party from its Guarantee under the
Collateral Agreement (except as expressly provided in the Collateral Agreement),
or limit its liability in respect of such Guarantee, without the written consent
of each Lender, (vii) release all or any substantial part of the Collateral from
the Liens of the Security Documents, without the written consent of each Lender,
except in connection with the occurrence of the Collateral Release Date or the
sale of such Collateral in a transaction permitted by the Loan Documents, or
(viii) change any provisions of any Loan Document in a manner that by its terms
adversely affects the rights in respect of payments due to Lenders holding Loans
of any Class differently than those holding Loans of any other Class, without
the written consent of Lenders holding a majority in interest of the outstanding
Loans and unused Commitments of each affected Class; provided further that (a)
no such agreement shall amend, modify or otherwise affect the rights or duties
of the Administrative Agent, an Issuing Bank or the Swingline Lender without the
prior written consent of the Administrative Agent, such Issuing Bank or the
Swingline Lender, as the case may be, (b) any waiver, amendment or modification
of this Agreement that by its terms affects the rights or duties under this
Agreement of one Class of Lenders (but not any other Class of Lenders) may be
effected by an agreement or agreements in writing entered into by the Borrower
and requisite percentage in interest of the affected Class of Lenders that would
be required to consent thereto under this Section if such Class of Lenders were
the only Class of Lenders hereunder at the time and (c) no consent of the
Lenders will be required for any amendment to the Loan Documents that effects
the elimination of Liens on Collateral or requirements therefor in connection
with the occurrence of the Collateral Release Event. Notwithstanding the
foregoing, any provision of this Agreement may be amended by an agreement in
writing entered into by the Borrower, the Required Lenders and the
Administrative Agent (and, if their rights or obligations are affected thereby,
the Issuing Banks and the Swingline Lender) if (i) by the terms of such
agreement the Commitment of each Lender not consenting to the amendment provided
for therein shall terminate upon the effectiveness of such amendment and (ii) at
the time such amendment becomes effective, each Lender not consenting thereto
receives payment (including pursuant to an assignment to a replacement Lender in
accordance with Section 9.04) in full of the principal of and interest accrued
on each Loan made by it and all other amounts owing to it or accrued for its
account under this Agreement.
77
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel (including foreign counsel retained in connection
with Foreign Pledge Agreements) in connection with the syndication of the credit
facilities provided for herein (including after the Effective Date), the
preparation and administration of the Loan Documents or any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Banks in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all reasonable out-of-pocket
expenses incurred by the Administrative Agent, the Issuing Banks or any Lender,
including the reasonable fees, charges and disbursements of any counsel for the
Administrative Agent, the Issuing Banks or any Lender, in connection with the
enforcement or protection of its rights in connection with the Loan Documents,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such reasonable out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, the
Issuing Banks and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of any
Loan Document or any other agreement or instrument contemplated hereby, the
performance by the parties to the Loan Documents of their obligations thereunder
or the consummation of the Transactions or any other transactions contemplated
hereby, (ii) any Loan, Letter of Credit or the use of the proceeds therefrom
(including any refusal by an Issuing Bank to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
currently or formerly owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent, an Issuing Bank or the Swingline
Lender under paragraph (a) or (b) of this Section, each Lender severally agrees
to pay to the Administrative Agent, the applicable Issuing Bank or the Swingline
Lender, as the case
78
may be, such Lender's pro rata share (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent, the applicable Issuing Bank or the
Swingline Lender in its capacity as such. For purposes hereof, a Lender's "pro
rata share" shall be determined based upon its share of the sum of the aggregate
Revolving Exposures, outstanding Term Loans and unused Commitments at the time.
(d) To the extent permitted by applicable law, the Borrower shall
not assert, and the Borrower hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan, Letter of Credit or the use of
the proceeds thereof.
(e) All amounts due under this Section shall be payable not later
than 10 days after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of an Issuing Bank that issues any Letter of Credit), except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their successors and
assigns permitted hereby and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent, the Issuing Banks and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of the Borrower
shall be required for (1) an assignment of any Term Loan to a
Lender, an Affiliate of a Lender, or an Approved Fund, (2) an
assignment of a Revolving Commitment to a Revolving Lender or (3) if
an Event of Default under paragraph (a), (b), (h) or (i) of Article
VII has occurred and is continuing, any such assignment to any other
assignee; and
(B) the Administrative Agent and each Principal Issuing Bank,
provided that no consent of the Administrative Agent or any
Principal
79
Issuing Bank shall be required for an assignment of any Term Loan to
a Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an
Affiliate of a Lender or an Approved Fund or an assignment of the
entire remaining amount of the assigning Lender's Commitment or
Loans of any Class, the amount of the Commitment or Loans of the
assigning Lender subject to each such assignment shall not be less
than $5,000,000 in the case of a Revolving Commitment or $1,000,000
in all other cases, unless each of the Borrower and the
Administrative Agent otherwise consents, provided that no such
consent of the Borrower shall be required if an Event of Default
under paragraph (a), (b), (h) or (i) of Article VII has occurred and
is continuing:
(B) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender's rights and
obligations under this Agreement, provided that this clause shall
not be construed to prohibit the assignment of a proportionate part
of all the assigning Lender's rights and obligations in respect of
one Class of Commitments or Loans;
(C) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together
with a processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire.
For the purposes of this Section 9.04(b), the term "Approved Fund"
has the following meaning:
"Approved Fund" means any Person (other than a natural person) that
is engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (d) of this Section, from and after the effective date specified in
each Assignment and Acceptance the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of
80
Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent,
the Issuing Banks and the Lenders may treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower, the Issuing Banks and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Issuing Banks or the Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Issuing Banks and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce the Loan Documents and to approve
any amendment, modification or waiver of any provision of the Loan Documents;
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (f) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections 2.15,
2.16 and 2.17 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall
81
be entitled to the benefits of Section 9.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.18(c) as though it were a
Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.17 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.17(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, the Issuing
Banks or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents, the Commitment Letter and any separate letter
agreements with respect to fees or expense reimbursements payable to the
Administrative Agent or any arranger of the credit facilities contemplated
hereby constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided
82
in Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their successors and
assigns. Delivery of an executed counterpart of a signature page of this
Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to any
Loan Document (other than the Mexican Pledge Agreement), or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any other Loan Document shall
affect any right that the Administrative Agent, the Issuing Banks or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
or any other Loan Document (other than the Mexican Pledge Agreement) against the
Borrower or its properties in the courts of any jurisdiction.
83
(c) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other Loan
Document (other than the Mexican Pledge Agreement) in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01, such service to be
effective upon receipt. Nothing in this Agreement or any other Loan Document
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent, the
Issuing Banks and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process (in which case such Person thereby required agrees to
inform the Borrower prior to such disclosure), (d) to any other party to this
Agreement, (e) on a confidential basis to any prospective Lender or assignee in
connection with the syndication of the credit facilities under this Agreement,
(f) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (g) subject to an
84
agreement containing provisions substantially the same as those of this Section,
to any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (h) with
the prior written consent of the Borrower or (i) to the extent such Information
becomes publicly available other than as a result of a breach of this Section.
For the purposes of this Section, "Information" means all information received
from the Borrower relating to the Borrower or its business, other than any such
information that is publicly available. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as a
commercially prudent Person would accord to its own confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.14. Patriot Act. The Lenders hereby notify the Borrower
that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the "Patriot Act"), they may be
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow each Lender to identify the Borrower in accordance
with the Patriot Act. This notice is given in accordance with the requirements
of the Patriot Act and is effective for each Lender.
SECTION 9.15. Collateral Release Event. Upon the occurrence of the
Collateral Release Event, the Liens on the Collateral under the Security
Documents will automatically be released and terminated. Thereafter, the
Administrative Agent shall, in each case, at the cost and expense of the
Borrower, execute such documents as the Borrower may reasonably request
(including the amendment to the Collateral Agreement contemplated by the
definition of the Collateral and Guarantee Requirement) to evidence and confirm
such release and termination and the termination of the Foreign Pledge
Agreements and will promptly cause any certificates evidencing pledged
securities in its possession to be redelivered to the Borrower. The release of
the Liens under the Security Documents will not affect the Guarantees of the
Subsidiary Loan Parties under the Security Documents, which will remain in full
force and effect.
85
SECTION 9.16. Symbolease, Inc. The Borrower shall use its best
efforts to cause Symbolease, Inc. and The Bank of Tokyo-Mitsubishi, Ltd., New
York Branch to execute and deliver an intercreditor agreement with the
Administrative Agent, acting on behalf of the Lenders, relating to the Bank of
Tokyo Securitization on terms and conditions reasonably satisfactory to the
Administrative Agent on or before January 21, 2005. Notwithstanding any other
provision of this Agreement, the Borrower shall not at any time prior to the
execution and delivery of such intercreditor agreement permit (a) other than in
the ordinary course of business and consistent with past practices, any Loan
Party to advance any Indebtedness to or make any other Investment in or transfer
any asset to Symbolease, Inc., (b) any increase in the outstanding amount under
the Bank of Tokyo Securitization or (c) Symbolease, Inc. to incur any
Indebtedness for borrowed money.
SECTION 9.17. Parallel Debt. By execution of this Agreement, the
Lenders, the Issuing Banks and the Swingline Lender acknowledge the provisions
of Section 7.16 (Parallel Debt (Covenant to pay the Collateral Agent)) of the
Collateral Agreement and hereby authorize the Administrative Agent to accept
such clause on their behalf.
86
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
SYMBOL TECHNOLOGIES, INC.,
by
_____________________________
Name:
Title:
JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent,
by
_____________________________
Name:
Title:
fleet national bank,
by
_____________________________
Name:
Title:
