EXHIBIT 4(a)(1)
LOAN AGREEMENT
BY AND AMONG
XXXXXXX, INC.
AND
FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT,
ARRANGER AND A BANK
AND
THE OTHER FINANCIAL INSTITUTIONS NOW OR
HEREAFTER PARTIES HERETO
$325,000,000
4 -- YEAR REVOLVING CREDIT LOANS
AND
$125,000,000
364 -- DAY REVOLVING CREDIT LOANS
September 28, 0000
Xxxx xx Xxxxxxx, X.X., as Syndication Agent
First Union National Bank, as Documentation Agent
The Chase Manhattan Bank
and
Wachovia Bank, N.A.
as
Senior Managing Agents
INDEX TO
LOAN AGREEMENT
Page
ARTICLE I. DEFINITIONS AND ACCOUNTING AND OTHER TERMS 1
SECTION 1.01. CERTAIN DEFINED TERMS 1
SECTION 1.02. ACCOUNTING TERMS 16
SECTION 1.03. OTHER TERMS 16
ARTICLE II AMOUNT AND TERMS OF THE LOANS 16
SECTION 2.01. The Loans 16
(A) The Bid Loans 16
(B) The Revolving Credit Loans 21
(C) Swing Loans 21
(D) Funding And Pro Rata Shares 23
SECTION 2.02. INTEREST AND FEES ON THE LOANS 25
(A) Interest 25
(B) Facility And Other Fees 26
(C) Increased Costs - Capital 27
SECTION 2.03. NOTATIONS 28
SECTION 2.04. COMPUTATION OF INTEREST AND FEES 28
SECTION 2.05. TIME OF PAYMENTS AND PREPAYMENTS IN IMMEDIATELY
AVAILABLE FUNDS AND SETOFF 28
(A) Time 29
(B) Setoff, Etc. 29
(C) Unconditional Obligations And No Deductions 30
SECTION 2.06. PREPAYMENT AND CERTAIN PAYMENTS 30
(A) Voluntary Prepayments 30
(B) Absence Of Designation Of Payment Or Prepayment 31
(C) Bid Loans And Swing Loans 31
SECTION 2.07. INTEREST RATE ELECTIONS 32
SECTION 2.08. INTEREST IN ABSENCE OF INTEREST RATE ELECTION 33
SECTION 2.09. PERMANENT REDUCTION OF COMMITMENT 33
SECTION 2.10. SPECIAL LIBOR LOAN PROVISIONS 33
(A) Requests 33
(B) Libor Loans Unavailable 33
(C) Libor Lending Unlawful 34
(D) Additional Costs On Libor Loans 35
(E) Libor Funding Losses 36
(F) Banking Practices 37
(G) Borrower's Option On Unavailability Or Increased Cost
Of Libor Loans 37
SECTION 2.11. CERTAIN REFERENCES 37
SECTION 2.12. PAYMENT ON NON-BUSINESS DAYS 38
SECTION 2.13. USE OF PROCEEDS 38
SECTION 2.14. BANKS' MAXIMUM COMMITMENTS 38
SECTION 2.15. REPLACEMENT OF BANK 38
SECTION 2.16. PRO RATA TREATMENT 39
SECTION 2.17. DECLARATION OF INVALIDATION 39
SECTION 2.18. PRO RATA SHARES PARI PASSU AND EQUAL 40
SECTION 2.19. APPLICATION OF FUNDS RECEIVED BY BANK 40
ARTICLE III CONDITIONS OF LENDING 40
SECTION 3.01. CONDITIONS PRECEDENT TO THE COMMITMENT AND TO ALL LOANS 40
i
(A) The Commitment And Initial Loans 40
(B) The Commitment And The Loans 42
ARTICLE IV REPRESENTATIONS AND WARRANTIES 43
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE BORROWER 43
(A) Organization And Existence 43
(B) Authorization And Absence Of Defaults 43
(C) Acquisition Of Consents And Environmental Matters 43
(D) Validity And Enforceability 44
(E) Financial Information 44
(F) No Litigation 44
(G) Regulation U 45
(H) Absence Of Adverse Agreements 45
(I) Taxes 45
(J) Erisa 45
(K) Ownership Of Properties 46
(L) Accuracy Of Representations And Warranties 46
(M) No Investment Company 46
(N) Solvency, Etc. 46
(O) Ownership Interests 47
(P) Licenses, Registrations, Compliance With Laws, Etc. 47
(Q) Principal Place Of Business; Books And Records 47
(R) Year 2000 47
ARTICLE V COVENANTS OF THE BORROWER 48
SECTION 5.01. AFFIRMATIVE COVENANTS OF THE BORROWER OTHER THAN
REPORTING REQUIREMENTS 48
(A) Payment Of Taxes, Etc. 48
(B) Maintenance Of Insurance 48
(C) Preservation Of Existence, Etc. 48
(D) Compliance With Laws, Etc. 48
(E) Visitation Rights 48
(F) Keeping Of Records And Books Of Account 49
(G) Maintenance Of Properties, Etc. 49
(H) Accounting System 49
(I) Other Documents, Etc. 49
(J) Ebitda Coverage 49
(K) Leverage Ratio 50
(L) Officer's Certificates And Requests 50
(M) Depository 50
(N) Replacement Of Notes 50
SECTION 5.02. NEGATIVE COVENANTS OF THE BORROWER 50
(A) Liens, Etc. 50
(B) Dissolution, Etc. 52
(C) Hostile Takeovers 53
(D) Compliance With Erisa 53
(E) Restricted Guaranties 53
SECTION 5.03. REPORTING REQUIREMENTS 53
SECTION 5.04. CONFIDENTIAL FINANCIAL INFORMATION 55
ARTICLE VI EVENTS OF DEFAULT 56
SECTION 6.01. EVENTS OF DEFAULT 56
ARTICLE VII REMEDIES OF BANKS 58
ARTICLE VIII ADMINISTRATIVE AGENT 59
ii
SECTION 8.01. APPOINTMENT 59
SECTION 8.02. POWERS; GENERAL IMMUNITY 59
(A) Duties Specified 59
(B) No Responsibility For Certain Matters 60
(C) Exculpatory Provisions 60
(D) Agent Entitled To Act As Bank 60
SECTION 8.03. REPRESENTATIONS AND WARRANTIES; NO RESPONSIBILITY OR
APPRAISAL OF CREDITWORTHINESS 61
SECTION 8.04. RIGHT TO INDEMNITY 61
SECTION 8.05. PAYEE OF NOTE TREATED AS OWNER 61
SECTION 8.06. RESIGNATION BY AGENT 61
SECTION 8.07. SUCCESSOR AGENT 62
SECTION 8.07. ARRANGER AND OTHER BANK CAPACITIES 62
ARTICLE IX MISCELLANEOUS 62
SECTION 9.01. CONSENT TO JURISDICTION AND SERVICE OF PROCESS 62
SECTION 9.02. IDEMNIFICATION 64
SECTION 9.03. RIGHTS AND REMEDIES CUMULATIVE 65
SECTION 9.04. DELAY OR OMISSION NOT WAIVER 65
SECTION 9.05. WAIVER OF STAY OR EXTENSION LAWS 65
SECTION 9.06. AMENDMENTS, ETC. 65
SECTION 9.07. ADDRESSES FOR NOTICES, ETC. 66
SECTION 9.08. COSTS, EXPENSES AND TAXES 67
SECTION 9.09. PARTICIPATIONS 68
SECTION 9.10. BINDING EFFECT 68
SECTION 9.11. SUBSTITUTIONS AND ASSIGNMENTS 69
SECTION 9.12. ACTUAL KNOWLEDGE 72
SECTION 9.13. GOVERNING LAW 72
SECTION 9.14. SEVERABILITY OF PROVISIONS 72
SECTION 9.15. HEADINGS 72
SECTION 9.16. COUNTERPARTS 72
SECTION 9.17. INTEGRATION 72
iii
LOAN AGREEMENT
Dated as of September 28, 1999
XXXXXXX, INC., a corporation organized under the laws of the State of
Delaware and having its principal place of business at Shrewsbury Executive
Center, 0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxx 00000 (the
"Borrower"), and FLEET NATIONAL BANK, a national banking association organized
under the laws of the United States and having an office at Xxx Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 individually, in its capacity as Arranger
and in its capacity as agent for itself and the other Banks (defined below)
under this Agreement and the Related Documents (defined below) and with
respect to the Loans (defined below) (Fleet National Bank, in its individual
capacity, is hereinafter referred to as a "Bank", and (except as otherwise
indicated), in its capacity as agent, is hereinafter referred to as "Agent"),
Bank of America, N.A., as Syndication Agent, First Union National Bank, as
Documentation Agent, and The Chase Manhattan Bank and Wachovia Bank, N.A., as
Senior Managing Agents, and the Banks, including without limitation the
financial institutions named in this paragraph, which currently are or
hereafter become parties hereto, hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING AND OTHER TERMS
Section 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ACH" means automated clearing house transfers appropriately initiated
for receipt of funds on the due date.
"Adjusted Indebtedness" shall have the meaning assigned thereto in the
definition of Leverage Ratio set forth herein.
"Adjusted Libor Rate" means, with respect to any Libor Loan to be made by
the Banks for its Interest Period, the interest rate per annum determined by
Agent (fixed throughout such Interest Period (subject to adjustments for the
Libor Rate Reserve Percentage) and rounded upwards, if necessary, to the next
1/16 of 1%) which is equal to the quotient of (i) (a) the rate of interest at
which Dollar deposits are offered in the London interbank market in an amount
approximately equal to the principal of such Libor Loan for a period of time
equal to such Interest Period that appears on the Telerate Page 3750 as of
11:00 a.m. London time two Business Days prior to the Business Day on which
such Interest Period begins or, (b) if no such rate appears on the Telerate
Page 3750, the rate of interest determined by Agent to be the average of up to
four interest rates per annum at which Dollar deposits are offered in the
London interbank market in an amount approximately equal to the principal
amount of such Libor Loan, for a period of time equal to such Interest Period
which appear on the Xxxxxx'x Screen LIBO Page as of 11:00 a.m. London time two
Business Days prior to the Business Day on which such Interest Period begins
if at least two such offered rates so appear on the Xxxxxx'x Screen LIBO Page
or (c) if no such rate appears on the Telerate Page 3750 and fewer than two
offered rates appear on the Xxxxxx'x Screen LIBO Page, the rate of interest
determined by Agent to be the average of the interest rates per annum at which
Dollar deposits are offered to each Reference Bank by first-class banks in the
London interbank market at approximately 11:00 a.m., London time, two Business
Days prior to the Business Day on which such Interest Period begins, in an
amount approximately equal to the principal amount of such Libor Loan, for a
period of time equal to such Interest Period and (ii) a number equal to the
number one minus the Libor Rate Reserve Percentage. The "Libor Rate Reserve
Percentage" applicable to any Interest Period means the average of the maximum
effective rates (expressed as a decimal) of the statutory reserve requirements
(without duplication, but including, without limitation, basic, supplemental,
marginal and emergency reserves) applicable to each Reference Bank during such
Interest Period under regulations of the Board of Governors of the Federal
Reserve System (or any successor), including without limitation Regulation D
or any other regulation dealing with maximum reserve requirements which are
applicable to each Reference Bank with respect to its "Eurocurrency
Liabilities", as that term may be defined from time to time by the Board of
Governors of the Federal Reserve System (or any successor) or which in any
other respect relate directly to the funding of loans bearing interest at
rates based on the interest rates at which Dollar deposits in immediately
available funds are offered to banks by first-class banks in the London
interbank market. If any Reference Bank fails to provide its offered
quotation to Agent, the Adjusted Libor Rate shall be determined on the basis
of the offered quotation(s) of the other Reference Bank(s). The Adjusted
Libor Rate shall be adjusted automatically on and as of the effective date of
any change in the Libor Rate Reserve Percentage.
"Affiliate" means in the case of any Person, singly and collectively, any
other Person (other than in the case of Borrower any Subsidiary) which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such first Person, and the legal representative, successor or
assign of any such other Person. For purposes of this definition, "control"
of a Person shall be deemed to exist if another Person possesses, directly or
indirectly, power either to (i) vote 10% or more of the securities having
ordinary voting power for the election of directors of such first Person or
(ii) direct or cause the direction of the management and policies of such
first Person, whether by contract or otherwise.
"Agent" means Fleet National Bank in its capacity as administrative agent
for itself and the other Banks under this Agreement and the Related Documents
and with respect to the Loans and any other financial institution acting as a
successor administrative agent under this Agreement and the Related Documents
and with respect to the Loans in accordance with Sections 8.06 and 8.07.
"Agreement" means this loan agreement, as same may be amended,
supplemented or otherwise modified from time to time.
"A.M." means a time from and including 12 o'clock midnight to and
excluding 12 o'clock noon on any Business Day using Boston, Massachusetts
time.
2
"Applicable Margin" has the meaning set forth in Exhibit A. "Applicable
Utilization Fee Rate" has the meaning set forth in Exhibit A.
"Arranger" means Fleet National Bank, a national banking association.
"Bank" or "Banks" means any financial institution which now is a party to
this Agreement or which hereafter becomes a party to this Agreement pursuant
to Section 2.02(C), 2.15 or 9.11.
"Bid Loan" means a Loan evidenced by a Bid Note made pursuant to and in
accordance with Section 2.01(A).
"Bid Loan Acceptance" means a Bid Loan acceptance in the form of Exhibit
D-3 duly completed and delivered by the Borrower in accordance with Section
2.01(A).
"Bid Loan Note" means each promissory note of the Borrower payable to the
order of a Bank substantially in the form of Exhibit B-1 and executed,
delivered and completed by the Borrower.
"Bid Loan Offer" means a Bid Loan offer in the form of Exhibit D-2 duly
completed and delivered by a Bank in accordance with Section 2.01(A).
"Bid Loan Request" means a written request for a Bid Loan in
substantially the form of Exhibit D-1 from the Borrower at the time and on the
Business Day established under Section 2.01(A)(i).
"Borrowed Money" means with respect to any Person the aggregate amount,
without duplication, of the following items as and to the extent reflected on
such Person's consolidated balance sheet (exclusive of any such item only
required to be disclosed in a note to such balance sheet) prepared in
accordance with GAAP (any such balance sheet of the Borrower being hereinafter
referred to as "Borrower's GAAP Balance Sheet"): (a) all obligations for
borrowed money; (b) all Capitalized Lease Obligations; and (c) all obligations
evidenced by bonds, debentures, the Notes, other promissory notes or other
similar instruments.
"Borrower" has the meaning assigned in the first paragraph of this
Agreement.
"Borrower fiscal quarter" means any fiscal quarter of any fiscal year of
the Borrower.
"Borrower's GAAP Balance Sheet" has the meaning assigned in the
definition of Borrowed Money.
"Business Condition" means, with respect to any Person, such Person's
business, properties, earnings or condition (financial or other).
"Business Day" means (i) for all purposes other than as covered by clause
(ii) below, any day on which banks in Boston, Massachusetts or New York, New
York are not authorized or required to close; and (ii) with respect to all
notices and determinations in connection with, and payments of principal and
3
interest on, Libor Loans, any day which is a Business Day described in clause
(i) and which is also a day for trading by and between banks in Dollar
deposits in the London interbank market.
"Capitalized Lease Obligations" means all lease obligations which have
been in accordance with GAAP, capitalized on the books of the lessee.
"Cash Equivalent Investments" means any amount reflected on Borrower's
consolidated balance sheet as cash or cash equivalent investments to the
extent such Investments and other amounts are freely tradable.
"Closing Date" means the date on which all of the conditions precedent
set forth in Section 3.01(A) have been satisfied.
"Code" means the Internal Revenue Code of 1986 as amended from time to
time or any successor federal code.
"Commitment" means with respect to any Bank, such Bank's commitment to
make its Pro Rata Share of the 4-Year Loans and 364-Day Loans as set forth in
Section 2.01(B) and (C) up to the maximum outstanding amounts permitted in
Section 2.01(B) and (C) and to purchase participations in Swing Loans as set
forth in Section 2.01(C), as adjusted for any voluntary reductions in the
amount thereof pursuant to the terms of Section 2.09 and, with respect to all
of the Banks, the aggregate of such commitments and as to the Swing Loan Bank,
such Bank's commitment to make the Swing Loans as set forth in Section 2.01(C)
up to the maximum outstanding amount permitted in Section 2.01(C) as adjusted
for any voluntary reductions in the amount thereof pursuant to the terms of
Section 2.09.
"Commonly Controlled Entity" means a Person, whether or not incorporated,
which is under common control with the Borrower within the meaning of Section
414(b), (c), (m) or (o) of the Code.
"Consolidated Stockholders' Equity" means at any date the consolidated
stockholders' equity of the Borrower as set forth in the consolidated balance
sheet of the Borrower and its Subsidiaries most recently delivered to Agent
pursuant to Section 5.03(B) or (C) less an amount equal to the aggregate
redemption price of any outstanding shares of preferred stock of the Borrower
or any Subsidiary at such date which are unconditionally required by their
terms to be redeemed by the Borrower or any Subsidiary on or before September
28, 2003, in each case determined in accordance with GAAP.
"Consolidated Tangible Assets" means, at any particular time, the
aggregate amount of all assets of Borrower and its Subsidiaries, less cost in
excess of net assets acquired, as set forth on the most recent Borrower's GAAP
Balance Sheet.
"Default" means an event or condition which with the giving of notice or
lapse of time or both would become an Event of Default.
"Delinquent Bank" means any Bank which fails to make available to Agent
such Bank's Pro Rata Share of any of the Loans in accordance with this
Agreement; provided that the failure of any of the Banks to so forward its Pro
Rata Share of any Libor Loan due to the occurrence of one or more of the
events described in Section 2.10(B) or (C) or 2.11(A) for a period of less
than ninety (90) consecutive days in any instance shall not be deemed a
failure to so forward such Bank's Pro Rata Share of any Loan so long as such
Bank so forwards its Pro Rata Share of such Loan at the Reference Rate.
4
"Discharged Rights and Obligations" has the meaning assigned thereto in
Section 9.11.
"Documentation Agent" means First Union National Bank.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"Drawdown Date" means the date on which all of the conditions precedent
set forth in Section 3.01(A) have been satisfied and the initial Revolving
Credit Loan or Bid Loan is advanced to the Borrower.
"EBITDA" means, for any fiscal period of the Borrower, Borrower's Net
Income from Continuing Operations for such fiscal period, plus the amount of
income tax expense for such fiscal period, minus the amount of income tax
benefit for such fiscal period, plus Interest Expense for such fiscal period,
minus the amount of interest income for such fiscal period, plus the amount of
depreciation and amortization for such fiscal period as reflected on
Borrower's consolidated statement of cash flows, all the foregoing additions
and subtractions being added or subtracted only to the extent included in the
calculation of Borrower's Net Income from Continuing Operations for the
Borrower fiscal period in question and all as determined on a consolidated
basis for the Borrower in accordance with GAAP.
"EBITDA Coverage" means the ratio of the sum of the Borrower's EBITDA for
the four most recently completed fiscal quarters of the Borrower to the sum of
Interest Expense net of interest income for the four most recently completed
fiscal quarters of the Borrower, such ratio to first be calculated for the
Borrower's fiscal quarter ending September 30, 1999 and the immediately
preceding three Borrower fiscal quarters.
"EFT" means electronic funds transfer.
"E-mail" means a communication by electronic mail.
"ERISA" means the Employee Retirement Income Security Act of 1974 as
amended from time to time or any successor federal code.
5
"Events of Default" has the meaning assigned to that term in Section 6.01
of this Agreement.
"Exhibit" means, when followed by a letter, the exhibit attached to this
Agreement bearing that letter and by such reference fully incorporated in this
Agreement.
"Facility Fee" has the meaning set forth in Exhibit A.
"Facility Fee Rate" has the meaning set forth in Exhibit A.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York, provided that (i) if such
day is not a Business Day, the Federal Funds Rate for such day shall be such
rate on such transactions on the next succeeding Business Day as so published,
and (ii) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate quoted to Agent
on such day on such transactions as determined by Agent.
"Fiber" means Fiber Industries, Inc., a Delaware corporation which is
wholly-owned by Prince.
"Fiber Guaranty" means that certain guaranty by Fiber dated as of the
date hereof, and guarantying all Indebtedness of the Borrower then or
thereafter owing to Agent and/or the Banks pursuant to this Agreement and the
Notes, as the same may be amended, restated, supplemented or otherwise
modified from time to time.
"4--Year Commitment" means with respect to any Bank, such Bank's
commitment to make its Pro Rata Share of the 4--Year Loans as set forth in
Section 2.01(B) up to the maximum aggregate outstanding amounts permitted in
Section 2.01(B), as adjusted for any voluntary reductions in the amount
thereof pursuant to the terms of Section 2.09 and, with respect to all of the
Banks, the aggregate amount of such commitments.
"4--Year Loan" means a Loan evidenced by or made pursuant to the --Year
Commitment and evidenced by a Revolving Credit Note in the form of Exhibit B-
2(A) made pursuant to and in accordance with Section 2.01( B).
"4--Year Repayment Date" means the earlier to occur of (i) September 28,
2003 or (ii) such date on which the obligations of the Borrower under any of
the Notes evidencing a 4--Year Loan shall have become immediately due and
payable whether by acceleration or otherwise.
"GAAP" means generally accepted accounting principles in effect from time
to time in the United States of America.
"Granting Bank" has the meaning set forth in Section 9.11(J).
6
"Guarantors" means, collectively, Fiber, Mississippi and Prince and
"Guarantor" means any of Fiber, Mississippi and Prince.
"Hostile Takeover" means the offer of the Borrower, a Guarantor, and/or
any Subsidiary to acquire from the holders of securities of another Person
(the "Target") which has a class of equity securities registered under the
Securities Exchange Act of 1934, as amended, (the "Act") 30% or more of the
total voting power of any class of such Target's Voting Stock where there has
been a public announcement or commencement of the offer within the meaning of
Rule 14d-2 under the Act, if the Target's senior management or board of
directors has stated or at any time while the offer is outstanding states
publicly (through the filing of a Schedule 14D-9 with the Securities and
Exchange Commission or otherwise), its intention to oppose the acquisition by
the Borrower, a Guarantor and/or any Subsidiary of the Target's Voting Stock
or has advised or recommended to the holders of the securities to which such
offer relates that such holders reject such offer or take any action other
than to accept such offer, and such offer shall be deemed a "Hostile Takeover"
for purposes hereof from the time such intention is so stated until such
statement is withdrawn or the Target's senior management and board of
directors advise or recommend to the holders of the securities to which the
such offer relates that such holders accept such offer.
"Indebtedness" means, for any Person, without duplication, (i) all
indebtedness or other obligations of said Person for Borrowed Money,
including, without limitation, all reimbursement obligations of said Person
with respect to commercial letters of credit and all obligations of said
Person for the deferred purchase price of property or services, (ii) all
indebtedness or other obligations of any other Person ("Other Person") for
Borrowed Money, reimbursement obligations of any Other Person with respect to
commercial letters of credit and all obligations of any Other Person for the
deferred purchase price of property or services, the payment or collection of
which said Person has guaranteed (except by reason of endorsement for
collection in the ordinary course of business) or in respect of which said
Person is liable, contingently or otherwise, including, without limitation,
liable by way of agreement to purchase or lease, to provide funds for payment,
to supply funds to purchase, sell or lease property or services primarily to
assure a creditor of such Other Person against loss or otherwise to invest in
or make a loan to the Other Person, or otherwise to assure a creditor of such
Other Person against loss, (iii) all indebtedness or other obligations of any
Other Person for Borrowed Money or for the deferred purchase price of property
or services secured by (or for which the holder of such indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien upon or in
any property owned by said Person, whether or not said Person has assumed or
become liable for the payment of such indebtedness or obligations, (iv)
Capitalized Lease Obligations of said Person and (v) all other liabilities or
obligations of said Person which would, in accordance with GAAP, be classified
as liabilities of such a Person.
"Initial Agreement" means that certain Loan Agreement dated as of
February 8, 1995 by and between the Borrower, Agent, and certain other
financial institutions party thereto, as amended to date.
"Interest Adjustment Date" means (i) as to any Reference Rate Loan the
Business Day elected by the Borrower in its applicable Interest Rate Election,
7
but being not less than three (3) Business Days (or four (4) Business Days in
the case of an Interest Rate Election as to which the consent of the Banks is
required) after the receipt by Agent before 12:00 o'clock P.M. on a Business
Day of an Interest Rate Election changing the interest rate on such Loan to
the Libor Rate and (ii) as to any Libor Loan, the last Business Day of the
Interest Period pertaining to such Libor Loan.
"Interest Expense" means the aggregate amount of interest expense
reported on Borrower's consolidated statement of income.
"Interest Period" means:
With respect to each Libor Loan:
(i) initially, the period commencing on the date of such Libor Loan
and ending one, two, three, six or such greater number of months
thereafter as may be acceptable to all the Banks and as the Borrower may
elect in the applicable Interest Rate Election and subject to Section
2.07; and
(ii) thereafter, each period commencing on the last day of the
immediately preceding Interest Period applicable to such Libor Loan and
ending one, two, three, six or such greater number of months thereafter
as may be acceptable to all the Banks and as the Borrower may elect in
the applicable Interest Rate Election and subject to Section 2.07;
provided that clauses (i) and (ii) of this definition are subject to the
following:
(A) any Interest Period (other than an Interest Period determined
pursuant to clause (C) below) which would otherwise end on a day which is
not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the immediately preceding Business Day;
(B) any Interest Period which begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (C) below, end on the last Business Day
of a calendar month;
(C) no Interest Period for a 364-Day Loan shall end after the
364--Day Repayment Date and no Interest Period for a 4--ear Loan shall
end after the 4--year Repayment Date; and
(D) with respect to all Libor Loans, no more than ten (10) Interest
Periods may be in effect at any time.
"Interest Rate Election" means the Borrower's irrevocable E-mailed,
telecopied or telephonic notice of election, which shall be promptly confirmed
by a written notice of election that the Reference Rate or the Libor Rate
8
shall apply to all or any portion of the Loans, which shall, subject to this
Agreement, be effective on the next Interest Adjustment Date, such telecopied
or telephonic notice and written confirmation thereof to be in the form of
Exhibit C and to be received by Agent prior to 12:00 o'clock P.M. on a
Business Day and at least three (3) Business Days prior to an Interest
Adjustment Date in the case of a Libor Loan (or four (4) Business Days in the
case of an Interest Rate Election as to which the consent of the Banks is
required), and at least one (1) Business Day prior to an Interest Adjustment
Date in the case of a Reference Rate Loan, each such Interest Rate Election,
subject to the terms of this Agreement, to effect a change in the interest
rate on the applicable portion of the Loans then outstanding, with respect to
which such Interest Rate Election was made, such change to occur on the
Interest Adjustment Date next succeeding receipt of such Interest Rate
Election by Agent. Any Interest Rate Election received by Agent after 12
o'clock P.M. on a Business Day shall be deemed, for all purposes of this
Agreement, to have been received prior to 12 o'clock P.M. on the next
succeeding Business Day. Interest Rate Elections shall be effective only as
to Revolving Credit Loans.
"Investment" means any investment in any Person whether by means of a
purchase of capital stock, notes, bonds, debentures or other evidences of
Indebtedness and/or by means of a capital or partnership contribution, loan,
deposit, advance, and/or by means of a guaranty of the Indebtedness of such
Person or otherwise.
"Level I Status" has the meaning set forth in Exhibit A.
"Level II Status" has the meaning set forth in Exhibit A.
"Level III Status" has the meaning set forth in Exhibit A.
"Level IV Status" has the meaning set forth in Exhibit A.
"Level V Status" has the meaning set forth in Exhibit A.
"Level VI Status" has the meaning set forth in Exhibit A.
"Leverage Ratio" means, at any date, the ratio of (A) the sum, without
duplication, of (i) Borrower's Borrowed Money at such date plus (ii) the net
present value at such date (using a discount rate equal to the interest rate
at the date the lease was entered into of U.S. Treasury Notes quoted in the
Federal Reserve Statistical Release for the date of determination with a
maturity approximately equal to the initial term of the obligation in
question) of the aggregate rentals payable over the remaining term (exclusive
of any optional extensions or renewals) of any operating lease (or in the case
of leases in related transactions or a single project the aggregate net
present value calculated as set forth above of such operating leases of
Borrower or any Subsidiary) if the net present value amount exceeds 10% of
Consolidated Stockholders' Equity determined as of such date plus (iii) any
reimbursement obligation at such date with respect to any standby letter of
credit (other than a commercial letter of credit) under which Borrower or any
Subsidiary is obligated if such obligation under such reimbursement agreement
(or in the case of any standby letters of credit issued in connection with a
single project or as part of related transactions, the aggregate amount of
reimbursement obligations existing at such date on account of such letters of
9
credit) exceeds 10% of Consolidated Stockholders' Equity (such Borrowed Money
plus the amounts referred to in clauses (ii) and (iii) is referred to as the
"Adjusted Indebtedness") to (B) the Borrower's Consolidated Stockholders'
Equity plus Adjusted Indebtedness at such date.
"Libor Loan" means a Loan other than a Bid Loan or Swing Loan bearing
interest at the Libor Rate.
"Libor Rate" means, for any Interest Period, the Adjusted Libor Rate in
effect on the first day of such Interest Period (subject to adjustment as
provided in the definition of Adjusted Libor Rate) plus the Applicable Margin
for Libor Loans from time to time in effect.
"Lien" means any mortgage, lien, pledge, charge, security interest,
conditional sale or other title retention agreement or other encumbrance of
any nature whatsoever; however, Lien does not include any encumbrance relating
to any Tax Reduction Agreement.
"Loans" and "Loan" means at any time the outstanding principal amount of
Indebtedness owed to a Bank or the Banks, pursuant to this Agreement and, if
the context so requires, the advance of funds to the Borrower pursuant to a
Request and Interest Rate Election, pursuant to a Bid Loan Request or as a
Swing Loan, subject to and in accordance with this Agreement.
"Majority Banks" means (a) if the Commitment is in effect, Banks having,
as of the date of determination, Pro Rata Shares of the Commitment totaling at
least fifty--one percent (51%) of the Commitment, or (b) if the Commitment has
been terminated under Article VII of this Agreement, Banks having as of the
date of determination Pro Rata Shares of the Loans totaling at least fifty--
one percent (51%) of the Loans; provided, that with respect to any
determination to be made by the Majority Banks as to which Agent shall have
notified the Banks, if any one or more of the Banks shall have failed to
notify Agent of such Bank's or Banks' respective decision regarding such
determination within twenty (20) Business Days following such notice from
Agent, the Majority Banks shall mean Banks having, as of the date of
determination, Pro Rata Shares totaling at least fifty--one percent (51%) of
the aggregate of such Pro Rata Shares of the Banks which have so notified
Agent within such time period.
"Material Adverse Effect" means, with respect to the Borrower, an effect
or condition which is materially adverse to the Business Condition of the
Borrower and any Material Subsidiaries taken as a whole.
"Material Subsidiary" means Fiber, Prince, Mississippi and any Subsidiary
of the Borrower, which owns a Principal Property, or any Subsidiary in which
Borrower's share of the total Tangible Assets (after inter-company
eliminations) of such Subsidiary exceeds fifteen percent (15%) of the
Consolidated Tangible Assets of the Borrower as of the most recent quarter
end.
"Mississippi" means Xxxxxxx of Mississippi, Inc., a Delaware corporation.
"Mississippi Guaranty" means that certain guaranty by Mississippi dated
as of the date hereof and guarantying all Indebtedness of the Borrower then or
10
thereafter owing to Agent and/or the Banks pursuant to this Agreement and the
Notes as the same may be amended, restated, supplemented or otherwise modified
from time to time.
"Xxxxx'x Rating" has the meaning set forth in Exhibit A.
"Multiemployer Plan" means a multiemployer plan as defined in Title IV of
ERISA.
"Net Income" means, for any period and for any Person, the consolidated
net income (or the consolidated net loss) of such Person and its subsidiaries
for such period, determined on a consolidated basis in accordance with GAAP.
"Net Income from Continuing Operations" means, for any fiscal period of
any Person, such Person's Net Income for such fiscal period plus (minus)
extraordinary losses (gains) for such fiscal period, plus (minus) net charges
(credits) due to the cumulative effect of changes in accounting principles for
such fiscal period, plus (minus) charges (credits) for discontinued operations
for such fiscal period, all determined on a consolidated basis in accordance
with GAAP.
"Note" or "Notes" means any Bid Note or Bid Notes, any Swing Loan Note or
Swing Loan Notes and any Revolving Credit Note or Revolving Credit Notes of
the Borrower payable to the order of a Bank and substantially in the form of
Exhibit B-1, Exhibit B-2(A) or (B) and Exhibit B-3, respectively.
"Notice Day" has the meaning assigned thereto in Section 2.07(D).
"Officer's Certificate" means a certificate signed by the President, the
Chief Financial Officer or Assistant Treasurer of the Borrower and delivered
to Agent.
"Old Loans" means the loans made to the Borrower by certain of the Banks
and certain other financial institutions party to the Initial Agreement
pursuant to the Initial Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
entity established pursuant to Subtitle A of Title IV of ERISA or any
successor federal code.
"P.M." means a time from and including 12 o'clock noon on any Business
Day to the end of such Business Day using Boston, Massachusetts time.
"Permitted Receivables Program" means any agreement of the Borrower or
any of the Subsidiaries providing for sales, transfers or conveyances of
accounts receivable purporting to be sales (and considered sales under GAAP)
that do not provide, directly or indirectly, for recourse against the seller
of such accounts receivable (or against any of such seller's Subsidiaries or
Affiliates) by way of a guaranty or any other credit support arrangement, with
respect to the amount of such accounts receivable (based on the financial
condition or circumstances of the obligor thereunder), other than such limited
recourse as is reasonable given market standards for transactions of a similar
type, taking into account such factors as historical bad debt loss experience
and obligor concentration levels.
11
"Permitted Sale/Leaseback Transactions" means any sale and leaseback by
the Borrower or any Subsidiary of any property if: (1) within 120 days after
the effective date of the lease the Borrower or such Subsidiary, either (A)
applies the net proceeds to the acquisition of another property of equal or
greater fair market value or (B) applies the proceeds to the retirement of
Indebtedness for Borrowed Money in an amount equal to the greater of (i) the
net proceeds received by the Borrower and its Subsidiaries for the sale of the
property leased, or (ii) the fair market value of the property leased within
90 days prior to the effective date of the lease, or (C) any combination of
(A) and (B); (2) the lease has a term of not more than five years; (3) the
Lien on any such property subject to such sale and leaseback would be
permitted under Section 5.02(A); (4) the sale and leaseback is of the
properties in connection with any Tax Reduction Agreement; (5) the sale and
leaseback transaction is between the Borrower and a Subsidiary or between
Subsidiaries; or (6) such lease is entered into within 360 days after the
later of the acquisition, completion of construction or commencement of
operation of such property; provided that any such sale and leaseback
transaction pursuant to subsections (2), (3) and (6) above are permitted only
if the amount of the net proceeds received in such transaction are applied to
reduce the Indebtedness for Borrowed Money within ten (10) Business Days after
the net proceeds are received; provided further, that the foregoing
restriction regarding the use of proceeds for transactions pursuant to
subsection (3) above shall only apply to transactions which create Liens that
are permitted pursuant to Sections 5.02(A)(i), 5.02(A)(l) and 5.02(A)(p) of
this Agreement.
"Person" means an individual, corporation, partnership, joint venture,
trust, or unincorporated organization, or a government or any agency or
political subdivision thereof.
"Plan" means an employee benefit plan or other plan maintained for
employees of the Borrower, any Guarantor or any Commonly Controlled Entity as
defined in Section 3(3) of ERISA.
"Prince" means Prince, Inc., formerly known as Xxxxxxx Delaware Holding
Inc., a Delaware corporation with a principal place of business in Wilmington,
Delaware.
"Prince Guaranty" means that certain guaranty by Prince dated as of the
date hereof and guarantying all Indebtedness of the Borrower then or
thereafter owing to Agent and/or the Banks pursuant to this Agreement and the
Notes, as the same may be amended, restated, supplemented or otherwise
modified from time to time.
"Principal Property" means any manufacturing, processing, distribution,
research, research and development, warehousing or principal administration
facility (including, without limitation, land, fixtures and equipment) owned
or leased by the Borrower or any Subsidiary (including any of the foregoing
acquired or leased after the date of this Agreement) unless the Board of
Directors of the Borrower by Board Resolution and in good faith declares that
such facility is not of material importance to the business conducted by the
Borrower and its Subsidiaries taken as an entirety; provided, however, the
Board of Directors may not make such a declaration regarding a facility and
any such prior declaration shall be ineffective for the purposes of this
definition if the net book value of the applicable facility is greater than
fifteen percent (15%) of the Consolidated Tangible Assets of the Borrower as
12
reflected on the consolidated balance sheet of the Borrower at the most recent
quarter end.
"Pro Rata Share" means (i) with respect to the Commitment, each Bank's
percentage share of the Commitment as set forth immediately opposite such
Bank's name on Exhibit K, as amended from time to time, (ii) with respect to
the Loans other than Bid Loans and Swing Loans, each Bank's percentage share
of the aggregate outstanding principal balance of the Loans other than Bid
Loans and Swing Loans, (iii) with respect to Bid Loans, each Bank's percentage
share of the aggregate outstanding principal balance of the Bid Loans and (iv)
with respect to Swing Loans, the Swing Loan Bank's 100% share of the aggregate
outstanding principal balance of the Swing Loans, all of which shares may be
expressed as a fraction or as the percentage equivalent of a fraction, the
numerator of which is the aggregate outstanding principal balance of such
Bank's Commitment or Loans in question, as the case may be, and the
denominator of which is the aggregate outstanding principal balance of all the
Commitments or Loans in question, as the case may be.
"Reference Bank" means the following three Banks: the Agent, the
Documentation Agent and the Syndication Agent and in the event any such Bank
resigns or is removed as a reference bank by direction of the Agent and the
Borrower, such other Bank as may be selected by Agent and the Borrower in
their discretion from time to time as a reference bank for purposes of
determining the Adjusted Libor Rate.
"Reference Rate" means the higher of (i) the floating rate of interest
per annum designated from time to time by Agent as being its "prime rate" of
interest, such interest rate to be adjusted on the effective date of any
change thereof by Agent, it being understood that such rate of interest may
not be the lowest rate of interest from time to time charged by Agent and (ii)
the Federal Funds Rate plus one-half percent (.50%) per annum, such interest
rate to be adjusted on the effective date of any change thereof by the Federal
Reserve Bank of New York.
"Reference Rate Loan" means a Loan bearing interest at the Reference
Rate.
"Related Documents" means the Fiber Guaranty, the Mississippi Guaranty
and the Prince Guaranty.
"Repayment Date" means the 364--Day Repayment Date in the case of a 364--
Day Loan or a Bid Loan made under the 364--Day Commitment or the 4--Year
Repayment Date in the case of a 4--Year Loan or a Bid Loan made under the 4--
Year Commitment.
"Reportable Event" shall have the meaning assigned to that term in Title
IV of ERISA.
"Reporting Period" has the meaning set forth in Exhibit A.
"Request" means a written request transmitted via telecopy or E-mail for
a Loan other than a Bid Loan or Swing Loan in the form of Exhibit C, received
by Agent from the Borrower at the time and on the Business Day stipulated for
13
an Interest Rate Election in accordance with this Agreement, specifying the
amount of the Loan, the date on which the Borrower desires such Loan, and
accompanied by an Interest Rate Election for such Loan.
"Restricted Guaranty" means any guaranty, or in the case of guaranties in
related transactions or a single project, any guaranties in the aggregate, by
the Borrower or any Subsidiary of Indebtedness for Borrowed Money of another
Person (other than the Borrower or any Subsidiary) if the amount for which the
Borrower and/or any Subsidiary is obligated or contingently obligated under
any such guaranty, or in the case of guaranties in related transactions or a
single project, such guaranties, exceeds ten percent (10%) of Consolidated
Stockholders' Equity; provided that any guaranty or guaranties which
constitute Borrowed Money are excluded from this definition; provided,
further, that any guaranty or guaranties related to any Tax Reduction
Agreement are excluded from this definition.
"Reuters Screen LIBO Page" means the display designated as Page "LIBO" on
the Reuters Monitor Money Rate Service (or such other page as may replace the
LIBO page on that service for the purpose of displaying London interbank
offered rates of major banks).
"Revolving Credit Loan" means a 364-Day Loan or a 4-Year Loan evidenced
by a Revolving Credit Note made pursuant to and in accordance with Section
2.01(B).
"Revolving Credit Note" means each promissory note of the Borrower
payable to the order of a Bank in substantially the form of Exhibit B-2(A) or
Exhibit B--2(B).
"Section" means, when followed by a number, the section or subsection of
this Agreement bearing that number.
"Senior Managing Agents" means The Chase Manhattan Bank and Wachovia
Bank, N.A.
"Single Employer Plan" means any pension benefit plan as defined in
Section 3(2) of ERISA which is not a Multiemployer Plan.
"SPC" has the meaning set forth in Section 9.11(J).
"Stale Swing Loan" has the meaning set forth in Section 2.01(C).
"Status" has the meaning set forth in Exhibit A.
"Stop Issuance Notice" has the meaning set forth in Section 2.01(C)(i).
"Subsidiary" means any corporation, if any, of which more than 50% of the
outstanding capital stock having ordinary voting power to elect a majority of
the board of directors or other managers of such corporation (irrespective of
whether or not at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by the Borrower or by
the Borrower and/or one or more Subsidiaries or the management of which
corporation is under control of the Borrower and/or any Subsidiary, directly
14
or indirectly through one or more Persons, and any Person which, under GAAP,
should at any time for financial reporting purposes be consolidated with the
Borrower and/or any Subsidiary.
"Substituted Bank" shall have the meaning assigned thereto in Section
9.11.
"Substitution Agreement" means a substitution agreement in the form of
Exhibit L entered into pursuant to Section 9.11 between a financial
institution and Agent (as agent for the Borrower and the Banks).
Syndication Agent" means Bank of America, N.A.
"Swing Credit Period" means the period from and including the first
Business Day after the Closing Date to but not including the 4-Year Repayment
Date.
"Swing Loan" means a Loan made by the Swing Loan Bank pursuant to Section
2.01(C).
"Swing Loan Bank" means Fleet, in its capacity as the Swing Loan Bank
under the swing loan facility described in Section 2.01(C).
"Swing Loan Commitment" means the lesser of (i) $10,000,000 and (ii) the
aggregate amount of the Commitments.
"Swing Loan Note" means the swing loan note of the Borrower payable to
the order of the Swing Loan Bank in the form of Exhibit B-3 hereto evidencing
the Indebtedness of the Borrower to the Swing Loan Bank with respect to the
Swing Loan.
"Swing Loan Refund Amount" has the meaning set forth in Section 2.01(C).
"Synthetic Lease" means a transaction for the lease of property or assets
designed to permit the lessee (i) to claim depreciation on such property or
assets under U.S. tax law and (ii) to treat such lease as an operating lease
or not to reflect the property or assets on the lessee's balance sheet under
GAAP.
"Tangible Assets" means, at any particular time, the aggregate amount of
all assets of any Person, less cost in excess of net assets acquired, all
determined in accordance with GAAP.
"Tax Reduction Agreement" means (1) any Fee-in-Lieu-of-Tax Agreement as
defined on Exhibit M of Borrower or its Subsidiaries as permitted under
applicable state or municipal law or any other arrangement providing similar
benefits; or (2) any Cross Border Lease Agreement (as defined on Exhibit N)
which is designed to permit depreciation of the same property to be claimed
under the tax laws of two different countries.
"Telerate Page 3750" means the display designated as page "3750" on the
Telerate Service (or such other page as may replace the 3750 page on that
15
service or such other service or services as may be nominated by the British
Bankers' Association for the purpose of displaying London interbank offered
rates for U.S. dollar deposits).
"364--Day Commitment" means with respect to any Bank, such Bank's
commitment to make its Pro Rata Share of the 364--Day Loans as set forth in
Section 2.01(B) up to the maximum aggregate outstanding amounts permitted in
Section 2.01(B), as adjusted for any voluntary reductions in the amount
thereof pursuant to the terms of Section 2.09 and, with respect to all of the
Banks, the aggregate amount of such commitments.
"364--Day Loan" means a Loan evidenced by or made pursuant to the 364--
Day Commitment and evidenced by a Revolving Credit Note in the form of Exhibit
B-2(B) made pursuant to and in accordance with Section 2.01(B).
"364--Day Repayment Date" means the earlier to occur of (i) September 27,
2000 or (ii) such date on which the Obligations of the Borrower under any of
the Notes (other than the Swing Loan Note) shall have become immediately due
and payable whether by acceleration or otherwise.
"Utilization" has the meaning set forth in Exhibit A.
"Utilization Fee" has the meaning set forth in Exhibit A.
"Voting Stock" of any Person means equity securities of such Person which
ordinarily have voting power for the election of directors (or Persons
performing similar functions) of such Person, whether at all times or only as
long as no senior class of securities has such voting power by reason of any
contingency.
"WIL" means Xxxxxxx International Limited, a company organized under the
laws of Ireland.
"Wire Transfer" means electronic transfer of funds including where
applicable ACH and EFT.
Section 1.02. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP, for purposes of the
calculations to be made in Sections 5.01(J) and (K), calculations of amounts
shall be made in accordance with GAAP during the period of the financial
statements referred to in Section 4.01(E), and all financial data submitted
pursuant to this Agreement shall be prepared in accordance with GAAP, except
for interim unaudited financial statements which may omit footnotes and may be
subject to year-end audit adjustments.
Section 1.03. Other Terms. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement.
16
ARTICLE II
AMOUNT AND TERMS OF THE LOANS
Section 2.01. The Loans.
(A) The Bid Loans.
(i) If the Borrower desires to incur Bid Loans, the Borrower may
deliver (via telecopy, mail or E--mail) to one or more Banks at least one
Business Day prior to the Business Day on which such Bid Loans are to be
funded a Bid Loan Request which shall specify in each case the date of
the proposed Bid Loans, whether the proposed Bid Loan is to be deemed
usage of the 364--Day Commitment or the 4--Year Commitment, the aggregate
amount of the proposed Bid Loans (which shall be in the amount of at
least Five Million Dollars ($5,000,000) and, to the extent in excess
thereof in integral multiples of One Million Dollars ($1,000,000)).
Interest on each Bid Loan shall be payable at the maturity of such Bid
Loan unless otherwise provided in the Bid Loan Offer. Bid Loans shall be
deemed to be usage of the 4--Year Commitments except when the full amount
of the 4--Year Commitments is outstanding. To the extent that the full
amount of the 4--Year Commitments is outstanding, (or would be exceeded
by a Bid Loan Request), Bid Loans shall be deemed to be usage of the
364--Day Commitments.
(ii) Each Bank receiving a Bid Loan Request shall, if, in its sole
discretion, it elects to do so, irrevocably offer to make a Bid Loan to
the Borrower as part of such proposed Bid Loans at a fixed rate or rates
of interest expressed as a numerical absolute rate and specified by such
Bank, by transmitting a completed Bid Loan Offer to Borrower before 10:00
A.M. on the date (the "Reply Date") of the proposed Bid Loans specified
in the Bid Loan Request delivered with respect thereto pursuant to
Section 2.01(A)(i), setting forth the interest rate(s), maturity date(s)
and the amount(s) of each Bid Loan which such Bank would be willing to
make as part of such proposed Bid Loans; provided that the minimum amount
of any Bank's bid and Bid Loan shall be at least Five Million Dollars
($5,000,000) and to the extent in excess thereof, in integral multiples
of One Million Dollars ($1,000,000). If a Bank receiving a Bid Loan
Request shall fail to notify Borrower, before 10:00 A.M. on the Reply
Date of its offer of a Bid Loan, such Bank may be deemed not to be making
an offer with respect to such Bid Loan.
(iii) The Borrower may, in turn, before 10:30 A.M. on the Reply
Date, accept one or more of the Banks' offers to make a Bid Loan (the
accepted amount may exceed such Bank's Commitment, but may not exceed an
amount equal to all of the Banks' Commitments less the sum of (a) the
aggregate amount of outstanding Revolving Credit Loans and Swing Loans
and (b) the aggregate amount of outstanding Bid Loans after giving effect
to any concurrent repayment thereof), in its sole discretion (without
regard to the offered tenor or interest rate in any case), or may decline
to accept any of such offers, by giving telephonic, telecopied or E-mail
notice of its acceptance to the Bank(s) whose offer to make a Bid Loan is
accepted, promptly followed by either:
17
(a) completed Bid Loan Acceptance of the amount and terms of
each such Bank's accepted Bid Loan (which amount shall be
equal to or greater than the minimum permitted amount of a
Bid Loan in accordance with Section 2.01(A)(ii), and equal
to or less than the maximum amount permitted pursuant to
Section 2.01(A)(ii)), or
(b) confirmation of the Borrower's decline of any remaining
offers made by Banks pursuant to Section 2.01(A)(ii).
The Borrower shall select all or portions of such offers rounded to the
nearest One Million Dollars ($1,000,000) in such manner as to select the
full amount desired by the Borrower without causing any accepted Bid Loan
to be less than the minimum amount referred to in Section 2.01(A)(ii).
(iv) No later than 1:00 P.M. on the Business Day on which (a) Bid
Loan is to be made, each Bank participating therein will make available
its Bid Loan(s) (as specified in Section 2.01(A)(iii) in accordance with
Section 2.01(D)(i) provided that if any Bid Loan of such Bank is maturing
or being prepaid on such date, such Bank shall only so make available the
amount by which the aggregate principal amount of the Bid Loan to be made
by such Bank on such date exceeds the aggregate principal amount of the
Bid Loan of such Bank so maturing or being prepaid. Borrower will
provide Agent a completed Officer's Certificate in the form of Exhibit
D--4 before 12:00 (Noon) on the Business Day on which (a) a Bid Loan is
to be made setting forth the amounts of all Bid Loans accepted, prepaid
and maturing on such Business Day and (b) a Bid Loan is prepaid or
matures setting forth the amount of any prepayment or repayment of any
Bid Loan occurring on such Business Day. Each Bank making Bid Loans will
make available to the Borrower the aggregate of the amounts (if any) to
be so made available by Banks in accordance with Section 2.01(D) and the
Borrower shall not be liable for any daylight overdraft charges in the
event any such amounts are not made available by any Bank in accordance
herewith. In the event that Bid Loan(s) made by a Bank mature on the
date of a requested Bid Loan, such Bank shall apply the proceeds of the
Bid Loan, if any, it is then making, to the extent thereof, to the
repayment of such maturing Bid Loan(s), such Bid Loan and repayments
being intended to be a contemporaneous exchange.
(v) Each Bid Loan shall be evidenced by the Bid Loan Note and
Exhibit 1 thereto delivered by the Borrower to the Bank making such Loan
and each Bank making any such Loan or receiving payment on account of any
such Loan shall note on Exhibit 1 to its Bid Loan Note the date, amount,
maturity, interest rate and aggregate amount of principal outstanding
under said Note. Each Bank shall also note on Exhibit 1 to its Bid Loan
Note the amount of any payment or prepayment of any Bid Loan evidenced by
such Note. Section 2.03 shall be fully applicable to and govern this
Section 2.01(A)(v) and any such notations to the same extent as if such
notations were notations on any Bank's records.
(vi) Each Bid Loan shall be payable on the maturity date specified
in the applicable Bid Loan Request relating to such Bid Loan. No Bid
Loan may be prepaid prior to its maturity date without the prior written
consent of the Bank which made the Bid Loan in question.
(vii) The Borrower further agrees to pay to Agent for the account
of the applicable Bank or Banks such amounts as will compensate any of
18
the Banks for any increase in the cost to such Bank of making or
maintaining all or any portion of the Loans as Bid Loans and for any
reduction in the amount of any sum receivable by such Bank under this
Agreement in respect of making or maintaining all or any portion of the
Loans as Bid Loans, in either case, from time to time by reason of:
(1) any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, such Bank, under or pursuant to any law, treaty, rule,
regulation (including, without limitation, any Regulations of the
Board of Governors of the Federal Reserve System) or requirement in
effect on or after the date hereof, any interpretation thereof by
any governmental authority charged with administration thereof or by
any central bank or other fiscal or monetary authority or other
authority, or any requirement imposed by any central bank or such
other authority whether or not having the force of law; or
(2) any change in (including the introduction of any new)
applicable law, treaty, rule, regulation or requirement or in the
interpretation thereof by any official authority, or the imposition
of any requirement of any central bank, whether or not having the
force of law, which shall subject such Bank to any tax (other than
taxes on net income imposed on such Bank by the United States of
America or the state or nation in which the head office of such Bank
is located), levy, impost, charge, fee, duty, deduction or
withholding of any kind whatsoever or change the taxation of such
Bank with respect to making or maintaining all or any portion of the
Loans as Bid Loans and the interest thereon (other than any change
which affects, and to the extent that it affects, the taxation of
net income of such Bank by the United States of America or the state
or nation in which the head office of such Bank is located);
provided, that with respect to any withholding the foregoing shall
not apply to any withholding tax described in sections 1441, 1442 or
3406 of the Code, or any succeeding provision of any legislation
that amends, supplements or replaces any such section, or to any
tax, levy, impost, duty, charge, fee, deduction or withholding that
results from any noncompliance by a Bank with any federal, state or
foreign law or from any failure by a Bank to file or furnish any
report, return, statement or form the filing or furnishing of which
would not have an adverse effect on such Bank and would eliminate
such tax, impost, duty, deduction or withholding;
In any such event, such Bank shall promptly notify Agent thereof, and of
the reasons therefor, and Agent shall promptly notify the Borrower
thereof in writing stating the reasons provided to Agent by such Bank
therefor and the additional amounts required to fully compensate such
Bank for such increased or new cost or reduced amount as determined by
19
such Bank. Such additional amounts shall be payable on each date on
which interest is to be paid hereunder or, if there is no outstanding
principal amount under any of the Notes, within three (3) Business Days
after the Borrower's receipt of said notice. Such Bank's certificate as
to any such increased or new cost or reduced amount (including
calculations, in reasonable detail, showing how such Bank computed such
cost or reduction) shall be submitted by Agent to the Borrower and shall,
in the absence of manifest error, be conclusive and binding. In
determining any such amount, the Bank(s) may use any reasonable averaging
and attribution methods. Notwithstanding anything to the contrary set
forth above, the Borrower shall not be obligated to pay any amounts
pursuant to this Section 2.01(A)(vii) as a result of any requirement or
change referenced above with respect to any period prior to the ninetieth
(90th) day prior to the date on which the Borrower is first notified
thereof. If the Borrower shall, as a result of the requirements of this
Section 2.01(a)(vii) above, be required to pay any Bank the additional
costs referred to therein and the Borrower, in its sole discretion, shall
deem such additional amounts to be material, the Borrower shall have the
right to substitute another bank satisfactory to the Agent for such Bank
which has certified the additional costs to the Borrower, and the Agent
shall use reasonable efforts to assist the Borrower to locate such
substitute bank. Any such substitution shall take place in accordance
with Section 9.11 and otherwise be on terms and conditions satisfactory
to the Agent, and until such time as such substitution shall be
consummated, the Borrower shall continue to pay such additional costs.
Upon any such substitution, the Borrower shall pay or cause to be paid to
the Bank that is being replaced, all principal, interest (to the date of
such substitution) and other amounts owing hereunder to such Bank and
such Bank will be released from liability hereunder, except as provided
in Section 9.10.
(viii) In the event any of the Banks shall incur any loss or
expense (including, without limitation, any loss or expense incurred by
reason of the liquidation or reemployment of deposits or other funds
acquired by such Bank to make or maintain all or any portion of the Loans
as Bid Loans) as a result of:
(1) payment or prepayment by the Borrower of all or any
portion of any Bid Loan on a date other than the scheduled maturity
date for such Bid Loan, for any reason (including, without
limitation, the acceleration of the maturity thereof pursuant to
Article VII);
(2) any failure by the Borrower to borrow any Bid Loan which
has been accepted by the Borrower under Section 2.01(A)(iii) on the
Reply Date for such Bid Loan other than any such failure resulting
from the failure of any Bank which offered an accepted Bid Loan to
make such Bid Loan available in accordance with Section 2.01(A)(iv);
such Bank shall promptly notify Borrower and the Agent thereof, and of
the reasons therefor. The Borrower shall pay to the account of such Bank
such amount as will (in the reasonable determination of such Bank, which
shall be conclusive absent manifest error) reimburse such Bank for such
20
loss or expense. Each Bank shall furnish to the Borrower, upon written
request, a written statement setting forth the computation of any such
amounts payable to such Bank under this Section 2.01(A)(viii).
(ix) Each Bank agrees that upon the occurrence of any of the
events described in Section 2.01(A)(vii) or (viii), such Bank will
exercise all reasonable efforts to take such reasonable actions at no
expense to such Bank (other than expenses which are covered by the
Borrower's advance deposit of funds with such Bank for such purpose, or
if such Bank agrees, which the Borrower has agreed to pay or reimburse to
such Bank in full upon demand), in accordance with such Bank's usual
banking practices in such situations and subject to any statutory or
regulatory requirements applicable to such Bank, as such Bank may take
without the consent or participation of any other Person to, in the case
of an event described in Section 2.01(A)(vii) or (viii), mitigate the
cost of such events to the Borrower.
(x) Notwithstanding the foregoing provisions of Section 2.01(A)(i)
through (vi) any Bid Loan to be made by a Granting Bank may be made by
its SPC pursuant to Section 9.11(J).
(B) The Revolving Credit Loans. Each Bank severally agrees, subject
to the terms and conditions contained in this Agreement, to make Revolving
Credit Loans under the 4--Year Commitment to the Borrower from time to time
after receipt by Agent from time to time before the 4--ear Repayment Date of,
and at the times provided for in, a Request and an Interest Rate Election from
the Borrower in accordance with Article III, infra, during the period
commencing on the Closing Date and ending on the Business Day immediately
preceding the 4--Year Repayment Date, in an aggregate principal amount at any
one time outstanding not to exceed (i) such Bank's Pro Rata Share of Three
Hundred Twenty-five Million Dollars ($325,000,000), less (ii) in each case,
such Bank's Pro Rata Share of the aggregate amount of any voluntary reductions
of the 4--Year Commitment made pursuant to Section 2.09. In addition, so long
as the 4--Year Commitment is fully funded each Bank severally agrees, subject
to the terms and conditions contained in this Agreement, to make Revolving
Credit Loans under the 364--Day Commitment to the Borrower, from time to time,
after receipt by the Agent, from time to time, before the 364--Day Repayment
Date of, and at the times provided for in, a Request and an Interest Rate
Election from the Borrower in accordance with Article III, infra, during the
period commencing on the Closing Date and ending on the Business Day
immediately preceding the 364--Day Repayment Date, in an aggregate principal
amount at any one time outstanding not to exceed (i) such Bank's Pro Rata
Share of One Hundred Twenty-five Million Dollars ($125,000,000), less (ii) in
each case, such Bank's Pro Rata Share of the aggregate amount of any voluntary
reductions of the 364--Day Commitment made pursuant to Section 2.09.
Notwithstanding the foregoing, it is hereby understood by the parties hereto
that the maximum principal amount available to the Borrower pursuant to this
Section 2.01(B) shall be reduced by the outstanding aggregate amounts of Bid
Loans and Swing Loans.
(C) The Swing Loans.
(a) Swing Loans. During the Swing Credit Period, so long as no
Stop Issuance Notice is in effect, the Swing Loan Bank agrees, on the terms
21
and conditions set forth in this Agreement, to make Swing Loans to the
Borrower pursuant to this subsection from time to time in amounts such that at
any time (i) the aggregate principal amount of Swing Loans outstanding at such
time does not exceed the Swing Loan Commitment and (ii) the aggregate amounts
of outstanding Swing Loans, Bid Loans and, without duplication, Revolving
Credit Loans at such time does not exceed the aggregate amount of the
Commitments at such time. Swing Loans shall be deemed usage of the 4-Year
Commitments until the 4-Year Commitments are fully funded and thereafter Swing
Loans shall be deemed usage of the 364-Day Commitments. Swing Loans shall be
evidenced by the Swing Loan Note. Each Swing Loan under this subsection shall
be made in a principal amount and based on principles agreed to by the
Borrower and the Swing Loan Bank. Within the foregoing limits, the Borrower
may borrow under this subsection, prepay Swing Loans and reborrow at any time
during the Swing Credit Period under this subsection.
(b) Conversion of Swing Loans to Revolving Credit Loans. The
Swing Loan Bank may at any time in its discretion, after a particular Swing
Loan has been outstanding for more than five Business Days (a "Stale Swing
Loan"), on behalf of the Borrower (which hereby irrevocably directs the Swing
Loan Bank to act on its behalf with respect to giving such notice), on notice
given by the Swing Loan Bank no later than 11:00 A.M. on the proposed date of
funding for the Revolving Credit Loans referred to below, request each Bank to
make, and each Bank hereby agrees to make, a Revolving Credit Loan, in an
amount (such amount with respect to each Bank, its "Swing Loan Refund Amount")
equal to such Bank's Pro Rata Share of the Commitment totaling the amount of
such Stale Swing Loan (the "Refunded Swing Loan") outstanding on the date of
such notice and with respect to which such notice relates, to repay the Swing
Loan Bank. Unless any of the events described in Sections 6.01(B) or (C) with
respect to the Borrower shall have occurred and be continuing or the 364--Day
Commitments and 4--Year Commitments shall have terminated (in any of which
cases the procedures of Section 2.01(C)(c) shall apply), each Bank shall make
the proceeds of such Revolving Credit Loan available to the Agent in
accordance with Section 2.01(B). Each such Revolving Credit Loan shall
initially be made as a Reference Rate Loan. The Agent shall pay the proceeds
of such Revolving Credit Loans to the Swing Loan Bank, which shall immediately
apply such proceeds to repay the Refunded Swing Loan. Effective on the day
such Revolving Credit Loans are made, the portion of the Refunded Swing Loan
so paid shall no longer be outstanding as a Swing Loan, shall no longer be due
as a Swing Loan under the Swing Loan Note and shall be due as Revolving Credit
Loans under the respective Revolving Credit Notes issued to the Banks
(including the Swing Loan Bank) in accordance with their respective Pro Rata
Shares.
(c) Purchase of Participations in Swing Loans. If at any time a
Swing Loan is outstanding at the time Revolving Credit Loans would have
otherwise been made pursuant to Section 2.01(B), and one of the events
described in Section 6.01(B) or (C) with respect to the Borrower shall have
occurred and be continuing or the 364-Day Commitments and 4-Year Commitments
shall have terminated, each Bank shall, on the date such Revolving Credit
Loans would have been made pursuant to the notice referred to in Section
2.01(C)(b) (the "Refunding Date"), purchase an undivided participating
interest in the relevant Swing Loan in an amount equal to such Bank's Swing
22
Loan Refund Amount. On the Refunding Date, each Bank shall transfer to the
Swing Loan Bank, in immediately available funds, such Bank's Swing Loan Refund
Amount.
(d) Payments on Participated Swing Loans. Whenever, at any time
after the Swing Loan Bank has received from any Bank such Bank's Swing Loan
Refund Amount pursuant to Section 2.01(C)(c), the Swing Loan Bank receives any
payment on account of the Swing Loan in which the Banks have purchased
participations pursuant to Section 2.01(C)(c), the Swing Loan Bank will
promptly distribute to each such Bank its Pro Rata Share (determined on the
basis of the Swing Loan Refund Amounts of all of the Banks) of such payment
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Bank's participating interest was outstanding
and funded); provided that in the event that such payment received by the
Swing Loan Bank is required to be returned, such Bank will return to the Swing
Loan Bank any portion thereof previously distributed to it by the Swing Loan
Bank.
(e) Obligations to Refund or Purchase Participations in Swing
Loans Absolute. Each Bank's obligation to transfer the amount of a Revolving
Credit Loan to the Swing Loan Bank as provided in Section 2.01(C)(b) or to
purchase a participating interest pursuant to Section 2.01(C)(c) shall be
absolute and unconditional and shall not be affected by any circumstance,
including, without limitation (i) any set-off, counterclaim, recoupment,
defense or other right which such Bank, the Borrower or any other Person may
have against the Swing Loan Bank or any other Person, (ii) the occurrence or
continuance of a Default or an Event of Default or the termination or
reduction of any Commitments, (iii) any adverse change in the condition
(financial or otherwise) of the Borrower or any other Person, (iv) any breach
of this Agreement by the Borrower, any other Bank or any other Person or (v)
any other circumstance, happening or event whatsoever, whether or not similar
to any of the foregoing.
(f) Borrowings; Repayments. The Borrower shall give the Swing
Loan Bank notice of proposed borrowings in accordance with terms agreed to by
the Borrower and the Swing Loan Bank. The mechanics for borrowing and
repayment of Swing Loans by the Borrower will be in accordance with the terms
agreed to by the Borrower and the Swing Loan Bank.
(g) Interest. Each Swing Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date such Loan is
made until it is repaid, at a rate per annum equal to the Federal Funds Rate
plus the Applicable Margin plus fifty one--hundredths of one percent (.50%).
Accrued interest shall be payable upon the earlier of (i) the date such Swing
Loan is repaid and (ii) the date such Swing Loan is due and payable which, in
any event, shall not be later than the 4-Year Repayment Date. Any overdue
principal of or interest on any Swing Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the sum of 2%
plus the Federal Funds Rate plus the Applicable Margin plus fifty one--
hundredths of one percent (.50%) for such day.
(h) Termination. The Swing Loan Commitment shall terminate on the
4--Year Repayment Date.
(i) Stop Issuance Notice. If the Majority Banks determine at any
time that the conditions set forth in Section 3.01(B) would not be satisfied
in respect of a Loan at such time, then the Majority Banks may request that
the Agent issue a "Stop Issuance Notice", and the Agent shall issue such
23
notice to the Swing Loan Bank and Borrower. Such Stop Issuance Notice shall
be withdrawn upon a determination by the Majority Banks that the circumstances
giving rise thereto no longer exist. No Swing Loan shall be made while a Stop
Issuance Notice is in effect. The Majority Banks may request issuance of a
Stop Issuance Notice only if there is a reasonable basis therefor, and shall
consider reasonably and in good faith a request from the Borrower for
withdrawal of the same on the basis that the conditions in Section 3.01(B) are
satisfied; provided that the Agent and the Swing Loan Bank may and shall
conclusively rely on any Stop Issuance Notice while it remains in effect.
(D) Funding and Pro Rata Shares.
(i) Promptly after receipt of a Request and Interest Rate Election
Agent shall notify each Bank by telephone, E-mail or telecopy of the
proposed borrowing. Subject to Section 2.01(A) or (B), as the case may
be, each Bank agrees that after its receipt of notification from Agent of
Agent's receipt of a Request and Interest Rate Election, such Bank shall
send its Pro Rata Share (or such portion thereof as may be necessary to
provide Agent with such Pro Rata Share in Dollars and in immediately
available funds, without consideration or use of any contra accounts of
any Bank) of the requested Loan by Wire Transfer to Agent so that Agent
receives such Pro Rata Share in Dollars and in immediately available
funds not later than 12:00 P.M. (Boston Massachusetts time) on the first
day of the Interest Period for such Loan, and Agent shall advance funds
to the Borrower upon Agent's receipt of such Pro Rata Shares in the
amount of the Pro Rata Shares of such Loan in Agent's possession. Unless
Agent shall have been notified by any Bank (which notice may be
telephonic if confirmed promptly in writing) prior to the first day of
the Interest Period in respect of any Loan which such Bank is obligated
to make under this Agreement that such Bank does not intend to make
available to Agent such Bank's Pro Rata Share of such Loan on such date,
Agent may assume that such Bank has made such amount available to Agent
on such date and Agent in its sole discretion may, but shall not be
obligated to, make available to the Borrower a corresponding amount on
such date. If such corresponding amount is not in fact made available to
Agent by such Bank, Agent shall be entitled to recover such corresponding
amount from such Bank promptly upon demand by Agent together with
interest thereon, for each day from such date until the date such amount
is paid to Agent, at the Federal Funds Rate for three (3) Business Days
and thereafter at the Reference Rate. If such Bank does not pay such
corresponding amount forthwith upon Agent's demand therefor, Agent shall
promptly notify the Borrower and the Borrower shall promptly pay such
corresponding amount to Agent. Nothing contained in this Section shall
be deemed to relieve any Bank from its obligation to fulfill its
obligations hereunder or to prejudice any rights that the Borrower may
have against any Bank as a result of any default by such Bank hereunder.
(ii) Each Bank and the Borrower further agree that each Bank's Pro
Rata Share of the Commitment and, except as changed by events or actions
occurring in accordance with the terms and conditions of this Agreement,
the Loans (other than the Bid Loans and Swing Loans), shall be the
percentage set forth opposite each Bank's name on Exhibit K, as the same
may from time to time be amended in accordance with Section 9.11.
24
(iii) Each Loan other than Swing Loans shall be in the amount of
at least Five Million Dollars ($5,000,000) and, to the extent in excess
thereof, in integral multiples of One Million Dollars ($1,000,000). Each
Bank's Pro Rata Share of the Loans shall be evidenced by its Notes and
the records of such Bank. Each Revolving Credit Note payable to each
Bank shall be in the principal amount of such Bank's Pro Rata Share of
the 364--Day Commitment or 4--Year Commitment, as applicable, and shall
be payable in accordance with its terms.
(E) Notwithstanding anything to the contrary set forth herein or in the
Notes, the entire outstanding principal balance of the Notes evidencing the
364-Day Loans shall be due and payable on the 364--Day Repayment Date and the
entire outstanding principal balance of the Notes evidencing the 4--Year Loans
shall be due and payable on the 4--Year Repayment Date. In addition to each
principal payment required pursuant to the foregoing, in the event that the
outstanding principal balance(s) of (a) the Revolving Credit Loans, Swing
Loans and the Bid Loans, in each case, if any, exceeds the Commitment then in
effect, (b) the 364--Day Loans and the Bid Loans made under the 36--Day
Commitment in each case, if any, exceeds the 364--Day Commitment then in
effect or (c) the 4--Year Loans, Swing Loans and the Bid Loans made under the
4--Year Commitment in each case, if any, exceeds the 4--Year Commitment then
in effect, the Borrower shall immediately repay to Agent for the pro rata
account of each Bank in immediately available Dollars an amount equal to the
excess. Any such payment shall be applied in accordance with Section 2.06(B)
as if the Borrower had not designated the Loans to which such payment is to be
applied.
Section 2.02. Interest and Fees on the Loans.
(A) Interest.
(i) Interest shall accrue on each of the Loans (other than Bid
Loans and Swing Loans) at the Reference Rate or the Libor Rate for each
of such Loan's Interest Periods in accordance with the Borrower's
Interest Rate Elections for such Loans subject to and in accordance with
the terms and conditions of this Agreement and the applicable Notes. The
Borrower shall pay such interest to Agent for the pro rata account of
each Bank in arrears on the Revolving Credit Loans outstanding from time
to time after the Closing Date, in accordance with the following: (a) if
any such Loan is a Reference Rate Loan, such payments shall be made
quarterly on the last Business Day of each March, June, September and
December of each year commencing December 31, 1999; (b) if such Loan is a
Libor Loan and is for a term of more than three months, such payments
shall be made every three months commencing on the date that is three
months after the date on which such Libor Loan was made and, in addition
to each such quarterly payment required pursuant to the foregoing, with
respect to each such Loan as to which an Interest Adjustment Date occurs,
on each such Interest Adjustment Date; and (c) if such Loan is a Libor
Loan and is for a term of three months or less, with respect to each such
Loan as to which an Interest Adjustment Date occurs, on each such
25
Interest Adjustment Date. Interest shall accrue and be paid (i) on the
Bid Loans in accordance with Section 2.01(A) and the Bid Loan Notes and
(ii) on the Swing Loans in accordance with Section 2.01(C)(g) and the
Swing Loan Notes.
(ii) Any amount of principal or interest due under any Loan which
is not paid when due, whether at stated maturity, by acceleration or
otherwise, shall bear interest, payable on demand, at a floating interest
rate per annum equal to two percent (2.0%) above the rate otherwise in
effect with respect to such Loan.
(iii) Notwithstanding anything to the contrary set forth in this
Agreement, in the event that any change in the Applicable Margin becomes
retroactively effective and the Borrower has previously paid an amount of
interest hereunder which is either in excess of or less than the amount
of interest which the Borrower would have paid if the new Applicable
Margin had been in effect as of the date as of which such change becomes
retroactively effective, then the Borrower shall promptly pay to Agent
for the pro rata account of each Bank, and, if applicable, each Bank
shall promptly pay to Agent for the account of the Borrower such amount
(or, in the case of a payment to be made by the Banks, each Bank's Pro
Rata Share of such amount) as may be necessary to adjust the interest
paid by the Borrower to equal the amount payable at the new Applicable
Margin for the period for which the Borrower paid interest based on the
old Applicable Margin.
(B) Facility and Other Fees.
(i) As consideration for the Commitment, the Borrower shall pay to
Agent for the account of each Bank a Facility Fee calculated in
accordance with Exhibit A on the average daily amount of such Bank's
Commitment, computed on a quarterly basis in arrears on the last Business
Day of each Reporting Period based upon the average daily amount of such
Bank's Commitment (without regard to utilization) during that quarter (or
portion thereof) as calculated by the Agent, at a rate per annum equal to
the Facility Fee Rate then in effect. The Facility Fee on the 4--Year
Commitment shall accrue from the Closing Date to the 4-Year Repayment
Date and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing on
December 31, 1999 and continuing through the 4--Year Repayment Date, with
the final payment to be made on the 4--Year Repayment Date. The Facility
Fee on the 364--Day Commitment shall accrue from the Closing Date to the
364--Day Repayment Date and shall be due and payable quarterly in arrears
on the last Business Day of each March, June, September and December,
commencing on December 31, 1999 and continuing through the 364--Day
Repayment Date, with the final payment to be made on the 364--Day
Repayment Date. In connection with any termination of Commitments under
Section 2.09, the applicable accrued Facility Fee calculated for the
period ending on such date shall also be paid on the date of such
termination, with the following quarterly payment being calculated on the
basis of the period from such termination date to such quarterly payment
date. The Facility Fee provided in this Section shall accrue at all
times after the Closing Date, including at any time during which one or
more conditions in Article III are not met. Notwithstanding anything to
the contrary set forth in this Agreement, in the event that any change in
the Facility Fee Rate becomes retroactively effective and the Borrower
has previously paid any Facility Fee hereunder which is either in excess
26
of or less than the Facility Fee which the Borrower would have paid if
the new Facility Fee Rate had been in effect as of the date as of which
such change becomes retroactively effective, then the Borrower shall
promptly pay to Agent for the pro rata account of each Bank, and, if
applicable, each Bank shall promptly pay to Agent for the account of the
Borrower such amount (or, in the case of a payment to be made by the
Banks, each Bank's Pro Rata Share, based on its Commitment, of such
amount) as may be necessary to adjust the Facility Fee paid by the
Borrower to equal the amount payable at the new Facility Fee Rate for the
period for which the Borrower paid a Facility Fee based on the old
Facility Fee Rate.
(ii) As additional consideration for the Commitment, the Borrower
shall pay to the Agent for the account of each Bank a Utilization Fee
calculated in accordance with Exhibit A, computed on a quarterly basis in
arrears on the last Business Day of each Reporting Period at a rate per
annum equal to the Applicable Utilization Fee Rate then in effect. Such
Utilization Fee shall accrue from the Closing Date to the 4-Year
Repayment Date and shall be due and payable quarterly, in arrears on the
last Business Day of each March, June, September and December commencing
December 31, 1999 and continuing through the 4-Year Repayment Date with
the final payment to be made on the 4-Year Repayment Date; provided that,
in connection with any termination of Commitments under Section 2.09, the
accrued Utilization Fee calculated for the period ending on such date
shall also be paid on the date of such termination, with the following
quarterly payment being calculated on the basis of the period from such
termination date to such quarterly payment date. The Utilization Fee
provided in this Section shall accrue at all times after the Closing
Date, including at any time during which one or more conditions in
Article III are not met. Notwithstanding anything to the contrary set
forth in this Agreement, in the event that any change in the Utilization
Fee Percentage Rate becomes retroactively effective and the Borrower has
previously paid any Utilization Fee hereunder which is either in excess
of or less than the Utilization Fee which the Borrower would have paid if
the new Utilization Fee Percentage Rate had been in effect as of the date
as of which such change becomes retroactively effective, then the
Borrower shall promptly pay to Agent for the pro rata account of each
Bank, and, if applicable, each Bank shall promptly pay to Agent for the
account of the Borrower such amount (or, in the case of a payment to be
made by the Banks, each Bank's Pro Rata Share, based on its Commitment,
of such amount) as may be necessary to adjust the Utilization Fee paid by
the Borrower to equal the amount payable at the new Utilization Fee
Percentage Rate for the period for which the Borrower paid a Utilization
Fee based on the old Utilization Fee Percentage Rate.
(iii) On the Closing Date and thereafter the Borrower shall pay to
Agent in some cases solely for Agent's account and in other cases for the
accounts of the Banks fees in amounts previously agreed upon by Agent and
the Borrower.
(C) Increased Costs - Capital. If, after the date hereof, any Bank or
Banks at any time or times shall have reasonably determined that the adoption
or effectiveness of any applicable law, governmental rule, regulation or order
regarding capital adequacy of banks or bank holding companies, or any change
27
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any such Bank or
such Bank's holding company with any policy, guideline, directive or request
regarding capital adequacy (whether or not having the force of law and whether
or not failure to comply therewith would be unlawful) of any such authority,
central bank or comparable agency, expressly including without limitation the
1988 Revised Basle Accord issued by the Basle Committee on Banking Regulations
and Supervisory Practices adopted prior to the date hereof, that has or would
have the effect of reducing the rate of return on the capital of such Bank or
such Bank's holding company as a consequence of the obligations hereunder of
such Bank and/or the Loans by such Bank to a level below that which such Bank
or such Bank's holding company would have achieved but for such adoption,
change or compliance (taking into consideration the policies of such Bank or
such Bank's holding company with respect to capital adequacy immediately
before such adoption, change or compliance and assuming that the capital of
such Bank or such Bank's holding company was fully utilized prior to such
adoption, change or compliance) by an amount reasonably deemed by such Bank to
be material, then the Borrower may at its sole option within 90 days after the
first demand by such Bank (with a copy to Agent) provide a replacement bank or
banks for such Bank, which replacement bank or banks shall be subject to the
approval of Agent (which approval shall not be unreasonably withheld), and
shall take all actions necessary to transfer the rights and obligations of
such Bank hereunder and the other agreements relating to the transactions
contemplated by this Agreement to which such Bank is a party to such
replacement bank or banks within such 90-day period. Any such replacement
bank shall pay to the Bank being replaced the full amount of principal,
accrued interest and accrued fees owing by the Borrower to the Bank being
replaced as of the date such replacement is effective. In any event, the
Borrower shall pay to Agent for the account of such Bank from time to time as
specified by such Bank (with a copy to Agent) such additional amounts as shall
be sufficient to compensate such Bank or such Bank's holding company for such
reduced return, each such payment to be made by the Borrower within five (5)
Business Days after each demand by such Bank. A certificate of one of the
officers of such Bank as is so affected setting forth the amount to be paid to
such Bank hereunder shall, in the absence of manifest error, be conclusive.
In determining such amount, each Bank may use any reasonable averaging and
attribution methods. At the written request of the Borrower, any Bank to
which any such amount is due or has been paid shall provide the Borrower with
a written explanation of the methods used in calculating such amount. Each
Bank will use its best efforts to inform the Borrower and Agent of any event
occurring after the date hereof which will require payments to be made under
this Section 2.02(C) promptly after such Bank becomes aware of such event, but
the failure of any Bank so to inform the Borrower shall not affect any of the
obligations of the Borrower hereunder. Notwithstanding anything to the
contrary set forth above, the Borrower shall not be obligated to pay any
amounts pursuant to this Section 2.02(C) as a result of any such adoption,
effectiveness, change or compliance referenced above with respect to any
period prior to the ninetieth (90th) day prior to the date on which the
Borrower is first notified thereof.
Section 2.03. Notations. At the time of (i) the making of each Loan
evidenced by any of the Notes, (ii) each change in the interest rate under any
of the Notes effected as a result of an Interest Rate Election; and (iii) each
payment or prepayment of any of the Notes, each Bank may enter upon its
records an appropriate notation evidencing (a) such Bank's Pro Rata Share of
28
such Loan and whether the Loan is usage of the 364-Day Commitment or the 4-
Year Commitment and (b) the interest rate and Interest Adjustment Date
applicable thereto or (c) such payment or prepayment of principal and (d) in
the case of payments or prepayments of principal, the applicable Loan which
was paid or prepaid. No failure to make, or error in making, any such
notation shall affect the Borrower's unconditional obligations to repay the
Loans and all interest, fees and other sums due in connection with this
Agreement and/or any of the Notes in full, nor shall any such failure or
error, standing alone, constitute grounds for disproving a payment of
principal by the Borrower. However, in the absence of manifest error, such
notations and each Bank's records containing such notations shall constitute
presumptive evidence of the facts stated therein, including, without
limitation, the outstanding amount of such Bank's Pro Rata Share of the Loans
and all amounts due and owing to such Bank at any time. Any such notations
and such Bank's records containing such notations may be introduced in
evidence in any judicial or administrative proceeding relating to this
Agreement, any of the Loans or any of the Notes.
Section 2.04. Computation of Interest and Fees. Interest due under
this Agreement and under the Notes with respect to Bid Loans and Libor Loans
shall be computed on the basis of a year of 360 days over the actual number of
days elapsed and with respect to Reference Rate Loans and Swing Loans on the
basis of a 365 (366) day year over the actual number of days elapsed. The
Facility Fees payable under Section 2.02(B)(i) shall be calculated on the
basis of a 365(366) day year for the actual number of days elapsed. The
Utilization Fees payable under Section 2.02(B)(ii) shall be calculated in
accordance with Exhibit A.
Section 2.05. Time of Payments and Prepayments in Immediately Available
Funds and Setoff.
(A) Time. All payments and prepayments of principal, fees, interest
and any other amounts owed from time to time under this Agreement and/or under
any of the Notes shall be made to the Agent or the Banks at the address
referred to in Schedule K or in Section 9.07 in Dollars and in immediately
available funds prior to 12:00 o'clock P.M. on the Business Day that such
payment is due. Unless otherwise instructed, the Borrower hereby authorizes
and instructs Agent to charge against the Borrower's accounts, if any, with
Agent on each date on which a payment is due hereunder and/or under any of the
Notes an amount up to the principal, interest and fees due and payable to the
Banks or any Bank hereunder and/or under any of the Notes and such charge
shall be deemed payment hereunder and under the Notes in question to the
extent that immediately available funds are then in such accounts. The
Borrower may revoke the foregoing instruction by written notice to Agent given
in accordance with this Agreement. In addition, the Borrower hereby
irrevocably authorizes Agent, if and to the extent payment of any installment
of principal, interest and/or fees hereunder and/or under any of the Notes is
not made when due, to charge against the Borrower's accounts, if any, with
Agent an amount equal to the amount thereof not paid when due. Any such
payment or prepayment which is received by Agent in Dollars and in immediately
available funds after 12 o'clock P.M. on a Business Day shall be deemed
received for all purposes of this Agreement on the next succeeding Business
Day except that solely for the purpose of determining whether a Default has
occurred under Section 6.01(A), any such payment or prepayment if received by
Agent prior to the close of Agent's business on a Business Day shall be deemed
received on such Business Day. All payments of principal, interest, fees and
any other amounts which are owing to any or all of the Banks hereunder and/or
29
under any of the Notes that are received by Agent in immediately available
Dollars prior to 12:00 o'clock P.M. on any Business Day shall, to the extent
owing to the Banks other than Agent, be sent by Wire Transfer by Agent (in
each case, without deduction for any claim, defense or offset of any type)
before 2:00 o'clock P.M. on the same Business Day. Each such Wire Transfer
shall be addressed to each Bank in accordance with the wire instructions set
forth in Exhibit K hereto. The amount of each payment wired by Agent to each
such Bank shall be such amount as shall be necessary to provide such Bank with
its Pro Rata Share of such payment (without consideration or use of any contra
accounts of any Bank), or with such other amount as may be owing to such Bank
in accordance with this Agreement (in each case, without deduction for any
claim, defense or offset of any type). Each such Wire Transfer shall be sent
by Agent only after Agent has received immediately available Dollars from or
on behalf of the Borrower and each such Wire Transfer shall provide each Bank
receiving same with immediately available Dollars on receipt by such Bank.
Any such payments of immediately available Dollars received by Agent after
12:00 o'clock P.M. and before 2:00 o'clock P.M. on any Business Day shall be
forwarded in the same manner by Agent to such Banks as soon as practicable on
said Business Day, and if any such payments of immediately available Dollars
are received by Agent after 2:00 o'clock P.M. on a Business Day, Agent shall
so forward same to such Banks before 10:00 o'clock A.M. on the immediately
succeeding Business Day. If Agent does not forward any such payment to a Bank
on the Business Day prescribed above, Agent shall pay to said Bank upon demand
interest to said Bank at the then effective Federal Funds Rate for each day
such payment is overdue.
(B) Setoff, etc. Upon the occurrence and during the continuance of
any Event of Default, each Bank is hereby authorized at any time and from time
to time, without notice to the Borrower (any such notice being expressly
waived by the Borrower), to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and any other
Indebtedness at any time owing by such Bank to or for the credit or the
account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement or any of the Notes
irrespective of whether or not such Bank shall have made any demand under this
Agreement or any of its Notes and although such obligations may be unmatured.
Each such Bank agrees to promptly notify the Borrower and Agent after any such
setoff and application; provided that the failure to give such notice shall
not affect the validity of such setoff and application. Promptly following
any notice of setoff received by Agent from a Bank pursuant to the foregoing,
Agent shall notify each other Bank thereof. The rights of each Bank under
this Section 2.05(B) are in addition to all other rights and remedies
(including, without limitation, other rights of setoff) which such Bank may
have.
(C) Unconditional Obligations and No Deductions. The Borrower's
obligation to make all payments provided for in this Agreement and/or the
Notes shall be unconditional. Each such payment shall be made without
deduction for any claim, defense or offset of any type, including, without
limitation, any withholdings and other deductions on account of income or
other taxes and regardless of whether any claims, defenses or offsets of any
type exist; provided, however, that the foregoing shall not apply to any
withholding tax or other amount that the Borrower is legally prohibited from
paying a Bank or Banks or where the Borrower could incur a civil or criminal
penalty it if paid such amount to a Bank or Banks. However, this Section
2.05(C) shall not constitute a waiver of any claims the Borrower may hereafter
have at law against any of the Banks. Amounts withheld by the Borrower and
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remitted to proper taxing or other governmental authorities shall be treated
as having been paid by the Borrower to the Agent for the benefit of the Bank
as to which such withholding was made under this Agreement.
Section 2.06. Prepayment and Certain Payments.
(A) Voluntary Prepayments. All or any portion of the unpaid principal
balance of any Reference Rate Loan may be prepaid at any time by a payment to
Agent of immediately available Dollars by the Borrower and all or any portion
of the unpaid principal balance of any Libor Loan may be prepaid or paid to
Agent by a payment of immediately available Dollars on the Interest Adjustment
Date for such Loan, upon, in the case of a Reference Rate Loan, one (1)
Business Day prior telephonic, E-mail or telecopied notice promptly confirmed
in writing from the Borrower to Agent, and, in the case of a Libor Loan, on
the applicable Interest Adjustment Date and upon three (3) Business Days prior
telephonic or telecopied notice promptly confirmed in writing from the
Borrower to Agent, without premium or penalty; provided that all such payments
and prepayments of Libor Loans shall be accompanied by the interest accrued on
the principal amount being paid or prepaid through the date of payment or
prepayment and provided further that each such partial payment or prepayment
of principal of a Libor Loan shall be in such amount so that each outstanding
Libor Loan remains in a principal amount of at least Five Million Dollars
($5,000,000) and, to the extent in excess thereof, in the amount of One
Million Dollars ($1,000,000) or an integral multiple thereof, and provided
further that each such partial payment or prepayment of principal of a
Reference Rate Loan shall be such amount so that each outstanding Reference
Rate Loan remains in a principal amount of at least Two Million Five Hundred
Thousand Dollars ($2,500,000) or, to the extent in excess thereof, in integral
multiples of One Million Dollars ($1,000,000). The Borrower's notice of
payment or prepayment to Agent shall designate whether such payment or
prepayment is a payment or prepayment of one or more Reference Rate Loans or
Libor Loans. Any permitted voluntary prepayment of any Loans shall be made
without premium or penalty other than the reimbursements provided for under
any of Sections 2.01(A)(vii) and (viii), 2.10(E) and (F). Any voluntary
prepayments of a Loan with the exception of Bid Loans and Swing Loans shall
first be applied to the outstanding principal amount of the 364--Day Loans, if
any, until the outstanding principal amount thereof is Zero Dollars ($0.0) and
only thereafter to the outstanding principal amount of the 4--Year Loans.
(B) Absence of Designation of Payment or Prepayment. In the event
that or to the extent that at the time of any payment or prepayment of all or
any portion of the Loans other than after the occurrence of and during the
continuance of an Event of Default, the Borrower fails to provide Agent with
telephonic, telecopied or E-mailed notice promptly confirmed in writing
designating whether such payment or prepayment is a payment or prepayment of
Bid Loans, Reference Rate Loans or Libor Loans, Agent shall allocate any such
payment or prepayment to outstanding Revolving Credit Loans which are
Reference Rate Loans, if any, until paid or prepaid in full, thereafter to
such Revolving Credit Loans which are Libor Loans as to which such date is an
Interest Adjustment Date for such Libor Loans until paid in full and
thereafter to such Loans (other than Bid Loans) as Agent, in its reasonable
discretion, may designate or select until paid or prepaid in full and
thereafter to Bid Loans as Agent, in its reasonable discretion may designate
or select; provided that Agent shall select on a pro rata basis Bid Loans of
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the same maturity and in the order of their maturity until paid or prepaid in
full. In the event that any mandatory payment is required under Section
2.02(C) or for any other reason, unless an Event of Default has occurred and
is continuing, and on the date any such payment is due, the amount of
Reference Rate Loans, if any, plus the amount of Libor Loans as to which such
date is an Interest Adjustment Date for such Libor Loans is less than the
amount of such required payment or prepayment, such payment or prepayment
shall nevertheless be paid in full by the Borrower when due and the proceeds
thereof will, to the extent not directed to be applied to specific Loans by
the Borrower's above-referenced designation, be applied first to outstanding
Reference Rate Loans until paid in full, second to the Libor Loans as to which
such date is an Interest Adjustment Date for such Libor Loans until paid in
full, and thereafter to such Loans as Agent, in its reasonable discretion, may
designate or select and the Borrower shall be liable for any additional cost
or expense under Section 2.10(E). If an Event of Default has occurred and is
continuing, any payment or prepayment referred to above shall be applied to
all outstanding Loans pro rata on the basis of each Bank's Pro Rata Share of
the Loans on the date of such payment or prepayment.
(C) Bid Loans and Swing Loans. The outstanding aggregate amount of
Bid Loans and Swing Loans shall not at any time exceed availability under the
Commitment of the Banks. The aggregate outstanding principal amount of any
Bid Loans and Swing Loans at any time shall reduce availability under the
Commitment of the Banks on a Dollar for Dollar basis. Such availability shall
be restored, subject to the maximum amount thereof as same may have been
reduced under Section 2.09 to the extent necessary to permit repayment of any
Bid Loans and Swing Loans with Revolving Credit Loans. Such reductions in
availability shall not be deemed permanent reductions in the amount of the
Commitment.
Section 2.07. Interest Rate Elections.
(A) Subject to the terms and conditions of this Agreement, the Borrower
shall have the right, exercisable by submission of an Interest Rate Election,
as to any Loan (other than Bid Loans and Swing Loans) and as to any portion
of the then outstanding principal balance of the Loans (other than Bid Loans
and Swing Loans), to be effective on the applicable Interest Adjustment Date
for the Loan in question, to elect the Reference Rate or the Libor Rate as the
interest rate on such Loan and/or on the portion of the outstanding principal
balance of the Loans that is subject to an Interest Rate Election on such
Interest Adjustment Date.
(B) Interest Rate Elections with regard to the Libor Rate shall be
subject to and governed by Section 2.10.
(C) Notwithstanding any other provisions of this Agreement, no Interest
Rate Election shall be permitted if it would cause the outstanding amount of
Libor Loans on any date on which the Commitment is to be reduced in accordance
with Section 2.09 to exceed the amount to which the Commitment is to be
reduced.
(D) On the Business Day that Agent is deemed to have received a Request
and/or an Interest Rate Election from the Borrower, Agent shall notify each of
the Banks thereof, by telecopying or E-mailing a copy of the Borrower's
32
Request and/or Interest Rate Election, as applicable, to each Bank. The
Business Day on which the Banks receive notice from Agent of a Request and/or
Interest Rate Election is hereinafter referred to as a "Notice Day".
(E) In the case of a Request and/or Interest Rate Election for a Libor
Loan, at or prior to 12:00 o'clock P.M. on the Business Day immediately
succeeding the Notice Day, if the Interest Period selected by the Borrower in
such Interest Rate Election is an Interest Period which, under this Agreement,
requires the consent of the Banks, each Bank shall notify Agent, by telephone,
telecopy or E-mail, whether such Bank is willing to offer to the Borrower the
Interest Period so selected by the Borrower and, if not, subject to Section
2.10 (B), (C), (F) and (G), the longest Interest Period which such Bank is
prepared to offer to the Borrower with respect to such Loan, which Interest
Period may not be shorter than the longest Interest Period which does not
require the consent of the Banks under this Agreement. If any Bank fails to
give any such notice on or prior to the time set forth above, Agent shall base
its below selections on the notices received from Banks at or prior to such
time. Agent shall (a) select (i) if the Interest Period selected by the
Borrower is one which requires the consent of the Banks, the shortest Interest
Period among those which each Bank has indicated it is prepared to offer to
the Borrower and (ii) the Adjusted Libor Rate applicable thereto, (b)
calculate the Libor Rate on the basis thereof and (c) notify the Borrower and
each Bank of such Libor Rate and, if applicable, the available Interest
Period, by telephone or telecopy or E-mail, prior to 2 o'clock P.M. on the
same Business Day as the Business Day on which Agent receives such
determinations from the Banks. In accordance with Section 2.01(D), the Banks
shall send to Agent by Wire Transfer Dollars (which are immediately available
to Agent upon receipt) for disbursement to the Borrower.
(F) In the case of a Request and/or Interest Rate Election for a
Reference Rate Loan, Agent shall, concurrently with its notification to each
of the Banks pursuant to Section 2.07(D) notify such Bank of the Reference
Rate applicable to the Loan. At or prior to 12 o'clock P.M. on the Business
Day immediately succeeding the Notice Day, each Bank shall send to Agent by
Wire Transfer Dollars (which are immediately available to Agent upon receipt)
for disbursement to the Borrower in accordance with Section 2.01 of this
Agreement.
Section 2.08. Interest in Absence of Interest Rate Election. If at any
time all or any portion of the outstanding principal balance of the Loans
(other than Bid Loans or Swing Loans) or any Pro Rata Share(s) thereof is not
subject to an Interest Rate Election because an Interest Adjustment Date
occurs and Agent has not received a timely Interest Rate Election from the
Borrower which is effective in accordance with the terms and conditions of
this Agreement on such Interest Adjustment Date, the interest rate on all or
said portion of said outstanding principal balance or any Pro Rata Share(s)
thereof shall thereupon be and remain the Reference Rate until occurrence of
an Interest Adjustment Date applicable to said principal balance or Pro Rata
Share(s) of the Loans for which Agent shall have received a timely Interest
Rate Election effective in accordance with the terms and conditions of this
Agreement on such Interest Adjustment Date and which elects another available
interest rate on all or said portion of said outstanding principal balance or
Pro Rata Share(s) of the Loans.
Section 2.09. Permanent Reduction of Commitment. At the Borrower's
option, the Commitment may be permanently and irrevocably reduced in whole or
33
in part by an amount of at least Five Million Dollars ($5,000,000) and, to the
extent in excess thereof, in integral multiples of One Million Dollars
($1,000,000) at any time, provided that (i) the Borrower gives Agent written
notice of the exercise of such option at least five (5) Business Days prior to
the effective date thereof, (ii) the aggregate outstanding balances of the
Revolving Credit Loans, the Swing Loans and the Bid Loans, in each case, if
any, do(es) not exceed the Commitment as so reduced in any such case on the
effective date of such reduction and (iii) the Borrower is not and, after
giving effect to such reduction, would not be in violation of Section 2.07(C).
Any such reduction shall concurrently reduce the Dollar amount of each Bank's
Pro Rata Share of the Commitment.
Section 2.10. Special Libor Loan Provisions. The Libor Loans shall be
subject to and governed by the following terms and conditions:
(A) Requests. Each Request accompanied by an Interest Rate Election
selecting the Libor Rate must be received by Agent in accordance with the
definition of Interest Rate Election.
(B) Libor Loans Unavailable. Notwithstanding any other provision of
this Agreement, if, prior to or on the date on which all or any portion of the
Loans is to be made as or converted into a Libor Loan, any of the Banks (or
Agent with respect to (ii) below) shall reasonably determine (which
determination shall be conclusive and binding on the Borrower), that
(i) Dollar deposits in the relevant amounts and for the relevant
Interest Period are not offered to such Bank in the London interbank
market,
(ii) by reason of circumstances affecting the London interbank
market, adequate and reasonable means do not exist for ascertaining the
Adjusted Libor Rate, or
(iii) the Adjusted Libor Rate shall no longer represent the
effective cost to such Bank for Dollar deposits in the London interbank
market for reasons other than the fact, standing alone, that the Adjusted
Libor Rate is based on an averaging of rates determined by Agent and that
such Bank's rate may exceed such average,
such Bank may elect not to accept any Interest Rate Election electing a Libor
Loan and such Bank shall notify Agent by telephone or telecopy thereof,
stating the reasons therefor, not later than the close of business on the
second Business Day prior to the date on which such Libor Loan is to be made.
Agent shall promptly give notice of such determination and the reason therefor
to the Borrower, and all or such portion of the Loans, as the case may be,
which are subject to any of Section 2.10(B)(i) through (iii) as a result of
such Bank's determination shall be made as or converted into, as the case may
be, Reference Rate Loans and such Bank shall have no further obligation to
make Libor Loans, until further written notice to the contrary is given by
Agent to the Borrower. If such circumstances subsequently change so that such
Bank shall no longer be so affected, such Bank's obligation to make or
maintain its Pro Rata Share of all or any portion of the Loans as Libor Loans
shall be reinstated when such Bank obtains actual knowledge of such change of
circumstances and promptly after obtaining such actual knowledge such Bank
shall forward written notice thereof to Agent. After receipt of such notice,
Agent shall promptly forward written notice thereof to the Borrower. Upon or
34
after receipt by the Borrower of such written notice, the Borrower may submit
an Interest Rate Election in accordance with this Agreement electing an
Interest Period ending no later than the Interest Adjustment Date for the then
current Interest Period for the other Banks' Pro Rata Shares of Libor Loans
and electing the Libor Rate for such Banks' or Bank's Pro Rata Share(s) of the
Loans as to which such Bank's or Banks' obligation(s) to make or maintain its
or their Pro Rata Share(s) of the Loans as Libor Loans was suspended and such
Pro Rata Share(s) shall be converted to Libor Loans in accordance with this
Agreement. During any period throughout which any of the Banks has or have no
obligation to make or maintain its or their Pro Rata Share(s) of the Loans as
Libor Loans, no Interest Rate Elections electing the Libor Rate shall be
effective with regard to the Loans to the extent of the Pro Rata Share(s) of
such Bank(s).
(C) Libor Lending Unlawful. In the event that any change in
applicable laws or regulations (including the introduction of any new
applicable law or regulation) or in the interpretation thereof (whether or not
having the force of law) by any governmental or other regulatory authority
charged with the administration thereof, shall make it unlawful for any of the
Banks to make or continue to maintain its Pro Rata Share of all or any portion
of the Loans as Libor Loans, each such Bank shall promptly notify Agent by
telephone or telecopy or E-mail thereof, and of the reasons therefor, and the
obligation of such Bank to make or maintain its Pro Rata Share of the Loans or
such portion thereof as Libor Loans shall, upon the happening of such event,
terminate and Agent shall, by telephonic notice to the Borrower, declare that
such obligation has so terminated with respect to such Bank, and such Pro Rata
Share of the Loans or any portion thereof to the extent then maintained as
Libor Loans, shall, on the last day on which such Bank can lawfully continue
to maintain such Pro Rata Share of the Loans or any portion thereof as Libor
Loans, automatically convert into Reference Rate Loans. If circumstances
subsequently change so that such Bank shall no longer be so affected, such
Bank's obligation to make or maintain its Pro Rata Share of all or any portion
of the Loans as Libor Loans shall be reinstated when such Bank obtains actual
knowledge of such change of circumstances, and promptly after obtaining such
actual knowledge such Bank shall forward written notice thereof to Agent.
After receipt of such notice, Agent shall promptly forward written notice
thereof to the Borrower. Upon or after receipt by the Borrower of such
written notice, the Borrower may submit an Interest Rate Election in
accordance with this Agreement electing an Interest Period ending no later
than the Interest Adjustment Date for the then current Interest Period for the
other Banks' Pro Rata Shares of Libor Loans and electing the Libor Rate for
such Banks' or Bank's Pro Rata Share(s) of the Loans as to which such Bank's
or Banks' obligation(s) to make or maintain its or their Pro Rata Share(s) of
the Loans as Libor Loans was suspended and such Pro Rata Share(s) shall be
converted to Libor Loans in accordance with this Agreement. During any period
throughout which any of the Banks has or have no obligation to make or
maintain its or their Pro Rata Share(s) of the Loans as Libor Loans, no
Interest Rate Elections electing the Libor Rate shall be effective with regard
to the Loans to the extent of the Pro Rata Share(s) of such Bank(s).
(D) Additional Costs on Libor Loans. The Borrower further agrees to
pay to Agent for the account of the applicable Bank or Banks such amounts as
will compensate any of the Banks for any increase in the cost to such Bank of
making or maintaining (or of its obligation to make or maintain) all or any
portion of its Pro Rata Share of the Loans as Libor Loans and for any
reduction in the amount of any sum receivable by such Bank under this
35
Agreement in respect of making or maintaining all or any portion of such
Bank's Pro Rata Share of the Loans as Libor Loans, in either case, from time
to time by reason of:
(i) any reserve, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by,
such Bank, under or pursuant to any law, treaty, rule, regulation
(including, without limitation, any Regulations of the Board of Governors
of the Federal Reserve System) or requirement in effect on or after the
date hereof, any interpretation thereof by any governmental authority
charged with administration thereof or by any central bank or other
fiscal or monetary authority or other authority, or any requirement
imposed by any central bank or such other authority whether or not having
the force of law; or
(ii) any change in (including the introduction of any new)
applicable law, treaty, rule, regulation or requirement or in the
interpretation thereof by any official authority, or the imposition of
any requirement of any central bank, whether or not having the force of
law, which shall subject such Bank to any tax (other than taxes on net
income imposed on such Bank by the United States of America or the state
or nation in which the head office of such Bank is located), levy,
impost, charge, fee, duty, deduction or withholding of any kind
whatsoever or change the taxation of such Bank with respect to making or
maintaining all or any portion of its Pro Rata Share of the Loans as
Libor Loans and the interest thereon (other than any change which
affects, and to the extent that it affects, the taxation of net income of
such Bank by the United States of America or the state or nation in which
the head office of such Bank is located); provided, that with respect to
any withholding the foregoing shall not apply to any withholding tax
described in sections 1441, 1442 or 3406 of the Code, or any succeeding
provision of any legislation that amends, supplements or replaces any
such section, or to any tax, levy, impost, duty, charge, fee, deduction
or withholding that results from any noncompliance by a Bank with any
federal, state or foreign law or from any failure by a Bank to file or
furnish any report, return, statement or form the filing or furnishing of
which would not have an adverse effect on such Bank and would eliminate
such tax, impost, duty, deduction or withholding;
In any such event, such Bank shall promptly notify Agent thereof, and of the
reasons therefor, and Agent shall promptly notify the Borrower thereof in
writing stating the reasons provided to Agent by such Bank therefor and the
additional amounts required to fully compensate such Bank for such increased
or new cost or reduced amount as determined by such Bank. Such additional
amounts shall be payable on each date on which interest is to be paid
hereunder or, if there is no outstanding principal amount under any of the
Notes, within three (3) Business Days after the Borrower's receipt of said
notice. Such Bank's certificate as to any such increased or new cost or
reduced amount (including calculations, in reasonable detail, showing how such
Bank computed such cost or reduction) shall be submitted by Agent to the
Borrower and shall, in the absence of manifest error, be conclusive and
binding. In determining any such amount, the Bank(s) may use any reasonable
averaging and attribution methods. Notwithstanding anything to the contrary
set forth above, the Borrower shall not be obligated to pay any amounts
pursuant to this Section 2.10(D) as a result of any requirement or change
referenced above with respect to any period prior to the ninetieth (90th) day
36
prior to the date on which the Borrower is first notified thereof. If the
Borrower shall, as a result of the requirements of this Section 2.10(D) above,
be required to pay any Bank the additional costs referred to therein and the
Borrower, in its sole discretion, shall deem such additional amounts to be
material, the Borrower shall have the right to substitute another bank
satisfactory to the Agent for such Bank which has certified the additional
costs to the Borrower, and the Agent shall use reasonable efforts to assist
the Borrower to locate such substitute bank. Any such substitution shall take
place in accordance with Section 9.11 and otherwise be on terms and conditions
satisfactory to the Agent, and until such time as such substitution shall be
consummated, the Borrower shall continue to pay such additional costs. Upon
any such substitution, the Borrower shall pay or cause to be paid to the Bank
that is being replaced, all principal, interest (to the date of such
substitution) and other amounts owing hereunder to such Bank and such Bank
will be released from liability hereunder, except as provided in Section 9.10.
(E) Libor Funding Losses. In the event any of the Banks shall incur
any loss or expense (including, without limitation, any loss or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Bank to fund or maintain all or any portion of the
Loans as Libor Loans) as a result of:
(i) payment or prepayment by the Borrower of all or any portion of
any Libor Loan on a date other than the Interest Adjustment Date for such
Libor Loan, for any reason; provided, however that this clause shall not
be deemed to grant the Borrower any right to convert a Libor Loan to a
Reference Rate Loan prior to the end of any Interest Period or to imply
such right;
(ii) conversion of all or any portion of any Libor Loan on a day
other than the last day of an Interest Period applicable to such Loan to
a Reference Rate Loan for any reason including, without limitation,
acceleration of the Loans upon or after an Event of Default, any Interest
Rate Election or any other cause whether voluntary or involuntary and
whether or not referred to or described in this Agreement, other than any
such conversion resulting solely from application of Section 2.10(B) or
(C) by any Bank; or
(iii) any failure by the Borrower to borrow the Loans as Libor
Loans on the date specified in any Interest Rate Election selecting the
Libor Rate, other than any such failure resulting solely from application
of Section 2.10(B) or (C) by any Bank;
such Bank shall promptly notify Agent thereof, and of the reasons therefor.
Upon the request of Agent, the Borrower shall pay directly to Agent for the
account of such Bank such amount as will (in the reasonable determination of
such Bank, which shall be conclusive absent manifest error) reimburse such
Bank for such loss or expense. Each Bank shall furnish to the Borrower, upon
written request received by Agent, a written statement setting forth the
computation of any such amounts payable to such Bank under this Section
2.10(E).
(F) Banking Practices. Each Bank agrees that upon the occurrence of
any of the events described in Section 2.02(C) and/or 2.10(B)(i), (ii) or
(iii), (D) or (E), such Bank will exercise all reasonable efforts to take such
reasonable actions at no expense to such Bank (other than expenses which are
37
covered by the Borrower's advance deposit of funds with such Bank for such
purpose, or if such Bank agrees, which the Borrower has agreed to pay or
reimburse to such Bank in full upon demand), in accordance with such Bank's
usual banking practices in such situations and subject to any statutory or
regulatory requirements applicable to such Bank, as such Bank may take without
the consent or participation of any other Person to, in the case of an event
described in Section 2.02(C) and/or 2.10(D) or (E), mitigate the cost of such
events to the Borrower and, in the case of an event described in Section
2.10(B)(i), (ii) or (iii), to seek Dollar deposits in any other interbank
Libor market in which such Bank regularly participates and in which the
applicable determination(s) described in Section 2.10(B)(i), (ii) or (iii), as
the case may be, does not apply.
(G) Borrower's Option on Unavailability or Increased Cost of Libor
Loans. In the event of any conversion of all or any portion of any Bank's
Pro Rata Share of any Libor Loans to a Reference Rate Loan for reasons beyond
the Borrower's control or in the event that any Bank's Pro Rata Share of all
or any portion of the Libor Loans becomes subject, under Section 2.10(D) or
(E), to additional costs, the Borrower shall have the option, subject to the
other terms and conditions of this Agreement, to convert such Bank's Pro Rata
Share to a Reference Rate Loan by making Interest Rate Elections for Interest
Periods which (i) end on the Interest Adjustment Date for such Libor Loan or
(ii) end on Business Days occurring prior to such Interest Adjustment Date, in
which case at the end of the last of such Interest Periods any such Libor Loan
shall automatically convert to a Reference Rate Loan and the Borrower shall
have no further right to make an Interest Rate Election with respect to such
Reference Rate Loan other than an Interest Rate Election which is effective on
the Interest Adjustment Date for such Libor Loan. The Borrower's options set
forth in this Section 2.10(G) may be exercised, if and only if the Borrower
pays, concurrently with delivery to Agent of each such Interest Rate Election
and thereafter in accordance with Section 2.10(D), (E) and (F) all amounts
provided for therein to Agent in accordance with this Agreement.
Section 2.11. Certain References. Any references in Article I,
Sections 2.01, 2.03, 2.05, 2.10, 2.14, 2.15, 2.16, 4.02(A), 4.02(B), Article
VII, or Sections 9.02, 9.04, 9.09 or 9.10 to "any of the Banks" shall be
construed to mean any one or more of the Banks from time to time and as often
as the referenced situation or event may exist or occur and any references in
said Sections to "such Bank" shall be construed to mean any one or more of
such Banks from time to time and as often as the referenced situation or event
may exist or occur.
Section 2.12. Payment on Non-Business Days. Subject to the definition
of Interest Period, whenever any payment to be made hereunder or under any of
the Notes shall be stated to be due on a day other than a Business Day, such
payment may be made on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of payment of fees, if
any, and interest under this Agreement and under the Notes.
Section 2.13. Use of Proceeds. The Borrower shall use the Loans (i) to
repay the outstanding amount of the Old Loans and other Borrowed Money and
(ii) for working capital and other lawful business requirements of the
Borrower and the Subsidiaries, all subject to and in accordance with the
provisions of this Agreement.
Section 2.14. Banks' Maximum Commitments. No Bank shall be obligated
to make its Pro Rata Share of any Loan if after giving effect to the making of
38
such Loan either (a) the aggregate amount of Loans outstanding hereunder would
exceed the then current Commitment or (b) such Bank's Pro Rata Share of the
Loans other than Bid Loans would exceed its Pro Rata Share of the then current
Commitment, provided that a Bank may exceed its Commitment, but shall not be
obligated to do so, if such Bank shall have determined in its sole discretion
that such Loan satisfies the credit standards of such Bank and if such Bank
has obtained the prior written consent of the Majority Banks; provided that
any Bank may (but shall not be obligated to) make Bid Loans without the
consent of any of the other Banks in accordance with Section 2.01(A). The
obligations of the Banks to make Loans and their respective Pro Rata Shares of
Loans hereunder are several and not joint. If any of the Banks defaults in
the performance of its obligations hereunder, such default shall not, in and
of itself, relieve the other Banks from their obligations hereunder but no
such default shall obligate any other Bank to make any Loan in excess of their
respective Pro Rata Shares of the Commitment.
Section 2.15. Replacement of Bank. In the event that any of the Banks
becomes a Delinquent Bank and remains so for ten (10) Business Days after
written notice thereof to Agent from the Borrower and to the Delinquent Bank
from the Borrower, Agent and/or the other Banks, in each case, with copies of
such notice to each other party to this Agreement, Agent, the Borrower and the
other Banks shall exercise good faith efforts to reach mutual agreement on and
to implement (i) a means of replacing the Delinquent Bank with another bank or
banks or (ii) the purchase of the Delinquent Bank's Pro Rata Share of the
Loans and Commitment by some or all of the other Banks. Each Bank agrees that
in the event that it becomes a Delinquent Bank, it shall take all such actions
as may be reasonably requested by the Borrower, Agent and/or the other Banks
at the Delinquent Bank's sole cost and expense to permit its replacement
and/or purchase of its Pro Rata Shares of the Loans and the Commitment at no
more than the outstanding principal amount of such Pro Rata Share of the Loans
plus accrued interest thereon and that it shall indemnify and hold harmless
the Borrower, Agent and the other Banks from and against all out-of-pocket
loss, cost or expense (including reasonable attorney's fees) resulting from
its acts or omissions in becoming and being a Delinquent Bank or resulting
from replacement of the Delinquent Bank and/or purchase of the Delinquent
Bank's Pro Rata Share of the Loans and the Commitment including, without
limitation, any costs or expenses arising under Section 2.02(C) and/or 2.10(D)
or (E) and all out-of-pocket costs and expenses incurred by any of the
Borrower, Agent or the other Banks in connection with any resulting necessary
amendments of this Agreement, any of the Notes, any of the Related Documents
and/or any other document, instrument or agreement entered into in connection
therewith which result from replacement of such Delinquent Bank and/or
purchase of such Delinquent Bank's Pro Rata Shares of the Loans and the
Commitment, but excluding any credit risk of any Banks which purchase all or
any part of the Delinquent Bank's Pro Rata Share of the Loans. The
indemnifications set forth in this Section 2.15 shall not be deemed to limit
any rights or remedies of the Borrower or any Bank against the Delinquent
Bank.
Section 2.16. Pro Rata Treatment. Each payment and prepayment of
interest and/or principal on the Loans (other than Bid Loans) to Agent for the
account of the Banks or the Banks hereunder (whether directly made by the
Borrower or received by Agent or a Bank through the exercise of a right of set-
off or otherwise), shall be made pro rata, according to each Bank's Pro
39
Rata Share of the Loans (other than Bid Loans) and according, in the case of
payments or prepayments, to the then outstanding principal amounts of the
Notes which are being paid or prepaid and each payment and prepayment of fees
under Section 2.02(B)(i) (whether directly made by the Borrower or received by
Agent or a Bank through the exercise of a right of set-off or otherwise),
shall be made pro rata, according to each Bank's Pro Rata Share of the
Commitment; provided, however, that any amounts payable by the Borrower
pursuant to any of Sections 2.01(A)(vii) or (viii), 2.02(C), 2.05(C) and/or
pursuant to any of Sections 2.10(D), (E) or (F), Section 9.02 or Section 9.08
shall be paid to Agent for the account of the Bank or Banks entitled to such
amounts and any amounts payable pursuant to Section 2.15 shall be paid to the
Bank or Banks entitled to such amounts; and provided further, however, in the
event that pursuant to Section 2.10(B), (C) or (G) any of the Banks has a
Reference Rate Loan in lieu of a Libor Loan as a result of application of any
of the provisions of such Sections and the Borrower pays or prepays a Libor
Loan the Borrower shall concurrently prepay such Bank's Reference Rate Loan on
a pro rata basis as a condition to any such prepayment, all to the end that
following any partial prepayment, each Bank's Pro Rata Share of the Loans
(other than Bid Loans and Swing Loans) shall be equal to such Bank's Pro Rata
Share of the Commitment. Each payment and prepayment of interest and/or
principal on the Bid Loans (whether directly made by the Borrower or received
by a Bank through the exercise of a right of set-off or otherwise) shall be
allocated to each Bank having a Bid Loan in accordance with the terms of such
Bank's Bid Loan and in the event of any such payment which is in an amount
less than the full amount then due and owing to Banks having Bid Loans
outstanding, shall be allocated pro rata to all such Banks then owed a payment
based on the amount of the payments then due and owing to each such Bank;
provided, however, that any amounts payable by the Borrower pursuant to any of
Section 2.01(A)(vii) or (viii) shall be paid to Agent for the account of the
Bank or Banks entitled to such amounts. Notwithstanding the foregoing
provisions of this Section 2.16, upon the occurrence and during the
continuance of an Event of Default, each payment and prepayment of principal
and interest on the Loans to Agent for the account of the Banks or to the
Banks hereunder (whether directly made by the Borrower or received by Agent or
a Bank through the exercise of a right of set-off or otherwise), shall be made
pro rata, according to each Bank's Pro Rata Share of the Loans.
Section 2.17. Declaration of Invalidation. Each Bank agrees that, to the
extent that any amount received by any Bank from the Borrower or otherwise on
account of any of the Loans, is subsequently invalidated, declared to be
fraudulent or preferential, set aside or judicially required to be repaid to a
debtor-in-possession, trustee, receiver, custodian or any other Person in
connection with any proceeding referred to in Section 6.01(B) or (C) or any
similar cause of action (a "Preference"), then, to the extent of such
Preference, each Bank shall upon demand reimburse the Bank(s) subjected to
such Preference the amount necessary to cause each Bank to be affected by such
Preference in proportion to its Pro Rata Share of the Loans.
Section 2.18. Pro Rata Shares Pari Passu and Equal. The Pro Rata Share
of each Bank in the Loans and the Commitment shall be pari passu and equal
with the Pro Rata Shares of all other Banks and no Bank shall have priority
over any other Bank.
Section 2.19. Application of Funds Received by Bank. As long as any
amounts due under any of the Notes or this Agreement are outstanding, if any
Bank shall receive from the Borrower or any other Person, whether by exercise
40
of a right of setoff pursuant to Section 2.05 or otherwise, or resulting from
a banker's lien or by voluntary payment, counterclaim, cross action, suit at
law or in equity or by proof of claim in bankruptcy, liquidation or similar
proceedings, or by sale or disposition of any collateral or by payment made
under any policy of insurance or otherwise (but excluding any amounts received
by such Bank from Agent in accordance with this Agreement) any amount in
respect of its Note or the Notes (other than an amount owing by the Borrower
to such Bank under any of Section 2.01(A)(vii) or (viii), 2.10, 2.15, 9.02 or
9.08 of this Agreement), such Bank shall promptly send by Wire Transfer the
portion of such amount remaining after deduction by such Bank of any expenses
or costs incurred by such Bank in connection with obtaining such amount to
Agent in Dollars which are immediately available to Agent upon receipt
together with such Bank's accounting of the gross amount so received and the
expenses or costs deducted there from. Agent shall, promptly after Bank's
receipt of such amount in immediately available Dollars, send to each Bank by
Wire Transfer Dollars (which are immediately available to such Bank upon
receipt) in such amount as may be necessary to cause each Bank (including the
Bank which wired the above-referenced amount to Agent) to receive payment of a
portion of said amount so received by Agent which is proportionate to such
Bank's Pro Rata Share of the Loans. If any such payment in respect of any
such amount is made by any Bank pursuant to this Section 2.19 and if such
amount or any part thereof is thereafter recovered from such Bank, the related
payment to Agent and by Agent to the Banks shall be rescinded, to the extent
of said recovery, and any distribution or payment restored as to the portion
of such payment so recovered, but without interest. This Section 2.19 shall
be applied so as to maintain for each Bank its Pro Rata Share of the Loans and
if no Loans are outstanding, of the Commitment.
ARTICLE III
CONDITIONS OF LENDING
Section 3.01. Conditions Precedent to the Commitment and to all Loans.
(A) The Commitment and Initial Loans. The Commitment and the
obligation of each Bank to make its Pro Rata Share of the initial Revolving
Credit Loan are subject to performance by the Borrower of all of its
obligations under this Agreement and to the satisfaction of the conditions
precedent that all legal matters incidental to the Loans shall be satisfactory
to counsel for Agent and the Banks shall have received on or before the
Closing Date all of the following, each dated the Closing Date or another date
acceptable to Agent and each to be in the form and substance approved by Agent
and the Banks on the Closing Date:
(a) The Revolving Credit Notes, the Bid Loan Notes, the Swing Loan
Notes, this Agreement and the Related Documents (this Agreement to be in
sufficient executed original copies for each party hereto and as to each
of the other documents and instruments other than those to which Agent
and/or the Banks are parties, copies of the executed originals thereof
certified by the Borrower as being accurate and complete).
(b) Certificates from the respective secretaries of the Borrower
and each Guarantor certifying as to the resolutions of the board of
directors and/or shareholders of the Borrower and each Guarantor
41
authorizing and approving each of this Agreement, the Revolving Credit
Notes, the Bid Notes, the Swing Line Notes, the Related Documents and the
other documents, instruments and agreements referred to in this Agreement
to which the Borrower, and/or such Guarantor is a party, as the case may
be, and other matters contemplated hereby and certifying as to the names
and signatures of each officer of the Borrower or such Guarantor
authorized to sign each document, instrument or agreement to be executed
and delivered by or on behalf of the Borrower or such Guarantor. Each
Bank and the Agent may conclusively rely on each such secretary's
certificate until Agent shall receive a further certificate of the
secretary of the Borrower, or such Guarantor, as the case may be,
cancelling or amending the prior certificate and submitting the
signatures of the officers named in such further certificate.
(c) Favorable opinions of Xxxxxxx & Xxxxxx, LLP counsel for the
Borrower, and the Guarantors, substantially in the form of Exhibit G.
(d) Certificates of the Secretaries of State of Delaware, North
Carolina, New Jersey and South Carolina dated on or before the Closing
Date, which state that the Borrower is duly organized or qualified and in
good standing as a corporation in such state, certificates of the
Secretaries of State of Delaware and Mississippi dated on or before the
Closing Date which state that Mississippi is duly organized or qualified
and in good standing as a corporation in such state, certificates of the
Secretaries of State of Delaware, North Carolina and South Carolina dated
on or before the Closing Date, which state that Fiber is duly organized
or qualified and in good standing as a corporation in such state and a
certificate of the Secretary of State of Delaware dated on or before the
Closing Date, which states that Prince is duly organized or qualified and
in good standing as a corporation in such state.
(e) Evidence satisfactory to Agent that the ownership interests in
Mississippi, Prince, Fiber and the Subsidiaries are as set forth in
Exhibit I.
(f) Payment to Agent of the initial fees required under Section
2.02(B)(iii).
(g) An Officer's Certificate in the form of Exhibit F to the
extent applicable on the Closing Date, duly completed and reflecting,
inter alia, compliance by the Borrower with the financial covenants
provided for herein based on an internally prepared balance sheet of the
Borrower as at June 30, 1999.
(h) True copies of any revisions to the financial statements
provided pursuant to Section 4.01(E).
(i) An Officer's Certificate to the effect that from June 30, 1999
to the Closing Date, to the best of such officer's knowledge, no event
has occurred or condition exists which has had, is having or would in the
reasonably foreseeable future have a Material Adverse Effect, and
certifying that the representations contained therein are true and
correct.
42
(j) No action, suit or other proceeding (governmental or
otherwise) shall be pending or threatened (other than those disclosed in
the Exhibits hereto) which, if adversely determined, would be likely to
have a Material Adverse Effect.
(k) Termination of the commitments for the Old Loans in accordance
with the terms of the Initial Agreement on or prior to the Closing Date
and repayment in full of any outstanding Old Loans and all other amounts
due under the Initial Agreement on or prior to the Closing Date.
(l) Uniform Commercial Code Form UCC-11 information reports on the
Borrower and Guarantors.
(B) The Commitment and the Loans. The Commitment and the obligation
of each Bank to make its Pro Rata Share of any Loan are subject to performance
by the Borrower of all its obligations under this Agreement and to the
satisfaction of the following further conditions precedent:
(a) The fact that, immediately prior to and upon the making of
each Loan, no Event of Default or Default shall have occurred and be
continuing;
(b) The fact that the representations and warranties of the
Borrower contained in Article IV, infra, are true and correct in all
material respects on and as of the date of each Loan except as altered
hereafter by actions not prohibited hereunder. The Borrower's delivery
of the Notes to the Banks and each of the Borrower's Requests and Bid
Loan Requests shall be deemed to be a representation and warranty by the
Borrower as of the date of such Loan as to the facts specified in Section
3.01 (B)(a) and (b);
(c) Receipt by Agent on or prior to the Business Day specified in
the definition of Interest Rate Election (including, in the case of the
initial Loan, a Business Day occurring prior to the Drawdown Date) of a
written Request stating the amount requested for the Loan in question and
an Interest Rate Election for such Loan or a Bid Loan Request, all signed
by a duly authorized officer of the Borrower on behalf of the Borrower;
(d) That there exists no law or regulation by any governmental
authority having jurisdiction over any of the Banks which would make it
unlawful in any respect for such Bank to make its Pro Rata Share of the
Loan, including, without limitation, Regulations U, T and X of the Board
of Governors of the Federal Reserve System and there has been no material
adverse change in the financial condition, business operations or
property of the Borrower and the Subsidiaries, if any, on a consolidated
basis.
44
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants to the Agent and the Banks that, upon and
after giving effect to the Loans and the application of the proceeds thereof
(which representations and warranties shall survive the making of the Loans)
as follows:
(A) Organization and Existence. The Borrower and each of the
Subsidiaries is a corporation, duly organized, validly existing and in good
standing under the laws of the state or country of its incorporation, is duly
qualified to do business in all jurisdictions in which such qualification is
required, except where failure to be so organized, existing, in good standing
or qualified would not have a Material Adverse Effect and has all requisite
power and authority to conduct its business, to own its properties and to
execute and deliver, and to perform all of its obligations under this
Agreement, the Related Documents and the Notes.
(B) Authorization and Absence of Defaults. The execution, delivery to
the Banks and performance by the Borrower and Guarantors of this Agreement,
the Related Documents and the Notes to which each of them is a party have been
duly authorized by all necessary corporate and governmental action and do not
and will not (i) require any consent or approval of the shareholders or board
of directors of the Borrower, any Guarantor or of any Affiliate or Subsidiary
which has not been obtained, (ii) violate any provision of any law, rule,
regulation (including, without limitation, Regulations U and X of the Board of
Governors of the Federal Reserve System), order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability to the
Borrower and/or any Subsidiary and/or the articles of incorporation or by-
laws, where applicable, of the Borrower and/or any Subsidiary, (iii) result in
a breach of or constitute a default under any indenture or loan or credit
agreement or any other agreement, lease or instrument to which the Borrower
and/or any Material Subsidiary is or are a party or parties or by which it or
they or its or their properties may be bound or affected; or (iv) result in,
or require, the creation or imposition of any Lien on any of its or their
respective properties or revenues. The Borrower and each Subsidiary is in
compliance with any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or any such indenture, agreement,
lease or instrument, except where the failure to be in compliance would not
have a Material Adverse Effect on the Borrower.
(C) Acquisition of Consents and Environmental Matters. No
authorization, consent, approval, license, exemption of or filing or
registration with any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, other than those which
have been obtained, is or will be necessary to the valid execution and
delivery to the Banks or performance by the Borrower and the Guarantors of
this Agreement, the Related Documents and the Notes and/or the execution,
delivery and performance by any Material Subsidiary of any document,
instrument or agreement referred to in this Agreement to which such Material
Subsidiary is a party. All environmental risks arising out of any of
Borrower's or any Subsidiary's assets and known to the Borrower have been and
44
shall be at all times properly reserved for in accordance with GAAP on
Borrower's balance sheets provided pursuant to Section 4.01(E) and Sections
5.03(B) and (C).
(D) Validity and Enforceability. This Agreement constitutes and each
of the Related Documents and each of the Notes when delivered hereunder will
constitute, the legal, valid and binding obligations of the Borrower and/or
the Guarantors, enforceable against the Borrower or the Guarantors, as the
case may be, in accordance with their respective terms and each other
instrument and agreement referred to in this Agreement to which the Borrower
and/or such Guarantor is a party is similarly legal, valid, binding and
enforceable against each such Person party thereto.
(E) Financial Information. The following information with respect to
the Borrower has heretofore been furnished to the Banks:
(i) the audited consolidated balance sheets of the Borrower and any
Subsidiaries as at December 31, 1997 and as at December 31, 1998 together
with consolidated statements of income and cash flows for the fiscal year
then ending, certified by Ernst & Young LLP independent certified public
accountants; and
(ii) the unaudited consolidated balance sheet of the Borrower and
any Subsidiaries as at June 30, 1999 together with the unaudited
consolidated statements of earnings for the six-month period then ended.
Each of the financial statements referred to above in Section 4.01(E) (i) and
(ii) was (and each of the financial statements to be delivered to Agent
pursuant to Section 5.03(B) and (C) will be) prepared in accordance with GAAP,
subject in the case of interim financial statements, to year-end adjustments
and the absence of certain financial statements and footnotes. Each of the
financial statements referred to above in Section 4.01(E) (i) and (ii) fairly
presents in all material respects (and each of the financial statements to be
delivered to Agent pursuant to Section 5.03(B) and (C) will fairly present in
all material respects) the financial condition of the Person being reported on
at the dates thereof and the results of operations for the periods ended on
such dates and is (and those subsequently delivered hereunder, will be)
complete and correct in all material respects, subject in the case of interim
financial statements, to year-end adjustments and the absence of certain
statements and footnotes. Since June 30, 1999, no event has occurred or
condition exists which has had, is having or would in the reasonably
foreseeable future have a Material Adverse Effect.
(F) No Litigation. There are no actions, suits or proceedings pending
or, to the knowledge of the Borrower, threatened against the Borrower and/or
any Subsidiary or any of their properties before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, which if determined adversely to the Borrower and/or any Material
Subsidiary would draw into question the legal existence of the Borrower and/or
any Subsidiary and/or the validity, authorization and/or enforceability of
this Agreement, any of the Related Documents or Notes and/or any provision
thereof and/or could have a Material Adverse Effect, except those matters, if
any, described on Exhibit H, none of which, in the Borrower's good faith
opinion, will have such a Material Adverse Effect.
46
(G) Regulation U. The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying "margin stock"
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System (12 CFR Part 221), does not own and has no present intention of
acquiring any such margin stock or a "margin security" within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System (12 CFR,
Part 207). None of the proceeds of the Loans will be used directly or
indirectly by the Borrower for the purpose of purchasing or carrying, or for
the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry, any such margin security or margin stock or for
any other purpose which might constitute the transaction contemplated hereby a
"purpose credit" within the meaning of said Regulation U, or cause this
Agreement to violate any other regulation of the Board of Governors of the
Federal Reserve System or the Securities and Exchange Act of 1934, as amended,
or any rules or regulations promulgated under either said statute.
(H) Absence of Adverse Agreements. Neither the Borrower nor any
Guarantor or Subsidiary is a party to any indenture, loan or credit agreement
or any lease or other agreement or instrument or subject to any corporate
restriction which would have a Material Adverse Effect on the Borrower or on
the ability of any of the Borrower, and Guarantors to carry out its
obligations under this Agreement, the Related Documents or the Notes.
(I) Taxes. The Borrower and each Subsidiary has filed all tax returns
(federal, state, local and foreign) required to be filed as of the date hereof
and paid all taxes shown thereon to be due, including interest and penalties,
or provided on a consolidated basis reserves deemed adequate by the Borrower
for payment thereof.
(J) ERISA. The Borrower, Guarantors and any Commonly Controlled Entity
do not maintain or contribute to any Single Employer Plan which is not in
compliance with ERISA (other than failures to comply which do not result in a
Material Adverse Effect), as amended, or which has incurred any accumulated
funding deficiency within the meaning of section 412 and 418B of the Code, or
which has applied for or obtained a waiver from the Internal Revenue Service
of any minimum funding requirement under section 412 of the Code. The
Borrower, Guarantors and any Commonly Controlled Entity have not incurred any
liability (other than with respect to premiums) to the PBGC in connection with
any Single Employer Plan covering any employees of the Borrower, Guarantors or
any Commonly Controlled Entity in amount exceeding Ten Million Dollars
($10,000,000) in the aggregate or ceased operations at any facility or
withdrawn from any such plan in a manner which could subject any of them to
liability under Title IV of ERISA in amount exceeding Ten Million Dollars
($10,000,000) in the aggregate, and know of no facts or circumstance which
might give rise to any liability (other than with respect to premiums) of the
Borrower, Guarantors or any Commonly Controlled Entity to the PBGC under Title
IV of ERISA in amount exceeding Ten Million Dollars ($10,000,000) in the
aggregate. The Borrower, Guarantors and any Commonly Controlled Entity have
not incurred any withdrawal liability in an amount exceeding Ten Million
Dollars ($10,000,000) in the aggregate (including but not limited to any
contingent or secondary withdrawal liability) within the meaning of Sections
4201 of ERISA, to any Multiemployer Plan, and no event has occurred, and there
exists no condition or set of circumstances, which presents a risk of the
occurrence of any withdrawal from or the partition, termination,
46
reorganization or insolvency of any Multiemployer Plan which could result in
any liability to a Multiemployer Plan in amount exceeding Ten Million Dollars
($10,000,000) in the aggregate.
The Borrower, Guarantors, and any Commonly Controlled Entity, do not
maintain any Plan which is a group health plan (as defined in Section 607 of
ERISA) which has not complied with the continuation coverage requirements of
Section 4980B of the Code and Part 6 of Title I of ERISA except where such
failure to comply with such requirements would not result in any Material
Adverse Effect.
Full payment has been made of all amounts which the Borrower, Guarantors
and any Commonly Controlled Entity are required to have paid as contributions
to any Plan under applicable law or under any Plan or any agreement relating
to any Plan to which the Borrower, any Guarantor or any Commonly Controlled
Entity is a party to the extent necessary to avoid any Material Adverse
Effect. The Borrower, Guarantors and each Commonly Controlled Entity have
made adequate provision for reserves to meet contributions that have not been
made because they are not yet due under the terms of any Plan or related
agreements.
Neither the Borrower, or any Guarantor nor any Commonly Controlled Entity
has any knowledge, nor do any of them have any reason to believe that any
Reportable Event which could result in a liability or liabilities of Ten
Million Dollars ($10,000,000) or more in the aggregate has occurred with
respect to any Plan.
(K) Ownership of Properties. The Borrower and each Material
Subsidiary owns all of its properties and assets free and clear of all Liens,
except those permitted under Section 5.02(A).
(L) Accuracy of Representations and Warranties. None of the Borrower's
or any Material Subsidiary's representations or warranties set forth in any
agreement or instrument entered into in connection with this Agreement, any
Related Document or in any document or certificate furnished pursuant to this
Agreement or in connection with the transactions contemplated hereby contains
or will contain any untrue statement of a material fact or omits or will omit
to state a material fact necessary to make any statement of fact contained
herein or therein, in light of the circumstances under which it was made, not
misleading; except that unless provided otherwise any such document or
certificate which is dated speaks as of the date stated and not the present.
(M) No Investment Company. Neither the Borrower nor any Subsidiary is
an "investment company" or, to the best of their knowledge, a company
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(N) Solvency, etc. After giving effect to each Loan outstanding and to
be made under this Agreement as of and immediately after each time this
representation and warranty is given, the Borrower (a) will be able to pay its
debts as they become due, (b) will have funds and capital sufficient to carry
on its business and all businesses in which it is about to engage, and (c)
will own property having a value, on a going concern basis, greater than the
amount required to pay its Indebtedness, including for this purpose
47
unliquidated and disputed claims. The Borrower will not be rendered insolvent
by the execution and delivery of this Agreement or the consummation of any
transactions contemplated herein.
(O) Ownership Interests. The schedule of ownership interests in
Subsidiaries is set forth in Exhibit I and is true, accurate and complete.
(P) Licenses, Registrations, Compliance with Laws, etc. The Borrower
and each of the Subsidiaries have all permits, governmental licenses,
registrations and approvals, material to carrying out their respective
businesses as presently conducted and as required by law or the rules and
regulations of any federal, foreign governmental, state, county or local
association, corporation or governmental agency, body, instrumentality or
commission having jurisdiction over the Borrower or any of the Subsidiaries,
including but not limited to the United States Environmental Protection
Agency, the United States Department of Labor, the United States Occupational
Safety and Health Administration, the United States Equal Employment
Opportunity Commission and analogous and related state and foreign agencies
except where the failure to have such permits, licenses, registrations and
approvals would not have a Material Adverse Effect. There is no violation or
failure of compliance or allegation of such violation or failure of compliance
on the part of the Borrower or any of the Subsidiaries with any of the
foregoing permits, licenses, registrations, approvals, rules or regulations
and there is no action, proceeding or investigation pending or to the
knowledge of the Borrower threatened nor has the Borrower or any Subsidiary
received any notice of such which might result in the termination or
suspension of any such permit, license, registration or approval, except with
respect to such permits, licenses, registrations and approvals the violation,
failure of compliance, termination or suspension of which would not have a
Material Adverse Effect . The Borrower is not aware of any condition which
could reasonably be expected to result in an environmental liability of the
Borrower or any Subsidiary which would be reasonable likely to have a Material
Adverse Effect on the Borrower except as referenced on Exhibit H.
(Q) Principal Place of Business; Books and Records. The Borrower's
principal place of business is located at the Borrower's address set forth in
Section 9.07. All of the Borrower's material books and records are kept at
its principal place of business or in Borrower's offices in Charlotte, North
Carolina, or Johnsonville, South Carolina.
(R) Year 2000. The Borrower, the Guarantors and the Subsidiaries have
reviewed the areas within their business and operations which could be
adversely affected by, and have developed or are developing a program to
address on a timely basis, the "Year 2000 Problem" (that is, the risk that
computer applications used by the Borrower, the Guarantors and the
Subsidiaries may be unable to recognize and perform properly date-sensitive
functions involving certain dates prior to and any date after December 31,
1999), and have made related appropriate inquiry of material suppliers and
vendors. Based on such review and program, Borrower expects to be materially
complete with any modifications required as a result of the review by November
30, 1999 and reasonably believes that the "Year 2000 Problem" will not have a
Material Adverse Effect.
48
ARTICLE V
COVENANTS OF THE BORROWER
Section 5.01. Affirmative Covenants of the Borrower Other than Reporting
Requirements. From the date hereof and thereafter for so long as any portion
of the Commitment is outstanding or the Borrower is indebted to the Agent
and/or any of the Banks under any of the Notes, any of the Related Documents
and/or this Agreement, the Borrower will, with respect to itself and, unless
noted otherwise below, with respect to each of the Material Subsidiaries
unless the Majority Banks shall otherwise consent in writing:
(A) Payment of Taxes, etc. Pay and discharge all taxes and assessments
and governmental charges or levies imposed upon it or upon its income or
profits, or upon any properties belonging to it except as contested in good
faith and where, on a consolidated basis, reserves deemed adequate by Borrower
have been provided for.
(B) Maintenance of Insurance. Maintain insurance with responsible and
reputable insurance companies or associations in such amounts and covering
such risks as is usually carried by companies engaged in similar businesses
and owning similar properties and in accordance with the requirements of any
governmental agency having jurisdiction over the Borrower and/or any
Subsidiary. The Borrower shall provide the Banks with such evidence as Agent
may request from time to time as to the maintenance of all such insurance.
(C) Preservation of Existence, etc. Preserve and maintain in full
force and effect the corporate existence (except as permitted by Section
5.02(B)), rights, franchises and privileges of the Borrower and each Material
Subsidiary in the jurisdiction of its organization, preserve and maintain all
licenses, governmental approvals, trademarks, patents, trade secrets,
copyrights and trade names owned or possessed by the Borrower or any Material
Subsidiary and which are necessary to its business and operations or the
ownership of its properties and qualify or remain qualified as a foreign
corporation in each jurisdiction in which such qualification is necessary to
its business and operations or the ownership of its properties except when the
failure to so preserve, maintain or qualify would not have a Material Adverse
Effect.
(D) Compliance with Laws, etc. Comply with the requirements of all
present and future applicable laws, rules, regulations and orders (including,
without limitation, environmental laws, rules and regulations, and orders
concerning environmental matters) of any governmental authority having
jurisdiction over it and/or its business, except where the failure to comply
would not have a Material Adverse Effect on the Borrower.
(E) Visitation Rights. Permit, at any reasonable time after and during
the continuance of a Default or Event of Default any of the Banks or Agent or
any agents or representatives thereof, to examine and make copies of and
abstracts from the records and books of account of, and visit the properties
of the Borrower and any of the Subsidiaries to discuss the affairs, finances
and accounts of the Borrower and any of the Subsidiaries with any of its or
their officers and/or any independent certified public accountant of the
Borrower and/or of such Subsidiary and, whether or not any Default or Event of
49
Default exists, permit, at any reasonable time and at their expense, any of
the Banks, or Agent or any agents or representatives thereof to visit the
properties of the Borrower and any of the Subsidiaries and to discuss the
affairs, finances and accounts of the Borrower or any of the Subsidiaries with
the chief financial officer and/or chief executive officer of the Borrower.
(F) Keeping of Records and Books of Account. Keep adequate records and
books of account of the Borrower and any Material Subsidiary, in which
complete entries will be made in accordance with GAAP and with applicable
requirements of any governmental authority having jurisdiction over the
Borrower and/or any Material Subsidiary in question, reflecting all financial
transactions.
(G) Maintenance of Properties, etc. Maintain and preserve all of its
properties necessary or beneficial to the proper conduct of its business, in
good working order and condition, ordinary wear and tear excepted, to the
extent necessary to avoid a Material Adverse Effect.
(H) Accounting System. Maintain a standard system of accounting in
accordance with GAAP and in accordance with the requirements of any
governmental authority having jurisdiction over the Borrower and/or any
Material Subsidiary.
(I) Other Documents, etc. Pay, perform and fulfill all of its
obligations and covenants under each of the Related Documents, and any other
material document, instrument or agreement to which it is a party including
without limitation other documents evidencing and/or securing Indebtedness in
accordance with their respective terms, giving effect to any grace periods
therein specified; provided, that with respect to documents, instruments and
agreements other than the Related Documents so long as the Borrower and/or
any Subsidiary is contesting in good faith any alleged failure by the Borrower
and/or Subsidiary to pay, perform and fulfill such obligations and covenants
by proper proceedings and has made a reserve deemed adequate by the Borrower
or other provision in accordance with GAAP on account thereof and such alleged
failure by the Borrower and/or any Subsidiary has not resulted in any Material
Adverse Effect on the Borrower and/or on any Bank's or on Agent's interests
under this Agreement, the Notes and/or the Related Documents, the Borrower
shall not be deemed in violation of this Section 5.01(I).
(J) EBITDA Coverage. Maintain EBITDA Coverage at the end of each
fiscal quarter of the Borrower ending after June 30, 1999 of not less than 3.5
to 1.0; provided, however, that for purposes of calculating compliance with
this Section 5.01(J) the computation of EBITDA for the relevant periods ending
on or before June 30, 1999 shall be the adjusted EBITDA set forth on Exhibit
O, and for periods after June 30, 1999 shall exclude losses or gains from the
operations of or discontinuation(s) of any business(es) of Borrower, or any
portion(s) or unit(s) thereof (such business or portion or unit thereof being
referred to as an "Affected Business") if (x) the Borrower's Board of
Directors has committed or authorized the closure or disposition of such
Affected Business and (y) the aggregate book value of the Affected Business'
Tangible Assets as of the end of the quarter immediately prior to such loss
was less than 10% of the Consolidated Tangible Assets as of the end of the
quarter immediately prior to such loss and (z) that any loss or gain relating
to the Affected Business or gain or loss on closure or disposition of such
Affected Business is a separately stated line item on the Borrower's
consolidated income statement and/or separately disclosed in the footnotes,
50
all of the foregoing to be calculated in accordance with GAAP; provided that
the aggregate amount of such losses net of such gains from all Affected
Businesses that may be so excluded after June 30, 1999 shall not exceed
fifteen percent (15%) of Consolidated Stockholders' Equity as of the quarter
ending immediately prior to the quarter for which compliance with this Section
5.01(J) is being determined.
(K) Leverage Ratio. Maintain at the end of each of Borrower's fiscal
quarters a Leverage Ratio of not greater than .55 to 1.0; provided, that
solely for purposes of calculating Borrower's compliance with this covenant,
Adjusted Indebtedness shall exclude any Tax Reduction Agreement transactions
entered into by the Borrower or any Subsidiary except to the extent that any
such transaction is recorded as a liability on the consolidated balance sheet
of the Borrower and there shall be subtracted from Adjusted Indebtedness the
excess of (A) Borrower's Cash Equivalent Investments at such date over (B) the
sum of (i) $10,000,000 and (ii) the amount of federal income taxes that would
be payable (if any) if Borrower's Cash Equivalent Investments held outside the
United States were repatriated to the United States at the end of such
quarter, and taxed at the Assumed Rate. For purposes of this Section 5.01(K)
the term "Assumed Rate" means the greater of zero or the difference between
(a) the highest federal income tax rate in the United States applicable to
domestic corporations and (b) the highest income tax rate applicable to
Borrower or its Subsidiaries, as appropriate, on Cash Equivalent Investments
in the jurisdiction in which such Cash Equivalent Investments are held at the
end of such quarter.
(L) Officer's Certificates and Requests. Provide each Officer's
Certificate required under this Agreement and each Request so that the
statements contained therein are accurate and complete in all material
respects.
(M) Depository. Use one or more of the Banks as a principal depository
of the Borrower's funds.
(N) Replacement of Notes. Upon receipt of an affidavit of an officer
of any Bank as to the loss, theft, destruction or mutilation of any of such
Bank's Notes, and, in the case of any such loss, theft, destruction or
mutilation, upon cancellation of any such Note, Borrower will issue, in lieu
thereof, a replacement Note in the same principal amount thereof and otherwise
of like tenor.
Section 5.02. Negative Covenants of the Borrower. From the date hereof
and thereafter for so long as any portion of the Commitment is outstanding or
the Borrower is indebted to the Agent and/or any of the Banks under any of the
Notes, any of the Related Documents and/or this Agreement, the Borrower will
not, with respect to itself and, unless noted otherwise below, with respect to
each of the Material Subsidiaries, without the prior written consent of the
Majority Banks:
(A) Liens, etc. Create, incur, assume or suffer to exist any Lien of
any nature, upon or with respect to any of its properties and assets, now
owned or hereafter acquired, or assign as collateral or otherwise convey as
collateral, any right to receive income, except that the foregoing
restrictions shall not apply to any Liens:
51
(a) for taxes, assessments or governmental charges or levies on
property if the same are being contested in good faith and for which
proper reserve or other provision has been made in accordance with GAAP;
or if the failure to pay same would not have a Material Adverse Effect.
(b) imposed by law, such as carriers', warehousemen's and
mechanics' liens, bankers' set off rights and other similar Liens arising
in the ordinary course of business for sums not yet due or being
contested in good faith and by appropriate proceedings diligently
conducted and for which proper reserve or other provision has been made
in accordance with GAAP;
(c) arising in the ordinary course of business out of pledges or
deposits under worker's compensation laws, unemployment insurance, old
age pensions, or other social security or retirement benefits, or similar
legislation;
(d) arising from or upon any judgment or award, provided that such
judgment or award is being, or is expected to be, contested in good faith
by proper appeal proceedings and only so long as execution thereon shall
be stayed and provided that the existence thereof shall not constitute an
Event of Default under Section 6.01(D);
(e) those set forth on Exhibit J;
(f) those now or hereafter granted pursuant to the Related
Documents or otherwise now or hereafter granted to Agent and/or any of
the Banks as collateral for the Loans and/or the Borrower's other
obligations arising in connection with or under this Agreement;
(g) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of the
Borrower's or any Subsidiary's business;
(h) easements, rights of way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of business by the Borrower and its
Subsidiaries taken as a whole;
(i) securing any other Indebtedness of the Borrower and/or any
Subsidiary in the aggregate principal amount at any one time outstanding
not in excess of ten percent (10%) of Consolidated Tangible Assets;
provided, that in no event shall there exist any Lien on any of the
ownership interests or the shares of capital stock of any Material
Subsidiary other than WIL;
52
(j) on assets of WIL (other than as prohibited by the proviso in
Section 5.02(A)(i)) and its Subsidiaries;
(k) any Liens existing on properties or assets prior to the
acquisition thereof by the Borrower or any Subsidiary (including by way
of merger or consolidation), provided that (x) such Lien is not created
in contemplation of or in connection with such acquisition and (y) such
Lien does not apply to any other property or assets of the Borrower or
any Subsidiary;
(l) Liens upon any property acquired, constructed or improved by
the Borrower or any Subsidiary which are created or incurred within 360
days of the later of the acquisition, completion of construction or
commencement of operation of the property to secure or provide for the
payment of up to the purchase price of such property or the cost of such
construction or improvement, including carrying costs (but no other
amounts), provided that any such Lien shall not apply to any other
property of the Borrower or any Material Subsidiary;
(m) Liens on the property or assets of any Subsidiary in favor of
the Borrower or any Material Subsidiary;
(n) extensions, renewals or replacements of Liens referred to in
clauses (a) through (m) above, provided that any such extension, renewal
or replacement Lien shall be limited to the property or assets covered by
the Lien extended, renewed or replaced and that the obligations secured
by any such extension, renewal or replacement Lien shall be in an amount
not greater than the amount of the obligations secured by the Lien
extended, renewed or replaced;
(o) Liens to the extent that they are less than $100,000,000 in the
aggregate arising in connection with all Permitted Receivables Programs
(to the extent the sale by the Borrower or the applicable Material
Subsidiary of its accounts receivable is deemed to give rise to a Lien in
favor of the purchaser thereof in such accounts receivable or the
proceeds thereof); and
(p) Liens upon any property or assets of the Borrower and its
Subsidiaries on property subject to a Synthetic Lease or any right of
access or other non-financial encumbrance relating thereto.
(B) Dissolution, etc. (i) Dissolve, liquidate, wind up, except for
dissolution of any Subsidiary other than a Material Subsidiary, (ii) merge or
consolidate with any Person if (a) Borrower is not the surviving corporation
or (b) after any merger or consolidation, a Default or Event of Default shall
have occurred, (iii) except pursuant to a Tax Reduction Agreement or a
Permitted Sale/Leaseback Transaction, sell, assign, lease or otherwise dispose
of or permit the disposal of or turn over the management of (whether in one
transaction or in a series of related transactions) all or substantially all
of its assets except to Borrower or to any Subsidiary, or (iv) except pursuant
to a Tax Reduction Agreement or a Permitted Sale/Leaseback Transaction, sell
(whether in one transaction or in a series of related transactions) any asset
53
material to the Borrower or to the Borrower and the Subsidiaries taken as a
whole (whether now owned or hereafter acquired and whether any such asset is
leased back on an operating lease basis or as a Capitalized Lease Obligation
but excluding transactions of the type described in paragraph 2 of Exhibit N);
provided that such restriction shall not apply (x) to any such assets which
are promptly replaced with assets of substantially like kind, value and
usefulness which are owned by the Borrower or a Subsidiary and (y) to any
transaction to the extent that the aggregate book value of Tangible Assets
sold (measured at the time of such transaction in question) of the assets
involved in any such transaction does not exceed ten percent (10%) of
Consolidated Tangible Assets.
(C) Hostile Takeovers. Make or commit to make any Investment by the
Borrower and/or any of the Subsidiaries in connection with a Hostile Takeover.
(D) Compliance with ERISA. With respect to the Borrower, any
Guarantor and any Commonly Controlled Entity (a) terminate, or cease to have
an obligation to contribute to, any Multiemployer Plan so as to result in any
material liability of the Borrower, any Guarantor or any Commonly Controlled
Entity to PBGC or to any Multiemployer Plan, (b) engage in any "prohibited
transaction" (as defined in section 4975 of the Code) involving any Plan which
would result in a material liability of the Borrower, any Guarantor or any
Commonly Controlled Entity for an excise tax or civil penalty in connection
therewith, (c) incur or suffer to exist any material "accumulated funding
deficiency" (as defined in section 302 of ERISA and sections 412 and/or 418B
of the Code) of the Borrower, any Guarantor or any Commonly Controlled Entity,
whether or not waived, involving any Single Employer Plan, (d) incur or suffer
to exist any Reportable Event or the appointment of a trustee or institution
of proceedings for appointment of a trustee for any Single Employer Plan if,
in the case of a Reportable Event, same continues unremedied for ten (10) days
after notice of such Reportable Event pursuant to section 4043(a), (c) or (d)
of ERISA is given, if it is reasonably likely to result in a material
liability of the Borrower, any Guarantor or any Commonly Controlled Entity,
(e) allow or suffer to exist any event or condition, which presents a material
risk of incurring a material liability of the Borrower, any Guarantor or any
Commonly Controlled Entity to PBGC by reason of termination of any such Single
Employer Plan or (f) cause or permit any Plan maintained by the Borrower, any
Guarantor and/or any Commonly Controlled Entity to be administered in a manner
which is not in substantial compliance with ERISA. For purposes of this
Section 5.02(D) "material liability" shall be deemed to mean any liability of
Ten Million Dollars ($10,000,000) or more in the aggregate.
(E) Restricted Guaranties. Be or become liable or contingently liable
on any Restricted Guaranty if the amount for which Borrower and/or any
Subsidiary is obligated or contingently obligated thereunder would if added to
Indebtedness for Borrowed Money, cause Borrower not to be in compliance with
Section 5.01(K).
Section 5.03. Reporting Requirements. From the date hereof and
thereafter for so long as any portion of the Commitment is outstanding or the
Borrower and/or any Guarantor is indebted to the Agent and/or any of the Banks
under any of the Notes, any of the Related Documents and/or this Agreement,
the Borrower will, unless the Majority Banks shall otherwise consent in
writing, furnish or cause to be furnished to Agent with sufficient copies for
each of the Banks:
54
(A) as soon as possible and in any event upon acquiring knowledge of an
Event of Default or Default, continuing on the date of such statement, the
written statement of an officer of the Borrower setting forth details of such
Event of Default or Default and the action which the Borrower proposes to take
with respect thereto;
(B) as soon as practicable after the end of each fiscal year of the
Borrower and in any event within ninety (90) days thereafter, a consolidated
balance sheet of the Borrower and the Subsidiaries as at the end of such year,
the related consolidated statement of income of the Borrower and the
Subsidiaries for such year setting forth in each case commencing with the
December 31, 1999 statements, the corresponding figures for the preceding
fiscal year, and the related statement of cash flows during such year, such
consolidated statements to be certified by a so-called "Big-5" firm of
independent certified public accountants or other firm of independent
certified public accountants selected by the Borrower and reasonably
acceptable to the Majority Banks (it being understood that, so long as the
Borrower is required to file an Annual Report on Form 10-K with the Securities
and Exchange Commission, the foregoing requirements of this Section 5.03(B)
shall be deemed satisfied if the Borrower has delivered to Agent copies of its
Annual Report on Form 10-K for the relevant fiscal year, certified by an
officer of the Borrower in an Officer's Certificate as being a true and
correct copy thereof);
(C) as soon as is practicable after the end of each of the fiscal
quarters of each Borrower fiscal year and in any event within sixty (60) days
thereafter, a consolidated balance sheet of the Borrower and the Subsidiaries
as of the end of such period, the related consolidated statement of income of
the Borrower and the Subsidiaries for such period and the fiscal year to that
date and the related consolidated statement of cash flows of the Borrower and
the Subsidiaries for the fiscal year to that date, subject to changes
resulting from year-end adjustments, such balance sheet and statements to be
prepared and certified by an officer of the Borrower in an Officer's
Certificate as having been prepared in accordance with GAAP except for
footnotes and year-end adjustments, and to be in form satisfactory to the
Majority Banks, it being understood that, for so long as the Borrower is
required to file quarterly reports on Form 10-Q with the Securities and
Exchange Commission, the foregoing requirements of this Section 5.03(C) shall
be deemed satisfied if the Borrower has delivered to Agent copies of such
quarterly report on Form 10-Q, certified by an officer of the Borrower in an
Officer's Certificate as being true and correct copies thereof;
(D) simultaneously with the furnishing of each of the year-end financial
statements of the Borrower and the Subsidiaries to be delivered pursuant to
Section 5.03(B) and each of the quarterly statements of the Borrower and the
Subsidiaries to be delivered pursuant to Section 5.03(C) an Officer's
Certificate of an officer of the Borrower which shall contain a statement in
the form of Exhibit F to the effect that no Event of Default or Default has
occurred, without having been waived in writing, or if there shall have been
an Event of Default not previously waived in writing pursuant to the
provisions hereof, or a Default, such Officer's Certificate shall disclose the
nature thereof. In each such Officer's Certificate the officer of the
Borrower shall also calculate, set forth and certify to the accuracy of the
amounts required to be calculated in the financial covenants of the Borrower
contained in this Agreement and described in Exhibit F;
55
(E) promptly after the commencement thereof, notice of all material
actions, suits and proceedings before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
against the Borrower and/or any Subsidiary which have reasonable merit and if
adversely determined would have a Material Adverse Effect;
(F) promptly after the sending or filing thereof, copies of all material
regular, periodic and special reports, if any, which the Borrower or any of
the Material Subsidiaries files with the Securities and Exchange Commission;
(G) such other information respecting the business, properties or the
condition or operations, financial or otherwise, of the Borrower or any of the
Subsidiaries as Agent may from time to time reasonably request;
(H) written notice of the fact and of the details of any sale or
transfer of any material ownership interest in any Material Subsidiary given
promptly after the Borrower acquires knowledge thereof; provided, however,
that this clause shall not be deemed to constitute or imply any consent to any
such sale or transfer;
(I) prompt written notice of any event or condition which has had, is
having or would in the reasonably foreseeable future be likely to have a
Material Adverse Effect, and an explanation thereof and of the actions the
Borrower and/or any Subsidiary propose to take with respect thereto;
(J) written notice of any of the following events which could have a
Material Adverse Effect, as soon as possible and in any event within 15 days
after the Borrower knows or has reason to know thereof: (i) the occurrence or
expected occurrence of any Reportable Event with respect to any Plan, or (ii)
the institution of proceedings or the taking or expected taking of any other
action by PBGC or the Borrower or any Commonly Controlled Entity to terminate,
withdraw or partially withdraw from any Plan and, with respect to any
Multiemployer Plan, the Reorganization (as defined in Section 4241 of ERISA)
or Insolvency (as defined in Section 4245 of ERISA) of such Plan and in
addition to such notice, deliver to the Agent whichever of the following may
be applicable: (a) an Officer's Certificate setting forth details as to such
Reportable Event and the action that the Borrower or Commonly Controlled
Entity proposes to take with respect thereto, together with a copy of any
notice of such Reportable Event that may be required to be filed with PBGC, or
(b) any notice delivered by PBGC evidencing its intent to institute such
proceedings or any notice to PBGC that such Plan is to be terminated, as the
case may be; and
(K) promptly and in any event within five (5) days thereafter, written
notice of any failure to make any payment when due on any Indebtedness for
Borrowed Money having an outstanding principal balance of Ten Million Dollars
($10,000,000) or more.
Section 5.04. Confidential Financial Information. The Banks and Agent
shall, with respect to any and all financial statements or other reports or
documents delivered by the Borrower to the Banks or Agent pursuant to Section
5.03 and any other information provided to the Banks or the Agent (other than
in a public forum, including an analyst's meeting and other than any such
information which is publicly available other than solely as a result of
56
disclosure by the Agent or any of the Banks) and to the extent that such
information therein contained or provided has not theretofore otherwise been
disclosed in such a manner as to render such information no longer
confidential (other than as a result of disclosure by Agent or Bank in
violation of its obligation hereunder), employ reasonable procedures designed
to maintain the confidential nature of the information therein contained;
provided, however, that any Bank or Agent may disclose or disseminate such
information to: (a) the Bank's and Agent's respective employees, agents,
attorneys and accountants who would ordinarily have access to such information
in the normal course of the performance of their duties in connection with the
administration of the Loans; (b) upon at least five (5) Business Days (unless
sooner required by law) prior notice to the Borrower (during which period the
Agent and the Banks will not actively oppose any efforts by the Borrower to
obtain a protective order), such third parties as any Bank or Agent may, in
its discretion, deem reasonably necessary in connection with or in response to
(i) compliance with any law, ordinance or governmental order, regulation,
rule, policy, subpoena, investigation or request, or (ii) any order, decree,
judgment, subpoena, notice of discovery or similar ruling or pleading issued,
filed, served or purported on its face to be issued, filed or served (x) by or
under authority of any court, tribunal, arbitration board or any governmental
agency, commission, authority board or similar entity or (y) in connection
with any proceeding, case or matter pending (or on its face purported to be
pending) before any court, tribunal, arbitration board or any governmental
agency, commission, authority, board or similar entity; provided that without
notice to the Borrower, the Agent and any Bank may disclose such information
to bank examiners of governmental agencies having regulatory authority over
the Agent or the Bank in question in connection with such examiner's
examinations of Agent or such Bank's books and records, or (iii) collection by
judicial proceeding of any of the Indebtedness now or hereafter owing by the
Borrower and/or any Subsidiary to the Agent and/or any of the Banks or
enforcement of any rights or remedies now or hereafter possessed by Agent
and/or any of the Banks pursuant to this Agreement, any of the Notes or any of
the Related Documents; (c) subject to Section 9.09, any prospective purchaser
(including an affiliate of any Bank), in connection with the resale or
proposed resale by it of any portion of its Note or other participation in its
Pro Rata Share of the Loans; provided that the prospective participant has
signed an agreement binding such participant under this Section 5.04 as if it
were a Bank and (d) any entity utilizing such information to rate or classify
any Bank's or the Agent's debt or equity securities for sale to the public;
provided that such rating agency has agreed to keep such information
confidential pursuant to an agreement reasonably satisfactory to the Borrower.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. Events of Default. The Borrower shall be in default
under this Agreement, the Related Documents and the Notes upon the occurrence
of any one or more of the following events ("Events of Default"):
(A) if the Borrower shall fail to make due and punctual payment of any
fees, interest, principal and/or other amounts payable under this Agreement as
provided in any of the Notes and/or in this Agreement within five (5) days
after the date when the same is due and payable, whether at the due date
57
thereof or at a date fixed for prepayment or if the Borrower shall fail to
make any such payment of fees, interest, principal and/or any other amount
under this Agreement any of the Notes on the date when such payment becomes
due and payable by acceleration; or
(B) if the Borrower or any Material Subsidiary shall make an assignment
for the benefit of creditors, or shall fail generally to pay its or their
debts as they become due, or shall admit in writing its or their inability to
pay its debts as they become due or shall file a voluntary petition in
bankruptcy, or shall file any petition or answer seeking any reorganization,
arrangement, composition, adjustment, liquidation, dissolution or similar
relief under the present or any future federal bankruptcy laws or other
applicable federal, state or other statute, law or regulation, or shall seek
or consent to or acquiesce in the appointment of any trustee, receiver or
liquidator of it or of all or any substantial part of its properties, or if
partnership or corporate action shall be taken for the purpose of effecting
any of the foregoing; or
(C) to the extent not described in Section 6.01(B), (i) if the Borrower
or any Material Subsidiary shall be the subject of a bankruptcy proceeding, or
(ii) if any proceeding against any of them seeking any reorganization,
arrangement, composition, adjustment, liquidation, dissolution, or similar
relief under the present or any future federal bankruptcy law or other
applicable federal, foreign, state or other statute, law or regulation shall
be commenced, or (iii) if any trustee, receiver or liquidator of any of them
or of all or any substantial part of any or all of their properties shall be
appointed without their consent or acquiescence; provided that in any of the
cases described above in this Section 6.01(C), such proceeding or appointment
shall not be an Event of Default if the Borrower or the Material Subsidiary in
question shall cause such proceeding or appointment to be discharged, vacated,
dismissed or stayed within thirty (30) days after commencement thereof; or
(D) if final judgment or final judgments aggregating more than Ten
Million Dollars ($10,000,000) but less than Twenty Million Dollars
($20,000,000) shall be rendered against the Borrower or any Material
Subsidiary and shall remain undischarged, unstayed or unpaid for an aggregate
of thirty (30) days (whether or not consecutive) after entry thereof and
enforcement proceedings thereunder have commenced or if any final judgment or
judgments or any certain legal obligation to pay money as a result of
litigation aggregating Twenty Million Dollars ($20,000,000) or more shall be
rendered against or incurred by the Borrower and/or any Material Subsidiary
and is undischarged, unstayed or unpaid; or
(E) if the Borrower or any Material Subsidiary shall default (after
giving effect to any applicable grace period) in the due and punctual payment
of the principal of or interest on any Borrowed Money (which definition, for
the purposes of this Section 6.01(E), shall be expanded to include Material
Subsidiaries wherever the Borrower is mentioned therein) in excess of Ten
Million Dollars ($10,000,000) (other than the Loans), or if any default shall
have occurred and be continuing after any applicable grace period under any
agreement, mortgage, note or other instrument evidencing, securing or
providing for the creation of such Borrowed Money, which results in the
acceleration of such Borrowed Money; or
(F) (i) if there shall be a default in the performance of the
Borrower's obligations under Section 5.01(C) (insofar as such subsection (C)
58
requires the preservation of the corporate existence of the Borrower or any
Material Subsidiaries), any of Section 5.01(J), Section 5.01(K), or Section
5.02 of this Agreement, or
(G) if there shall be any default in the performance of any covenant or
condition contained in this Agreement, any of the Notes or in any of the
Related Documents other than a covenant or condition referred to in any other
subsection of this Section 6.01 and such default shall continue unremedied or
unwaived, (i) in the case of any covenant or condition contained in Section
5.03, for five (5) Business Days after notice from the Agent, or (ii) in the
case of any other covenant or condition for which no other grace period is
provided, for thirty (30) days, or (iii) if any of the representations and
warranties made or deemed made by the Borrower to the Banks or Agent pursuant
to this Agreement proves to have been false or misleading in any material
respect when made; or
(H) any certification of the financial statements, furnished to Agent
for the Banks pursuant to Section 5.03(B), shall contain any qualification;
provided, however, that such qualifications will not be deemed an Event of
Default if in each case (i) such certification shall state that the
examination of the financial statements covered thereby was conducted in
accordance with generally accepted auditing standards, including but not
limited to all such tests of the accounting records as are considered
necessary in the circumstances by the independent certified public accountants
preparing such statements, (ii) such financial statements were prepared in
accordance with GAAP and (iii) such qualification does not involve the "going
concern" status of the entity being reported upon; or
(I) if twenty percent (20%) or more of the issued and outstanding Voting
Stock of the Borrower is owned by any Person and any Affiliate or Affiliates
of such Person (an "Acquiring Group") and a majority of the Board of Directors
of the Borrower is comprised of Persons who are not members of the Borrower's
Board of Directors on the date hereof (the "Incumbent Board"); provided, that
any person who becomes a Director of Borrower's Board of Directors after the
date hereof whose election, or nomination for election by Borrower's
stockholders, was approved by a vote of at least 3/4 of the Directors
comprising the Incumbent Board (either by specific vote or by approval of the
proxy statement of Borrower in which such Person is named as a nominee for
director without objection to such nomination) shall be, for purposes hereof,
considered as though such Person were a member of the Incumbent Board; or
(J) if any of the Related Documents is finally adjudicated to be void or
unenforceable by a court of competent jurisdiction or if any Guarantor claims
or asserts that any of the Related Documents is void, unenforceable or
terminated.
ARTICLE VII
REMEDIES OF BANKS
Upon the occurrence of any one or more of the Events of Default, the
Agent, at the request of the Majority Banks, shall, by notice to the Borrower,
declare the obligation of the Banks to make the Loans and each Bank's
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obligation to make its Pro Rata Shares of the Loans to be terminated,
whereupon the same and the Commitment shall forthwith terminate, and Agent, at
the request of the Majority Banks, shall, by notice to the Borrower, declare
the entire unpaid principal amount of the Notes and all fees and interest
accrued and unpaid thereon and/or under this Agreement, and/or any of the
Related Documents and any and all other Indebtedness under this Agreement, the
Notes and/or any of the Related Documents of the Borrower and/or any
Subsidiary to any of the Banks and/or to any holder of all or any portion of
each Note to be forthwith due and payable, whereupon all such Notes, and all
such accrued fees and interest and other such Indebtedness under this
Agreement, any of the Notes and/or any of the Related Documents shall become
and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower; provided, however that upon the occurrence of an Event of Default
under Section 6.01(B) or (C), all of the unpaid principal amounts of the
Notes, all fees and interest accrued and unpaid thereon and/or under this
Agreement and/or under the Related Documents and any and all other such
Indebtedness of the Borrower, and/or any Guarantor to any of the Banks and/or
to any such holder under this Agreement, any of the Notes and/or any of the
Related Documents shall thereupon be due and payable in full without any need
for Agent and/or any Bank to make any such declaration or take any action and
the Banks' obligations to make the Loans and the Commitment shall
simultaneously terminate. Agent shall, in accordance with the votes of the
Majority Banks, exercise all remedies on behalf of and for the account of each
Bank and on behalf of its respective Pro Rata Share of the Loans, its Note and
Indebtedness of the Borrower, and/or any Guarantor owing to it or any of the
foregoing, including without limitation all remedies available under or as a
result of this Agreement, the Notes or any of the Related Documents without
any such exercise being deemed to modify in any way the fact that each Bank
shall be deemed a separate creditor of the Borrower, and/or any Guarantor to
the extent of its Note and Pro Rata Share of the Loans and any other amounts
payable to such Bank under this Agreement and/or the Related Documents. Agent
shall be deemed a separate creditor of the Borrower, and/or any Guarantor to
the extent of the fees payable under Section 2.02(B)(iii) for the Agent's
account.
ARTICLE VIII
ADMINISTRATIVE AGENT
Section 8.01. Appointment. Agent is hereby appointed as agent
hereunder and each Bank hereby authorizes Agent to act hereunder and under the
Related Documents as its agent hereunder and thereunder. Agent agrees to act
as such upon the express conditions contained in this Article VIII. The
provisions of this Article VIII are solely for the benefit of Agent, and
neither the Borrower nor any third party shall have any rights as a third
party beneficiary of any of the provisions hereof. In performing its
functions and duties under this Agreement, Agent shall act solely as agent of
the Banks and does not assume and shall not be deemed to have assumed any
obligation towards or relationship of agency or trust with or for the
Borrower.
Section 8.02. Powers; General Immunity.
(A) Duties Specified. Each Bank irrevocably authorizes Agent to take
such action on such Bank's behalf, including without limitation to execute and
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deliver the Related Documents to which Agent is a party and to exercise such
powers hereunder and under the Related Documents and other instruments and
agreements referred to herein as are specifically delegated to Agent by the
terms hereof and thereof, together with such powers as are reasonably
incidental thereto. Agent shall have only those duties and responsibilities
which are expressly specified in this Agreement or in any of the Related
Documents and it may perform such duties by or through its agents or
employees. The duties of Agent shall be mechanical and administrative in
nature; and Agent shall not have by reason of this Agreement or any of the
Related Documents a fiduciary relationship in respect of any Bank; and nothing
in this Agreement or any of the Related Documents, expressed or implied, is
intended to or shall be so construed as to impose upon Agent any obligations
in respect of this Agreement or any of the Related Documents or the other
instruments and agreements referred to herein except as expressly set forth
herein or therein.
(B) No Responsibility for Certain Matters. Agent shall not be
responsible to any Bank for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement, the
Notes, the Related Documents or any other document, instrument or agreement
now or hereafter executed in connection herewith or therewith, or for any
representations, warranties, recitals or statements made herein or therein or
made in any written or oral statement or in any financial or other statements,
instruments, reports, certificates or any other documents in connection
herewith or therewith by or on behalf of the Borrower and/or any Subsidiary to
Agent or any Bank, or be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained herein or therein or as to the use of the
proceeds of the Loans or of the existence or possible existence of any Default
or Event of Default.
(C) Exculpatory Provisions. Neither Agent nor any of its officers,
directors, employees or agents shall be liable to any Bank for any action
taken or omitted hereunder or in connection herewith unless caused by its or
their gross negligence or willful misconduct. If Agent shall request
instructions from Banks with respect to any act or action (including the
failure to take an action) in connection with this Agreement, Agent shall be
entitled to refrain from such act or taking such action unless and until Agent
shall have received instructions from the Majority Banks. Without prejudice
to the generality of the foregoing, (i) Agent shall be entitled to rely, and
shall be fully protected in relying, upon any communication, instrument or
document believed by it to be genuine and correct and to have been signed or
sent by the proper person or persons, and shall be entitled to rely and shall
be protected in relying on opinions and judgments of attorneys (who may be
attorneys for the Borrower), accountants, experts and other professional
advisors selected by it; and (ii) no Bank shall have any right of action
whatsoever against Agent as a result of Agent acting or (where so instructed)
refraining from acting under this Agreement or the other instruments and
agreements referred to herein in accordance with the instructions of the
Majority Banks. Agent shall be entitled to refrain from exercising any power,
discretion or authority vested in it under this Agreement or the other
instruments and agreements referred to herein unless and until it has obtained
the instructions of the Majority Banks.
(D) Agent Entitled to Act as Bank. The agency hereby created shall in
no way impair or affect any of the rights and powers of, or impose any duties
or obligations upon, Agent in its individual capacity as a Bank hereunder.
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With respect to its participation in the Loans and the Commitment Agent shall
have the same rights and powers hereunder as any other Bank and may exercise
the same as though it were not performing the duties and functions delegated
to it hereunder, and the term "Bank" or "Banks" or any similar term shall,
unless the context clearly otherwise indicates, include Agent in its
individual capacity. Agent and its affiliates may accept deposits from, lend
money to and generally engage in any kind of banking, trust, financial
advisory or other business with the Borrower or any Affiliate or Subsidiary as
if it were not performing the duties specified herein, and may accept fees and
other consideration from the Borrower for services in connection with this
Agreement and otherwise without having to account for the same to the Banks.
Section 8.03. Representations and Warranties; No Responsibility or
Appraisal of Creditworthiness. Each Bank represents and warrants that it has
made its own independent investigation of the financial condition and affairs
of the Borrower and the Subsidiaries in connection with the making of the
Loans hereunder and has made and shall continue to make its own appraisal of
the creditworthiness of the Borrower and the Subsidiaries. Agent shall not
have any duty or responsibility either initially or on a continuing basis to
make any such investigation or any such appraisal on behalf of Banks or to
provide any Bank with any credit or other information with respect thereto
whether coming into its possession before the making of any Loan or at any
time or times thereafter (except for information received by Agent under
Section 5.03 hereof which Agent will promptly forward to the Banks), and Agent
shall further not have any responsibility with respect to the accuracy of or
the completeness of the information provided to Banks.
Section 8.04. Right to Indemnity. Each Bank severally agrees to
indemnify Agent proportionately to its Pro Rata Share of the Commitment, to
the extent Agent shall not have been reimbursed by the Borrower and/or any
Subsidiary, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses (including,
without limitation, counsel fees and disbursements) or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by or asserted
against Agent in performing its duties hereunder or in any way relating to or
arising out of this Agreement, any of the Notes and/or any of the Related
Documents; provided that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from Agent's gross
negligence or willful misconduct; and provided further, in the event that,
after a Bank has made a payment to Agent in connection with such
indemnification obligation, Agent receives payment from or on behalf of the
Borrower and/or any Subsidiary for such obligation, Agent shall reimburse such
Bank an amount equal to its Pro Rata Share of such amount received from the
Borrower and/or and Subsidiary. If any indemnity furnished to Agent for any
purpose shall, in the opinion of Agent, be insufficient or become impaired,
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished.
Section 8.05. Payee of Note Treated as Owner. Agent may deem and treat
the payee of any Note as the owner thereof for all purposes hereof unless and
until a written notice of the assignment or transfer thereof shall have been
filed with Agent. Any request, authority or consent of any person or entity
62
who, at the time of making such request or giving such authority or consent,
is the holder of any Note shall be conclusive and binding on any subsequent
holder, transferee or assignee of that Note or of any Note or Notes issued in
exchange for such Note.
Section 8.06. Resignation by Agent.
(A) Agent may resign from the performance of all its functions and
duties hereunder at any time by giving 30 days' prior written notice to the
Borrower and each of the Banks. Such resignation shall take effect upon the
acceptance by a successor Agent of appointment pursuant to clauses (b) and (c)
below or as otherwise provided below.
(B) Upon any such notice of resignation, the Majority Banks shall
appoint a successor Agent who shall be satisfactory to the Borrower and shall
be an incorporated bank or trust company with a combined surplus and undivided
capital of at least Four Hundred Million Dollars ($400,000,000).
(C) If a successor Agent shall not have been so appointed within said 30
day period, the resigning Agent, with the consent of the Borrower, shall then
appoint a successor Agent who shall serve as the Agent until such time, if
any, as the Majority Banks, with the consent of the Borrower, appoint a
successor Agent as provided above.
(D) If no successor Agent has been appointed pursuant to clause (B) or
(C) by the 40th day after the date such notice of resignation was given by the
resigning Agent, the resigning Agent's resignation shall become effective and
the Majority Banks shall thereafter perform all the duties of the resigning
agent hereunder until such time, if any, as the Majority Banks, with the
consent of the Borrower, appoint a successor Agent as provided above.
Section 8.07. Successor Agent. Agent may resign at any time as
provided in Section 8.06, and Agent may be removed at any time with or without
cause by an instrument or concurrent instruments in writing delivered to the
Borrower and Agent and signed by the Majority Banks. Upon any such notice of
resignation or any such removal, the Majority Banks shall have the right, upon
five days notice to and the approval of (which approval shall not be
unreasonably withheld) the Borrower, to appoint a successor Agent. Upon the
acceptance of any appointment as the Agent hereunder by a successor Agent,
that successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring or removed Agent, and
the retiring or removed Agent shall be discharged from its duties and
obligations as the Agent under this Agreement. After any retiring or removed
Agent's resignation or removal hereunder as the Agent the provisions of this
Article VIII shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was the Agent under this Agreement.
Section 8.08. Arranger and Other Bank Capacities. None of the Banks
identified on the facing page or elsewhere in this Agreement as an "Arranger",
"Syndication Agent", "Documentation Agent" or "Senior Managing Agent" shall
have any right, power, obligation, liability, responsibility or duty under
this Agreement on account of being named in any such capacity or holding such
position. Each Bank acknowledges that it has not relied, and will not rely,
on any of the Banks so identified in deciding to enter into this Agreement.
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ARTICLE IX
MISCELLANEOUS
Section 9.01. Consent to Jurisdiction and Service of Process.
(A) Except to the extent prohibited by applicable law, the Borrower
irrevocably on its own behalf and on behalf of each Subsidiary:
(i) agrees that any suit, action, or other legal proceeding arising
out of this Agreement or any of the Loans may be brought in the courts of
record of any of The Commonwealth of Massachusetts, the State of New
York, the State of Delaware or any state or jurisdiction in which any
assets of the Borrower and/or any Subsidiary may then be located or the
courts of the United States located in any of such states;
(ii) consents to the jurisdiction of each such court in any such
suit, action or proceeding; and
(iii) waives any objection which it may have to the laying of venue
of such suit, action or proceeding in any of such courts.
NO PARTY TO THIS INSTRUMENT, INCLUDING BUT NOT LIMITED TO ANY ASSIGNEE OR
SUCCESSOR OF A PARTY, SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING,
COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEDURE BASED UPON, OR ARISING OUT OF,
THIS AGREEMENT, THE NOTES, THE RELATED DOCUMENTS OR ANY OF THE OTHER
DOCUMENTS, INSTRUMENTS AND AGREEMENTS ENTERED INTO IN CONNECTION HEREWITH OR
THEREWITH OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG THE PARTIES
HERETO, OR ANY OF THEM. NO PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION, IN
WHICH A JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A JURY
TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE
BEEN FULLY DISCUSSED BY THE PARTIES HERETO, AND THESE PROVISIONS SHALL BE
SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED
TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY
ENFORCED IN ALL INSTANCES.
For such time as any of the Indebtedness of the Borrower and/or any
Subsidiary to Agent and/or to any of the Banks under this Agreement, any of
the Related Documents and/or any of the Notes shall be unpaid in whole or in
part and/or any part of the Commitment is in effect, the Borrower irrevocably
designates its registered agent for service of process in each state or
jurisdiction in which any suit, action or legal proceeding may be brought
under this Agreement, any of the Notes and/or any of the Related Documents,
and, in the absence thereof, the Secretary of State or other like authority if
such jurisdiction has no Secretary of State of whichever state or other
jurisdiction any suit, action or legal proceedings may be brought under this
Agreement, any of the Notes and/or any of the Related Documents is the
jurisdiction or state in which any such suit, action or other legal proceeding
64
is filed, as its agent to accept and acknowledge on its behalf service of any
and all process in any such suit, action or proceeding brought in any such
court and agrees and consents that any such service of process upon such agent
and written notice of such service to the Borrower by registered or certified
mail shall be taken and held to be valid personal service upon the Borrower
regardless of where the Borrower shall then be doing business and that any
such service of process shall be of the same force and validity as if service
were made upon it according to the laws governing the validity and
requirements of such service in each such state or jurisdiction and waives any
claim of lack of personal service or other error by reason of any such
service. Any notice, process, pleadings or other papers served upon the
aforesaid designated agent shall, within three (3) Business Days after such
service, be sent by certified or registered mail to the Borrower at its
address set forth in this Agreement and to Xxxxx X. Xxxxxxx, Esq. at Xxxxxxx &
Xxxxxx LLP at its address set forth in Section 9.07.
Section 9.02. Indemnification. The Borrower irrevocably agrees to and
does hereby indemnify and hold harmless the Agent and each of the Banks, their
agents or employees and each Person, if any, who controls any of the Banks
within the meaning of Section 15 of the Securities Act of 1933, as amended,
and each and all and any of them (the "Indemnified Parties"), against any and
all losses, claims, actions, causes of action, damages or liabilities
(including any amount paid in settlement of any action, commenced or
threatened and any amount described in Section 8.04), joint or several, to
which they, or any of them, may become subject under statutory law or at
common law, and to reimburse the Indemnified Parties for any legal or other
out-of-pocket expenses reasonably incurred by it or them in connection with
investigating, preparing for or defending against any actions, commenced or
threatened by any third party against any of the Indemnified Parties, insofar
as such losses, claims, damages, liabilities or actions arise out of or are
related to any act or omission of the Borrower and/or any Subsidiary with
respect to any of the Related Documents, this Agreement, any of the Notes, any
of Loans and/or any offering of securities by the Borrower and/or any
Subsidiary after the date hereof and/or in connection with the Securities and
Exchange Act of 1933 and/or failure to comply with any applicable federal,
state or foreign governmental law, rule, regulation, order or decree,
including without limitation, any losses, claims, damages, liabilities or
actions which arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact with respect to matters relative to any of
the foregoing contained in any document distributed in connection therewith,
or the omission or alleged omission to state in any of the foregoing a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Promptly upon receipt of notice of the commencement of any action, or
information as to any threatened action against any of the Indemnified Parties
in respect of which indemnity or reimbursement may be sought from the Borrower
on account of the agreement contained in this Section 9.02, notice shall be
given to the Borrower in writing of the commencement or threatening thereof,
together with a copy of all papers served, but the omission so to notify the
Borrower of any such action shall not release the Borrower from any liability
which it may have to such Indemnified Parties otherwise than on account of the
indemnity agreement contained in this Section 9.02 unless such omission
materially prejudiced Borrower's ability to defend against such action. In no
65
event shall the Borrower be liable for any fees or out-of-pocket expenses,
including fees and out-of-pocket expenses of legal counsel incurred by any of
the Indemnified Parties for services performed more than twenty (20) days
prior to any such notice in connection with any such action.
In case any such action shall be brought against any of the Indemnified
Parties, the Borrower shall be entitled to participate in (and, to the extent
that it shall wish, to select counsel and to direct) the defense thereof at
its own expense. Any of the Indemnified Parties shall have the right to employ
its or their own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless the
employment of such counsel shall have been authorized in writing by the
Borrower in connection with the defense of such action or the Borrower shall
not have employed counsel to have charge of the defense of such action or such
Indemnified Party shall have received an opinion from an independent counsel
that there may be defenses available to it which are different from or
additional to those available to the Borrower (in which case the Borrower
shall not have the right to direct the defense of such action on behalf of
such Indemnified Party), in any of which events the same shall be borne by the
Borrower. If any Indemnified Party settles any claim or action with respect
to which the Borrower has agreed to indemnify such Indemnified Party pursuant
to the terms hereof, the Borrower shall have no liability pursuant to this
Section 9.02 to such Indemnified Party with respect to such claim or action
unless the Borrower shall have consented in writing to the terms of such
settlement.
The provisions of Section 9.02 shall be effective only to the fullest
extent permitted by law.
Section 9.03. Rights and Remedies Cumulative. No right or remedy
conferred upon or reserved to Agent and/or to the Banks in this Agreement is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given under this Agreement or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy under this Agreement, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 9.04. Delay or Omission Not Waiver. No delay in exercising or
failure to exercise by Agent and/or any of the Banks any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Agreement or by
law to Agent and/or any of the Banks may be exercised from time to time, and
as often as may be deemed expedient, by Agent and/or any of the Banks.
Section 9.05. Waiver of Stay or Extension Laws. The Borrower covenants
(to the extent that it may lawfully do so) that neither the Borrower nor any
Subsidiary will at any time insist upon, or plead or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Agreement; and the Borrower (to the extent that it
may lawfully do so) hereby expressly waives all benefit and advantage of any
such law and covenants that it will not hinder, delay or impede the execution
of any power herein granted to Agent and/or any of the Banks, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
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Section 9.06. Amendments, etc. No amendment, modification,
termination, or waiver of any provision of this Agreement other than Section
2.02(B)(iii) (with respect to fees solely for the Agent's account) or Section
9.11(I), or of any of the Notes or Related Documents nor consent to any
departure by the Borrower therefrom shall in any event be effective unless the
same shall be in a written notice given to the Borrower by Agent, and
consented to in writing by the Majority Banks and Agent shall give any such
notice if the Majority Banks so consent or direct Agent to do so; provided,
however, that any such amendment, modification, termination, waiver or consent
shall require a written notice given to the Borrower by Agent and consented to
in writing by all of the Banks if the effect thereof is to (i) change any of
the provisions affecting any of the interest rates on the Loans (other than
the Bid Loans and Swing Loans) or the fees set forth in Section 2.02(B)(i) and
(ii) so as to effect any reduction in such rates or fees, (ii) extend or
modify the Commitment, (iii) change any Bank's Pro Rata Share of the
Commitment or the Loans (except as otherwise set forth in Section 9.11), (iv)
modify this Section 9.06 or the first sentence of Section 9.10, (v) change the
definition of Majority Banks, (vi) reduce the amount of principal due
hereunder, (vii) extend any due date for payment of principal, interest or
fees, or (viii) release any of the Guarantors from its obligations under the
Related Documents and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given. Agent
acting alone shall have the right to consent to any amendment of Section
2.02(B)(iii) with respect to fees solely for the Agent's account or 9.11(I).
Any amendment or modification of this Agreement must be signed by the
Borrower, Agent and, except in the case of amendment of Section 2.02(B)(iii)
with respect to fees solely for the Agent's account or 9.11(I), at least all
of the Banks consenting thereto who shall then hold the Pro Rata Shares of the
Loans required for such amendment or modification under this Section 9.06 and
Agent shall sign any such amendment if such Banks so consent or direct Agent
to do so provided that any Bank dissenting therefrom shall be given an
opportunity to sign any such amendment or modification. No notice to or
demand on the Borrower in any case shall entitle the Borrower to any other or
further notice or demand in similar or other circumstances. In the event that
the Borrower wishes any such amendment, modification, termination, waiver or
consent, the Borrower shall notify Agent thereof and Agent shall within five
(5) Business Days following such notice notify the Banks thereof, which notice
from Agent shall constitute a notice to the Banks for the purposes of the
definition of Majority Banks set forth in Section 1.01.
Section 9.07. Addresses for Notices, etc. All notices, requests,
demands and other communications provided for hereunder (other than those
which, under the terms of this Agreement, may be given by telephone, which
shall be effective when received verbally) shall be in writing (including
telegraphic, E-mailed, or telecopied communication) and mailed, telegraphed, E-
mailed, telecopied or delivered to the applicable party at the addresses
indicated below:
If to the Borrower:
Xxxxxxx, Inc.
Shrewsbury Executive Center
0000 Xxxxx Xxxxxx
Xxxxx 000
00
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Vice President, Chief
Financial Officer and Treasurer
and
Xxxxxx Xxxxxxx
Assistant Treasurer
Telecopy: 000-000-0000
E-mail: Xxxxx.Xxxxxxxx@xxxxxxxxxx.xxx
Xxxxxx.Xxxxxxx@xxxxxxxxxx.xxx
With copies to:
Xxxxxxx & Xxxxxx, LLP
0000 XxxxXxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esquire
Telecopy: (000) 000-0000
E-mail: xxxxxxxx@xxxxx.xxx
If to Agent:
Fleet National Bank
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Senior Vice President
Telecopy: (000) 000-0000
E-mail: Xxxxxx_X_Xxxxxx@xxxxx.xxx
With copies to:
Xxxxxxxx, Xxxxx & Xxxxxx LLP
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxxx III, Esquire
Telecopy: (000) 000-0000
E-mail: xxxxxxx@xxxxxx.xxx
If to any Bank, to the address(es) set forth immediately below such
Bank's name on Exhibit K, as same may be amended from time to time;
or, as to each party, at such other address as shall be designated by such
party in a written notice to each other party complying as to the delivery
68
with the terms of this Section. All such notices, requests, demands and other
communications shall be effective when received. Requests, Interest Rate
Elections, certificates, items provided pursuant to Section 5.03, other than
subsection 5.03(A), and other routine mailings or notices need not be
accompanied by a copy to legal counsel for Agent, the Banks or the Borrower.
Section 9.08. Costs, Expenses and Taxes. The Borrower agrees to pay on
demand the reasonable fees and out-of-pocket expenses of Messrs. Xxxxxxxx,
Xxxxx & Xxxxxx LLP, counsel for Agent, in connection with the preparation,
execution, delivery, amendment, syndication and administration of the
documents involved in each Bank's Commitment and of this Agreement, the Notes,
the Related Documents and the other instruments and documents to be delivered
hereunder. The Borrower agrees to pay on demand all reasonable out-of-pocket
costs and expenses (including without limitation reasonable attorneys' fees
(including the allocated costs of staff counsel, provided that any allocation
of such costs is made in accordance with the relevant Bank's customary
practice and is without duplication of the expense of any outside counsel for
the relevant Bank for the relevant matter, there being a general understanding
or presumption that the hourly rates and time charges for in-house counsel
will not exceed those charged by outside counsel)) incurred by Agent and, to
the extent incurred in connection with suing on a Note, any of the Banks, upon
or after an Event of Default, if any, in connection with the enforcement of
this Agreement, any of the Related Documents, any of the Notes and the other
instruments and documents to be delivered under this Agreement and any
amendments to this Agreement or in connection with any amendments, waivers or
consents of or under this Agreement, any of the Related Documents, any of the
Notes or any other such instruments and documents. In addition, the Borrower
shall pay on demand any and all stamp and other taxes and fees payable or
determined to be payable in connection with the execution and delivery of this
Agreement, the Related Documents, the Notes and the other instruments and
documents to be delivered hereunder and agrees to save Agent and the Banks
harmless from and against any and all liabilities with respect to or resulting
from any delay in paying or omission to pay such taxes or fees.
Section 9.09. Participations. Each Bank may sell participations, in
all or part of its Pro Rata Share of any Loan or Loans made by it and/or its
Commitment or any other interest herein or in any of its Notes to another
financial or rated institution (it being understood that the foregoing shall
in no way restrict a Bank's ability to sell participations in its Bid Loans in
the secondary market so long as such Bank retains all voting rights arising in
connection therewith), in which event the participant shall not have any
rights under this Agreement, the Related Documents or any Note or any other
document delivered in connection herewith (the participant's rights against
that Bank in respect of that participation to be those set forth in the
agreement executed by that Bank in favor of the participant relating thereto);
provided that any Bank granting a participation or participations shall retain
all voting rights in any and all such Bank's participation agreements on all
decisions subject to decision by the Majority Banks or by all the Banks under
this Agreement, the Notes and the Related Documents so that the participation
agreement or other arrangements between a Bank and its participants may only
provide that such Bank will obtain the approval of such participant prior to
such Bank's agreeing to any amendment or waiver of any provisions of this
Agreement which would (A) extend the maturity of any Note, (B) reduce the
amount of principal, any interest rate or any Facility Fee or Utilization Fee
under this Agreement or (C) increase the Commitment of the Bank granting the
participation other than as permitted by Section 2.14 or 2.15 and all amounts
payable by the Borrower hereunder or thereunder shall be determined as if that
69
Bank had not sold such participation. Each Bank may furnish any information
concerning such Bank, the Loans, the Borrower and any Subsidiary in the
possession of that Bank from time to time to participants (including
prospective participants); provided that any Bank providing any confidential
information about the Borrower and/or any Subsidiary to any such participant
or prospective participant shall obtain such participant's or prospective
participant's agreement to keep confidential any such confidential
information.
Section 9.10. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Borrower, Agent and the Banks and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein or delegate any of its
obligations hereunder without the prior written consent of all of the Banks.
This Agreement and all covenants, representations and warranties made herein
and/or in any certificates, or documents or instruments now or hereafter
delivered pursuant hereto shall survive the making of the Loans, the execution
and delivery of the Related Documents and the Notes and shall continue in
effect so long as any amounts payable under or in connection with this
Agreement, any of the Related Documents and/or any of the Notes or any other
Indebtedness of the Borrower, and/or any Guarantor under this Agreement, any
of the Related Documents and/or any of the Notes to the Agent and/or any of
the Banks remains unpaid or the Commitment remains outstanding; provided,
however, that Sections 2.01(A)(vii) and (viii), 2.02(C), 2.10 (D), (E) and
(F), Section 5.04 and Section 9.02 shall survive and remain in full force and
effect after expiration of the Commitment and repayment in full of all amounts
payable under or in connection with all of the Notes, the Related Documents,
this Agreement and any other such Indebtedness of the Borrower, and/or any
Guarantor under this Agreement, any of the Related Documents and/or any of the
Notes.
Section 9.11. Substitutions and Assignments. Upon the request of any
Bank, Agent, the Borrower and such Bank may, subject to the terms and
conditions hereinafter set forth, take the actions set forth below to
substitute one or more financial institutions (a "Substituted Bank") as a Bank
or Banks hereunder having a Pro Rata Share as specified in the relevant
Substitution Agreement executed in connection therewith.
(A) In connection with any such substitution the Selling Bank (as
defined below), the Substituted Bank, the Borrower and Agent shall enter into
a Substitution Agreement pursuant to which such Substituted Bank shall be
substituted for the Bank requesting the substitution in question (any such
Bank being hereinafter referred to as a "Selling Bank") to the extent of the
reduction in the Selling Bank's Pro Rata Share specified therein. In
addition, to that extent such Substituted Bank shall assume such of the
obligations of such Selling Bank under this Agreement, the Related Documents
and the Notes as may be specified therein and this Agreement shall be amended
by execution and delivery of each Substitution Agreement to include such
Substituted Bank as a Bank for all purposes under this Agreement, the Related
Documents and the Notes and to substitute for the then existing Exhibit K to
this Agreement a new Exhibit K in the form of Schedule A to such Substitution
Agreement setting forth the Pro Rata Share of each Bank following execution
thereof. Each Bank and the Borrower hereby appoint Agent as agent on its
behalf to countersign and accept delivery of each Substitution Agreement and,
to the extent applicable, the provisions of Article VIII hereof shall apply
70
mutatis mutandis with respect to such appointment and anything done or omitted
to be done by Agent in pursuance thereof.
(B) Without prejudice to any other provision of this Agreement, each
Substituted Bank shall, by its execution of a Substitution Agreement, agree
that neither Agent nor any Bank is in any way responsible for or makes any
representation or warranty as to: (a) the accuracy and/or completeness of any
information supplied to such Substituted Bank in connection therewith, (b) the
financial condition, creditworthiness, affairs, status or nature of the
Borrower and/or any of the Subsidiaries or the observance by the Borrower,
and/or any Guarantor or any other party of any of its obligations under this
Agreement, any of the Notes or any of the Related Documents or (c) the
legality, validity, effectiveness, adequacy or enforceability of this
Agreement, any of the Notes or any of the Related Documents.
(C) Agent shall be entitled to rely on any Substitution Agreement
delivered to it pursuant to this Section 9.11 which is complete and regular on
its face as to its contents and appears to be signed on behalf of the
Substituted Bank which is a party thereto, and Agent shall have no liability
or responsibility to any party as a consequence of relying thereon and acting
in accordance with and countersigning any such Substitution Agreement. The
effective date of each Substitution Agreement shall be the date specified as
such therein and each Bank prior to such effective date shall, for all
purposes hereunder, be deemed to have and possess all of its respective rights
and obligations hereunder up to 12:00 o'clock P.M. on the effective date
thereof.
(D) Upon delivery to Agent of any Substitution Agreement pursuant to and
in accordance with this Section 9.11 and acceptance thereof by Agent (which
delivery shall be evidenced and accepted exclusively and conclusively by
Agent's countersignature thereon pursuant to the terms hereof without which
such Substitution Agreement shall be ineffective): (i) except as provided
hereunder, the respective rights of each Selling Bank and the Borrower against
each other under this Agreement, the Notes and the Related Documents with
respect to the portion of the Pro Rata Shares being assigned or delegated
shall be terminated and each Selling Bank and the Borrower shall each be
released from all further obligations to the other hereunder with respect
thereto (all such rights and obligations to be so terminated or released being
referred to in this Section 9.11 as "Discharged Rights and Obligations"); and
(ii) the Borrower and the Substituted Bank shall each acquire rights against
each other and assume obligations towards each other which differ from the
Discharged Rights and Obligations only in so far as the Borrower and the
Substituted Bank have assumed and/or acquired the same in place of the Selling
Bank in question and the Substituted Bank shall assume a Pro Rata Share in the
amount of the aggregate reduction in the Pro Rata Shares of each Selling Bank,
as specified in such Substitution Agreement; and (iii) Agent, the Substituted
Bank and the other Banks shall acquire the same rights and assume the same
obligations between themselves as they would have acquired and assumed had
such Substituted Bank been an original party to this Agreement as a Bank
possessing the Discharged Rights and Obligations acquired and/or assumed by it
in consequence of the delivery of such Substitution Agreement to Agent.
(E) Discharged Rights and Obligations shall not include, and there shall
be no termination or release pursuant to this Section 9.11 of (i) any rights
71
or obligations arising pursuant to this Agreement in respect of the period or
in respect of payments hereunder made during the period prior to the effective
date of the relevant Substitution Agreement, or (ii) any rights or obligations
relating to the payment of any amount which has fallen due and not been paid
hereunder prior to such effective date or rights or obligations for the
payment of interest, damages or other amounts becoming due hereunder as a
result of such nonpayment.
(F) Notwithstanding anything to the contrary set forth above in this
Section 9.11, (a) any Bank shall have the right, subject to the terms and
conditions of this Section 9.11, to assign and delegate to one or more
Substituted Banks all, or any ratable part of all, of the Loans, the
Commitment and the other rights and obligations of such Bank hereunder,
pursuant to a Substitution Agreement; provided that no such assignment and
delegation shall occur without the prior written consent of the Borrower and
the Agent (which consent of the Borrower and the Agent shall not be
unreasonably withheld or delayed and which consent of the Borrower shall not
be required if any Event of Default shall exist), and provided, further, that,
unless each of the Borrower and the Agent consents otherwise (each of which
consents may be granted or withheld in the absolute discretion of the party
granting or withholding such consent), (i) each such assignment shall be in a
minimum amount of $10,000,000 (or, if less, the entire amount of the Selling
Bank's Commitment) and (ii) after giving effect to any such assignment and
delegation, the Selling Bank shall have either (x) retained a Commitment in a
minimum amount of $10,000,000 or (y) assigned its entire Commitment to a
Substituted Bank, (b) any Bank shall have the right to pledge its Notes to a
Federal Reserve Bank as security for such Bank's obligations to such Federal
Reserve Bank so long as such assignment does not alter such Bank's obligations
under this Agreement, any of the Notes and/or any of the Related Documents,
and (c) any Bank may assign one or more of its Bid Loans in the secondary
market so long as such Bank complies with all applicable securities laws and
retains all voting rights arising in connection therewith and such Bank
arranges with such assignee to act as such assignee's collection agent in
connection with such Bid Loan(s).
(G) With respect to any substitution of a Substituted Bank taking place
after the Closing Date, the Borrower shall issue to such Substituted Bank and
to such Selling Bank, new Notes reflecting the inclusion of such Substituted
Bank as a Bank and the reduction in the respective Pro Rata Shares of such
Selling Bank, such new Notes to be issued against receipt by the Borrower of
the existing Notes of such Selling Bank.
(H) Each Bank may furnish to any financial institution which such Bank
proposes to make a Substituted Bank or to a Substituted Bank any information
concerning such Bank, the Borrower and any Subsidiary in the possession of
that Bank from time to time; provided that any Bank providing any confidential
information about the Borrower and/or any Subsidiary to any such financial
institution shall obtain such financial institution's agreement to keep
confidential any such confidential information and shall provide a true copy
of any such confidentiality agreement to the Borrower.
(I) Any Selling Bank or Substituted Bank in a substitution pursuant to
this Section 9.11 shall pay to the Agent a one-time administrative fee of
$3,500 for such substitution; provided, that in the event the provisions under
this Agreement for providing a replacement bank for a Delinquent Bank are
72
implemented through substitution under this Section 9.11, the $3,500
administration fee shall be payable by the Delinquent Bank; provided further
that, notwithstanding the foregoing, each Bank may, subject to the other terms
and conditions of this Section 9.11, make a single substitution to an
affiliated entity without paying the above referenced administrative fee (it
being understood by the Banks that any such assignee shall not have the right
to make any substitution without the payment of the above referenced
administrative fee).
(J) Notwithstanding anything to the contrary herein, any Bank (a
"Granting Bank") may grant to a special purpose funding entity which is a
designee of such Granting Bank, identified as such in writing from time to
time to the Agent and Borrower (any such entity being an "SPC"), the option to
provide to Borrower all or part of any Bid Loan that such Granting Bank would
otherwise be eligible to make to Borrower pursuant to Section 2.01(A),
provided that nothing herein shall constitute a Commitment to make any Bid
Loan by any SPC or Bank. The making of a Bid Loan by any SPC hereunder shall
utilize the Commitment of the respective Granting Bank to the same extent, and
as if, such Bid Loan were made by such Granting Bank, but shall not release
such Granting Bank from any other liability under the Agreement. Each party
hereto agrees that no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement (all liability for which shall remain with the
respective Granting Bank). Any such Bid Loan made by any SPC shall be made
pursuant to instruments and documents in form acceptable to the Borrower and
the SPC. In no event shall Borrower be obligated to pay to any SPC that has
made a Bid Loan any greater amount than Borrower would have been obligated to
pay under this Agreement if the respective Granting Bank had made such Bid
Loan. Borrower, Agent and each other Bank shall continue to deal solely and
directly with, and send notices solely to, the respective Granting Bank with
respect to any Bid Loan made by its SPC and such Granting Bank shall not
transfer or grant to its SPC the right to approve any amendment, waiver or
consent hereunder. This Section 9.11(J) may not be amended without the
written consent of each Granting Bank.
Section 9.12. Actual Knowledge. For purposes of this Agreement,
neither Agent nor any Bank shall be deemed to have actual knowledge of any
fact or state of facts unless the senior loan officer or any other officer
responsible for the Borrower's account established pursuant to this Agreement
at Agent or such Bank, as the case may be, shall, in fact, have actual
knowledge of such fact or state of facts or unless written notice of such fact
shall have been received by Agent or such Bank in accordance with Section
9.07.
Section 9.13. Governing Law. This Agreement and each of the Notes
shall be governed by, and construed in accordance with, the laws of the State
of New York, without regard to its conflict of laws provisions.
Section 9.14. Severability of Provisions. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 9.15. Headings. Article and Section headings in this Agreement
are included herein for convenience of reference only and shall not constitute
a part of this Agreement for any other purpose.
73
Section 9.16. Counterparts. This Agreement may be executed and
delivered in any number of counterparts each of which shall be deemed an
original, and this Agreement shall be effective when at least one counterpart
hereof has been executed by each of the parties hereto.
Section 9.17. Integration. This Agreement supersedes the Borrower's
application for the Loans, any commitment letters of the Agent and/or the
Banks generally describing the Loans and all other prior dealings between the
Borrower, Agent, any of the Banks and any of their respective agents,
employees or officers with respect to the Loans, except with respect to the
Agent's agreements with the Borrower referred to in Section 2.02(B)(iii).
SIGNATURES APPEAR ON NEXT PAGE
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as a sealed instrument by their respective officers thereunto duly
authorized, as of the date first above written.
XXXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
FLEET NATIONAL BANK, for itself as a Bank and as
Agent
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President
BANK OF AMERICA, N.A., as a Bank
and as Syndication Agent
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK, as a Bank and
as Documentation Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
WACHOVIA BANK, N.A., as a Bank and as a Senior
Managing Agent
By: /s/ M. Xxxxxx Xxxx, III
--------------------------------------------
Name: M. Xxxxxx Xxxx, III
Title: Senior Vice President
THE CHASE MANHATTAN BANK, as a
Bank and as a Senior Managing Agent
By: /s/ Xxxxxxxx Xxxxxxx, Xx.
---------------------------------------------
Name: Xxxxxxxx Xxxxxxx, Xx.
Title: Vice President
THE NORTHERN TRUST COMPANY, as a Bank
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
THE GOVERNOR & COMPANY OF THE BANK OF IRELAND,
as a Bank
By: /s/ Xxxxx Xxxxxxxxxxx /s/ Xxxx Xxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxxxxxxx Xxxx Xxxxxx
Title: Relationship Manager Assistant Manager
MELLON BANK, N.A. , as a Bank
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
---------------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Vice President
BANCA MONTE DEI PASCHI DI SIENA S.P.A.,
as a Bank
By: /s/ G. Natalicchi /s/ Xxxxx X. Xxxxx
-------------------------------------------
Name: G. Natalicchi Xxxxx X. Xxxxx
Title: S.V.P. & General Vice President
Manager
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as a
Bank
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA, as a Bank
By: /s/ Xxxxx Xxxxx
--------------------------------------------
Name: Xxxxx Xxxxx
Title: Sr. Relationship Manager
KBC BANK N.V., as a Bank
By:/s/ Xxxxxx Xxxxxxxx /s/ Xxxxxx M Serdam, Jr.
--------------------------------------------
Name: Xxxxxx Xxxxxxxx Xxxxxx X. Serdam, Jr.
Title:First Vice President Vice President
