$350,000,000 REVOLVING CREDIT FACILITY
AMENDED AND RESTATED CREDIT AGREEMENT
by and among
TRIUMPH GROUP, INC.
as Borrower
and
THE BANKS PARTY HERETO
and
PNC BANK, NATIONAL ASSOCIATION
as Administrative Agent
BANK OF AMERICA, N.A. as Documentation Agent
FIRST UNION NATIONAL BANK as Syndication Agent
MELLON BANK, N.A. as Co-agent
Dated as of October 16, 2000
TABLE OF CONTENTS
Article Page
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1. CERTAIN DEFINITIONS....................................................1
1.1 Certain Definitions..............................................1
1.2 Construction....................................................13
1.2.1 Number; Inclusion.........................................13
1.2.2 Determination.............................................13
1.2.3 Administrative Agent's Discretion and Consent.............14
1.2.4 Documents Taken as a Whole................................14
1.2.5 Headings..................................................14
1.2.6 Implied References to this Agreement......................14
1.2.7 Persons...................................................14
1.2.8 Modifications to Documents................................14
1.2.9 From, To and Through......................................14
1.2.10 Shall; Will..............................................14
1.3 Accounting Principles...........................................15
2. REVOLVING CREDIT FACILITY.............................................15
2.1 Revolving Credit Commitments....................................15
2.1.1 General...................................................15
2.1.2 Right to Increase Commitments.............................15
2.2 Nature of Banks' Obligations with Respect to Revolving
Credit Loans....................................................15
2.3 Commitment Fees.................................................16
2.4 Revolving Credit Loan Requests..................................16
2.5 Making Revolving Credit Loans...................................17
2.6 Revolving Credit Notes..........................................17
2.7 Use of Proceeds.................................................17
2.8 Letter of Credit Subfacility....................................17
2.8.1 Issuance of Letters of Credit.............................17
2.8.2 Participations............................................18
2.8.3 Letter of Credit Fees.....................................18
2.8.4 Disbursements, Reimbursement..............................18
2.8.5 Documentation.............................................19
2.8.6 Determinations to Honor Drawing Requests..................19
2.8.7 Nature of Participation and Reimbursement Obligations.....19
2.8.8 Indemnity.................................................20
2.8.9 Liability for Acts and Omissions..........................21
2.9 Extension by Banks of the Expiration Date.......................21
3. INTEREST RATES........................................................21
3.1 Interest Rate Options...........................................21
3.1.1 Revolving Credit Interest Rate Options....................22
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3.1.2 Rate Quotations...........................................22
3.2 Interest Periods................................................22
3.2.1 Ending Date and Business Day..............................22
3.2.2 Amount of Borrowing Tranche...............................23
3.2.3 Termination Before Expiration Date........................23
3.2.4 Renewals..................................................23
3.3 Interest After Default..........................................23
3.3.1 Letter of Credit Fees, Interest Rate......................23
3.3.2 Other Obligations.........................................23
3.3.3 Acknowledgment............................................23
3.4 Euro-Rate Unascertainable.......................................23
3.4.1 Unascertainable...........................................23
3.4.2 Illegality; Increased Costs; Deposits Not Available.......24
3.4.3 Administrative Agent's and Banks' Rights..................24
3.5 Selection of Interest Rate Options..............................25
4. PAYMENTS..............................................................25
4.1 Payments........................................................25
4.2 Pro Rata Treatment of Banks.....................................25
4.3 Interest Payment Dates..........................................26
4.4 Voluntary Prepayments and Commitment Reductions.................26
4.4.1 Right to Prepay...........................................26
4.4.2 Replacement of a Bank.....................................27
4.4.3 Right to Reduce Commitments...............................27
4.5 Additional Compensation in Certain Circumstances................28
4.5.1 Increased Costs or Reduced Return Resulting From Taxes,
Reserves, Capital Adequacy Requirements, Expenses, Etc....28
4.5.2 Indemnity.................................................28
5. REPRESENTATIONS AND WARRANTIES........................................29
5.1 Representations and Warranties..................................29
5.1.1 Organization and Qualification............................29
5.1.2 Capitalization and Ownership..............................29
5.1.3 Subsidiaries..............................................30
5.1.4 Power and Authority.......................................30
5.1.5 Validity and Binding Effect...............................30
5.1.6 No Conflict...............................................30
5.1.7 Litigation................................................31
5.1.8 Title to Properties.......................................31
5.1.9 Financial Statements......................................31
5.1.10 Margin Stock.............................................32
5.1.11 Full Disclosure..........................................32
5.1.12 Taxes....................................................32
5.1.13 Consents and Approvals...................................32
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5.1.14 No Event of Default; Compliance with Instruments.........33
5.1.15 Patents, Trademarks, Copyrights, Licenses, Etc...........33
5.1.16 Insurance................................................33
5.1.17 Compliance with Laws.....................................33
5.1.18 Material Contracts.......................................33
5.1.19 Investment Companies.....................................34
5.1.20 Plans and Benefit Arrangements...........................34
5.1.21 Employment Matters.......................................35
5.1.22 Environmental Matters....................................35
5.1.23 Senior Debt Status.......................................36
5.2 Updates to Schedules............................................36
6. CONDITIONS OF LENDING.................................................37
6.1 First Loans.....................................................37
6.1.1 Officer's Certificate.....................................37
6.1.2 Secretary's Certificate...................................37
6.1.3 Delivery of Notes and Guaranty............................38
6.1.4 Opinion of Counsel........................................38
6.1.5 Legal Details.............................................38
6.1.6 Payment of Fees...........................................38
6.1.7 Consents..................................................38
6.1.8 Officer's Certificate Regarding MACs......................38
6.1.9 No Violation of Laws......................................39
6.1.10 No Actions or Proceedings................................39
6.2 Each Additional Loan............................................39
7. COVENANTS.............................................................39
7.1 Affirmative Covenants...........................................39
7.1.1 Preservation of Existence, Etc............................39
7.1.2 Payment of Liabilities, Including Taxes, Etc..............40
7.1.3 Maintenance of Insurance..................................40
7.1.4 Maintenance of Properties and Leases......................41
7.1.5 Maintenance of Patents, Trademarks, Etc...................41
7.1.6 Visitation Rights.........................................41
7.1.7 Keeping of Records and Books of Account...................41
7.1.8 Plans and Benefit Arrangements............................42
7.1.9 Compliance with Laws......................................42
7.1.10 Use of Proceeds..........................................42
7.1.11 Subsidiary Dividends.....................................42
7.2 Negative Covenants..............................................42
7.2.1 Indebtedness..............................................42
7.2.2 Liens.....................................................43
7.2.3 Guaranties................................................43
7.2.4 Loans and Investments.....................................44
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7.2.5 Dividends and Related Distributions.......................44
7.2.6 Liquidations, Mergers, Consolidations, Acquisitions.......45
7.2.7 Dispositions of Assets or Subsidiaries....................46
7.2.8 Affiliate Transactions....................................47
7.2.9 Subsidiaries, Partnerships and Joint Ventures.............47
7.2.10 Continuation of Present Business.........................47
7.2.11 Plans and Benefit Arrangements...........................48
7.2.12 Fiscal Year..............................................48
7.2.13 Issuance of Stock........................................49
7.2.14 Changes in Organizational Documents......................49
7.2.15 Operating Leases.........................................49
7.2.16 Minimum Interest Coverage Ratio..........................49
7.2.17 Maximum Total Indebtedness to EBITDA Ratio...............49
7.2.18 Minimum Net Worth........................................50
7.2.19 Negative Pledges.........................................50
7.2.20 Capital Expenditures.....................................50
7.3 Reporting Requirements..........................................50
7.3.1 Quarterly Financial Statements............................50
7.3.2 Annual Financial Statement................................50
7.3.3 Compliance Certificate....................................51
7.3.4 Notice of Default.........................................51
7.3.5 Notice of Litigation......................................52
7.3.6 Certain Events............................................52
7.3.7 Budgets, Forecasts, Other Reports and Information.........52
7.3.8 Notices Regarding Plans and Benefit Arrangements..........53
8. DEFAULT...............................................................54
8.1 Events of Default...............................................54
8.1.1 Payments Under Loan Documents.............................54
8.1.2 Breach of Warranty........................................54
8.1.3 Refusal to Permit Inspections; Breach of
Negative Covenants........................................55
8.1.4 Breach of Other Covenants.................................55
8.1.5 Defaults in Other Agreements or Indebtedness..............55
8.1.6 Final Judgments or Orders.................................55
8.1.7 Loan Document Unenforceable...............................55
8.1.8 Uninsured Losses; Proceedings Against Assets..............55
8.1.9 Notice of Lien or Assessment..............................56
8.1.10 Insolvency...............................................56
8.1.11 Events Relating to Plans and Benefit Arrangements........56
8.1.12 Cessation of Business....................................56
8.1.13 Change of Control........................................57
8.1.14 Involuntary Proceedings..................................57
8.1.15 Voluntary Proceedings....................................57
8.2 Consequences of Event of Default................................58
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8.2.1 Events of Default Other Than Bankruptcy, Insolvency
or Reorganization Proceedings.............................58
8.2.2 Bankruptcy, Insolvency or Reorganization Proceedings......58
8.2.3 Set-off...................................................58
8.2.4 Suits, Actions, Proceedings...............................59
8.2.5 Application of Proceeds...................................59
9. THE AGENT.............................................................59
9.1 Appointment.....................................................59
9.2 Delegation of Duties............................................60
9.3 Nature of Duties; Independent Credit Investigation..............60
9.4 Actions in Discretion of Administrative Agent;
Instructions from the Banks ....................................60
9.5 Reimbursement and Indemnification of Administrative Agent
by the Borrower ................................................61
9.6 Exculpatory Provisions..........................................61
9.7 Reimbursement and Indemnification of Administrative Agent
by Banks .......................................................62
9.8 Reliance by Administrative Agent................................62
9.9 Notice of Default...............................................63
9.10 Notices.........................................................63
9.11 Banks in Their Individual Capacities............................63
9.12 Holders of Notes................................................63
9.13 Equalization of Banks...........................................63
9.14 Successor Administrative Agent..................................64
9.15 Administrative Agent's Fee......................................64
9.16 Availability of Funds...........................................64
9.17 Calculations....................................................65
9.18 Beneficiaries...................................................65
10. MISCELLANEOUS.........................................................65
10.1 Modifications, Amendments or Waivers............................65
10.1.1 Increase of Commitment; Extension or Expiration Date.....66
10.1.2 Extension of Payment; Reduction of Principal Interest
or Fees; Modification of Terms of Payment................66
10.1.3 Miscellaneous............................................66
10.2 No Implied Waivers; Cumulative Remedies; Writing Required.......66
10.3 Reimbursement and Indemnification of Banks by the
Borrower; Taxes ................................................66
10.4 Holidays........................................................67
10.5 Funding by Branch, Subsidiary or Affiliate......................68
10.5.1 Notional Funding.........................................68
10.5.2 Actual Funding...........................................68
10.6 Notices.........................................................69
10.7 Severability....................................................69
10.8 Governing Law...................................................70
10.9 Prior Understanding.............................................70
10.10 Duration; Survival..............................................70
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10.11 Successors and Assigns..........................................70
10.12 Confidentiality.................................................71
10.13 Counterparts....................................................71
10.14 Administrative Agent's or Bank's Consent........................72
10.15 Exceptions......................................................72
10.16 Consent to Forum; Waiver of Jury Trial..........................72
10.17 Tax Withholding Clause..........................................72
10.18 Public Filings..................................................73
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LIST OF SCHEDULES AND EXHIBITS
SCHEDULES
SCHEDULE 1.1(B) - COMMITMENTS OF BANKS
SCHEDULE 1.1(P) - PERMITTED LIENS
SCHEDULE 5.1.1 - QUALIFICATIONS TO DO BUSINESS
SCHEDULE 5.1.2 - CAPITALIZATION
SCHEDULE 5.1.3 - SUBSIDIARIES
SCHEDULE 5.1.8 - TITLE TO PROPERTY
SCHEDULE 5.1.13 - CONSENTS AND APPROVALS
SCHEDULE 5.1.20 - EMPLOYEE BENEFIT PLAN DISCLOSURES
SCHEDULE 5.1.22 - ENVIRONMENTAL DISCLOSURES
SCHEDULE 7.2.1 - PERMITTED INDEBTEDNESS
EXHIBITS
EXHIBIT 1.1(A) - ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT 1.1(P) - PRICING GRID
EXHIBIT 1.1(R) - REVOLVING CREDIT NOTE
EXHIBIT 2.4 - LOAN REQUEST
EXHIBIT 7.3.3 - COMPLIANCE CERTIFICATE
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AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT is dated October 16, 2000 and
is made by and among TRIUMPH GROUP, INC., a Delaware corporation, (the
"Borrower"), the BANKS (as hereinafter defined), PNC BANK, NATIONAL ASSOCIATION,
in its capacity as administrative agent for the Banks under this Agreement
(hereinafter referred to in such capacity as the "Administrative Agent"), FIRST
UNION NATIONAL BANK, in its capacity as syndication agent for the Banks under
this Agreement (hereinafter referred to in such capacity as the "Syndication
Agent"), BANK OF AMERICA, N.A., in its capacity as documentation agent for the
Banks under this Agreement (herein referred to in such capacity as the
"Documentation Agent") and MELLON BANK, N.A., in in its capacity as co-agent for
the Banks under this Agreement (hereinafter referred to in such capacity as the
"Co-Agent").
WITNESSETH:
WHEREAS, certain of the Banks currently provide a revolving credit
facility for the Borrower in an aggregate principal amount of up to $250,000,000
pursuant to a First Amended and Restated Credit Agreement dated as of June 11,
1999, as amended (the "1999 Credit Agreement"); and
WHEREAS, the parties wish to amend and restate the 1999 Credit Agreement
on the terms and conditions set forth below in order to, among other things,
increase the credit extended to $350,000,000 and provide for additional Banks as
party to this Agreement; and
WHEREAS, in order to induce the Banks to become parties to this Agreement,
the Borrower's Subsidiaries (as defined herein) have executed a Guaranty and
Suretyship Agreement dated as of the date hereof in favor of the Administrative
Agent for the benefit of the Banks;
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, covenant and agree as follows:
1. CERTAIN DEFINITIONS
1.1 Certain Definitions.
In addition to words and terms defined elsewhere in this Agreement, the
following words and terms shall have the following meanings, respectively,
unless the context hereof clearly requires otherwise:
Administrative Agent shall mean PNC Bank, National Association, and its
successors and assigns, as Administrative.
Administrative Agent's Fee shall have the meaning assigned to that term in
Section 9.15.
Administrative Agent's Letter shall have the meaning assigned to that term
in Section 9.15.
Affiliate as to any Person shall mean any other Person (i) which directly
or indirectly controls, is controlled by, or is under common control with such
Person, (ii) which beneficially owns or holds 10% or more of any class of the
voting or other equity interests of such Person, or (iii) 10% or more of any
class of voting interests or other equity interests of which is beneficially
owned or held, directly or indirectly, by such Person. Control, as used in this
definition, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise, including
the power to elect a majority of the directors or trustees of a corporation or
trust, as the case may be.
Agreement shall mean this Amended and Restated Credit Agreement, as the
same may be supplemented or amended from time to time, including all schedules
and exhibits.
Annual Statements shall have the meaning assigned to that term in Section
5.1.9(i).
Assignment and Assumption Agreement shall mean an Assignment and
Assumption Agreement by and among a Purchasing Bank, the Transferor Bank and the
Administrative Agent, as Administrative Agent and on behalf of the remaining
Banks, substantially in the form of Exhibit 1.1(A).
Authorized Officer shall mean those individuals, designated by written
notice to the Administrative Agent from the Borrower, authorized to execute
notices, reports and other documents on behalf of the Borrower required
hereunder. The Borrower may amend such list of individuals from time to time by
giving written notice of such amendment to the Administrative Agent.
Banks shall mean the financial institutions named on Schedule 1.1(B) and
their respective successors and assigns as permitted hereunder, each of which is
referred to herein as a Bank.
Base Rate shall mean the greater of (i) the interest rate per annum
announced from time to time by the Administrative Agent at its Principal Office
as its then prime rate, which rate may not be the lowest rate then being charged
commercial borrowers by the Administrative Agent, or (ii) the Federal Funds
Effective Rate plus 1/2% per annum.
Base Rate Option shall mean the Revolving Credit Base Rate Option.
Benefit Arrangement shall mean at any time an "employee benefit plan,"
within the meaning of Section 3(3) of ERISA, which is neither a Plan nor a
Multiemployer Plan and which is maintained, sponsored or otherwise contributed
to by any member of the ERISA Group.
Borrower shall mean Triumph Group, Inc.
Borrowing Date shall mean, with respect to any Loan, the date for the
making thereof or the renewal or conversion thereof to the same or a different
Interest Rate Option, which shall be a Business Day.
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Borrowing Tranche shall mean specified portions of Loans outstanding as
follows: (i) any Loans to which a Euro-Rate Option applies which become subject
to the same Interest Rate Option under the same Loan Request by the Borrower and
which have the same Interest Period shall constitute one Borrowing Tranche, and
(ii) all Loans to which a Base Rate Option applies shall constitute one
Borrowing Tranche.
Business Day shall mean any day other than a Saturday or Sunday or a legal
holiday on which commercial banks are authorized or required to be closed for
business in Pittsburgh, Pennsylvania.
Capital Stock shall mean any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants or options to purchase any of the foregoing.
Closing Date shall mean October 16, 2000.
Co-Agent shall mean Mellon Bank, N.A., and its successors and assigns, as
Co-Agent.
Commitment shall mean as to any Bank its Revolving Credit Commitment, and
Commitments shall mean the aggregate of the Revolving Credit Commitments of all
of the Banks.
Commitment Fee shall have the meaning assigned to that term in Section
2.3.
Consolidated Adjusted EBITDA shall mean Consolidated Net Income (before
extraordinary items) plus the amount of income tax expense, interest expense,
depreciation and amortization expense deducted from earnings in determining such
Consolidated Net Income. For any period in which Borrower or one of its
Subsidiaries has completed an acquisition or a sale or disposition permitted
under Section 7.2.6 [Liquidations, Mergers, Consolidations, Acquisitions] or
Section 7.2.7(vi) [Dispositions of Assets or Subsidiaries] this Agreement, the
calculation of Consolidated EBITDA for such period shall reflect, on a pro forma
basis, the financial performance of the acquired entity or assets, or shall omit
the financial performance of the entity or assets sold or disposed of, as though
the acquisition or a sale or disposition had been completed at the beginning of
the period of determination. Consolidated Adjusted EBITDA shall be measured at
the end of each fiscal quarter for the previous four quarters.
Consolidated EBITDA shall mean for any period of determination
Consolidated Net Income (before extraordinary items) for such period plus the
amount of income tax expense, interest expense, depreciation and amortization
expense deducted from earnings in determining such Consolidated Net Income.
Consolidated Net Worth shall mean as of any date of determination total
stockholders' equity of the Borrower and its Subsidiaries as of such date
determined and consolidated in accordance with GAAP.
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Consolidated Interest Expense shall mean for any period of determination
the amount of cash interest expense deducted from the earnings of the Borrower
and its Subsidiaries in determining Consolidated Net Income for such period in
accordance with GAAP.
Consolidated Net Income shall mean for any fiscal period the net income
(or loss) after income taxes of the Borrower and its Subsidiaries for such
period determined and consolidated in accordance with GAAP but Consolidated Net
Income shall in all events not include the gain from the sale of assets.
Consolidated Total Indebtedness shall mean as of any date of determination
the aggregate of all Indebtedness, other than PIK Subordinated Indebtedness, of
the Borrower and its Subsidiaries as of such date determined and consolidated in
accordance with GAAP. Consolidated Total Indebtedness shall be measured at the
end of each fiscal quarter in respect of such quarter.
Documentation Agent shall mean Bank of America, N.A., and its successors
and assigns, as Documentation Agent.
Dollar, Dollars, U.S. Dollars and the symbol $ shall mean lawful money of
the United States of America.
Environmental Complaint shall mean any written complaint setting forth a
cause of action for personal or property damage or natural resource damage or
equitable relief, order, notice of violation, citation, request for information
issued pursuant to any Environmental Laws by an Official Body, subpoena or other
written notice asserting or threatening a claim relating to, arising out of, or
issued pursuant to any of the Environmental Laws or any Environmental
Conditions, as the case may be.
Environmental Conditions shall mean any conditions of the environment,
including the workplace, the ocean, natural resources (including flora or
fauna), soil, surface water, groundwater, any actual or potential drinking water
supply sources, substrata or the ambient air, relating to or arising out of, or
caused by the use, handling, storage, treatment, recycling, generation,
transportation, release, spilling, leaking, pumping, emptying, discharging,
injecting, escaping, leaching, disposal, dumping, threatened release or other
management or mismanagement of Regulated Substances resulting from the use of,
or operations on, the Property.
Environmental Laws shall mean all federal, state, local and foreign Laws
and regulations, including permits, licenses, authorizations, bonds, orders,
judgments, consent decrees issued, or entered into, pursuant thereto, relating
to pollution or protection of human health or the environment or employee safety
in the workplace.
ERISA shall mean the Employee Retirement Income Security Act of 1974, as
the same may be amended or supplemented from time to time, and any successor
statute of similar import, and the rules and regulations thereunder, as from
time to time in effect.
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ERISA Group shall mean, at any time, the Borrower and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control and all other entities which, together with
the Borrower, are treated as a single employer under Section 414 of the Internal
Revenue Code.
Euro-Rate shall mean with respect to the Loans comprising any Borrowing
Tranche to which the Euro-Rate Option applies for any Interest Period, the
interest rate per annum determined by the Administrative Agent by dividing (the
resulting quotient rounded upward to the nearest 1/100th of 1% per annum) (i)
the rate of interest determined by the Administrative Agent in accordance with
its usual procedures (which determination shall be conclusive absent manifest
error) to be the eurodollar rate at approximately 11:00 A.M., London time, two
(2) London Business Days prior to the first day of such Interest Period for an
amount comparable to such Borrowing Tranche and having a borrowing date and a
maturity comparable to such Interest Period by (ii) a number equal to 1.00 minus
the Euro-Rate Reserve Percentage. The Euro-Rate shall be adjusted with respect
to any Euro-Rate Option outstanding on the effective date of any change in the
Euro-Rate Reserve Percentage as of such effective date. The Administrative Agent
shall give prompt notice to the Borrower of the Euro-Rate as determined or
adjusted in accordance herewith, which determination shall be conclusive absent
manifest error.
Euro-Rate Option shall mean the Revolving Credit Euro-Rate Option.
Euro-Rate Reserve Percentage shall mean the maximum percentage (expressed
as a decimal rounded upward to the nearest 1/100 of 1%) as determined by the
Administrative Agent which is in effect during any relevant period, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the reserve requirements (including supplemental,
marginal and emergency reserve requirements) with respect to eurocurrency
funding (currently referred to as "Eurocurrency Liabilities") of a member bank
in such System.
Event of Default shall mean any of the Events of Default described in
Section 8.1.
Expiration Date shall mean, with respect to the Revolving Credit
Commitments, June 13, 2004; provided that the Expiration Date may be extended
under the terms of Section 2.9.
Federal Funds Effective Rate for any day shall mean the rate per annum
(based on a year of 360 days and actual days elapsed and rounded upward to the
nearest 1/100 of 1%) announced by the Federal Reserve Bank of New York (or any
successor) on such day as being the weighted average of the rates on overnight
federal funds transactions arranged by federal funds brokers on the previous
trading day, as computed and announced by such Federal Reserve Bank (or any
successor) in substantially the same manner as such Federal Reserve Bank
computes and announces the weighted average it refers to as the "Federal Funds
Effective Rate" as of the date of this Agreement; provided, if such Federal
Reserve Bank (or its successor) does not announce such rate on any day, the
"Federal Funds Effective Rate" for such day shall be the Federal Funds Effective
Rate for the last day on which such rate was announced.
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GAAP shall mean generally accepted accounting principles as are in effect
from time to time, subject to the provisions of Section 1.3, and applied on a
consistent basis both as to classification of items and amounts.
Governmental Acts shall have the meaning assigned to that term in Section
2.8.8.
Guarantor shall mean a guarantor under the Guaranty and Suretyship
Agreement; each of Borrower's Subsidiaries shall be a "Guarantor." Guarantors
shall mean all such Persons collectively.
Guaranty of any Person shall mean any obligation of such Person
guaranteeing any liability or obligation of any other Person in any manner,
whether directly or indirectly, including any performance bond or other
suretyship arrangement and any other form of assurance against loss.
Guaranty and Suretyship Agreement shall mean the Guaranty and Suretyship
Agreement dated the Closing Date pursuant to which the Guarantors, jointly and
severally, guaranty (and become sureties for) the Obligations.
Historical Statements shall have the meaning assigned to that term in
Section 5.1.9(i).
Indebtedness shall mean, as to any Person at any time, any and all
indebtedness, obligations or liabilities (whether matured or unmatured,
liquidated or unliquidated, direct or indirect, absolute or contingent, or joint
or several) of such Person for or in respect of: (i) borrowed money, (ii)
amounts raised under or liabilities in respect of any note purchase or
acceptance credit facility, (iii) reimbursement obligations under any letter of
credit, currency swap agreement, interest rate swap, cap, collar or floor
agreement or other interest rate management device, (iv) any other transaction
(including forward sale or purchase agreements, capitalized leases and
conditional sales agreements) having the commercial effect of a borrowing of
money entered into by such Person to finance its operations or capital
requirements (but not including trade payables and accrued expenses incurred in
the ordinary course of business which are not represented by a promissory note
or other evidence of indebtedness), or (v) any Guaranty of Indebtedness for
borrowed money.
Interest Coverage Ratio shall mean for any period of determination the
ratio of (i) Consolidated EBITDA for such period to (ii) Consolidated Interest
Expense for such period.
Interest Period shall have the meaning assigned to such term in Section
3.2.
Interest Rate Option shall mean any Euro-Rate Option or Base Rate Option.
Interim Statements shall have the meaning assigned to that term in Section
5.1.9(i).
Internal Revenue Code shall mean the Internal Revenue Code of 1986, as the
same may be amended or supplemented from time to time, and any successor statute
of similar import, and the rules and regulations thereunder, as from time to
time in effect.
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K-T IRB shall mean the City of Shelbyville, Indiana, Adjustable Rate
Economic Development Revenue Bonds (K-T Corporation Project) Series 1997 in the
aggregate principal amount of $5,000,000.
K-T Letter of Credit shall mean the letter of credit issued by PNC Bank,
National Association in the face amount of $5,061,650 for the account of The
Triumph Group Operations, Inc., d/b/a K-T Corporation in support of the K-T IRB.
Labor Contracts shall mean all employment agreements, employment
contracts, collective bargaining agreements and other agreements among the
Borrower or Subsidiary of the Borrower and its employees.
Law shall mean any law (including common law), constitution, statute,
treaty, regulation, rule, ordinance, opinion, release, ruling, order,
injunction, writ, decree or award of any Official Body.
Letter of Credit shall have the meaning assigned to that term in Section
2.8.1.
Letter of Credit Fee shall have the meaning assigned to that term in
Section 2.8.3.
Letters of Credit Outstanding shall mean at any time the sum of (i) the
aggregate undrawn face amount of outstanding Letters of Credit and (ii) the
aggregate amount of all unpaid and outstanding Reimbursement Obligations. The
term does not include outstandings or obligations related to the K-T Letter of
Credit.
Lien shall mean any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
whatsoever, whether voluntarily or involuntarily given, including any
conditional sale or title retention arrangement, and any assignment, deposit
arrangement or lease intended as, or having the effect of, security and any
filed financing statement or other notice of any of the foregoing (whether or
not a lien or other encumbrance is created or exists at the time of the filing).
Loan Documents shall mean this Agreement, the Notes, the Guaranty and
Suretyship Agreement executed by Borrower's Subsidiaries with respect to the
Obligations, and any other instruments, certificates or documents delivered or
contemplated to be delivered hereunder or thereunder or in connection herewith
or therewith, as the same may be supplemented or amended from time to time in
accordance herewith or therewith, and Loan Document shall mean any of the Loan
Documents.
Loan Request shall mean a request for Revolving Credit Loans made in
accordance with Section 2.4 or a request to select, convert to or renew a
Euro-Rate Option in accordance with Section 3.2.
Loans shall mean collectively and Loan shall mean separately all Revolving
Credit Loans or any Revolving Credit Loan.
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Material Adverse Change shall mean any set of circumstances or events
which (a) has or is reasonably expected to have any material adverse effect
whatsoever upon the validity or enforceability of this Agreement or any other
Loan Document, (b) is or is reasonably expected to be material and adverse to
the business, properties, assets, financial condition, results of operations or
prospects of the Borrower and its Subsidiaries taken as a whole , (c) impairs
materially or is reasonably expected to impair materially the ability of the
Borrower and its Subsidiaries taken as a whole to duly and punctually pay or
perform its Indebtedness, or (d) impairs materially or is reasonably expected to
impair materially the ability of the Administrative Agent or any of the Banks,
to the extent permitted, to enforce their legal remedies pursuant to this
Agreement or any other Loan Document.
Month, with respect to an Interest Period under the Euro-Rate Option,
shall mean the interval between the days in consecutive calendar months
numerically corresponding to the first day of such Interest Period. If any
Euro-Rate Interest Period begins on a day of a calendar month for which there is
no numerically corresponding day in the month in which such Interest Period is
to end, the final month of such Interest Period shall be deemed to end on the
last Business Day of such final month.
Multiemployer Plan shall mean any employee benefit plan which is a
"multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA and to
which the Borrower or any member of the ERISA Group is then making or accruing
an obligation to make contributions or, within the preceding five Plan years,
has made or had an obligation to make such contributions.
Multiple Employer Plan shall mean a Plan which has two or more
contributing sponsors (including the Borrower or any member of the ERISA Group)
at least two of whom are not under common control, as such a plan is described
in Sections 4063 and 4064 of ERISA.
Notes shall mean the Revolving Credit Notes.
Notices shall have the meaning assigned to that term in Section 10.6.
Obligation shall mean any obligation or liability of any of the Borrower
to the Administrative Agent or any of the Banks, howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent, now or hereafter
existing, or due or to become due, under or in connection with this Agreement,
the Notes, the Letters of Credit, the Administrative Agent's Letter or any other
Loan Document.
Official Body shall mean any national, federal, state, local or other
government or political subdivision or any agency, authority, bureau, central
bank, commission, department or instrumentality of either, or any court or
tribunal in each case whether foreign or domestic, with jurisdiction to act with
the force of law with respect to pertinent matters.
Partnership Interests shall have the meaning given to such term in Section
5.1.3.
PBGC shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA or any successor.
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Permitted Investments shall mean:
(i) direct obligations of the United States of America or any agency or
instrumentality thereof or obligations backed by the full faith and credit of
the United States of America maturing in twelve (12) months or less from the
date of acquisition;
(ii) commercial paper maturing in 180 days or less rated not lower than
A-1, by Standard & Poor's Corporation or P-1 by Xxxxx'x Investors Service, Inc.
on the date of acquisition;
(iii) demand deposits, time deposits, money market account deposits or
certificates of deposit maturing within one year in commercial banks whose
obligations are rated A-1, A or the equivalent or better by Standard & Poor's
Corporation on the date of acquisition;
(iv) shares of money market mutual funds that invest substantially all of
their assets in the investments described in clauses (i) through (iii) above;
and
(v) investments in Subsidiaries permitted under this Agreement.
Permitted Liens shall mean:
(i) Liens for taxes, assessments, or similar charges, incurred in the
ordinary course of business and which are not yet due and payable;
(ii) Pledges or deposits made in the ordinary course of business to secure
payment of worker's compensation, or to participate in any fund in connection
with worker's compensation, unemployment insurance, old-age pensions or other
social security programs;
(iii) Liens of mechanics, materialmen, warehousemen, carriers, or other
like Liens, securing obligations incurred in the ordinary course of business
that are not yet due and payable and Liens of landlords securing obligations to
pay lease payments that are not yet due and payable or in default;
(iv) Good-faith pledges or deposits made in the ordinary course of
business to secure performance of bids, tenders, contracts (other than for the
repayment of borrowed money) or leases, not in excess of the aggregate amount
due thereunder, or to secure statutory obligations, or surety, appeal,
indemnity, performance or other similar bonds required in the ordinary course of
business;
(v) Encumbrances consisting of zoning restrictions, easements or other
restrictions on the use of real property, none of which materially impairs the
use of such property or the value thereof, and none of which is violated in any
material respect by existing or proposed structures or land use;
(vi) Liens, security interests and mortgages in favor of the
Administrative Agent for the benefit of the Banks;
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(vii) Liens on property leased by the Borrower or Subsidiary of the
Borrower under capital and operating leases permitted in Section 7.2.15 securing
obligations of the Borrower or Subsidiary to the lessor under such leases;
(viii) Any Lien existing on the date of this Agreement and described on
Schedule 1.1(P), provided that the principal amount secured thereby is not
hereafter increased, and no additional assets become subject to such Lien;
(ix) Purchase Money Security Interests, provided that the aggregate amount
of loans and deferred payments secured by such Purchase Money Security Interests
shall not exceed $5,000,000 (excluding for the purpose of this computation any
loans or deferred payments secured by Liens described on Schedule 1.1(P));
(x) The following, (A) if the validity or amount thereof is being
contested in good-faith by appropriate and lawful proceedings diligently
conducted so long as levy and execution thereon have been stayed and continue to
be stayed or (B) if a final judgment is entered and such judgment is discharged
within sixty (60) days of entry, and in either case they do not, in the
aggregate, materially impair the ability of the Borrower to perform its
Obligations hereunder or under the other Loan Documents:
(1) Claims or Liens for taxes, assessments or charges due and
payable and subject to interest or penalty, provided that the Borrower
maintains such reserves or other appropriate provisions as shall be
required by GAAP and pays all such taxes, assessments or charges forthwith
upon the commencement of proceedings to foreclose any such Lien;
(2) Claims, Liens or encumbrances upon, and defects of title to,
real or personal property, including any attachment of personal or real
property or other legal process prior to adjudication of a dispute on the
merits; or
(3) Claims or Liens of mechanics, materialmen, warehousemen,
carriers, or other statutory nonconsensual Liens.
(4) Liens resulting from final judgments or orders described in
Section 8.1.6; and
(y) subject to Section 7.2.1, Liens on fixed assets securing tax-exempt,
fixed-rate industrial development bonds or notes or similar financing.
Person shall mean any individual, corporation, partnership, association,
joint-stock company, trust, unincorporated organization, joint venture,
government or political subdivision or agency thereof, or any other entity.
PIK Subordinated Indebtedness shall mean Indebtedness which by its terms
is subordinated to the Obligations of the Borrower to the Banks and on which
interest is payable, at the option of the payor, in cash or by the issuance of
additional Indebtedness that is likewise subordinated.
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Plan shall mean at any time an employee pension benefit plan (including a
Multiple Employer Plan, but not a Multiemployer Plan) which is covered by Title
IV of ERISA or is subject to the minimum funding standards under Section 412 of
the Internal Revenue Code and either (i) is maintained by any member of the
ERISA Group for employees of any member of the ERISA Group or (ii) has at any
time within the preceding five years been maintained by any entity which was at
such time a member of the ERISA Group for employees of any entity which was at
such time a member of the ERISA Group.
PNC Bank shall mean PNC Bank, National Association, its successors and
assigns.
Potential Default shall mean any event or condition which with notice,
passage of time or a determination by the Administrative Agent or the Required
Banks, or any combination of the foregoing, would constitute an Event of
Default.
Pricing Grid means the chart attached hereto as Exhibit 1.1(P) which sets
forth the rates at which Commitment Fees, Letter Credit Fees and interest rate
margins are calculated on the basis of the Total Indebtedness to EBITDA Ratio.
Principal Office shall mean the main banking office of the Administrative
Agent in Pittsburgh, Pennsylvania.
Prohibited Transaction shall mean any prohibited transaction as defined in
Section 4975 of the Internal Revenue Code or Section 406 of ERISA for which
neither an individual nor a class exemption has been issued by the United States
Department of Labor.
Property shall mean all real property, both owned and leased, of the
Borrower.
Purchase Money Security Interest shall mean Liens upon tangible personal
property securing loans to Borrower or any Subsidiary or deferred payments by
Borrower or such Subsidiary for the purchase of such tangible personal property.
Purchasing Bank shall mean a Bank which becomes a party to this Agreement
by executing an Assignment and Assumption Agreement.
Ratable Share shall mean the proportion that a Bank's Commitment bears to
the Commitments of all of the Banks.
Regulated Substances shall mean any substance, including any solid,
liquid, semisolid, gaseous, thermal, thoriated or radioactive material, refuse,
garbage, wastes, chemicals, petroleum products, by-products, coproducts,
impurities, dust, scrap, heavy metals, any substance defined as a "hazardous
substance," "pollutant," "pollution," "contaminant," "hazardous or toxic
substance," "extremely hazardous substance," "toxic chemical," "toxic waste,"
"hazardous waste," "industrial waste," "residual waste," "solid waste,"
"municipal waste," "mixed waste," "infectious waste," "chemotherapeutic waste,"
"medical waste," "regulated substance" or any related materials, substances or
wastes as now or hereafter defined pursuant to any Environmental Laws,
ordinances, rules, regulations or other directives of any Official Body, the
generation,
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manufacture, extraction, processing, distribution, treatment, storage, disposal,
transport, recycling, reclamation, use, reuse, spilling, leaking, dumping,
injection, pumping, leaching, emptying, discharge, escape, release or other
management or mismanagement of which is regulated by the Environmental Laws.
Regulation U shall mean Regulation U, T, G or X as promulgated by the
Board of Governors of the Federal Reserve System, as amended from time to time.
Reimbursement Obligation shall have the meaning assigned to such term in
Section 2.8.4(i).
Reportable Event means a reportable event described in Section 4043 of
ERISA and regulations thereunder with respect to a Plan or Multiemployer Plan.
Required Banks shall mean (i) if there are no Loans outstanding, Banks
whose Commitments aggregate at least 51% of the Commitments of all of the Banks,
or (ii) if there are Loans outstanding, Banks whose Loans outstanding aggregate
at least 51% of the total principal amount of the Loans outstanding hereunder.
Revolving Credit Base Rate Option shall mean the option of the Borrower to
have Revolving Credit Loans bear interest at the rate and under the terms and
conditions set forth in Section 3.1.1(i).
Revolving Credit Commitment shall mean, as to any Bank at any time, the
amount initially set forth opposite its name on Schedule 1.1(B) in the column
labeled "Amount of Commitment for Revolving Credit Loans," and thereafter on
Schedule I to the most recent Assignment and Assumption Agreement, and Revolving
Credit Commitments shall mean the aggregate Revolving Credit Commitments of all
of the Banks. The aggregate amount of the Revolving Credit Commitments is
subject to the provisions of Section 2.1.2.
Revolving Credit Euro-Rate Option shall mean the option of the Borrower to
have Revolving Credit Loans bear interest at the rate and under the terms and
conditions set forth in Section 3.1.1(ii).
Revolving Credit Loans shall mean collectively and Revolving Credit Loan
shall mean separately all Revolving Credit Loans or any Revolving Credit Loan
made by the Banks or one of the Banks to the Borrower pursuant to Section 2.1 or
2.8.4(i) hereof.
Revolving Credit Notes shall mean collectively and Revolving Credit Note
shall mean separately all the Revolving Credit Notes of the Borrower in the form
of Exhibit 1.1(R) evidencing the Revolving Credit Loans together with all
amendments, extensions, renewals, replacements, refinancings or refundings
thereof in whole or in part.
Revolving Facility Usage shall mean at any time the sum of the Revolving
Credit Loans outstanding and the Letters of Credit Outstanding.
Shares shall have the meaning assigned to that term in Section 5.1.2.
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Subrogation and Contribution Agreement shall mean the Subrogation and
Contribution Agreement dated the Closing Date made by and among the Guarantors
for the benefit of the Agent and the banks in respect of the Guarantors'
obligations under the Loan Documents.
Subsidiary of any Person at any time shall mean (i) any corporation or
trust of which 50% or more (by number of shares or number of votes) of the
outstanding capital stock or shares of beneficial interest normally entitled to
vote for the election of one or more directors or trustees (regardless of any
contingency which does or may suspend or dilute the voting rights) is at such
time owned directly or indirectly by such Person or one or more of such Person's
Subsidiaries, or any partnership of which such Person is a general partner or of
which 50% or more of the partnership interests is at the time directly or
indirectly owned by such Person or one or more of such Person's Subsidiaries, or
(ii) any corporation, trust, partnership or other entity which is controlled or
capable of being controlled by such Person or one or more of such Person's
Subsidiaries.
Subsidiary Shares shall have the meaning assigned to that term in Section
5.1.3.
Syndication Agent shall mean First Union National Bank, and its successors
and assigns, as Syndication Agent.
Total Indebtedness to EBITDA Ratio shall mean the ratio of Consolidated
Total Indebtedness to Consolidated Adjusted EBITDA.
Transferor Bank shall mean the selling Bank pursuant to an Assignment and
Assumption Agreement.
1.2 Construction.
Unless the context of this Agreement otherwise clearly requires, the
following rules of construction shall apply to this Agreement and each of the
other Loan Documents:
1.2.1 Number; Inclusion.
references to the plural include the singular, the plural, the part
and the whole; "or" has the inclusive meaning represented by the phrase
"and/or," and "including" has the meaning represented by the phrase "including
without limitation";
1.2.2 Determination.
references to "determination" of or by the Administrative Agent or
the Banks shall be deemed to include good-faith estimates by the Administrative
Agent or the Banks (in the case of quantitative determinations) and good-faith
beliefs by the Administrative Agent or the Banks (in the case of qualitative
determinations) and such determination shall be conclusive absent manifest
error;
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1.2.3 Administrative Agent's Discretion and Consent.
whenever the Administrative Agent or the Banks are granted the right
herein to act in its or their sole discretion or to grant or withhold consent
such right shall be exercised in good-faith;
1.2.4 Documents Taken as a Whole.
the words "hereof," "herein," "hereunder," "hereto" and similar
terms in this Agreement or any other Loan Document refer to this Agreement or
such other Loan Document as a whole and not to any particular provision of this
Agreement or such other Loan Document;
1.2.5 Headings.
the section and other headings contained in this Agreement or such
other Loan Document and the Table of Contents (if any), preceding this Agreement
or such other Loan Document are for reference purposes only and shall not
control or affect the construction of this Agreement or such other Loan Document
or the interpretation thereof in any respect;
1.2.6 Implied References to this Agreement.
article, section, subsection, clause, schedule and exhibit
references are to this Agreement or other Loan Document, as the case may be,
unless otherwise specified;
1.2.7 Persons.
reference to any Person includes such Person's successors and
assigns but, if applicable, only if such successors and assigns are permitted by
this Agreement or other Loan Document, as the case may be, and reference to a
Person in a particular capacity excludes such Person in any other capacity;
1.2.8 Modifications to Documents.
reference to any agreement (including this Agreement and any other
Loan Document together with the schedules and exhibits hereto or thereto),
document or instrument means such agreement, document or instrument as amended,
modified, replaced, substituted for, superseded or restated;
1.2.9 From, To and Through.
relative to the determination of any period of time, "from" means
"from and including," "to" means "to but excluding," and "through" means
"through and including"; and
1.2.10 Shall; Will.
references to "shall" and "will" are intended to have the same
meaning.
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1.3 Accounting Principles.
Except as otherwise provided in this Agreement, all computations and
determinations as to accounting or financial matters and all financial
statements to be delivered pursuant to this Agreement shall be made and prepared
in accordance with GAAP (including principles of consolidation where
appropriate), and all accounting or financial terms shall have the meanings
ascribed to such terms by GAAP.
2. REVOLVING CREDIT FACILITY
2.1 Revolving Credit Commitments.
2.1.1 General.
Subject to the terms and conditions hereof and relying upon the
representations and warranties herein set forth, each Bank severally agrees to
make Revolving Credit Loans to the Borrower at any time or from time to time on
or after the date hereof to the Expiration Date provided that after giving
effect to such Loan the aggregate amount of Loans from such Bank shall not
exceed such Bank's Revolving Credit Commitment minus such Bank's Ratable Share
of the Letters of Credit Outstanding. Within such limits of time and amount and
subject to the other provisions of this Agreement, the Borrower may borrow,
repay and reborrow pursuant to this Section 2.1. The aggregate sum of the
Revolving Credit Commitments on the Closing Date is $350,000,000 and thereafter
is subject to the provisions of this Agreement, including Section 2.1.2.
2.1.2 Right to Increase Commitments
Provided that there is no Event of Default or Potential Default, if
the Borrower wishes to increase its Revolving Credit Commitment, Borrower shall
notify the Agent thereof, provided that any such increase shall be in a minimum
of $10,000,000 and the aggregate of all such increases shall not exceed
$25,000,000. Each Bank shall have the right at any time within thirty (30) days
following such notice to increase its respective Revolving Credit Commitment so
as to provide such added commitment pro rata in accordance with such Bank's
Ratable Share, and any portion of such requested increase which is not provided
by any Bank shall be available to the other Banks pro rata in accordance with
their Revolving Credit Commitments, and thereafter, to the extent not provided
by the Banks, to any additional bank proposed by the Borrower, which is approved
by the Agent (which approval shall not be unreasonably withheld) and which
becomes a party to this Agreement pursuant to Section 10.11. In the event of any
such increase in the aggregate Revolving Credit Commitments effected pursuant to
the terms of this subsection 2.1.2, new Notes shall, to the extent necessary, be
executed and delivered by the Borrower in exchange for the surrender of the
existing Notes.
2.2 Nature of Banks' Obligations with Respect to Revolving Credit Loans.
Each Bank shall be obligated to participate in each request for Revolving
Credit Loans pursuant to Section 2.4 in accordance with its Ratable Share. The
aggregate of each Bank's
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Revolving Credit Loans outstanding hereunder to the Borrower at any time shall
never exceed its Revolving Credit Commitment minus its Ratable Share of the
Letter of Credit Outstandings. The obligations of each Bank hereunder are
several. The failure of any Bank to perform its obligations hereunder shall not
affect the Obligations of the Borrower to any other party nor the several
obligations of the other Banks to the Borrower; nor shall any other party be
liable for the failure of such Bank to perform its obligations hereunder. The
Banks shall have no obligation to make Revolving Credit Loans hereunder on or
after the Expiration Date.
2.3 Commitment Fees.
Accruing from the date hereof until the Expiration Date, the Borrower
agrees to pay to the Administrative Agent for the account of each Bank, as
consideration for such Bank's Revolving Credit Commitment hereunder, a
nonrefundable commitment fee (the "Commitment Fee"), calculated on a per annum
(365 or 366 days, as appropriate, and actual days elapsed) basis under the
Pricing Grid, on the average daily difference between the amount of (i) such
Bank's Revolving Credit Commitment as the same may be constituted from time to
time and (ii) the principal amount of such Bank's Ratable Share of Revolving
Facility Usage. All Commitment Fees shall be payable in arrears on the first
Business Day of each calendar quarter after the date hereof and on the
Expiration Date or upon acceleration of the Notes.
2.4 Revolving Credit Loan Requests.
Except as otherwise provided herein, the Borrower may from time to time
prior to the Expiration Date request the Banks to make Revolving Credit Loans,
or renew or convert the Interest Rate Option applicable to existing Revolving
Credit Loans pursuant to Section 3.2, by delivering to the Administrative Agent,
not later than (i) 2:00 p.m., Eastern time, three (3) Business Days prior to the
proposed Borrowing Date with respect to the making of Revolving Credit Loans to
which the Euro-Rate Option applies or the conversion to or the renewal of the
Euro-Rate Option for any Revolving Credit Loans; and (ii) 1:00 p.m., Eastern
time on either the proposed Borrowing Date with respect to the making of a
Revolving Credit Loan to which the Base Rate Option applies or the last day of
the preceding Interest Period with respect to the conversion to the Base Rate
Option for any Revolving Credit Loan, of a duly completed request therefor
substantially in the form of Exhibit 2.4 or a request by telephone immediately
confirmed in writing by letter, or facsimile in such form (each, a "Loan
Request"), it being understood that the Administrative Agent may rely on the
authority of any individual making such a telephonic request without the
necessity of receipt of such written confirmation. Each Revolving Credit Loan
Request shall be irrevocable and shall specify (i) the proposed Borrowing Date;
(ii) the aggregate amount of the proposed Revolving Credit Loans comprising each
Borrowing Tranche, which shall be in integral multiples of $500,000 and not less
than $2,000,000 for each Borrowing Tranche to which the Euro-Rate Option applies
and not less than the lesser of $200,000 or the maximum amount available for
Borrowing Tranches to which the Base Rate Option applies; (iii) whether the
Euro-Rate Option or Base Rate Option shall apply to the proposed Revolving
Credit Loans comprising the Borrowing Tranche; and (iv) in the case of a
Borrowing Tranche to which the Euro-Rate Option applies, an appropriate Interest
Period for the proposed Revolving Credit Loans comprising such Borrowing
Tranche.
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2.5 Making Revolving Credit Loans.
The Administrative Agent shall, promptly after receipt by it of a Loan
Request pursuant to Section 2.4, notify the Banks of its receipt of such Loan
Request specifying: (i) the proposed Borrowing Date and the time and method of
disbursement of such Revolving Credit Loans; (ii) the amount and type of each
such Revolving Credit Loan and the applicable Interest Period (if any); and
(iii) the apportionment among the Banks of the Revolving Credit Loans as
determined by the Administrative Agent in accordance with Section 2.2. Each Bank
shall remit the principal amount of each Revolving Credit Loan to the
Administrative Agent such that the Administrative Agent is able to, and the
Administrative Agent shall, to the extent the Banks have made funds available to
it for such purpose, fund such Revolving Credit Loans to the Borrower in U.S.
Dollars and immediately available funds at the Principal Office prior to 2:00
p.m., Eastern time, on the Borrowing Date, provided that if any Bank fails to
remit such funds to the Administrative Agent in a timely manner, the
Administrative Agent may elect in its sole discretion to fund with its own funds
the Revolving Credit Loans of such Bank on the Borrowing Date, and such Bank
shall be subject to the repayment obligation in Section 9.16.
2.6 Revolving Credit Notes.
The Obligation of the Borrower to repay the aggregate unpaid principal
amount of the Revolving Credit Loans made by each Bank, together with interest
thereon, shall be evidenced by a Revolving Credit Note dated the Closing Date
payable to the order of such Bank in a face amount equal to the Revolving Credit
Commitment of such Bank.
2.7 Use of Proceeds.
The proceeds of the Revolving Credit Loans shall be used for the purpose
of refinancing existing indebtedness, including the obligations under the 1999
Credit Agreement, and for general corporate purposes, including acquisitions
permitted hereunder. The Banks under the 1999 Credit Agreement and the Banks
under this Agreement will make such payments among themselves as are necessary
to accomplish the refinancing of the obligations under 1999 Credit Agreement,
and all Letters of Credit Outstanding under the 1999 Credit Agreement shall be
deemed to have been issued under this Agreement. All Interest Periods under the
1999 Credit Agreement shall end on or before the date hereof.
2.8 Letter of Credit Subfacility.
2.8.1 Issuance of Letters of Credit.
Borrower may request the issuance of a letter of credit (each a
"Letter of Credit") by delivering to the Administrative Agent a completed
application and agreement for letters of credit in such form as the
Administrative Agent may specify from time to time by no later than 10:00 a.m.,
Eastern time, at least five (5) Business Days, or such shorter period as may be
agreed to by the Administrative Agent, in advance of the proposed date of
issuance. Subject to the terms and conditions hereof and in reliance on the
agreements of the other Banks set forth in this Section 2.8, the Administrative
Agent will issue a Letter of Credit provided that each Letter of
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Credit shall (A) have a maximum maturity of twelve (12) months from the date of
issuance, and (B) in no event expire later than one Business Day prior to the
Expiration Date and providing that in no event shall (i) the Letters of Credit
Outstanding exceed, at any one time, $5,000,000 or (ii) the Revolving Facility
Usage exceed, at any one time, the Revolving Credit Commitments.
2.8.2 Participations.
Immediately upon issuance of each Letter of Credit, and without
further action, each Bank shall be deemed to, and hereby agrees that it shall,
have irrevocably purchased for such Bank's own account and risk from the
Administrative Agent an individual participation interest in such Letter of
Credit and drawings thereunder in an amount equal to such Bank's Ratable Share
of the maximum amount which is or at any time may become available to be drawn
thereunder, and each such Bank shall be responsible to reimburse the
Administrative Agent immediately for its Ratable Share of any disbursement under
any Letter of Credit which has not been reimbursed by Borrower in accordance
with Section 2.8.4(i).
2.8.3 Letter of Credit Fees.
The Borrower shall pay (i) to the Administrative Agent for the
ratable account of the Banks a fee (the "Letter of Credit Fee") calculated on a
per annum (365 or 366 days, as appropriate, and actual days elapsed) basis under
the Pricing Grid, and (ii) to the Administrative Agent for its own account a
fronting fee equal to 1/8% per annum, which fees shall be computed on the daily
average Letters of Credit Outstanding and shall be payable quarterly in arrears
commencing with the first Business Day of each calendar quarter following
issuance of each Letter of Credit and on the Expiration Date. The Borrower shall
also pay to the Administrative Agent for the Administrative Agent's sole account
the Administrative Agent's then in effect customary fees and administrative
expenses payable with respect to the Letters of Credit as the Administrative
Agent may generally charge or incur from time to time in connection with the
issuance, maintenance, modification (if any), assignment or transfer (if any),
negotiation, and administration of Letters of Credit.
2.8.4 Disbursements, Reimbursement.
(i) Borrower shall be obligated immediately to reimburse
Administrative Agent for all amounts which Administrative Agent is required to
advance pursuant to the Letters of Credit (the "Reimbursement Obligation"). Such
amounts advanced shall become, at the time they are advanced, Revolving Credit
Loans from the Banks, unless Borrower discharges its Reimbursement Obligation
before such amounts are advanced. Such Revolving Credit Loans shall bear
interest at the rate applicable under the Base Rate Option unless the Borrower
elects to have a different Interest Rate Option apply to such Revolving Credit
Loans pursuant to and in accordance with the provisions contained in Section
3.1.1.
(ii) The Administrative Agent will notify the (A) Borrower of
each demand or presentment for payment or other drawing under each Letter of
Credit, and (B) Banks of the amount required to be advanced pursuant to the
Letters of Credit. Before 10:00 a.m., Eastern time, on the date of any advance
the Administrative Agent is required to make pursuant
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to the Letters of Credit, each Bank shall make available such Bank's Ratable
Share of such advance in immediately available funds to the Administrative
Agent.
2.8.5 Documentation.
The Borrower agrees to be bound by the terms of the Administrative
Agent's application and agreement for Letters of Credit and the Administrative
Agent's written regulations and customary practices relating to Letters of
Credit, though such interpretation may be different from the Borrower's own. In
the event of a conflict between such application or agreement and this
Agreement, this Agreement shall govern. It is understood and agreed that, except
in the case of gross negligence or willful misconduct, the Administrative Agent
shall not be liable for any error, negligence and/or mistakes, whether of
omission or commission, in following the Borrower's instructions or those
contained in the Letters of Credit or any modifications, amendments or
supplements thereto.
2.8.6 Determinations to Honor Drawing Requests.
In determining whether to honor any request for drawing under any
Letter of Credit by the beneficiary thereof, the Administrative Agent shall be
responsible only to determine that the documents and certificates required to be
delivered under such Letter of Credit have been delivered and that they comply
on their face with the requirements of such Letter of Credit.
2.8.7 Nature of Participation and Reimbursement Obligations.
The obligation of the Banks to participate in Letters of Credit pursuant
to Section 2.8.2 and the obligation of the Banks pursuant to Section 2.8.4(ii)
to fund Revolving Credit Loans upon a draw under a Letter of Credit and the
Obligations of the Borrower to reimburse the Administrative Agent upon a draw
under a Letter of Credit pursuant to Section 2.8.4(i) shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of such sections under all circumstances, including the following
circumstances: the failure of the Borrower or any other Person to comply with
the conditions set forth in Sections 2.1, 2.4, or 2.5 or as otherwise set forth
in this Agreement for the making of a Revolving Credit Loan, it being
acknowledged that such conditions are not required for the making of a Revolving
Credit Loan under Section 2.8.4;
(i) any lack of validity or enforceability of any Letter of
Credit;
(ii) the existence of any claim, set-off, defense or other
right which the Borrower or any Bank may have at any time against a beneficiary
or any transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), the Administrative Agent or other bank or any other
Person or, whether in connection with this Agreement, the transactions
contemplated herein or any unrelated transaction (including any underlying
transaction between the Borrower or its Subsidiaries and the beneficiary for
which any Letter of Credit was procured);
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(iii) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) payment by the Administrative Agent under any Letter of
Credit against presentation of a demand, draft or certificate or other document
which does not comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or prospects of the
Borrower or its Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document
by any party thereto;
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing;
(viii) the fact that an Event of Default or a Potential
Default shall have occurred and be continuing; or
(ix) Expiration Date shall have passed or this Agreement or
the Commitments hereunder shall have been terminated; provided that none of the
Banks nor the Borrower shall be precluded from bringing any separate action
based on any circumstances described in clauses (ii) or (v) above.
2.8.8 Indemnity.
In addition to amounts payable as provided in Section 9.5, the
Borrower hereby agrees to protect, indemnify, pay and save harmless the
Administrative Agent from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable and actual
fees, expenses and disbursements of counsel) which the Administrative Agent may
incur or be subject to as a consequence, direct or indirect, of (i) the issuance
of any Letter of Credit, other than as a result of (A) the gross negligence or
willful misconduct of the Administrative Agent as determined by a final judgment
of a court of competent jurisdiction, (B) the payment by the Administrative
Agent under any Letter of Credit against presentation of a demand, draft or
certificate or other document which does not substantially comply with the terms
of such Letter of Credit, or (C) subject to the following clause (ii), the
wrongful dishonor by the Administrative Agent of a proper demand for payment
made under any Letter of Credit; or (ii) the failure of the Administrative Agent
to honor a drawing under any such Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or future de jure or de
facto government or governmental authority (all such acts or omissions herein
called "Governmental Acts").
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2.8.9 Liability for Acts and Omissions.
As between the Borrower and the Administrative Agent, the Borrower
assumes all risks of the acts and omissions of, or misuse of the Letters of
Credit by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, the Administrative Agent
shall not be responsible for: (i) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in connection
with the application for an issuance of any such Letter of Credit, even if it
should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign any
such Letter of Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, which may prove to be invalid or ineffective for any
reason; (iii) failure of the beneficiary of any such Letter of Credit to comply
fully with any conditions required in order to draw upon such Letter of Credit
(provided the beneficiary shall have substantially complied with such
conditions); (iv) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether
or not they be in cipher; (v) errors in interpretation of technical terms; (vi)
any loss or delay in the transmission or otherwise of any document required in
order to make a drawing under any such Letter of Credit or of the proceeds
thereof; (vii) the misapplication by the beneficiary of any such Letter of
Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any
consequences arising from causes beyond the control of the Administrative Agent,
including any Governmental Acts, and none of the above shall affect or impair,
or prevent the vesting of, any of the Administrative Agent's rights or powers
hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth above, any action taken or omitted by the Administrative
Agent under or in connection with the Letters of Credit issued by it or any
documents and certificates delivered thereunder, if taken or omitted in
good-faith, shall not put the Administrative Agent under any resulting liability
to the Borrower.
2.9 Extension by Banks of the Expiration Date.
Upon or promptly after delivery by the Borrower of the annual financial
statements to be provided under Section 7.3.2 for the fiscal year ending March
31, 2002 or any subsequent fiscal year, the Borrower may request a one-year
extension of the Expiration Date by written notice to the Banks, and the Banks
agree to respond to the Borrower's request for an extension within sixty (60)
days following receipt of the request; provided, however, that all the Banks
must consent to any extension of the Expiration Date and the failure of the
Banks to respond within such time period shall not in any manner constitute an
extension of the Expiration Date.
3. INTEREST RATES
3.1 Interest Rate Options.
The Borrower shall pay interest in respect of the outstanding unpaid
principal amount of the Loans as selected by it from the Base Rate Option or
Euro-Rate Option set forth below
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applicable to the Loans, it being understood that, subject to the provisions of
this Agreement, the Borrower may select different Interest Rate Options and
different Interest Periods to apply simultaneously to the Loans comprising
different Borrowing Tranches and may convert to or renew one or more Interest
Rate Options with respect to all or any portion of the Loans comprising any
Borrowing Tranche, provided that there shall not be at any one time outstanding
more than five (5) Borrowing Tranches in the aggregate among all of the Loans.
If at any time the designated rate applicable to any Loan made by any Bank
exceeds such Bank's highest lawful rate, the rate of interest on such Bank's
Loan shall be limited to such Bank's highest lawful rate.
3.1.1 Revolving Credit Interest Rate Options.
The Borrower shall have the right to select from the following
Interest Rate Options applicable to the Revolving Credit Loans:
(i) Revolving Credit Base Rate Option: A fluctuating rate per annum
(computed on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed) equal to the Base Rate plus the applicable number of basis
points calculated under the Pricing Grid, such interest rate to change
automatically from time to time effective as of the effective date of each
change in the Base Rate; or
(ii) Revolving Credit Euro-Rate Option: A rate per annum (computed
on the basis of a year of 360 days and actual days elapsed) equal to the
Euro-Rate plus the applicable number of basis points calculated under the
Pricing Grid.
3.1.2 Rate Quotations.
The Borrower may call the Administrative Agent on or before the date
on which a Loan Request is to be delivered to receive an indication of the rates
then in effect, but it is acknowledged that such projection shall not be binding
on the Administrative Agent or the Banks nor affect the rate of interest which
thereafter is actually in effect when the election is made.
3.2 Interest Periods.
At any time when the Borrower shall select, convert to or renew a
Euro-Rate Option, the Borrower shall notify the Administrative Agent thereof at
least three (3) Business Days prior to the effective date of such Euro-Rate
Option by delivering a Loan Request. The notice shall specify an interest period
(the "Interest Period") during which such Interest Rate Option shall apply, such
Interest Period to be one, two, three or six Months in the event of a Euro-Rate
Option, provided, that:
3.2.1 Ending Date and Business Day.
Any Interest Period which would otherwise end on a date which is not
a Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day;
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3.2.2 Amount of Borrowing Tranche.
Each Borrowing Tranche of Euro-Rate Loans shall be in integral
multiples of $500,000 and not less than $2,000,000;
3.2.3 Termination Before Expiration Date.
The Borrower shall not select, convert to or renew an Interest
Period for any portion of the Loans that would end after the Expiration Date;
and
3.2.4 Renewals.
In the case of the renewal of a Euro-Rate Option at the end of an
Interest Period, the first day of the new Interest Period shall be the last day
of the preceding Interest Period, without duplication in payment of interest for
such day.
3.3 Interest After Default.
To the extent permitted by Law, upon the occurrence of an Event of Default
and until such time such Event of Default shall have been cured or waived:
3.3.1 Letter of Credit Fees, Interest Rate.
The Letter of Credit Fees and the rate of interest for each Loan
otherwise applicable pursuant to the Pricing Grid shall be increased by 2.0% per
annum; and
3.3.2 Other Obligations.
Each other Obligation hereunder if not paid when due shall bear
interest at a rate per annum equal to the sum of the rate of interest applicable
under the Revolving Credit Base Rate Option plus an additional 2.0% per annum
from the time such Obligation becomes due and payable and until it is paid in
full.
3.3.3 Acknowledgment.
The Borrower acknowledges that such increased rates reflect, among
other things, the fact that such Loans or other amounts have become a
substantially greater risk given their default status and that the Banks are
entitled to additional compensation for such risk; and, all such interest shall
be payable by Borrower upon demand by Administrative Agent.
3.4 Euro-Rate Unascertainable.
3.4.1 Unascertainable.
If on any date on which a Euro-Rate would otherwise be determined,
the Administrative Agent shall have determined that:
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(i) adequate and reasonable means do not exist for ascertaining such
Euro-Rate, or
(ii) a contingency has occurred which materially and adversely
affects the London interbank eurodollar market relating to the Euro-Rate, then
the Administrative Agent shall have the rights specified in Section 3.4.3.
3.4.2 Illegality; Increased Costs; Deposits Not Available.
If at any time any Bank shall have determined that:
(i) the making, maintenance or funding of any Loan to which a
Euro-Rate Option applies has been made impracticable or unlawful by compliance
by such Bank in good-faith with any Law or any interpretation or application
thereof by any Official Body or with any request or directive of any such
Official Body (whether or not having the force of Law), or
(ii) such Euro-Rate Option will not adequately and fairly reflect
the cost to such Bank of the establishment or maintenance of any such Loan, or
(iii) after making all reasonable efforts, deposits of the relevant
amount in Dollars for the relevant Interest Period for a Loan to which a
Euro-Rate Option applies are not available to such Bank with respect to such
Loan in the London interbank market, then the Administrative Agent shall have
the rights specified in Section 3.4.3.
3.4.3 Administrative Agent's and Banks' Rights.
In the case of any event specified in subsection 3.4.1 above, the
Administrative Agent shall promptly so notify the Banks and the Borrower
thereof, and in the case of an event specified in subsection 3.4.2 above, such
Bank shall promptly so notify the Administrative Agent and endorse a certificate
to such notice as to the specific circumstances of such notice, and the
Administrative Agent shall promptly send copies of such notice and certificate
to the other Banks and the Borrower. Upon such date as shall be specified in
such notice (which shall not be earlier than the date such notice is given), the
obligation of (A) the Banks, in the case of such notice given by the
Administrative Agent, or (B) such Bank, in the case of such notice given by such
Bank, to allow the Borrower to select, convert to or renew a Euro-Rate Option
shall be suspended until the Administrative Agent shall have later notified the
Borrower, or such Bank shall have later notified the Administrative Agent, of
the Administrative Agent's or such Bank's, as the case may be, determination
that the circumstances giving rise to such previous determination no longer
exist. If at any time the Administrative Agent makes a determination under
subsection 3.4.1 of this Section 3.4 and the Borrower has previously notified
the Administrative Agent of its selection of, conversion to or renewal of a
Euro-Rate Option and such Interest Rate Option has not yet gone into effect,
such notification shall be deemed to provide for selection of, conversion to or
renewal of the Base Rate Option otherwise available with respect to such Loans.
If any Bank notifies the Administrative Agent of a determination under
subsection 3.4.2 of this Section 3.4, the Borrower shall, subject to the
Borrower's indemnification Obligations under Section 4.5.2, as to any Loan of
the Bank to which a Euro-
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Rate Option applies, on the date specified in such notice either convert such
Loan to the Base Rate Option otherwise available with respect to such Loan or
prepay such Loan in accordance with Section 4.4. Absent due notice from the
Borrower of conversion or prepayment, such Loan shall automatically be converted
to the Base Rate Option otherwise available with respect to such Loan upon such
specified date.
3.5 Selection of Interest Rate Options.
If the Borrower fails to select a new Interest Period to apply to any
Borrowing Tranche of Euro-Rate Loans at the expiration of an existing Interest
Period applicable to such Borrowing Tranche in accordance with the provisions of
Section 3.1, the Borrower shall be deemed to have converted such Borrowing
Tranche to the Revolving Credit Base Rate Option, as applicable, commencing upon
the last day of the existing Interest Period.
4. PAYMENTS
4.1 Payments.
All payments and prepayments to be made in respect of principal, interest,
Commitment Fees, Letter of Credit Fees, Administrative Agent's Fee or other fees
or amounts due from the Borrower hereunder shall be payable prior to 1:00 p.m.,
Eastern time, on the date when due without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived by the Borrower,
and without set-off, counterclaim or other deduction of any nature, and an
action therefor shall immediately accrue. Such payments shall be made to the
Administrative Agent at the Principal Office for the ratable accounts of the
Banks with respect to the Loans in U.S. Dollars and in immediately available
funds, and the Administrative Agent shall promptly distribute such amounts to
the Banks in immediately available funds, provided that in the event payments
are received by 1:00 p.m., Eastern time, by the Administrative Agent with
respect to the Loans and such payments are not distributed to the Banks on the
same day received by the Administrative Agent, the Administrative Agent shall
pay the Banks the Federal Funds Effective Rate with respect to the amount of
such payments for each day held by the Administrative Agent and not distributed
to the Banks. The Administrative Agent's and each Bank's statement of account,
ledger or other relevant record shall, in the absence of manifest error, be
conclusive as the statement of the amount of principal of and interest on the
Loans and other amounts owing under this Agreement and shall be deemed an
"account stated."
4.2 Pro Rata Treatment of Banks.
Each borrowing shall be allocated to each Bank according to its Ratable
Share, and each selection of, conversion to or renewal of any Interest Rate
Option and each payment or prepayment by the Borrower with respect to principal,
interest, Commitment Fees, Letter of Credit Fees, or other fees (except for the
Administrative Agent's Fee) or amounts due from the Borrower hereunder to the
Banks with respect to the Loans, shall (except as provided in Section 3.4.2
[Illegality; Increased Costs; Deposits not Available] in the case of an event
specified in Section 3.4, 3.4.1 [Euro-Rate Unascertainable], 4.4 [Voluntary
Prepayments and Commitment Reductions] or 4.5 [Additional Compensation in
Certain Circumstances]) be made in proportion
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to the applicable Loans outstanding from each Bank and, if no such Loans are
then outstanding, in proportion to the Ratable Share of each Bank.
4.3 Interest Payment Dates.
Interest on Loans to which the Base Rate Option applies shall be due and
payable in arrears on the first Business Day of each calendar quarter after the
date hereof and on the date such Loans are repaid in full. Interest on Loans to
which the Euro-Rate Option applies shall be due and payable on the last day of
each Interest Period for those Loans and, if such Interest Period is longer than
three (3) months, also on the last day of every third month during such Interest
Period. Interest on mandatory prepayments of principal under Section 4.5 shall
be due on the date such mandatory prepayment is due. Interest on the principal
amount of each Loan or other monetary Obligation shall be due and payable on
demand after such principal amount or other monetary Obligation becomes due and
payable (whether on the stated maturity date, upon acceleration or otherwise).
4.4 Voluntary Prepayments and Commitment Reductions.
4.4.1 Right to Prepay.
The Borrower shall have the right at its option from time to time to
prepay the Loans in whole or part without premium or penalty (except as provided
in subsection 4.4.2 below or in Section 4.5):
(i) at any time with respect to any Loan to which the Base Rate
Option applies,
(ii) on the last day of the applicable Interest Period with respect
to Loans to which a Euro-Rate Option applies,
(iii) on the date specified in a notice by any Bank pursuant to
Section 3.4.2 [Illegality; Increased Costs; Deposits Not Available] with respect
to any Loan to which a Euro-Rate Option applies.
Whenever the Borrower desires to prepay any part of the Loans, it
shall provide a prepayment notice to the Administrative Agent on or before the
date of prepayment of Loans setting forth the following information:
(iv) the date, which shall be a Business Day, on which the proposed
prepayment is to be made;
(v) a statement indicating the application of the prepayment; and
(vi) the total principal amount of such prepayment, which shall not
be less than $200,000 for the Revolving Credit Loans.
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All prepayment notices shall be irrevocable. The principal amount of
the Loans for which a prepayment notice is given, together with interest on such
principal amount except with respect to Loans to which the Base Rate Option
applies, shall be due and payable on the date specified in such prepayment
notice as the date on which the proposed prepayment is to be made. Except as
provided in Section 3.3.3, if the Borrower prepays a Loan but fail to specify
the applicable Borrowing Tranche which the Borrower is prepaying, the prepayment
shall be applied first to Loans to which the Base Rate Option applies, then to
Loans to which the Euro-Rate Option applies. Any prepayment hereunder shall be
subject to the Borrower's Obligation to indemnify the Banks under Section 4.5.2.
4.4.2 Replacement of a Bank.
In the event any Bank (i) gives notice under Section 3.4.2 or
Section 4.5, (ii) does not fund Revolving Credit Loans because the making of
such Loans would contravene any Law applicable to such Bank, (iii) does not
approve any action as to which consent of the Required Banks is requested by the
Borrower and obtained hereunder, or (iv) becomes subject to the control of an
Official Body (other than normal and customary supervision), then the Borrower
shall have the right at its option, with the consent of the Administrative
Agent, which shall not be unreasonably withheld, to prepay the Loans of such
Bank in whole, together with all interest accrued thereon, and terminate such
Bank's Commitment within ninety (90) days after (w) receipt of such Bank's
notice under Section 3.4.2 or 4.5.1, (x) the date such Bank has failed to fund
Revolving Credit Loans because the making of such Loans would contravene Law
applicable to such Bank, (y) the date of obtaining the consent which such Bank
has not approved, or (z) the date such Bank became subject to the control of an
Official Body, as applicable; provided that the Borrower shall also pay to such
Bank at the time of such prepayment any amounts required under Section 4.5 and
any accrued interest due on such amount and any related fees; provided, however,
that the Commitment of such Bank shall be provided by one or more of the
remaining Banks or a replacement bank acceptable to the Administrative Agent;
provided, further, the remaining Banks shall have no obligation hereunder to
increase their Commitments. Notwithstanding the foregoing, the Administrative
Agent may only be replaced subject to the requirements of Section 9.14 and
provided that all Letters of Credit have expired, been terminated or replaced or
cash collateral or backup letters of credit shall have been deposited.
4.4.3 Right to Reduce Commitments.
The Borrower shall have the right at its option from time to time to
reduce permanently the Revolving Credit Commitments upon at least one Business
Day's advance notice to the Administrative Agent. Each such permanent reduction
shall be in the minimum amount of $1,000,000 and shall reduce the Revolving
Credit Commitment of each Bank in proportion to its Ratable Share. Upon the
effective date of each permanent reduction in the Revolving Credit Commitments,
the Borrower shall also prepay, with interest and with any additional
compensation required under Section 4.5.2, the amount (if any) by which the
Revolving Facility Usage at the time of the reduction exceeds the amount of the
Revolving Commitments as reduced.
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4.5 Additional Compensation in Certain Circumstances.
4.5.1 Increased Costs or Reduced Return Resulting From Taxes,
Reserves, Capital Adequacy Requirements, Expenses, Etc.
If any Law, guideline or interpretation or any change in any Law,
guideline or interpretation or application thereof by any Official Body charged
with the interpretation or administration thereof or compliance with any request
or directive (whether or not having the force of Law) of any central bank or
other Official Body:
(i) subjects any Bank to any tax or changes the basis of taxation
with respect to this Agreement, the Notes, the Loans or payments by the Borrower
of principal, interest, Commitment Fees, or other amounts due from the Borrower
hereunder or under the Notes (except for taxes on the overall net income of such
Bank),
(ii) imposes, modifies or deems applicable any reserve, special
deposit or similar requirement against credits or commitments to extend credit
extended by, or assets (funded or contingent) of, deposits with or for the
account of, or other acquisitions of funds by, any Bank, or
(iii) imposes, modifies or deems applicable any capital adequacy or
similar requirement (A) against assets (funded or contingent) of, or letters of
credit, other credits or commitments to extend credit extended by, any Bank, or
(B) otherwise applicable to the obligations of any Bank under this Agreement,
and the result of any of the foregoing is to increase the cost to, reduce the
income receivable by, or impose any expense (including loss of margin) upon any
Bank with respect to this Agreement, the Notes or the making, maintenance or
funding of any part of the Loans (or, in the case of any capital adequacy or
similar requirement, to have the effect of reducing the rate of return on any
Bank's capital, taking into consideration such Bank's customary policies with
respect to capital adequacy) by an amount which such Bank in its sole discretion
deems to be material, such Bank shall from time to time notify the Borrower and
the Administrative Agent of the amount determined in good-faith (using any
averaging and attribution methods employed in good-faith) by such Bank to be
necessary to compensate such Bank for such increase in cost, reduction of income
or additional expense (to the extent not reflected in the determination of Base
Rate). Such notice shall set forth in reasonable detail the basis for such
determination. Such amount shall be due and payable by the Borrower to such Bank
ten (10) Business Days after such notice is given.
4.5.2 Indemnity.
In addition to the compensation required by subsection 4.5.1 of this
Section 4.5, the Borrower shall indemnify each Bank against all liabilities,
losses or expenses (including loss of margin, any loss or expense incurred in
liquidating or employing deposits from third parties and any loss or expense
incurred in connection with funds acquired by a Bank to fund or maintain Loans
subject to the Euro-Rate Option) which such Bank actually sustains or incurs as
a consequence of any
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(i) payment, prepayment, conversion or renewal of any Loan to which
the Euro-Rate Option applies on a day other than the last day of the
corresponding Interest Period (whether or not such payment or prepayment is
mandatory, voluntary or automatic and whether or not such payment or prepayment
is then due),
(ii) attempt by the Borrower to revoke (expressly, by later
inconsistent notices or otherwise) in whole or part any notice relating to Loan
Requests under Section 2.4 or Section 3.2 or prepayments under Section 4.4, or
(iii) default by the Borrower in the performance or observance of
any covenant or condition contained in this Agreement or any other Loan
Document, including any failure of the Borrower to pay when due (by acceleration
or otherwise) any principal, interest, Commitment Fee or any other amount due
hereunder.
If any Bank actually sustains or incurs any such loss or expense, it
shall from time to time notify the Borrower of the amount determined in
good-faith by such Bank (which determination may include such assumptions,
allocations of costs and expenses and averaging or attribution methods as such
Bank shall deem reasonable) to be necessary to indemnify such Bank for such loss
or expense. Such notice shall set forth in reasonable detail the basis for such
determination. Such amount shall be due and payable by the Borrower to such Bank
ten (10) Business Days after such notice is given.
5. REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties.
The Borrower represents and warrants to the Administrative Agent and each
of the Banks as follows:
5.1.1 Organization and Qualification.
The Borrower and each Subsidiary of the Borrower is a corporation or
partnership, duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization. The Borrower and each Subsidiary of
the Borrower has the lawful power to own or lease its properties and to engage
in the business it presently conducts or proposes to conduct. The Borrower and
each Subsidiary of the Borrower is duly licensed or qualified and in good
standing in each jurisdiction listed on Schedule 5.1.1 and in all other
jurisdictions where the property owned or leased by it or the nature of the
business transacted by it or both makes such licensing or qualification
necessary.
5.1.2 Capitalization and Ownership.
Schedule 5.1.2 states, as of the Closing Date, the authorized
capital stock of the Borrower, the issued and outstanding shares (referred to
herein as the "Shares") of such stock, and the names of any parties beneficially
owning, individually or through affiliates, more than 5% thereof. All of the
Shares have been validly issued and are fully paid and nonassessable.
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There are no options, warrants or other rights outstanding to purchase any such
Shares except as indicated on Schedule 5.1.2.
5.1.3 Subsidiaries.
Schedule 5.1.3 states, as of the Closing Date, the name of each of
the Borrower's Subsidiaries, its jurisdiction of incorporation, its authorized
capital stock, the issued and outstanding shares (referred to herein as the
"Subsidiary Shares") and the owners thereof if it is a corporation and its
outstanding partnership interests (the "Partnership Interests") if it is a
partnership. The Borrower and each Subsidiary of the Borrower has good and
marketable title to all of the Subsidiary Shares and Partnership Interests it
purports to own, free and clear in each case of any Lien. All Subsidiary Shares
and Partnership Interests have been validly issued, and all Subsidiary Shares
are fully paid and nonassessable. All capital contributions and other
consideration required to be made or paid in connection with the issuance of the
Partnership Interests have been made or paid, as the case may be. There are no
options, warrants or other rights outstanding to purchase any such Subsidiary
Shares or Partnership Interests except as indicated on Schedule 5.1.3.
5.1.4 Power and Authority.
The Borrower and each of its Subsidiaries has full power to enter
into, execute, deliver and carry out this Agreement and the other Loan Documents
to which it is a party, to incur the Indebtedness contemplated by the Loan
Documents and to perform its Obligations under the Loan Documents to which it is
a party, and all such actions have been duly authorized by all necessary
proceedings on its part.
5.1.5 Validity and Binding Effect.
This Agreement has been duly and validly executed and delivered by
the Borrower, and each other Loan Document which the Borrower or any of its
Subsidiaries is required to execute and deliver on or after the date hereof will
have been duly executed and delivered by the Borrower on the required date of
delivery of such Loan Document. This Agreement and each other Loan Document to
which Borrower or any Subsidiary is a party constitutes, or will constitute,
legal, valid and binding obligations of each such party, enforceable against
each such party, in accordance with its terms, except to the extent that
enforceability of any of such Loan Document may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforceability of creditors' rights generally or limiting the right of specific
performance.
5.1.6 No Conflict.
Neither the execution and delivery of this Agreement or the other
Loan Documents by the Borrower and its Subsidiaries nor the consummation of the
transactions herein or therein contemplated or compliance with the terms and
provisions hereof or thereof by them will conflict with, constitute a default
under or result in any breach of (i) the terms and conditions of the certificate
of incorporation, bylaws or other organizational documents of the Borrower or
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any Subsidiary or (ii) any Law or of any material agreement, instrument, order,
writ, judgment, injunction or decree to which the Borrower or any Subsidiary is
a party or by which it is bound or to which it is subject, or result in the
creation or enforcement of any Lien, charge or encumbrance whatsoever upon any
property (now or hereafter acquired) of the Borrower or any Subsidiary.
5.1.7 Litigation.
There are no actions, suits, proceedings or investigations pending
or, to the knowledge of the Borrower, threatened against the Borrower or any
Subsidiary of the Borrower at law or equity before any Official Body which
individually or in the aggregate may result in any Material Adverse Change.
Neither the Borrower nor any Subsidiaries of the Borrower is in violation of any
order, writ, injunction or any decree of any Official Body which may result in
any Material Adverse Change.
5.1.8 Title to Properties.
The real property owned or leased by the Borrower and each
Subsidiary of the Borrower is described on Schedule 5.1.8. The Borrower and each
Subsidiary of the Borrower has good and marketable title to or valid leasehold
interests in all properties, assets and other rights which it purports to own or
lease or which are reflected as owned or leased on its books and records, free
and clear of all Liens and encumbrances except Permitted Liens, and subject to
the terms and conditions of the applicable leases. All leases of property are in
full force and effect without the necessity for any consent which has not
previously been obtained upon consummation of the transactions contemplated
hereby.
5.1.9 Financial Statements.
(i) Historical Statements. The Borrower has delivered to the
Administrative Agent copies of its audited consolidated and unaudited
consolidating year-end financial statements for and as of the end of the fiscal
year ended March 31, 2000 (the "Annual Statements"). In addition, the Borrower
has delivered to the Administrative Agent copies of its reports on Form 10-Q for
the period ended June 30, 2000 (the "Interim Statements") (the Annual and
Interim Statements being collectively referred to as the "Historical
Statements"). The Historical Statements were compiled from the books and records
maintained by the Borrower's management, are correct and complete and present
fairly in all material respects the financial condition of the Borrower as of
their dates and the results of operations for the fiscal periods then ended and
have been prepared in accordance with GAAP consistently applied, subject (in the
case of the Interim Statements) to normal year-end audit adjustments and the
absence of footnotes.
(ii) Accuracy of Financial Statements. The Borrower does not have
any liabilities, contingent or otherwise, or forward or long-term commitments
that are not disclosed in the Historical Statements or in the notes thereto, and
except as disclosed therein there are no unrealized or anticipated losses from
any commitments of the Borrower or any Subsidiary of the Borrower which may
cause a Material Adverse Change. Since June 30, 2000, no Material Adverse Change
has occurred.
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5.1.10 Margin Stock.
Neither the Borrower nor any of its Subsidiaries engages or intends
to engage principally, or as one of its important activities, in the business of
extending credit for the purpose, immediately, incidentally or ultimately, of
purchasing or carrying margin stock (within the meaning of Regulation U). No
part of the proceeds of any Loan has been or will be used, immediately,
incidentally or ultimately, to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin stock or
to refund Indebtedness originally incurred for such purpose, or for any purpose
which entails a violation of or which is inconsistent with the provisions of
Regulation U of the Board of Governors of the Federal Reserve System. Neither
the Borrower nor any of its Subsidiaries holds or intends to hold margin stock
in such amounts that more than 25% of the reasonable value of the assets of the
Borrower or any of its Subsidiaries are or will be represented by margin stock.
5.1.11 Full Disclosure.
Neither this Agreement nor any other Loan Document, nor any
certificate, statement, agreement or other documents furnished to the
Administrative Agent or any Bank in connection herewith or therewith, contains
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements contained herein and therein, in light
of the circumstances under which they were made, not misleading. On the Closing
Date, there is no fact known to the Borrower which materially adversely affects
the business, property, assets, financial condition, results of operations or
prospects of the Borrower or any Subsidiary of the Borrower which has not been
set forth in this Agreement or in the certificates, statements, agreements or
other documents furnished in writing to the Administrative Agent and the Banks
prior to or at the date hereof in connection with the transactions contemplated
hereby.
5.1.12 Taxes.
All federal, state, local and other tax returns required to have
been filed with respect to the Borrower and each Subsidiary of the Borrower have
been filed, and payment or adequate provision has been made for the payment of
all taxes, fees, assessments and other governmental charges which have or may
become due pursuant to said returns or to assessments received, except to the
extent that such taxes, fees, assessments and other charges are being contested
in good faith by appropriate proceedings diligently conducted and for which such
reserves or other appropriate provisions, if any, as shall be required by GAAP
shall have been made. Other than extensions of tax return filing deadlines for
which the Borrower has applied in the ordinary course of business, there are no
agreements or waivers extending the statutory period of limitations applicable
to any federal income tax return of the Borrower or any of its Subsidiaries for
any period.
5.1.13 Consents and Approvals.
No consent, approval, exemption, order or authorization of, or a
registration or filing with, any Official Body or any other Person is required
by any Law or any agreement in connection with the execution, delivery and
carrying out of this Agreement and the other Loan
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Documents by the Borrower, except as listed on Schedule 5.1.13, all of which
shall have been obtained or made on or prior to the Closing Date except as
otherwise indicated on Schedule 5.1.13.
5.1.14 No Event of Default; Compliance with Instruments.
No event has occurred and is continuing and no condition exists or
will exist after giving effect to the borrowings to be made on the Closing Date
under the Loan Documents which constitutes an Event of Default or Potential
Default. Neither the Borrower nor any of its Subsidiaries is in violation of (i)
any term of its certificate of incorporation, bylaws, or other organizational
documents or (ii) any material agreement or instrument to which it is a party or
by which it or any of its properties may be subject or bound where such
violation would constitute a Material Adverse Change.
5.1.15 Patents, Trademarks, Copyrights, Licenses, Etc.
The Borrower and each Subsidiary of the Borrower owns or possesses
all the material patents, trademarks, service marks, trade names, copyrights,
licenses, registrations, franchises, permits and rights necessary to own and
operate its properties and to carry on its business as presently conducted and
planned to be conducted by the Borrower and its Subsidiaries, without known
conflict with the rights of others.
5.1.16 Insurance.
All insurance policies and other bonds to which the Borrower and
each of its Subsidiaries is a party are valid and in full force and effect. No
notice has been given or claim made and no grounds exist to cancel or avoid any
of such policies or bonds or to reduce the coverage provided thereby. Such
policies and bonds provide adequate coverage from reputable and financially
sound insurers in amounts sufficient to insure the assets and risks of the
Borrower and each Subsidiary of the Borrower in accordance with prudent business
practice in the industries of the Borrower and its Subsidiaries.
5.1.17 Compliance with Laws.
The Borrower and its Subsidiaries are in compliance in all material
respects with all applicable Laws (other than Environmental Laws which are
specifically addressed in subsection 5.1.22) in all jurisdictions in which the
Borrower and its Subsidiaries do business except where the failure to so comply
would not constitute a Material Adverse Change.
5.1.18 Material Contracts.
All material contracts relating to the business operations of the
Borrower and each Subsidiary of the Borrower, including all employee benefit
plans and Labor Contracts are valid, binding and enforceable upon the Borrower
or each such Subsidiary and each of the other parties thereto in accordance with
their respective terms, and there is no default thereunder by the
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Borrower or any such Subsidiary or, to the Borrower's knowledge, with respect to
parties other than the Borrower or any such Subsidiary, which could result in a
Material Adverse Change.
5.1.19 Investment Companies.
Neither the Borrower nor any of its Subsidiaries is an "investment
company" registered or required to be registered under the Investment Company
Act of 1940 or under the "control" of an "investment company" as such terms are
defined in the Investment Company Act of 1940 and shall not become such an
"investment company" or under such "control."
5.1.20 Plans and Benefit Arrangements.
Except as set forth on Schedule 5.1.20:
(i) The Borrower and each member of the ERISA Group are in
compliance in all material respects with any applicable provisions of ERISA with
respect to all Benefit Arrangements, Plans and Multiemployer Plans. There has
been no Prohibited Transaction with respect to any Benefit Arrangement or any
Plan or, to the knowledge of the Borrower, with respect to any Multiemployer
Plan or Multiple Employer Plan, which could result in any material liability of
the Borrower or any other member of the ERISA Group. The Borrower and all
members of the ERISA Group have made when due any and all payments required to
be made under any agreement relating to a Multiemployer Plan or a Multiple
Employer Plan or any Law pertaining thereto. With respect to each Plan and
Multiemployer Plan, the Borrower and each member of the ERISA Group (i) have
fulfilled in all material respects their obligations under the minimum funding
standards of ERISA, (ii) have not incurred any liability to the PBGC, and (iii)
have not had asserted against them any penalty for failure to fulfill the
minimum funding requirements of ERISA.
(ii) To the Borrower's knowledge, each Multiemployer Plan and
Multiple Employer Plan is able to pay benefits thereunder when due.
(iii) Neither the Borrower nor any other member of the ERISA Group
has instituted or intends to institute proceedings to terminate any Plan.
No event requiring notice to the PBGC under Section 302(f)(4)(A) of
ERISA has occurred or is reasonably expected to occur with respect to any Plan,
and no amendment with respect to which security is required under Section 307 of
ERISA has been made or is reasonably expected to be made to any Plan.
(iv) The aggregate actuarial present value of accumulated benefit
obligations (as per Financial Accounting Standards Board Opinion No. 87) under
each Plan, as disclosed in, and as of the date of, the most recent actuarial
report for such Plan, does not exceed the aggregate fair market value of the
assets of such Plan.
(v) Neither the Borrower nor any other member of the ERISA Group has
incurred or reasonably expects to incur any material withdrawal liability under
ERISA to any
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Multiemployer Plan or Multiple Employer Plan. Neither the Borrower nor any other
member of the ERISA Group has been notified by any Multiemployer Plan or
Multiple Employer Plan that such Multiemployer Plan or Multiple Employer Plan
has been terminated within the meaning of Title IV of ERISA and, to the
knowledge of the Borrower, no Multiemployer Plan or Multiple Employer Plan is
reasonably expected to be reorganized or terminated, within the meaning of Title
IV of ERISA.
(vi) To the extent that any Benefit Arrangement is insured, the
Borrower and all members of the ERISA Group have paid when due all premiums
required to be paid for all periods through the Closing Date. To the extent that
any Benefit Arrangement is funded other than with insurance, the Borrower and
all members of the ERISA Group have made when due all contributions required to
be paid for all periods through the Closing Date.
(vii) All Plans, Benefit Arrangements and to the knowledge of the
Borrower Multiemployer Plans have been administered in all material respects in
accordance with their terms and the applicable provisions of ERISA.
5.1.21 Employment Matters.
The Borrower and each of its Subsidiaries is in compliance with the
Labor Contracts and all applicable federal, state and local labor and employment
Laws including those related to equal employment opportunity and affirmative
action, labor relations, minimum wage, overtime, child labor, medical insurance
continuation, worker adjustment and relocation notices, immigration controls and
worker and unemployment compensation, where the failure to comply would
constitute a Material Adverse Change. To the best of Borrower's knowledge, there
are no outstanding grievances, arbitration awards or appeals therefrom arising
out of the Labor Contracts or current or threatened strikes, picketing,
handbilling or other work stoppages or slowdowns at facilities of the Borrower
or any of its Subsidiaries which in any case would constitute a Material Adverse
Change.
5.1.22 Environmental Matters.
Except as disclosed on Schedule 5.1.22:
(i) Neither the Borrower nor any Subsidiary of the Borrower has
received any Environmental Complaint from any Official Body or private Person
alleging that such Borrower or Subsidiary or, with respect to the Property, any
prior or subsequent owner of the Property is a potentially responsible party
under the Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C. ss. 9601, et seq., and the Borrower has no reason to believe that such
an Environmental Complaint is reasonably likely to be received. There are no
pending or, to the Borrower's knowledge, threatened Environmental Complaints
relating to the Borrower or any Subsidiary of the Borrower or, to the Borrower's
knowledge with respect to the Property, any prior or subsequent owner of the
Property pertaining to, or arising out of, any Environmental Conditions.
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(ii) There are no circumstances at, on or under the Property that
constitute a breach of or non-compliance with any of the Environmental Laws, and
there are no Environmental Conditions at, on or under the Property or, to the
knowledge of the Borrower, at, on or under adjacent property, that prevent
compliance with the Environmental Laws at the Property.
(iii) Neither the Property nor any structures, improvements,
equipment, fixtures, activities or facilities thereon or thereunder contain or
use Regulated Substances except in compliance with Environmental Laws. There are
no processes, facilities, operations, equipment or any other activities at, on
or under the Property, or, to the knowledge of the Borrower, at, on or under
adjacent property, that currently result in the release or threatened release of
Regulated Substances onto the Property, except to the extent that such releases
or threatened releases are not a breach of or otherwise not a violation of the
Environmental Laws or are not likely to result in a Material Adverse Change.
(iv) The Borrower and each Subsidiary of the Borrower has all
permits, licenses, authorizations, plans and approvals necessary under the
Environmental Laws for the conduct of the business of the Borrower and its
Subsidiaries as presently conducted. The Borrower and each Subsidiary of the
Borrower has submitted all notices, reports and other filings required by the
Environmental Laws to be submitted to an Official Body which pertain to past and
current operations on the Property.
(v) All past and present on-site generation, storage, processing,
treatment, recycling, reclamation, disposal or other use or management of
Regulated Substances at, on, or under the Property and all off-site
transportation, storage, processing, treatment, recycling, reclamation, disposal
or other use or management of Regulated Substances has been done by the Borrower
and its Subsidiaries in accordance with the Environmental Laws.
5.1.23 Senior Debt Status.
The Obligations of the Borrower under this Agreement, the Notes, and
each of the other Loan Documents to which it is a party do rank and will rank at
least pari passu in priority of payment with all other Indebtedness of the
Borrower except Indebtedness of the Borrower to the extent secured by Permitted
Liens. There is no Lien upon or with respect to any of the properties or income
of the Borrower or any Subsidiary of the Borrower which secures indebtedness or
other obligations of any Person except for Permitted Liens.
5.2 Updates to Schedules.
Should any of the information or disclosures provided on any of the
Schedules attached hereto become outdated or incorrect in any material respect,
the Borrower shall promptly provide the Administrative Agent in writing with
such revisions or updates to such Schedule as may be necessary or appropriate to
update or correct same; provided, however, that no Schedule shall be deemed to
have been amended, modified or superseded by any such correction or update, nor
shall any breach of warranty or representation resulting from the inaccuracy or
incompleteness of any such Schedule be deemed to have been cured thereby, unless
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and until the Required Banks, in their sole and absolute discretion, shall have
accepted in writing such revisions or updates to such Schedule.
6. CONDITIONS OF LENDING
The obligation of each Bank to make Loans and of the Administrative
Agent to issue Letters of Credit hereunder is subject to the performance by
Borrower of its Obligations to be performed hereunder at or prior to the making
of any such Loans or issuance of such Letters of Credit and to the satisfaction
of the following further conditions:
6.1 First Loans.
On the Closing Date:
6.1.1 Closing Representations.
The representations and warranties of Borrower contained in Article
5 shall be true and accurate on and as of the Closing Date with the same effect
as though such representations and warranties had been made on and as of such
date (except representations and warranties which relate solely to an earlier
date or time, which representations and warranties shall be true and correct on
and as of the specific dates or times referred to therein), and Borrower shall
have performed and complied with all covenants and conditions hereof, no Event
of Default or Potential Default under this Agreement shall have occurred and be
continuing or shall exist.
6.1.2 Secretary's Certificate.
There shall be delivered to the Administrative Agent for the benefit
of each Bank a certificate dated the Closing Date and signed by the Secretary or
an Assistant Secretary of Borrower, certifying as appropriate as to:
(i) all action taken by Borrower and its Subsidiaries in connection
with this Agreement and the other Loan Documents;
(ii) the names of the officer or officers authorized to sign this
Agreement and the other Loan Documents and the true signatures of such officer
or officers and specifying the Authorized Officers permitted to act on behalf of
Borrower and its Subsidiaries for purposes of this Agreement and the true
signatures of such officers, on which the Administrative Agent and each Bank may
conclusively rely; and
(iii) copies of the organizational documents, including certificates
of incorporation and bylaws as in effect on the Closing Date, of Borrower and
its Subsidiaries, certified by the appropriate state official where such
documents are filed in a state office together with certificates from the
appropriate state officials as to the continued existence and good standing of
Borrower and its Subsidiaries in each state where organized or qualified to do
business.
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6.1.3 Delivery of Notes and Guaranty.
The Notes shall have been duly executed by the Borrower, and a
Guaranty and Suretyship Agreement as to the Obligations and the Subrogation and
Contribution Agreement, shall have been duly executed by each Subsidiary, and
such documents shall have been delivered to the Administrative Agent for the
benefit of the Banks.
6.1.4 Opinion of Counsel.
There shall be delivered to the Administrative Agent for the benefit
of each Bank a written opinion of general counsel for the Borrower (who may rely
on the opinions of such other counsel as may be acceptable to the Administrative
Agent), dated the Closing Date and in form and substance satisfactory to the
Administrative Agent and its counsel.
6.1.5 Legal Details.
All legal details and proceedings in connection with the
transactions contemplated by the Agreement and the other Loan Documents shall be
in form and substance satisfactory to the Administrative Agent and counsel for
the Administrative Agent, and the Administrative Agent shall have received all
such other counterpart originals or certified or other copies of such documents
and proceedings in connection with such transactions, in form and substance
satisfactory to the Administrative Agent and said counsel, as the Administrative
Agent or said counsel may reasonably request.
6.1.6 Payment of Fees.
The Borrower shall pay or cause to be paid to the Administrative
Agent for itself and for the account of the Banks all costs and expenses for
which the Administrative Agent and the Banks are entitled to be reimbursed, a
closing fee to each of the Administrative Agent, Co-Agent and Syndication Agent
equal to 32.5 basis points times its respective Commitments, as Banks, and a
closing fee to each other Bank equal to 20.0 basis points times the Commitment
of such other Bank.
6.1.7 Consents.
All material consents required to effectuate the transactions
contemplated hereby as set forth on Schedule 5.1.13 shall have been obtained.
6.1.8 Officer's Certificate Regarding MACs.
Since June 30, 2000, no Material Adverse Change in Borrower or any
Subsidiary shall have occurred; prior to the Closing Date, there shall be no
material change in the management of Borrower or any Subsidiary; and there shall
be delivered to the Administrative Agent for the benefit of each Bank a
certificate dated the Closing Date and signed by the Chief Executive Officer,
President or Chief Financial Officer of Borrower to such effect.
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6.1.9 No Violation of Laws.
The making of the Loans shall not contravene any Law applicable to
Borrower or any of the Banks.
6.1.10 No Actions or Proceedings.
No action, proceeding, investigation, regulation or legislation
shall have been instituted, threatened or proposed before any court,
governmental agency or legislative body to enjoin, restrain or prohibit, or to
obtain damages in respect of this Agreement or the consummation of the
transactions contemplated hereby or which, in the Administrative Agent's sole
discretion, would make it inadvisable to consummate the transactions
contemplated by this Agreement or any of the other Loan Documents.
6.2 Each Additional Loan
At the time of making any new Loans or issuing any new Letters of Credit
hereunder and after giving effect to the proposed borrowings: the
representations and warranties of the Borrower contained in Article 5 shall be
true on and as of the date of such additional Loan or Letter of Credit with the
same effect as though such representations and warranties had been made on and
as of such date (except representations and warranties which expressly relate
solely to an earlier date or time, which representations and warranties shall be
true and correct on and as of the specific dates or times referred to therein)
and the Borrower shall have performed and complied with all covenants and
conditions hereof and of the Loan Documents; no Event of Default or Potential
Default shall have occurred and be continuing or shall exist; the making of the
Loans or issuance of such Letter of Credit shall not contravene any Law
applicable to the Borrower or any Subsidiary of the Borrower or any of the
Banks; and the Borrower shall have delivered to the Administrative Agent a duly
executed and completed Loan Request or application for a Letter of Credit as the
case may be.
7. COVENANTS
7.1 Affirmative Covenants.
The Borrower covenants and agrees that until payment in full of the Loans
and interest thereon, expiration or termination of all Letters of Credit,
satisfaction of all of the Borrower's other Obligations under the Loan Documents
and termination of the Revolving Credit Commitments, the Borrower shall comply
at all times with the following affirmative covenants:
7.1.1 Preservation of Existence, Etc.
The Borrower shall, and shall cause each of its Subsidiaries to,
maintain its corporate existence and its license or qualification and good
standing in each jurisdiction in which its ownership or lease of property or the
nature of its business makes such license or qualification necessary.
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7.1.2 Payment of Liabilities, Including Taxes, Etc.
The Borrower shall, and shall cause each of its Subsidiaries to,
duly pay and discharge all liabilities to which it is subject or which are
asserted against it, promptly as and when the same shall become due and payable,
including all taxes, assessments and governmental charges upon it or any of its
properties, assets, income or profits, prior to the date on which penalties
attach thereto, except to the extent that such liabilities, including taxes,
assessments or charges, are being contested in good-faith and by appropriate and
lawful proceedings diligently conducted and for which such reserve or other
appropriate provisions, if any, as shall be required by GAAP shall have been
made, but only to the extent that failure to discharge any such liabilities
would not result in any additional liability which would adversely affect to a
material extent the financial condition of the Borrower or Subsidiary of the
Borrower, provided that the Borrower and its Subsidiaries will pay all such
liabilities forthwith upon the commencement of proceedings to foreclose any Lien
which may have attached as security therefor.
7.1.3 Maintenance of Insurance.
The Borrower shall, and shall cause each of its Subsidiaries to,
insure its properties and assets against loss or damage by fire and such other
insurable hazards as such assets are commonly insured (including fire, extended
coverage, property damage, workers' compensation, public liability and business
interruption insurance) and against other risks (including errors and omissions)
in such amounts as similar properties and assets are insured by prudent
companies in similar circumstances carrying on similar businesses, and with
reputable and financially sound insurers, including self-insurance to the extent
customary, all as reasonably determined by the Administrative Agent. At the
request of the Administrative Agent, the Borrower shall deliver (x) on the
Closing Date and annually thereafter an original certificate of insurance signed
by the Borrower's independent insurance broker describing and certifying as to
the existence of the insurance required to be maintained by this Agreement and
the other Loan Documents, together with a copy of the endorsement described in
the next sentence attached to such certificate and (y) from time to time a
summary schedule indicating all insurance then in force with respect to the
Borrower and its Subsidiaries. Such policies of insurance shall contain special
endorsements, in form and substance acceptable to the Administrative Agent,
which shall (i) specify the Administrative Agent as an additional insured as its
interests may appear, with the understanding that any obligation imposed upon
the insured (including the liability to pay premiums) shall be the sole
obligation of the Borrower or relevant Subsidiary and not that of the
Administrative Agent, (ii) include effective waivers by the insurer of all
claims for insurance premiums against the Administrative Agent, (iii) provide
that no cancellation of such policies for any reason (including non-payment of
premium) nor any change therein shall be effective until at least thirty (30)
days after receipt by the Administrative Agent of written notice of such
cancellation or change, (iv) be primary without right of contribution of any
other insurance carried by or on behalf of any additional insureds, and (v)
provide that inasmuch as the policy covers more than one insured, all terms,
conditions, insuring agreements and endorsements (except limits of liability)
shall operate as if there were a separate policy covering each insured. The
Borrower shall notify the Administrative Agent promptly of any occurrence
causing a material loss or decline in value of insured assets and the estimated
(or actual, if available)
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amount of such loss or decline. Any monies received by the Administrative Agent
constituting insurance proceeds may, at the option of the Administrative Agent,
be disbursed to the Borrower or the relevant Subsidiary on such terms as are
deemed appropriate by the Administrative Agent for the repair, restoration
and/or replacement of property in respect of which such proceeds were received.
7.1.4 Maintenance of Properties and Leases.
The Borrower shall, and shall cause each of its Subsidiaries to,
maintain in good repair, working order and condition (ordinary wear and tear
excepted) in accordance with the general practice of other businesses of similar
character and size, all of those properties useful or necessary to its business,
and from time to time, the Borrower will make or cause to be made all
appropriate repairs, renewals or replacements thereof.
7.1.5 Maintenance of Patents, Trademarks, Etc.
The Borrower shall, and shall cause each of its Subsidiaries to,
maintain in full force and effect all patents, trademarks, trade names,
copyrights, licenses, franchises, permits and other authorizations necessary for
the ownership and operation of its properties and business if the failure so to
maintain the same would constitute a Material Adverse Change.
7.1.6 Visitation Rights.
The Borrower shall, and shall cause each of its Subsidiaries to,
permit any of the officers or authorized employees or representatives of the
Administrative Agent or any of the Banks to visit and inspect any of its
properties and to examine and make excerpts from its books and records and
discuss its business affairs, finances and accounts with its officers, all in
such detail and at such times during normal business hours and as often as any
of the Banks may reasonably request, provided that each Bank shall provide the
Borrower and the Administrative Agent with reasonable notice prior to any visit
or inspection. In the event any Bank desires to conduct an audit of the
Borrower, such Bank shall make a reasonable effort to conduct such audit
contemporaneously with any audit to be performed by the Administrative Agent.
The Borrower shall not be obligated to reimburse the Administrative Agent and
the Banks for more than one audit per year.
7.1.7 Keeping of Records and Books of Account.
The Borrower shall, and shall cause each of its Subsidiaries to,
maintain and keep proper books of record and account which enable the Borrower
and its Subsidiaries to issue financial statements in accordance with GAAP and
as otherwise required by applicable Laws of any Official Body having
jurisdiction over the Borrower or any Subsidiary of the Borrower, and in which
full, true and correct entries shall be made in all material respects of all its
dealings and business and financial affairs.
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7.1.8 Plans and Benefit Arrangements.
The Borrower shall, and shall cause each member of the ERISA Group
to, comply with the provisions of ERISA and the Internal Revenue Code applicable
to each Plan and Benefit Arrangement except where such failure, alone or in
conjunction with any other failure, would not result in a Material Adverse
Change. Without limiting the generality of the foregoing, the Borrower shall
cause all of its Plans and all Plans maintained by any member of the ERISA Group
to be funded in accordance with the minimum funding requirements of ERISA and
shall make, and cause each member of the ERISA Group to make, in a timely
manner, all contributions due to Plans, Benefit Arrangements and Multiemployer
Plans.
7.1.9 Compliance with Laws.
The Borrower shall, and shall cause each of its Subsidiaries to,
comply with all applicable Laws, including all Environmental Laws, in all
respects, provided that it shall not be deemed to be a violation of this Section
7.1.9 if any failure to comply with any Law would not result in fines,
penalties, remediation costs, other similar liabilities or injunctive relief
which in the aggregate would constitute a Material Adverse Change.
7.1.10 Use of Proceeds.
The Borrower will use the proceeds of the Loans only for lawful
purposes in accordance with Section 2.7 as applicable and such uses shall not
contravene any applicable Law or any other provision hereof.
7.1.11 Subsidiary Dividends.
Borrower shall cause one or more of its Subsidiaries to pay cash
dividends to Borrower (directly or through one or more Subsidiaries) from time
to time, in aggregate amounts as necessary to permit Borrower to pay and satisfy
the Obligations when due and payable (by acceleration or otherwise).
7.2 Negative Covenants.
The Borrower covenants and agrees that until payment in full of the Loans
and interest thereon, expiration or termination of all Letters of Credit,
satisfaction of all of the Borrower's other Obligations hereunder and
termination of the Revolving Credit Commitments, the Borrower shall comply, and
shall cause its Subsidiaries to comply, with the following negative covenants:
7.2.1 Indebtedness.
The Borrower shall not, and shall not permit any of its Subsidiaries
to, at any time create, incur, assume or suffer to exist any Indebtedness,
except:
(i) Indebtedness under the Loan Documents;
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(ii) Existing Indebtedness as set forth on Schedule 7.2.1 (including
any extensions or renewals thereof, provided there is no increase in the amount
thereof or other significant change in the terms thereof unless otherwise
specified on Schedule 7.2.1);
(iii) Capitalized and operating leases as and to the extent
permitted under Section 7.2.15;
(iv) PIK Subordinated Indebtedness, provided that no such
Indebtedness shall mature earlier than one year after the Expiration Date in
effect at the time such Indebtedness was incurred, other than the PIK
Subordinated Indebtedness issued to Teleflex Incorporated which matures in
December 2002, and which may be repaid at or before maturity so long as no Event
of Default then exists or will result from such payment;
(v) Indebtedness secured by Purchase Money Security Interests not
exceeding $5,000,000 in the aggregate outstanding at any time;
(vi) Indebtedness under lines of credit to Borrower for money market
borrowings of no more than $10,000,000 in the aggregate outstanding at any time;
(vii) Indebtedness assumed by Borrower or any Subsidiary in an
acquisition or merger permitted under Section 7.2.6(ii), provided that such
assumption did not and will not cause an Event of Default; and
(viii) Indebtedness arising under one or more unsecured currency
swap agreements, interest rate swaps, caps, collars or floor agreements or other
interest rate management devices entered into in the normal course of business.
Notwithstanding the foregoing, the sum of the outstanding principal amount of
(A) all Indebtedness of Subsidiaries, including Guaranties (other than the
Guaranty and Suretyship Agreement executed in connection herewith) except for
PIK Subordinated Indebtedness, which shall be excluded from the calculation,
plus (B) secured and unsecured Indebtedness of the Borrower (not including
Indebtedness described in subsection (vi) of this Section 7.2.1, or the
Obligations hereunder) shall not at any time exceed 20% of Consolidated Net
Worth.
7.2.2 Liens.
The Borrower shall not, and shall not permit any of its Subsidiaries
to, at any time create, incur, assume or suffer to exist any Lien on any of its
property or assets, tangible or intangible, now owned or hereafter acquired, or
agree or become liable to do so, except Permitted Liens.
7.2.3 Guaranties.
The Borrower shall not, and shall not permit any of its Subsidiaries
to, at any time, directly or indirectly, become or be liable in respect of any
Guaranty, except:
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(i) Guaranties of Indebtedness of the Borrower and its Subsidiaries
permitted under Section 7.2.1 [Indebtedness];
(ii) endorsements of negotiable or other instruments for deposit or
collection in the ordinary course of business;
(iii) any Guaranty of an obligation to indemnify or hold harmless
any other Person incurred in connection with an acquisition or divestiture of
Capital Stock or assets permitted under this Agreement; and
(iv) any Guaranty by Borrower of the obligations of any of its
direct or indirect Subsidiaries incurred in the ordinary course of business such
as trade credit and obligations under real estate leases; and
(v) the Guaranty and Suretyship Agreement executed in connection
herewith.
7.2.4 Loans and Investments.
The Borrower shall not, and shall not permit any of its Subsidiaries
to, at any time make or suffer to remain outstanding any loan or advance to, or
purchase, acquire or own any stock, bonds, notes or securities of, or any
partnership interest (whether general or limited) in, or any other investment or
interest in, or make any capital contribution to, any other Person, or agree,
become or remain liable to do any of the foregoing, except:
(i) trade credit extended on usual and customary terms in the
ordinary course of business;
(ii) advances to employees to meet expenses incurred by such
employees in the ordinary course of business;
(iii) Permitted Investments;
(iv) subject to Section 7.2.9(ii), loans, advances, investments and
capital contributions in and to the Subsidiaries of the Borrower; and
(v) acquisitions permitted under Section 7.2.6(ii).
7.2.5 Dividends and Related Distributions.
The Borrower shall not, and shall not permit any of its Subsidiaries
to, make or pay, or agree to become or remain liable to make or pay, any
dividend or other distribution of any nature (whether in cash, property,
securities or otherwise) on account of or in respect of its shares of capital
stock or partnership interests on account of the purchase, redemption,
retirement or acquisition of its shares of capital stock (or warrants, options
or rights therefor) or partnership interests, except
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(i) dividends or other distributions payable to the Borrower by its
Subsidiaries;
(ii) repurchases by Borrower of its common stock and dividends
payable by the Borrower to the holders of its common stock, provided that the
aggregate amount of the repurchases made and dividends paid on or after April 1,
1999 does not exceed (a) $10,000,000 plus (b) 25% of cumulative Consolidated Net
Income from and after April 1, 1999, and provided further that no Event of
Default exists at the time of any such payment or will result from the payment;
(iii) redemptions of any employee's Capital Stock in the Borrower
upon termination of employment provided that no Event of Default then exists or
will result from the redemption;
(iv) dividends or other distributions payable in stock, including
stock splits; and
(v) the distribution of common shares in Borrower to Citicorp
Venture Capital, Ltd. upon the conversion of Citicorp Venture Capital's Class D
Capital Stock in Borrower.
7.2.6 Liquidations, Mergers, Consolidations, Acquisitions.
The Borrower shall not, and shall not permit any of its Subsidiaries
to, dissolve, liquidate or wind-up its affairs, or become a party to any merger
or consolidation, or acquire by purchase, lease or otherwise all or
substantially all of the assets or capital stock of any other Person, except
that
(i) any Subsidiary may consolidate or merge into the Borrower or
another Subsidiary; and
(ii) the Borrower or any of its Subsidiaries may acquire assets or
Capital Stock of other Persons engaged in the business of aviation services,
metals converting, or metals distribution, provided that:
(a) any such Person has a history of positive operating
profits and reasonable prospects for continuing to produce
operating profits in the future;
(b) no Event of Default exists or will result from such
acquisition;
(c) following the closing of the acquisition, the
Borrower will have at least $10,000,000 in availability under
the Revolving Credit Commitments;
(d) the Borrower notifies the Administrative Agent in
writing of the acquisition at least 30 days before it is
scheduled to close,
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(e) on a pro forma basis using historical Consolidated
EBITDA of the assets and business being acquired in such
acquisition, the Borrower is in compliance with all financial
covenants and other covenants contained in this Agreement
(including without limitation Section 7.2.1) for the full
fiscal quarter most recently ended and for the full fiscal
year most recently ended, as though such acquisition had
occurred on the first day of each of such respective periods,
(f) if the aggregate amount of Consideration (defined to
mean "cost basis" as defined in Section 1012, or any successor
provision, of the Internal Revenue Code, but not including any
stock of Borrower issued to the seller(s) in such acquisition)
with respect to such acquisition equals or exceeds
$20,000,000, Borrower shall have delivered to the
Administrative Agent with the notification under (d) above a
certificate signed by its chief executive officer, its chief
financial officer or its treasurer showing compliance with (e)
above, and the Required Banks shall not have notified Borrower
that they believe such calculations or the assumptions used in
connection therewith to be in error or manifestly
unreasonable; and
(g) the Required Banks shall have approved such
acquisition in writing, in their sole discretion, if either
(1) the aggregate amount of Consideration (not including any
stock of Borrower issued to the seller(s) in such acquisition)
with respect to such acquisition equals or exceeds
$50,000,000, or (2) should the Total Indebtedness to EBITDA
Ratio, immediately prior to the consummation of such
acquisition, equal or exceed 2.0 to 1, the aggregate amount of
Consideration (not including any stock of Borrower issued to
the seller(s) in such acquisition) with respect to such
acquisition equals or exceeds $30,000,000,
7.2.7 Dispositions of Assets or Subsidiaries.
The Borrower shall not, and shall not permit any of its Subsidiaries
to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of,
voluntarily or involuntarily, any of its properties or assets, tangible or
intangible (including sale, assignment, discount or other disposition of
accounts, contract rights, chattel paper, equipment or general intangibles with
or without recourse or of capital stock, shares of beneficial interest or
partnership interests of a Subsidiary of the Borrower), except:
(i) transactions involving the sale of inventory in the ordinary
course of business;
(ii) any sale, transfer or lease of assets in the ordinary course of
business which are no longer necessary or required in the conduct of the
Borrower's business;
(iii) any sale, transfer or lease of assets by any Subsidiary of the
Borrower to the Borrower or another Subsidiary;
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(iv) any sale, transfer or lease of assets in the ordinary course of
business which are replaced by substitute assets acquired or leased within the
parameters of Section 7.2.15;
(v) any sale, transfer, or lease of assets the after-tax proceeds of
which, when added to the after-tax proceeds of other sales, transfers and leases
of assets in the same fiscal year after fiscal year 2001, do not exceed, in the
aggregate for Borrower and its Subsidiaries, 5% of Borrower's consolidated total
assets at the start of such Fiscal Year;
(vi) the sale (in one or more transactions) by one or more
Subsidiaries of assets of such Subsidiaries in fiscal year 2001; provided that
(A) the proceeds thereof (after transaction costs) are (i) greater than net book
value of the assets sold; (ii) used immediately and in full to reduce the
principal amount of Loans outstanding; (B) the net book value of the assets sold
in such sales does not exceed $35,000,000 in the aggregate; (C) such sale would
not cause or constitute a Material Adverse Change, a Potential Default or an
Event of Default; and (D) each of the Banks and the Agent receives notice from
the Borrower of such transaction on or before the closing date of such
transaction; and
(vii) any sale, transfer or lease of assets, other than those
specifically excepted pursuant to clauses (i) through (vi) above, which is
approved by the Required Banks.
7.2.8 Affiliate Transactions.
The Borrower shall not, and shall not permit any of its Subsidiaries
to, enter into or carry out any transaction (including purchasing property or
services from or selling property or services to any Affiliate of the Borrower
or other Person) unless such transaction is not otherwise prohibited by this
Agreement, is entered into in the ordinary course of business upon fair and
reasonable arm's-length terms and conditions and is in accordance with all
applicable Law. The payment of customary directors fees shall not be considered
a prohibited Affiliate transaction.
7.2.9 Subsidiaries, Partnerships and Joint Ventures.
(i) The Borrower shall not and shall not permit any of its
Subsidiaries to, become or agree to become a general or limited partner in any
general or limited partnership or a joint venturer in any joint venture, except
that the Borrower and its Subsidiaries may be general or limited partners in any
of its or their Subsidiaries.
(ii) The Borrower will not invest or advance more than $50,000 to
Triumph Group Foreign Sales Corporation.
7.2.10 Continuation of Present Business.
The Borrower shall not, and shall not permit any of its Subsidiaries
to, engage in any business other than aviation services and metals converting
and distribution, substantially as conducted and operated by the Borrower or
Subsidiary during the present fiscal year, and the Borrower or Subsidiary shall
not permit any material change in such business.
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7.2.11 Plans and Benefit Arrangements.
The Borrower shall not, and shall not permit any of its Subsidiaries
to:
(i) fail to satisfy the minimum funding requirements of ERISA and
the Internal Revenue Code with respect to any Plan;
(ii) request a minimum funding waiver from the Internal Revenue
Service with respect to any Plan;
(iii) engage in a Prohibited Transaction with any Plan, Benefit
Arrangement or Multiemployer Plan which, alone or in conjunction with any other
circumstances or set of circumstances resulting in liability under ERISA, would
constitute a Material Adverse Change;
(iv) permit the aggregate actuarial present value of all benefit
liabilities (whether or not vested) under each Plan, determined on a plan
termination basis, as disclosed in the most recent actuarial report completed
with respect to such Plan, to exceed, as of any actuarial valuation date, the
fair market value of the assets of such Plan by more than $1,000,000;
(v) fail to make when due any contribution to any Multiemployer Plan
that the Borrower or any member of the ERISA Group may be required to make under
any agreement relating to such Multiemployer Plan, or any Law pertaining
thereto;
(vi) withdraw (completely or partially) from any Multiemployer Plan
or withdraw (or be deemed under Section 4062(e) of ERISA to withdraw) from any
Multiple Employer Plan, where any such withdrawal is likely to result in a
material liability of the Borrower or any member of the ERISA Group;
(vii) terminate, or institute proceedings to terminate, any Plan,
where such termination is likely to result in a material liability to the
Borrower or any member of the ERISA Group;
(viii) make any amendment to any Plan with respect to which security
is required under Section 307 of ERISA; or
(ix) fail to give any and all notices and make all disclosures and
governmental filings required under ERISA or the Internal Revenue Code, where
such failure is likely to result in a Material Adverse Change.
7.2.12 Fiscal Year.
The Borrower shall not, and shall not permit any Subsidiary of the
Borrower to, change its fiscal year from the twelve-month period beginning April
1 and ending March 31.
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7.2.13 Issuance of Stock.
The Borrower shall not, and shall not permit any of its Subsidiaries
to, issue any additional shares of its Capital Stock or any options, warrants or
other rights in respect thereof, except the issuance of Capital Stock of the
Borrower:
(i) pursuant to a secondary public offering;
(ii) to the existing shareholders, management, and directors of the
Borrower under stock option plans;
(iii) to World Equity Partners, L.P. pursuant to warrants for the
issuance of 650,000 shares;
(iv) in connection with acquisitions permitted under Section 7.2.6,
provided that such issuance does not result in an Event of Default;
(v) to existing shareholders pursuant to stock splits; or
(vi) to Citicorp Venture Capital, Ltd. upon the conversion of its
Class D Capital Stock to common shares.
7.2.14 Changes in Organizational Documents.
The Borrower shall not, and shall not permit any of its Subsidiaries
to, amend any provisions of its certificate of incorporation relating to capital
stock without providing at least thirty (30) calendar days' prior written notice
to the Administrative Agent and the Banks and, in the event such change would be
adverse to the Banks as determined by the Administrative Agent in its sole
discretion, obtaining the prior written consent of the Required Banks.
7.2.15 Operating Leases.
The Borrower shall not, and shall not permit any of its Subsidiaries
to, make any payments on account of operating leases that would cause the
aggregate of all such payments to exceed in any fiscal year 15% of Consolidated
Adjusted EBITDA for such fiscal year. All operating leases of Borrower and its
Subsidiaries shall be made under usual and customary terms and in the ordinary
course of business.
7.2.16 Minimum Interest Coverage Ratio.
The Borrower shall not permit the Interest Coverage Ratio,
calculated as of the end of each fiscal quarter for the four fiscal quarters
then ended, to be less than 3.0 to 1.0.
7.2.17 Maximum Total Indebtedness to EBITDA Ratio.
The Borrower shall not at any time permit the Total Indebtedness to
EBITDA Ratio, calculated as of the end of each fiscal quarter to exceed 3.00 to
1.00.
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7.2.18 Minimum Net Worth.
The Borrower shall not at any time permit Consolidated Net Worth to
be less than $219,933,000 plus (i) 50% of Consolidated Net Income for each
fiscal year in which net income was earned (as opposed to net loss) beginning
with the fiscal year ending March 31, 2001(with the necessary adjustment to be
made as of the end of the relevant fiscal year) and (ii) 100% of the proceeds
(after the payment of any fees and expenses) from any capital contribution to,
or any sale or issuance of Capital Stock by, the Borrower (with any necessary
adjustment to be made upon the receipt of such proceeds).
7.2.19 Negative Pledges.
The Borrower shall not and shall not permit any of its Subsidiaries
to, agree with any Person (i) to limit its ability to provide collateral
security to the Banks and (ii) to limit the ability of Borrower's Subsidiaries
to pay dividends or make other distributions to Borrower.
7.2.20 Capital Expenditures.
The Borrower shall not permit aggregate capital expenditures of
Borrower and its Subsidiaries to exceed, in any fiscal year, 200% of
consolidated depreciation expense for such fiscal year.
7.3 Reporting Requirements.
The Borrower covenants and agrees that until payment in full of the Loans
and interest thereon, expiration or termination of all Letters of Credit,
satisfaction of all of the Borrower's other Obligations hereunder and under the
other Loan Documents and termination of the Revolving Credit Commitments, the
Borrower will furnish or cause to be furnished to the Administrative Agent and
each of the Banks:
7.3.1 Quarterly Financial Statements.
As soon as available and in any event within forty-five (45)
calendar days after the end of each of the first three fiscal quarters in each
fiscal year, the Borrower's financial statements, consisting of consolidated
balance sheets as of the end of such fiscal quarter and related consolidated
statements of income, stockholders' equity and cash flows for the fiscal quarter
then ended and the fiscal year through that date, all in reasonable detail and
certified (subject to normal year-end audit adjustments and the absence of
footnotes) by the Chief Executive Officer, President or Chief Financial Officer
of the Borrower as having been prepared in accordance with GAAP, consistently
applied, and setting forth in comparative form the respective financial
statements for the corresponding date and period in the previous fiscal year.
7.3.2 Annual Financial Statement.
As soon as available and in any event within ninety (90) days after
the end of each fiscal year, consolidated and consolidating financial statements
of the Borrower and its Subsidiaries consisting of consolidated and
consolidating balance sheets as of the end of such
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fiscal year, and related consolidated and consolidating statements of income,
stockholders' equity and cash flows for the fiscal year then ended, all in
reasonable detail and setting forth in comparative form the financial statements
as of the end of and for the preceding fiscal year, with the consolidated
statements being certified by independent certified public accountants of
nationally recognized standing satisfactory to the Administrative Agent. The
certificate or report of accountants shall be free of qualifications (other than
any consistency qualification that may result from a change in the method used
to prepare the financial statements as to which such accountants concur) and
shall not indicate the occurrence or existence of any event, condition or
contingency which would materially impair the prospect of payment or performance
of any covenant, agreement or duty of the Borrower under any of the Loan
Documents, together with a letter of such accountants substantially to the
effect that, based upon their ordinary and customary examination of the affairs
of the Borrower, performed in connection with the preparation of such
consolidated financial statements, and in accordance with generally accepted
auditing standards, they are not aware of the existence of any condition or
event which constitutes an Event of Default or Potential Default or, if they are
aware of such condition or event, stating the nature thereof and confirming the
Borrower's calculations with respect to the certificate to be delivered pursuant
to Section 7.3.3 with respect to such financial statements.
7.3.3 Compliance Certificate.
Concurrently with the financial statements of the Borrower furnished
to the Administrative Agent and to the Banks pursuant to Sections 7.3.1 and
7.3.2, a certificate of the Borrower signed by the Chief Executive Officer,
President or Chief Financial Officer of the Borrower, in the form of Exhibit
7.3.3, to the effect that, except as described pursuant to Section 7.3.4, (i)
the representations and warranties of the Borrower contained in Article 5 are
true on and as of the date of such certificate with the same effect as though
such representations and warranties had been made on and as of such date (except
representations and warranties which expressly relate solely to an earlier date
or time) and the Borrower has performed and complied with all covenants and
conditions hereof, (ii) no Event of Default or Potential Default exists and is
continuing on the date of such certificate and (iii) containing calculations in
sufficient detail to demonstrate compliance as of the date of the financial
statements with all financial covenants contained in Section 7.2. If an
acquisition permitted under Section 7.2.6(ii) occurred during the reporting
period covered by the compliance certificate and if the Borrower has provided
the Administrative Agent with historical financial statements on the acquired
business, which, to the best of Borrower's knowledge, are true and correct and
fairly represent the financial position of the acquired business, Borrower may
also calculate the Section 7.2 financial covenants on a pro forma basis to
include the financial performance and condition of the acquired business during
the period; and the pro forma calculation of the Total Indebtedness to EBITDA
Ratio may be relied upon as a basis for a change in the pricing level under the
Pricing Grid.
7.3.4 Notice of Default.
Promptly after any officer of Borrower has learned of the occurrence
of an Event of Default or Potential Default, a certificate signed by the Chief
Executive Officer, President or
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Chief Financial Officer of Borrower setting forth the details of such Event of
Default or Potential Default and the action which the Borrower proposes to take
with respect thereto.
7.3.5 Notice of Litigation.
Promptly after the commencement thereof, notice of all actions,
suits, proceedings or investigations before or by any Official Body or any other
Person against the Borrower or Subsidiary of the Borrower which in the good
faith estimation of counsel for the Borrower involve a claim or series of claims
in excess of $750,000 or which if adversely determined would constitute a
Material Adverse Change with respect to the Borrower or Subsidiary of the
Borrower.
7.3.6 Certain Events.
Written notice to the Administrative Agent:
(i) at least thirty (30) calendar days prior thereto, with respect
to any proposed sale or transfer of assets pursuant to Section 7.2.7(v).
(ii) within the time limits set forth in Section 7.2.14, the
amendment to the charter affecting the capital structure of the Borrower or any
of its Subsidiaries.
7.3.7 Budgets, Forecasts, Other Reports and Information.
Promptly upon their becoming available to the Borrower:
(i) the annual budget and any forecasts or projections of the
Borrower and its Subsidiaries, to be supplied at the request of the
Administrative Agent prior to commencement of the fiscal year to which any of
the foregoing may be applicable,
(ii) any reports including management letters submitted to the
Borrower by independent accountants in connection with any annual, interim or
special audit,
(iii) any reports, notices or proxy statements generally distributed
by the Borrower to its stockholders on a date no later than the date supplied to
the stockholders,
(iv) regular or periodic reports, including Forms 10-K, 10-Q and
8-K, registration statements and prospectuses, filed by the Borrower with the
Securities and Exchange Commission,
(v) a copy of any order, issued by any Official Body in any
proceeding to which the Borrower or any of its Subsidiaries is a party, and in
which the amount in controversy exceeds $1,000,000,
(vi) such other reports and information as the Banks may from time
to time reasonably request. The Borrower shall also notify the Banks promptly of
the enactment or
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adoption of any Law which may result in a Material Adverse Change with respect
to the Borrower or any Subsidiary of the Borrower, and
(vii) within 60 days of closing on any acquisition permitted under
Section 7.2.6 in which the total consideration paid by the Borrower or its
Subsidiary exceeded $5,000,000, such financial information as the Administrative
Agent may reasonably request concerning the acquisition and its effect on the
financial condition and performance of the Borrower.
7.3.8 Notices Regarding Plans and Benefit Arrangements.
7.3.8.1 Certain Events.
Promptly upon becoming aware of the occurrence thereof, notice
(including the nature of the event and, when known, any action taken or
threatened by the Internal Revenue Service or the PBGC with respect thereto) of:
(i) any Reportable Event with respect to the Borrower or any
member of the ERISA Group for which reporting to the PBGC has not been waived,
(ii) any Prohibited Transaction which could subject the
Borrower or any member of the ERISA Group to a civil penalty assessed pursuant
to Section 502(i) of ERISA or a tax imposed by Section 4975 of the Internal
Revenue Code in connection with any Plan, Benefit Arrangement or any trust
created thereunder,
(iii) any assertion of material withdrawal liability with
respect to any Multiemployer Plan,
(iv) any partial or complete withdrawal from a Multiemployer
Plan by the Borrower or any member of the ERISA Group under Title IV of ERISA
(or assertion thereof), where such withdrawal is likely to result in material
withdrawal liability,
(v) withdrawal by the Borrower or any member of the ERISA
Group from a Multiple Employer Plan,
(vi) a failure by the Borrower or any member of the ERISA
Group to make a payment to a Plan required to avoid imposition of a lien under
Section 302(f) of ERISA,
(vi) the adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to Section 307 of ERISA, or
(vii) any change in the actuarial assumptions or funding
methods used for any Plan (other than interest rate changes required by
Financial Standards Board Opinion No. 87), where the effect of such change is to
materially increase or materially reduce the unfunded benefit liability or
obligation to make periodic contributions.
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7.3.8.2 Notices of Involuntary Termination and Annual Reports.
Promptly after receipt thereof, copies of (a) all notices
received by the Borrower or any member of the ERISA Group of the PBGC's intent
to terminate any Plan administered or maintained by the Borrower or any member
of the ERISA Group, or to have a trustee appointed to administer any such Plan;
and (b) at the request of the Administrative Agent or any Bank each annual
report (IRS Form 5500 series) and all accompanying schedules, the most recent
actuarial reports, the most recent financial information concerning the
financial status of each Plan administered or maintained by the Borrower or any
member of the ERISA Group, and schedules showing the amounts contributed to each
such Plan by or on behalf of the Borrower or any member of the ERISA Group in
which any of their personnel participate or from which such personnel may derive
a benefit, and each Schedule B (Actuarial Information) to the annual report
filed by the Borrower or any member of the ERISA Group with the Internal Revenue
Service with respect to each such Plan.
7.3.8.3 Notice of Voluntary Termination.
Promptly upon the filing thereof, copies of any Form 5310, or
any successor or equivalent form to Form 5310, filed with the PBGC in connection
with the termination of any Plan.
8. DEFAULT
8.1 Events of Default.
An Event of Default shall mean the occurrence or existence of any one or
more of the following events or conditions (whatever the reason therefor and
whether voluntary, involuntary or effected by operation of Law):
8.1.1 Payments Under Loan Documents.
The Borrower shall fail to pay when due any principal of any Loan
(including scheduled installments, mandatory prepayments or the payment due at
maturity) or shall fail to pay, for more than two Business Days after the due
date, any interest on any Loan or when due any other amount owing hereunder or
under the other Loan Documents;
8.1.2 Breach of Warranty.
Any representation or warranty made at any time by the Borrower
herein or in any other Loan Document, or in any certificate, other instrument or
statement furnished pursuant to the provisions hereof or thereof, shall prove to
have been false or misleading in any material respect as of the time it was made
or furnished;
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8.1.3 Refusal to Permit Inspections; Breach of Negative Covenants.
The Borrower shall default in the observance or performance of any
covenant contained in Section 7.1.6 or Section 7.2;
8.1.4 Breach of Other Covenants.
The Borrower shall default in the observance or performance of any
other covenant, condition or provision hereof or of any other Loan Document and
such default shall continue unremedied for a period of ten (10) Business Days
after any officer of the Borrower becomes aware of the occurrence thereof;
8.1.5 Defaults in Other Agreements or Indebtedness.
A default or event of default shall occur at any time under the
terms of any other agreement involving borrowed money or the extension of credit
or any other Indebtedness under which the Borrower or Subsidiary of the Borrower
may be obligated as a borrower or guarantor in excess of $750,000 in the
aggregate, and such breach, default or event of default consists of the failure
to pay (beyond any period of grace permitted with respect thereto, whether
waived or not) any indebtedness when due (whether at stated maturity, by
acceleration or otherwise) or if such breach or default permits or causes the
acceleration of any indebtedness (and such right shall not have been waived) or
the termination of any commitment to lend;
8.1.6 Final Judgments or Orders.
Any final judgments or orders for the payment of money in excess of
$750,000 in the aggregate shall be entered against the Borrower or any
Subsidiary of the Borrower by a court having jurisdiction in the premises, which
judgment is not discharged, vacated, bonded or stayed pending appeal within a
period of thirty (30) days from the date of entry;
8.1.7 Loan Document Unenforceable.
Any of the Loan Documents shall cease to be legal, valid and binding
agreements enforceable against the party executing the same or such party's
successors and assigns (as permitted under the Loan Documents) in accordance
with the respective terms thereof or shall in any way be terminated (except in
accordance with its terms) or become or be declared ineffective or inoperative
or shall in any way be challenged or contested or cease to give or provide the
respective Liens, security interests, rights, titles, interests, remedies,
powers or privileges intended to be created thereby;
8.1.8 Uninsured Losses; Proceedings Against Assets.
There shall occur any material uninsured damage to or loss, theft or
destruction of the assets of the Borrower or any of its Subsidiaries in excess
of $1,000,000 or the assets of the Borrower or any of its Subsidiaries are
attached, seized, levied upon or subjected to a writ or distress warrant; or
such come within the possession of any receiver, trustee, custodian or assignee
for the benefit of creditors and the same is not cured within sixty (60) days
thereafter;
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8.1.9 Notice of Lien or Assessment.
A notice of Lien or assessment in excess of $750,000 which is not a
Permitted Lien is filed of record with respect to all or any part of the assets
of the Borrower or any of its Subsidiaries by the United States, or any
department, agency or instrumentality thereof, or by any state, county,
municipal or other governmental agency, including the Pension Benefit Guaranty
Corporation, or if any taxes or debts owing at any time or times hereafter to
any one of these becomes payable and the same is not paid within thirty (30)
days after the same becomes payable (unless the Borrower or such Subsidiary is
contesting the obligation as provided in Section 7.1.2);
8.1.10 Insolvency.
The Borrower or any Subsidiary of the Borrower ceases to be solvent
or admits in writing its inability to pay its debts as they mature;
8.1.11 Events Relating to Plans and Benefit Arrangements.
Any of the following occurs: (i) any Reportable Event, which the
Administrative Agent determines in good-faith constitutes grounds for the
termination of any Plan by the PBGC or the appointment of a trustee to
administer or liquidate any Plan, shall have occurred and be continuing; (ii)
proceedings shall have been instituted or other action taken to terminate any
Plan, or a termination notice shall have been filed with respect to any Plan;
(iii) a trustee shall be appointed to administer or liquidate any Plan; (iv) the
PBGC shall give notice of its intent to institute proceedings to terminate any
Plan or Plans or to appoint a trustee to administer or liquidate any Plan; and,
in the case of the occurrence of (i), (ii), (iii) or (iv) above, the
Administrative Agent determines in good-faith that the amount of the Borrower's
liability is likely to exceed 10% of its Consolidated Tangible Net Worth; (v)
the Borrower or any member of the ERISA Group shall make any amendment to a Plan
with respect to which security is required under Section 307 of ERISA; (vi) the
Borrower or any member of the ERISA Group shall withdraw completely or partially
from a Multiemployer Plan; (vii) the Borrower or any member of the ERISA Group
shall withdraw (or shall be deemed under Section 4062(e) of ERISA to withdraw)
from a Multiple Employer Plan; or (viii) any applicable Law is adopted, changed
or interpreted by any Official Body with respect to or otherwise affecting one
or more Plans, Multiemployer Plans or Benefit Arrangements and, with respect to
any of the events specified in (v), (vi), (vii), or (viii), the Administrative
Agent determines in good-faith that any such occurrence is reasonably likely to
materially and adversely affect the total enterprise represented by the Borrower
and the other members of the ERISA Group;
8.1.12 Cessation of Business.
Except as otherwise permitted herein, the Borrower or any Subsidiary
of the Borrower ceases to conduct its business as contemplated or the Borrower
is enjoined, restrained or in any way prevented by court order from conducting
all or any material part of its business and such injunction, restraint or other
preventive order is not dismissed within thirty (30) days after the entry
thereof;
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8.1.13 Change of Control.
There occurs an event or series of events by which (i) any "person"
or "group" (as such terms are defined in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder), other than Citicorp Venture Capital and Affiliates, is
or becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
such Exchange Act, except that a Person shall be deemed to have "beneficial
ownership" of all shares that any such Person has the right to acquire without
condition, other than passage of time, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than 20% of the total voting power of the then outstanding voting stock of the
Borrower, or (ii) (A) the Borrower consolidates with or merges into another
corporation or conveys, transfers or leases all or substantially all of its
properties and assets (determined on a consolidated basis for the Borrower and
its Subsidiaries taken as a whole) to any Person, or (B) any corporation
consolidates with or merges into the Borrower or a Subsidiary of the Borrower in
a transaction in which the outstanding voting stock of the Borrower is changed
into or exchanged for cash, securities or other property, other than a
transaction solely between the Borrower and a Subsidiary of the Borrower;
8.1.14 Involuntary Proceedings.
A proceeding shall have been instituted in a court having
jurisdiction in the premises seeking a decree or order for relief in respect of
the Borrower or any of its Subsidiaries in an involuntary case under any
applicable bankruptcy, insolvency, reorganization or other similar law now or
hereafter in effect, or for the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator, conservator (or similar official) of the
Borrower or any of its Subsidiaries for any substantial part of its property, or
for the winding-up or liquidation of its affairs, and such proceeding shall
remain undismissed or unstayed and in effect for a period of sixty (60)
consecutive days or such court shall enter a decree or order granting any of the
relief sought in such proceeding; or
8.1.15 Voluntary Proceedings.
The Borrower or any of its Subsidiaries shall commence a voluntary
case under any applicable bankruptcy, insolvency, reorganization or other
similar law now or hereafter in effect, shall consent to the entry of an order
for relief in an involuntary case under any such law, or shall consent to the
appointment or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator, conservator (or other similar official) of itself or for
any substantial part of its property or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they become
due, or shall take any action in furtherance of any of the foregoing.
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8.2 Consequences of Event of Default.
8.2.1 Events of Default Other Than Bankruptcy, Insolvency or
Reorganization Proceedings.
If an Event of Default specified under subsections 8.1.1 through
8.1.13 of Section 8.1 shall occur and be continuing, the Banks and the
Administrative Agent shall be under no further obligation to make Loans or issue
Letters of Credit, as the case may be, and the Administrative Agent may, and
upon the request of the Required Banks, shall (i) by written notice to the
Borrower, declare the unpaid principal amount of the Notes then outstanding and
all interest accrued thereon, any unpaid fees and all other Indebtedness of the
Borrower to the Banks hereunder and thereunder to be forthwith due and payable,
and the same shall thereupon become and be immediately due and payable to the
Administrative Agent for the benefit of each Bank without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived, and (ii) require the Borrower to, and the Borrower shall thereupon,
deposit in a non-interest bearing account with the Administrative Agent, as cash
collateral for its Obligations under the Loan Documents, an amount equal to the
maximum amount currently or at any time thereafter available to be drawn on all
outstanding Letters of Credit, and the Borrower hereby pledges to the
Administrative Agent and the Banks, and grant to the Administrative Agent and
the Banks a security interest in, all such cash as security for such
Obligations. Upon the curing of all existing Events of Default to the
satisfaction of the Required Banks, the Administrative Agent shall return such
cash collateral to the Borrower; and
8.2.2 Bankruptcy, Insolvency or Reorganization Proceedings.
If an Event of Default specified under subsections 8.1.14 or 8.1.15
of Section 8.1 shall occur, the Banks shall be under no further obligations to
make Loans hereunder and the unpaid principal amount of the Notes then
outstanding and all interest accrued thereon, any unpaid fees and all other
Indebtedness of the Borrower to the Banks hereunder and thereunder shall be
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which are hereby expressly waived; and
8.2.3 Set-off.
If an Event of Default shall occur and be continuing, any Bank to
whom any Obligation is owed by the Borrower hereunder or under any other Loan
Document or any participant of such Bank which has agreed in writing to be bound
by the provisions of Section 3.2 and 9.13 and any branch, Subsidiary or
Affiliate of such Bank or participant anywhere in the world shall have the
right, in addition to all other rights and remedies available to it, without
notice to the Borrower, to set-off against and apply to the then unpaid balance
of all the Loans and all other Obligations of the Borrower hereunder or under
any other Loan Document any debt owing to, and any other funds held in any
manner for the account of, the Borrower by such Bank or participant or by such
branch, Subsidiary or Affiliate, including all funds in all deposit accounts
(whether time or demand, general or special, provisionally credited or finally
credited, or otherwise) now or hereafter maintained by the Borrower for its own
account (but not including funds held in custodian or trust accounts) with such
Bank or
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participant or such branch, Subsidiary or Affiliate. Such right shall exist
whether or not any Bank or the Administrative Agent shall have made any demand
under this Agreement or any other Loan Document, whether or not such debt owing
to or funds held for the account of the Borrower is or are matured or unmatured
and regardless of the existence or adequacy of any Guaranty or any other
security, right or remedy available to any Bank or the Administrative Agent; and
8.2.4 Suits, Actions, Proceedings.
If an Event of Default shall occur and be continuing, and whether or
not the Administrative Agent shall have accelerated the maturity of Loans to the
Borrower pursuant to any of the foregoing provisions of this Section 8.2, the
Administrative Agent or any Bank, if owed any amount with respect to the Notes,
may proceed to protect and enforce its rights by suit in equity, action at law
and/or other appropriate proceeding, whether for the specific performance of any
covenant or agreement contained in this Agreement or the Notes, including as
permitted by applicable Law the obtaining of the ex parte appointment of a
receiver, and, if such amount shall have become due, by declaration or
otherwise, proceed to enforce the payment thereof or any other legal or
equitable right of the Administrative Agent or such Bank; and
8.2.5 Application of Proceeds.
From and after the date on which the Administrative Agent has taken
any action pursuant to this Section 8.2 and until all Obligations of the
Borrower has been paid in full, any and all proceeds received by the
Administrative Agent from the exercise of any other remedy by the Administrative
Agent, shall be applied as follows:
(i) first, to reimburse the Administrative Agent and the Banks for
out-of-pocket costs, expenses and disbursements, including reasonable attorneys'
and paralegals' fees and legal expenses, incurred by the Administrative Agent or
the Banks in connection with collection of any Obligations of the Borrower under
any of the Loan Documents;
(ii) second, to the repayment of all Indebtedness then due and
unpaid of the Borrower to the Banks incurred under this Agreement or any of the
Loan Documents, whether of principal, interest, fees, expenses or otherwise, in
such manner as the Administrative Agent may determine in its discretion; and
(iii) the balance, if any, to Borrower or as required by Law.
9. THE AGENT
9.1 Appointment.
Each Bank hereby irrevocably designates, appoints and authorizes PNC Bank
to act as Administrative Agent for such Bank under this Agreement to execute and
deliver or accept on behalf of each of the Banks the other Loan Documents. Each
Bank hereby irrevocably authorizes, and each holder of any Note by the
acceptance of a Note shall be deemed irrevocably
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to authorize, the Administrative Agent to take such action on its behalf under
the provisions of this Agreement and the other Loan Documents and any other
instruments and agreements referred to herein, and to exercise such powers and
to perform such duties hereunder as are specifically delegated to or required of
the Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. PNC Bank agrees to act as the Administrative
Agent on behalf of the Banks to the extent provided in this Agreement.
Furthermore, Bank of America, N.A. shall be named Documentation Agent, First
Union National Bank shall be named Syndication Agent and Mellon Bank, N.A. shall
be named Co-Agent, though none shall have any duties in connection with this
Agreement or have by reason of this Agreement a fiduciary or trust relationship
in respect of any Bank.
9.2 Delegation of Duties.
The Administrative Agent may perform any of its duties hereunder by or
through agents or employees (provided such delegation does not constitute a
relinquishment of its duties as Administrative Agent) and, subject to Sections
9.5 and 9.6, shall be entitled to engage and pay for the advice or services of
any attorneys, accountants or other experts concerning all matters pertaining to
its duties hereunder and to rely upon any advice so obtained.
9.3 Nature of Duties; Independent Credit Investigation.
The Administrative Agent shall have no duties or responsibilities except
those expressly set forth in this Agreement and no implied covenants, functions,
responsibilities, duties, obligations, or liabilities shall be read into this
Agreement or otherwise exist. The duties of the Administrative Agent shall be
mechanical and administrative in nature; the Administrative Agent shall not have
by reason of this Agreement a fiduciary or trust relationship in respect of any
Bank; and nothing in this Agreement, expressed or implied, is intended to or
shall be so construed as to impose upon the Administrative Agent any obligations
in respect of this Agreement except as expressly set forth herein. Each Bank
expressly acknowledges (i) that the Administrative Agent has not made any
representations or warranties to it and that no act by the Administrative Agent
hereafter taken, including any review of the affairs of the Borrower, shall be
deemed to constitute any representation or warranty by the Administrative Agent
to any Bank; (ii) that it has made and will continue to make, without reliance
upon the Administrative Agent, its own independent investigation of the
financial condition and affairs and its own appraisal of the creditworthiness of
the Borrower in connection with this Agreement and the making and continuance of
the Loans hereunder; and (iii) except as expressly provided herein, that the
Administrative Agent shall have no duty or responsibility, either initially or
on a continuing basis, 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.
9.4 Actions in Discretion of Administrative Agent; Instructions from the
Banks.
The Administrative Agent agrees, upon the written request of the Required
Banks, to take or refrain from taking any action of the type specified as being
within the Administrative Agent's rights, powers or discretion herein, provided
that the Administrative Agent shall not be required to take any action which
exposes the Administrative Agent to personal liability or which is
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contrary to this Agreement or any other Loan Document or applicable Law. In the
absence of a request by the Required Banks, the Administrative Agent shall have
authority, in its sole discretion, to take or not to take any such action,
unless this Agreement specifically requires the consent of the Required Banks or
all of the Banks. Any action taken or failure to act pursuant to such
instructions or discretion shall be binding on the Banks, subject to Section
9.6. Subject to the provisions of Section 9.6, no Bank shall have any right of
action whatsoever against the Administrative Agent as a result of the
Administrative Agent acting or refraining from acting hereunder in accordance
with the instructions of the Required Banks, or in the absence of such
instructions, in the absolute discretion of the Administrative Agent.
9.5 Reimbursement and Indemnification of Administrative Agent by the
Borrower.
The Borrower unconditionally agrees to pay or reimburse the Administrative
Agent and save the Administrative Agent harmless against (a) liability for the
payment of all reasonable and actual out-of-pocket costs, expenses and
disbursements, including fees and expenses of counsel, appraisers and
environmental consultants, incurred by the Administrative Agent (i) in
connection with the development, negotiation, preparation, printing, execution,
administration, syndication, interpretation and performance of this Agreement
and the other Loan Documents, (ii) relating to any requested amendments, waivers
or consents pursuant to the provisions hereof, (iii) in connection with the
enforcement of this Agreement or any other Loan Document or collection of
amounts due hereunder or thereunder or the proof and allowability of any claim
arising under this Agreement or any other Loan Document, whether in bankruptcy
or receivership proceedings or otherwise, and (iv) in any workout, restructuring
or in connection with the protection, preservation, exercise or enforcement of
any of the terms hereof or of any rights hereunder or under any other Loan
Document or in connection with any foreclosure, collection or bankruptcy
proceedings, and (b) all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent, in its capacity as such, in any way relating to or arising
out of this Agreement or any other Loan Documents or any action taken or omitted
by the Administrative Agent hereunder or thereunder, provided that the Borrower
shall not be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
if the same results from the Administrative Agent's gross negligence or willful
misconduct, or if the Borrower was not given notice of the subject claim and the
opportunity to participate in the defense thereof, at its expense (except that
the Borrower shall remain liable to the extent such failure to give notice does
not result in a loss to the Borrower), or if the same results from a compromise
or settlement agreement entered into without the consent of the Borrower, which
shall not be unreasonably withheld. In addition, the Borrower agrees to
reimburse and pay all reasonable out-of-pocket expenses of the Administrative
Agent's regular employees and agents engaged periodically to perform audits of
the Borrower's books, records and business properties, provided that, before an
Event of Default, the Borrower shall not be obligated to pay for more than one
such audit per year.
9.6 Exculpatory Provisions.
Neither the Administrative Agent nor any of its directors, officers,
employees, agents, attorneys or Affiliates shall (a) be liable to any Bank for
any action taken or omitted to be taken
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by it or them hereunder, or in connection herewith including pursuant to any
Loan Document, unless caused by its or their own gross negligence or willful
misconduct, (b) be responsible in any manner to any of the Banks for the
effectiveness, enforceability, genuineness, validity or the due execution of
this Agreement or any other Loan Documents or for any recital, representation,
warranty, document, certificate, report or statement herein or made or furnished
under or in connection with this Agreement or any other Loan Documents, or (c)
be under any obligation to any of the Banks to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions hereof or
thereof on the part of the Borrower, or the financial condition of the Borrower,
or the existence or possible existence of any Event of Default or Potential
Default. Neither the Administrative Agent nor any Bank nor any of their
respective directors, officers, employees, agents, or Affiliates shall be liable
to the Borrower for consequential damages resulting from any breach of contract
in connection with the negotiation, documentation, administration or collection
of the Loans or any of the Loan Documents.
9.7 Reimbursement and Indemnification of Administrative Agent by Banks.
Each Bank agrees to reimburse and indemnify the Administrative Agent (to
the extent not reimbursed by the Borrower and without limiting the Obligation of
the Borrower to do so) in proportion to its Ratable Share from and against all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Administrative Agent, in its
capacity as such, in any way relating to or arising out of this Agreement or any
other Loan Documents or any action taken or omitted by the Administrative Agent
hereunder or thereunder, provided that no Bank shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements (a) if the same results from
the Administrative Agent's gross negligence or willful misconduct, or (b) if
such Bank was not given notice of the subject claim and the opportunity to
participate in the defense thereof, at its expense (except that such Bank shall
remain liable to the extent such failure to give notice does not result in a
loss to the Bank), or (c) if the same results from a compromise and settlement
agreement entered into without the consent of such Bank, which shall not be
unreasonably withheld. In addition, each Bank agrees promptly upon demand to
reimburse the Administrative Agent (to the extent not reimbursed by the Borrower
and without limiting the Obligation of the Borrower to do so) in proportion to
its Ratable Share for all amounts due and payable by the Borrower to the
Administrative Agent in connection with the Administrative Agent's periodic
audit of the Borrower's books, records and business properties.
9.8 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon any writing,
telegram, telex or teletype message, resolution, notice, consent, certificate,
letter, cablegram, statement, order or other document or conversation by
telephone or otherwise believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and upon the advice and
opinions of counsel and other professional advisers selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action hereunder unless it shall first be
indemnified to its satisfaction by the Banks against any and all
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liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
9.9 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or notice
of the occurrence of any Potential Default or Event of Default unless the
Administrative Agent has received written notice from a Bank or the Borrower
referring to this Agreement, describing such Potential Default or Event of
Default and stating that such notice is a "notice of default."
9.10 Notices.
The Administrative Agent shall promptly send to each Bank a copy of all
notices received from the Borrower pursuant to the provisions of this Agreement
or the other Loan Documents promptly upon receipt thereof. The Administrative
Agent shall promptly notify the Borrower and the other Banks of each change in
the Base Rate and the effective date thereof.
9.11 Banks in Their Individual Capacities.
With respect to its Revolving Credit Commitments, the Revolving Credit
Loans made by it, the Administrative Agent shall have the same rights and powers
hereunder as any other Bank and may exercise the same as though it were not the
Administrative Agent, and the term "Banks" shall, unless the context otherwise
indicates, include the Administrative Agent in its individual capacity. PNC Bank
and its Affiliates and each of the Banks and their respective Affiliates may,
without liability to account, except as prohibited herein, make loans to, accept
deposits from, discount drafts for, act as trustee under indentures of, and
generally engage in any kind of banking or trust business with, the Borrower and
its Affiliates, in the case of the Administrative Agent, as though it were not
acting as Administrative Agent hereunder and in the case of each Bank, as though
such Bank were not a Bank hereunder.
9.12 Holders of Notes.
The Administrative Agent may deem and treat any payee of any Note as the
owner thereof for all purposes hereof unless and until written notice of the
assignment or transfer thereof shall have been filed with the Administrative
Agent. Any request, authority or consent of any Person 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
such Note or of any Note or Notes issued in exchange therefor.
9.13 Equalization of Banks.
The Banks and the holders of any participations in any Notes agree among
themselves that, with respect to all amounts received by any Bank or any such
holder for application on any Obligation hereunder or under any Note or under
any such participation, whether received by voluntary payment, by realization
upon security, by the exercise of the right of set-off or banker's lien, by
counterclaim or by any other non-pro rata source, equitable adjustment will be
made in
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the manner stated in the following sentence so that, in effect, all such excess
amounts will be shared ratably among the Banks and such holders in proportion to
their interests in payments under the Notes, except as otherwise provided in
Sections 3.4.2, 4.4.2, or 4.5.1. The Banks or any such holder receiving any such
amount shall purchase for cash from each of the other Banks an interest in such
Bank's Loans in such amount as shall result in a ratable participation by the
Banks and each such holder in the aggregate unpaid amount under the Notes,
provided that if all or any portion of such excess amount is thereafter
recovered from the Bank or the holder making such purchase, such purchase shall
be rescinded and the purchase price restored to the extent of such recovery,
together with interest or other amounts, if any, required by law (including
court order) to be paid by the Bank or the holder making such purchase.
9.14 Successor Administrative Agent.
The Administrative Agent may resign as Administrative Agent by giving not
less than thirty (30) days' prior written notice to the Borrower. If the
Administrative Agent shall resign under this Agreement, then either (a) the
Required Banks shall appoint from among the Banks a successor agent for the
Banks, subject to the consent of the Borrower, such consent not to be
unreasonably withheld, or (b) if a successor agent shall not be so appointed and
approved within the thirty (30) day period following the Administrative Agent's
notice to the Banks of its resignation, then the Administrative Agent shall
appoint, with the consent of the Borrower, such consent not to be unreasonably
withheld, a successor agent who shall serve as Administrative Agent until such
time as the Required Banks appoint and the Borrower consent to the appointment
of a successor agent. Upon its appointment pursuant to either clause (a) or (b)
above, such successor agent shall succeed to the rights, powers and duties of
the Administrative Agent, and the term "Administrative Agent" shall mean such
successor agent, effective upon its appointment, and the former Administrative
Agent's rights, powers and duties as Administrative Agent shall be terminated
without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement. After the
resignation of any Administrative Agent hereunder, the provisions of this
Article 9 shall inure to the benefit of such former Administrative Agent and
such former Administrative Agent shall not by reason of such resignation be
deemed to be released from liability for any actions taken or not taken by it
while it was an Administrative Agent under this Agreement.
9.15 Administrative Agent's Fee.
The Borrower shall pay to the Administrative Agent a nonrefundable fee
(the "Administrative Agent's Fee") under the terms of a letter (the
"Administrative Agent's Letter") between the Borrower and Administrative Agent,
as amended from time to time.
9.16 Availability of Funds.
Unless the Administrative Agent shall have been notified by a Bank prior
to the date upon which a Loan is to be made that such Bank does not intend to
make available to the Administrative Agent such Bank's portion of such Loan, the
Administrative Agent may assume that such Bank has made or will make such
proceeds available to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption (but shall not be
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required to), make available to the Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative Agent
by such Bank, the Administrative Agent shall be entitled to recover such amount
on demand from such Bank (or, if such Bank fails to pay such amount forthwith
upon such demand from the Borrower) together with interest thereon, in respect
of each day during the period commencing on the date such amount was made
available to the Borrower and ending on the date the Administrative Agent
recovers such amount, at a rate per annum equal to the applicable interest rate
in respect of the Loan.
9.17 Calculations.
In the absence of gross negligence or willful misconduct, the
Administrative Agent shall not be liable for any error in computing the amount
payable to any Bank whether in respect of the Loans, fees or any other amounts
due to the Banks under this Agreement. In the event an error in computing any
amount payable to any Bank is made, the Administrative Agent, the Borrower and
each affected Bank shall, forthwith upon discovery of such error, make such
adjustments as shall be required to correct such error, and any compensation
therefor will be calculated at the Federal Funds Effective Rate.
9.18 Beneficiaries.
Except as expressly provided herein, the provisions of this Article 9 are
solely for the benefit of the Administrative Agent and the Banks, and the
Borrower shall not have any rights to rely on or enforce any of the provisions
hereof. In performing its functions and duties under this Agreement, the
Administrative Agent shall act solely as agent of the Banks and does not assume
and shall not be deemed to have assumed any obligation toward or relationship of
agency or trust with or for the Borrower.
10. MISCELLANEOUS
10.1 Modifications, Amendments or Waivers.
With the written consent of the Required Banks, the Administrative Agent,
acting on behalf of all the Banks, and the Borrower may from time to time enter
into written agreements amending or changing any provision of this Agreement or
any other Loan Document or the rights of the Banks or the Borrower hereunder or
thereunder, or may grant written waivers or consents to a departure from the due
performance of the Obligations of the Borrower hereunder or thereunder. Any such
agreement, waiver or consent made with such written consent shall be effective
to bind all the Banks and the Borrower; provided that, without the written
consent of Banks whose Commitments aggregate at least 67% of the Commitments of
all of the Banks if there are no Loans outstanding, or Banks whose Loans
outstanding aggregate at least 67% of the total principal amount of the Loans
outstanding hereunder if there are Loans outstanding, no Subsidiary that has
become a signatory to the Guaranty and Suretyship Agreement (as described in
Section 6.1.3) shall be released from any obligations under that agreement; and
provided further, that, without the written consent of all the Banks, no
agreement, waiver or consent may be made which will:
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10.1.1 Increase of Commitment; Extension or Expiration Date.
Increase the amount of the Revolving Credit Commitment of any Bank
hereunder or extend the Expiration Date;
10.1.2 Extension of Payment; Reduction of Principal Interest or
Fees; Modification of Terms of Payment.
Whether or not any Loans are outstanding, extend the time for
payment of principal or interest of any Loan, the Commitment Fee or any other
fee payable to any Bank, or reduce the principal amount of or the rate of
interest borne by any Loan or reduce the Commitment Fee or any other fee payable
to any Bank, or otherwise affect the terms of payment of the principal of or
interest of any Loan, the Commitment Fee or any other fee payable to any Bank;
10.1.3 Miscellaneous.
Amend Sections 4.2 [Pro Rata Treatment of Banks], 9.6 [Exculpatory
Provisions], 9.13 [Equalization of Banks] or this Section 10.1, alter any
provision regarding the pro rata treatment of the Banks, change the definition
of Required Banks, or change any requirement providing for the Banks or the
Required Banks to authorize the taking of any action hereunder provided further,
that no agreement, waiver or consent which would modify the interests, rights or
obligations of the Administrative Agent in its capacity as Administrative Agent
or as the issuer of Letters of Credit shall be effective without the written
consent of the Administrative Agent.
10.2 No Implied Waivers; Cumulative Remedies; Writing Required.
No course of dealing and no delay or failure of the Administrative Agent
or any Bank in exercising any right, power, remedy or privilege under this
Agreement or any other Loan Document shall affect any other or future exercise
thereof or operate as a waiver thereof, nor shall any single or partial exercise
thereof or any abandonment or discontinuance of steps to enforce such a right,
power, remedy or privilege preclude any further exercise thereof or of any other
right, power, remedy or privilege. The rights and remedies of the Administrative
Agent and the Banks under this Agreement and any other Loan Documents are
cumulative and not exclusive of any rights or remedies which they would
otherwise have. Any waiver, permit, consent or approval of any kind or character
on the part of any Bank of any breach or default under this Agreement or any
such waiver of any provision or condition of this Agreement must be in writing
and shall be effective only to the extent specifically set forth in such
writing.
10.3 Reimbursement and Indemnification of Banks by the Borrower; Taxes.
The Borrower agrees unconditionally upon demand to pay or reimburse to
each Bank (other than the Administrative Agent, as to which the Borrower's
Obligations are set forth in Section 9.5) and to save such Bank harmless against
(i) liability for the payment of all reasonable and actual out-of-pocket costs,
expenses and disbursements (including fees and expenses of
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outside counsel for each Bank except with respect to (a) and (b) below),
incurred by such Bank (a) in connection with the administration and
interpretation of this Agreement, and other instruments and documents to be
delivered hereunder, (b) relating to any amendments, waivers or consents
pursuant to the provisions hereof, (c) in connection with the enforcement of
this Agreement or any other Loan Document, or collection of amounts due
hereunder or thereunder or the proof and allowability of any claim arising under
this Agreement or any other Loan Document, whether in bankruptcy or receivership
proceedings or otherwise, and (d) in any workout, restructuring or in connection
with the protection, preservation, exercise or enforcement of any of the terms
hereof or of any rights hereunder or under any other Loan Document or in
connection with any foreclosure, collection or bankruptcy proceedings, or (ii)
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against such Bank, in its capacity as
such, in any way relating to or arising out of this Agreement or any other Loan
Documents or any action taken or omitted by such Bank hereunder or thereunder,
provided that the Borrower shall not be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements (A) if the same results from such Bank's gross
negligence or willful misconduct, or (B) if the Borrower was not given notice of
the subject claim and the opportunity to participate in the defense thereof, at
its expense (except that the Borrower shall remain liable to the extent such
failure to give notice does not result in a loss to the Borrower), or (C) if the
same results from a compromise or settlement agreement entered into without the
consent of the Borrower, which shall not be unreasonably withheld. The Banks
will attempt to minimize the fees and expenses of legal counsel for the Banks
which are subject to reimbursement by the Borrower hereunder by considering the
usage of one law firm to represent the Banks and the Administrative Agent if
appropriate under the circumstances. The Borrower agrees unconditionally to pay
all stamp, document, transfer, recording or filing taxes or fees and similar
impositions now or hereafter determined by the Administrative Agent or any Bank
to be payable in connection with this Agreement or any other Loan Document, and
the Borrower agrees unconditionally to save the Administrative Agent and the
Banks harmless from and against any and all present or future claims,
liabilities or losses with respect to or resulting from any omission to pay or
delay in paying any such taxes, fees or impositions.
10.4 Holidays.
Whenever payment of a Loan to be made or taken hereunder shall be due on a
day which is not a Business Day such payment shall be due on the next Business
Day and such extension of time shall be included in computing interest and fee,
except that the Loans shall be due on the Business Day preceding the Expiration
Date if the Expiration Date is not a Business Day. Whenever any payment or
action to be made or taken hereunder (other than payment of the Loans) shall be
stated to be due on a day which is not a business Day, such payment or action
shall be made or taken on the next following Business Day (except as provided in
Section 3.2 with respect to Interest Periods under the Euro-Rate Option), and
such extension of time shall not be included in computing interest or fees, if
any, in connection with such payment or action.
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10.5 Funding by Branch, Subsidiary or Affiliate.
10.5.1 Notional Funding.
Each Bank shall have the right from time to time, without notice to
the Borrower, to deem any branch, Subsidiary or Affiliate (which for the
purposes of this Section 10.5 shall mean any corporation or association which is
directly or indirectly controlled by or is under direct or indirect common
control with any corporation or association which directly or indirectly
controls such Bank) of such Bank to have made, maintained or funded any Loan to
which the Euro-Rate Option applies at any time, provided that immediately
following (on the assumption that a payment were then due from the Borrower to
such other office), and as a result of such change, the Borrower would not be
under any greater financial obligation pursuant to Section 4.5 than they would
have been in the absence of such change. Notional funding offices may be
selected by each Bank without regard to the Bank's actual methods of making,
maintaining or funding the Loans or any sources of funding actually used by or
available to such Bank.
10.5.2 Actual Funding.
Each Bank shall have the right from time to time to make or maintain
any Loan by arranging for a branch, Subsidiary or Affiliate of such Bank to make
or maintain such Loan subject to the last sentence of this Section 10.5.2. If
any Bank causes a branch, Subsidiary or Affiliate to make or maintain any part
of the Loans hereunder, all terms and conditions of this Agreement shall, except
where the context clearly requires otherwise, be applicable to such part of the
Loans to the same extent as if such Loans were made or maintained by such Bank,
but in no event shall any Bank's use of such a branch, Subsidiary or Affiliate
to make or maintain any part of the Loans hereunder cause such Bank or such
branch, Subsidiary or Affiliate to incur any cost or expenses payable by the
Borrower hereunder or require the Borrower to pay any other compensation to any
Bank (including any expenses incurred or payable pursuant to Section 6.1.6)
which would otherwise not be incurred.
Notwithstanding anything to the contrary contained herein, any Bank,
(a "Granting Bank") may grant to a special purpose funding vehicle (an "SPC")
the option to fund all or any part of any Loan that such Granting Bank would
otherwise be obligated to fund pursuant to this Agreement; provided that (i)
nothing herein shall constitute a commitment by any SPC to fund any Loan, and
(ii) if an SPC elects not to exercise such option or otherwise fails to fund all
or any part of such Loan, the Granting Bank shall be obligated to fund such Loan
pursuant to the terms hereof. The funding of a Loan by an SPC hereunder shall
utilize the Revolving Credit Commitment of the Granting Bank to the same extent,
and as if, such Loan were funded by such Granting Bank. Each party hereto hereby
agrees that no SPC shall be liable for any indemnity or payment under this
Agreement for which a Bank would otherwise be liable for so long as, and to the
extent, the Granting Bank provides such indemnity or makes such payment. The
Granting Bank shall remain primarily liable for any indemnity or payments under
this Agreement. No SPC shall be deemed a signatory to this Agreement or have any
direct rights hereunder, its rights and obligations hereunder being governed
solely by this paragraph and its agreement with the Granting Bank. In the event
of a conflict between this paragraph and such agreement with the Granting Bank,
this paragraph will control. Such agreement with the
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Granting Bank will be subject to Section 10.11 of this Agreement.
Notwithstanding anything to the contrary contained in this Agreement, any SPC
may disclose on a confidential basis any non-public information relating to its
funding of Loans to any rating agency, commercial paper dealer or provider of
any surety or guarantee to such SPC. This Section may not be amended without the
prior written consent of each Granting Bank, all or any part of whose Loan is
being funded by an SPC at the time of such amendment.
10.6 Notices.
All notices, requests, demands, directions and other communications (as
used in this Section 10.6, collectively referred to as "notices") given to or
made upon any party hereto under the provisions of this Agreement shall be by
telephone or in writing (including by means of electronic transmission (i.e.,
"e-mail") or facsimile transmission or by setting forth such notice on a site on
the World Wide Web (a "website posting") if notice of such website posting,
including the information necessary to access such website, has previously been
delivered to the applicable parties hereto by another method of notice permitted
hereunder) unless otherwise expressly permitted hereunder and shall be delivered
or sent by facsimile to the respective parties at the addresses and numbers set
forth under their respective names on signature pages hereof or in accordance
with any subsequent unrevoked written direction from any party to the others. No
notices to a Borrower of Potential Defaults or Events of Default shall be made
solely by a website posting or by e-mail, or any combination thereof. All
notices shall, except as otherwise expressly herein provided, be effective (a)
in the case of facsimile, when received, (b) in the case of hand-delivered
notice, when hand-delivered, (c) in the case of telephone, when telephoned,
provided, however, that in order to be effective, telephonic notices must be
confirmed in writing no later than the next day by letter or facsimile, (d) if
given by mail, four (4) days after such communication is deposited in the mail
with first-class postage prepaid, return receipt requested, (e) if by electronic
transmission, when actually received, (f) if by website posting, upon delivery
of a notice (including the information necessary to access such website) by
another means permitted hereunder and (g) if given by any other means (including
by air courier), when delivered; provided, that notices to the Agent shall not
be effective until received. Any Bank giving any notice to any Borrower shall
simultaneously send a copy thereof to the Agent, and the Agent shall promptly
notify the other Banks of the receipt by it of any such notice.
10.7 Severability.
The provisions of this Agreement are intended to be severable. If any
provision of this Agreement shall be held invalid or unenforceable in whole or
in part in any jurisdiction, such provision shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without in any
manner affecting the validity or enforceability thereof in any other
jurisdiction or the remaining provisions hereof in any jurisdiction.
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10.8 Governing Law.
Each Letter of Credit and Section 2.8 shall be subject to the Uniform
Customs and Practice for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500, as the same may be revised or amended
from time to time, and to the extent not inconsistent therewith, the internal
laws of the Commonwealth of Pennsylvania without regard to its conflict of laws
principles and the balance of this Agreement shall be deemed to be a contract
under the Laws of the Commonwealth of Pennsylvania and for all purposes shall be
governed by and construed and enforced in accordance with the internal laws of
the Commonwealth of Pennsylvania without regard to its conflict of laws
principles.
10.9 Prior Understanding.
This Agreement and the other Loan Documents supersede all prior
understandings and agreements, whether written or oral, between the parties
hereto and thereto relating to the transactions provided for herein and therein,
including any prior confidentiality agreements and commitments.
10.10 Duration; Survival.
All representations and warranties of the Borrower contained herein or
made in connection herewith shall survive the making of Loans and issuance of
Letters of Credit and shall not be waived by the execution and delivery of this
Agreement, any investigation by the Administrative Agent or the Banks, the
making of Loans, issuance of Letters of Credit, or payment in full of the Loans.
All covenants and agreements of the Borrower contained in Sections 7.1, 7.2 and
7.3 herein shall continue in full force and effect from and after the date
hereof so long as the Borrower may borrow or request Letters of Credit hereunder
and until termination of the Revolving Credit Commitments and payment in full of
the Loans and expiration or termination of all Letters of Credit. All covenants
and agreements of the Borrower contained herein relating to the payment of
additional compensation or expenses and indemnification, including those set
forth in the Notes, Article 4 and Sections 9.5, 9.7 and 10.3, shall survive
payment in full of the Loans, expiration or termination of the Letters of Credit
and termination of the Revolving Credit Commitments.
10.11 Successors and Assigns.
This Agreement shall be binding upon and shall inure to the benefit of the
Banks, the Administrative Agent, the Borrower and their respective successors
and assigns, except that the Borrower may not assign or transfer any of its
rights and Obligations hereunder or any interest herein. Each Bank may, at its
own cost, make assignments of or sell participations in all or any part of its
Revolving Credit Commitment and the Loans made by it to one or more banks or
other financial institutions, subject to the consent of the Borrower and the
Administrative Agent with respect to any assignee, such consent not to be
unreasonably withheld, and provided that assignments may not be made in amounts
less than $5,000,000. In the case of an assignment, upon receipt by the
Administrative Agent of the Assignment and Assumption Agreement, the assignee
shall have, to the extent of such assignment (unless otherwise provided
therein), the
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same rights, benefits and obligations as it would have if it had been a
signatory Bank hereunder, the Commitments in Section 2.1 shall be adjusted
accordingly, and upon surrender of any Note subject to such assignment, the
Borrower shall execute and deliver a new Note to the assignee in an amount equal
to the amount of the Revolving Credit Commitment assumed by it and a new
Revolving Credit Note to the assigning Bank in an amount equal to the Revolving
Credit Commitment retained by it hereunder. The assigning Bank shall pay to the
Administrative Agent a service fee in the amount of $3,500 for each assignment.
In the case of a participation, the selling Bank shall notify the Borrower and
the Administrative Agent of the participant's identity, and the participant
shall only have the rights specified in Section 8.2.3 (the participant's rights
against such Bank in respect of such participation to be those set forth in the
agreement executed by such Bank in favor of the participant relating thereto and
not to include any voting rights except with respect to changes of the type
referenced in clauses 10.1.1., 10.1.2. or 10.1.3 under Section 10.1), all of
such Bank's obligations under this Agreement or any other Loan Document shall
remain unchanged, and all amounts payable by the Borrower hereunder or
thereunder shall be determined as if such Bank had not sold such participation.
Any assignee or participant which is not incorporated under the Laws of the
United States of America or a state thereof shall deliver to the Borrower and
the Administrative Agent the form of certificate described in Section 10.17
relating to federal income tax withholding. Each Bank may furnish any publicly
available information concerning the Borrower or its Subsidiaries and any other
information concerning the Borrower or its Subsidiaries in the possession of
such Bank from time to time to assignees and participants (including prospective
assignees or participants), provided that such assignees and participants agree
to be bound by the provisions of Section 10.12.
10.12 Confidentiality.
The Administrative Agent and the Banks each agree to keep confidential all
information obtained from the Borrower or its Subsidiaries which is nonpublic
and confidential or proprietary in nature (including any information the
Borrower specifically designates as confidential), except as provided below, and
to use such information only in connection with their respective capacities
under this Agreement and for the purposes contemplated hereby. The
Administrative Agent and the Banks shall be permitted to disclose such
information (i) to outside legal counsel, accountants and other professional
advisors who need to know such information in connection with the administration
and enforcement of this Agreement, subject to agreement of such Persons to
maintain the confidentiality, (ii) to assignees and participants as contemplated
by Section 10.11, (iii) to the extent requested by any bank regulatory authority
or, with notice to the Borrower, as otherwise required by applicable Law or by
any subpoena or similar legal process, or in connection with any investigation
or proceeding arising out of the transactions contemplated by this Agreement,
(iv) if it becomes publicly available other than as a result of a breach of this
Agreement or becomes available from a source not subject to confidentiality
restrictions, or (v) if the Borrower shall have consented to such disclosure.
10.13 Counterparts.
This Agreement may be executed by different parties hereto on any number
of separate counterparts, each of which, when so executed and delivered, shall
be an original, and all such counterparts shall together constitute one and the
same instrument.
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10.14 Administrative Agent's or Bank's Consent.
Whenever the Administrative Agent's or any Bank's consent is required to
be obtained under this Agreement or any of the other Loan Documents as a
condition to any action, inaction, condition or event, the Administrative Agent
and each Bank shall be authorized to give or withhold such consent in its sole
and absolute discretion and to condition its consent upon the giving of
additional collateral, the payment of money or any other matter.
10.15 Exceptions.
The representations, warranties and covenants contained herein shall be
independent of each other, and no exception to any representation, warranty or
covenant shall be deemed to be an exception to any other representation,
warranty or covenant contained herein unless expressly provided, nor shall any
such exceptions be deemed to permit any action or omission that would be in
contravention of applicable Law.
10.16 Consent to Forum; Waiver of Jury Trial.
THE BORROWER HEREBY IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE JURISDICTION
OF THE COURT OF COMMON PLEAS OF XXXXXXX COUNTY AND THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, AND WAIVES PERSONAL SERVICE OF
ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE
MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED TO THE BORROWER AT THE ADDRESSES
PROVIDED FOR IN SECTION 10.6 AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED
UPON ACTUAL RECEIPT THEREOF. THE BORROWER WAIVES ANY OBJECTION TO JURISDICTION
AND VENUE OF ANY ACTION INSTITUTED AGAINST IT AS PROVIDED HEREIN AND AGREES NOT
TO ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION OR VENUE. THE BORROWER, THE
AGENT AND THE BANKS HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING
OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY
OTHER LOAN DOCUMENT OR THE COLLATERAL TO THE FULL EXTENT PERMITTED BY LAW.
10.17 Tax Withholding Clause.
Each Bank or assignee or participant of a Bank that is not incorporated
under the Laws of the United States of America or a state thereof agrees that it
will deliver to each of the Borrower and the Administrative Agent two (2) duly
completed copies of the following: (i) Internal Revenue Service Form W-9, 4224
or 1001, or other applicable form prescribed by the Internal Revenue Service,
certifying that such Bank, assignee or participant is entitled to receive
payments under this Agreement and the other Loan Documents without deduction or
withholding of any United States federal income taxes, or is subject to such tax
at a reduced rate under an applicable tax treaty, or (ii) Internal Revenue
Service Form W-8 or other applicable form or a certificate of the Bank, assignee
or participant indicating that no such exemption or reduced rate
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is allowable with respect to such payments. Each Bank, assignee or participant
required to deliver to the Borrower and the Administrative Agent a form or
certificate pursuant to the preceding sentence shall deliver such form or
certificate as follows: (A) each Bank which is a party hereto on the Closing
Date shall deliver such form or certificate at least five (5) Business Days
prior to the first date on which any interest or fees are payable by the
Borrower hereunder for the account of each Bank; (B) each assignee or
participant shall deliver such form or certificate at least five (5) Business
Days before the effective date of such assignment or participation (unless the
Administrative Agent in its sole discretion shall permit such assignee or
participant to deliver such form or certificate less than five (5) Business Days
before such date in which case it shall be due on the date specified by the
Administrative Agent). Each Bank, assignee or participant which so delivers a
Form W-8, W-9, 4224 or 1001 further undertakes to deliver to each of the
Borrower and the Administrative Agent two (2) additional copies of such form (or
a successor form) on or before the date that such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form so delivered by it, and such amendments thereto or extensions or
renewals thereof as may be reasonably requested by the Borrower or the
Administrative Agent, either certifying that such Bank, assignee or participant
is entitled to receive payments under this Agreement and the other Loan
Documents without deduction or withholding of any United States federal income
taxes or is subject to such tax at a reduced rate under an applicable tax treaty
or stating that no such exemption or reduced rate is allowable. The
Administrative Agent shall be entitled to withhold United States federal income
taxes at the full withholding rate unless the Bank, assignee or participant
establishes an exemption or that it is subject to a reduced rate as established
pursuant to the above provisions.
10.18 Public Filings.
The Administrative Agent agrees to use reasonable efforts to provide to
the Borrower this Agreement, any other Loan Document and any amendments or
supplements hereto or thereto in a computer readable format if so requested by
the Borrower in connection with public filings.
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IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed this Agreement as of the day and year first above
written.
ATTEST: TRIUMPH GROUP, INC.
/s/ Xxxxxxx X. Xxxxxxxxxxx By:/s/ Xxxx X. Xxxxxxxxxxx
---------------------------- -------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx Name: Xxxx X. Xxxxxxxxxxx
Title: Secretary Title: Senior Vice President
Address for Notices:
Four Glenhardie Corporate Center
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000-0000
Telecopier No. (000) 000-0000
Attention: Xxxx X. Xxxxxxxxxxx
Telephone No. (000) 000-0000
PNC BANK, NATIONAL ASSOCIATION,
individually and as Administrative Agent
By:/s/Xxxxx Xxxxxxxx
-------------------------
Title: Vice President
Address for Notices:
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Telecopier No. (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
Telephone No. (000) 000-0000
and
One PNC Plaza, 22nd Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxx
Telephone No. (000) 000-0000
Telecopier No. (000) 000-0000
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FIRST UNION NATIONAL BANK
as Syndication Agent
By:/s/Xxxxxxx Xxx Xxxxxxx
-------------------------
Title: Vice President
Address for Notices:
NC0760
000 X. Xxxxxxx Xxxxxx XX-0
Xxxxxxxxx, XX 00000
Telephone No.:000.000.0000
Facsimile No.:704.374.4793
Attn: Xxxxxxx Xxx Xxxxxxx
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MELLON BANK, N.A.
individually and as Co-Agent
By:/s/ X. Xxxx Belt
-------------------------
Title: Vice President
Address for Notices:
0000 Xxxxxx Xxxxxx, Xxxx 000-0000
Xxxxxxxxxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Attn: Xxxx Xxxx
and
Loan Administration Address:
Three Mellon Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Attn: Xxxx Xxxxx
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BANK OF AMERICA, N.A., individually and
as Documentation Agent
By:/s/Xxxxxx Xxxxxxx
-----------------------------
Title: Senior Vice President
Address for Notices:
00 Xxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Attn: Xxxxxx X. Xxxxxxx
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THE BANK OF NEW YORK
By:/s/Xxxxxx X. Xxxxxxx
-----------------------------
Title: Vice President
Address for Notices:
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Attn: Xxxxxx Xxxxxxx
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ALLFIRST BANK
By:/s/Xxxxxxxx X. Xxxxxx
----------------------------
Title: Vice President
Address for Notices:
Mail Code 182-02-01
0000 Xxxxx Xxxxx Xxxxxx
Xxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Attn: Xxxxxxxx Xxxxxx
-00-
XXXXXXXX XXXX XXXX
By: /s/Xxxxxxx Xxxxxx
----------------------------
Title: Vice President
Address for Notices:
Xxx Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Telephone No.: 000.000.0000
Facsimile No.: 267.256.4001
Attn: Xxxxxx XxXxxxxxx
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SUMMIT BANK
By:/s/Xxxxxx Xxxxxxx
-----------------------------
Title: Vice President
Address for Notices:
0000 Xxxxxx Xxxxx Xxxx
Xxxx Xxxxxxxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Attn: Xxxxxx Xxxxxxx
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FLEET NATIONAL BANK
By:/s/Xxxx Xxxxxxx
-----------------------------
Title: Vice President
Address for Notices:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone No. 000-000-0000
Facsimile No. 000-000-0000
Attn.: Xxxx Xxxxxxx
-00-
XXXXXXXX XXXX
By:/s/ W. Xxxxx Xxxxxx
----------------------------
Title: Vice President
Address for Notices:
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone No.
Facsimile No. 000-000-0000
Attn.: Xxxxx Xxxxxx-Xxxxxxxxxx
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EXHIBIT 1.1(A)
FORM OF
ASSIGNMENT AND ASSUMPTION AGREEMENT
Reference is made to the Amended and Restated Credit Agreement dated
October 16, 2000 (as amended, supplemented or modified from time to time, the
"Credit Agreement") among TRIUMPH GROUP, INC. (the "Borrower"), the banks named
therein (the "Banks"), and PNC BANK, NATIONAL ASSOCIATION, as Administrative
Agent for the Banks (the "Administrative Agent"). Unless otherwise defined
herein, terms defined in the Credit Agreement are used herein with the same
meanings.
______________________ (the "Assignor") and _______________________
(the "Assignee"), intending to be legally bound hereby, make this Assignment and
Assumption Agreement this day of _______, ____ and hereby agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, WITHOUT RECOURSE to the
Assignor, a _________ percent (____%) interest in and to all of the Assignor's
rights and obligations under the Credit Agreement as of the Effective Date (as
defined below), including without limitation, such percentage interest in the
Assignor's Revolving Credit Commitment as in effect on the Effective Date, the
Loans owing to the Assignor on the Effective Date and the Note evidencing the
outstanding Loans held by the Assignor.
2. The Assignor (i) represents and warrants that, as of the date hereof,
its Revolving Credit Commitment is $_______, the unpaid principal amount of the
Revolving Credit Loans owing to the Assignor is $_______; (ii) represents and
warrants that it is the legal and beneficial owner of the interest being
assigned by it hereunder and that such interest is free and clear of any adverse
claim; (iii) makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with the Credit Agreement or any of the Loan Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any of the Loan Documents or any other instrument or
document furnished pursuant thereto; (iv) makes no representation or warranty
and assumes no responsibility with respect to the financial condition of
Borrower, or the performance or observance by Borrower of any of its obligations
under the Credit Agreement or any of the Loan Documents or any other instrument
or document furnished pursuant thereto; and (v) attaches the Note referred to in
paragraph 1 above and requests that the Administrative Agent exchange such Notes
for new Note(s) as follows:
[insert instructions re: replacement Note(s)]
3. The Assignee (i)confirms that it has received a copy of the Credit
Agreement, together with copies of the Borrower's financial statements referred
to in the Credit Agreement and such other documents and information as it has
deemed appropriate to make its own credit
-84-
analysis and decision to enter into this Assignment and Assumption; (ii) agrees
that it will, independently and without reliance upon the Administrative Agent,
the Assignor or any other Bank, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Credit Agreement; (iii) appoints and
authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof; (iv) agrees that it will become a
party to and be bound by the Credit Agreement on the Effective Date (including
without limitation the provisions of Section 10.11) as if it were an original
Bank thereunder and will have the rights and obligations of a Bank thereunder
and will perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement are required to be performed by it as a Bank;
and (v) specifies as its address for notices the office set forth beneath its
name on the signature pages hereof.
4. The effective date of this Assignment and Assumption Agreement shall be
____________ __, ____ (the "Effective Date"). Following the execution of this
Assignment and Assumption, it will be delivered to the Administrative Agent for
acceptance and recording by the Administrative Agent.
5. Upon such acceptance and recording, as of the Effective Date, (i) the
Assignee shall be a party to the Credit Agreement and, to the extent provided in
this Assignment and Assumption Agreement, have the rights and obligations of a
Bank thereunder and under the Loan Documents and (ii) the Assignor shall, to the
extent provided in this Assignment and Assumption Agreement, relinquish its
rights and be released from its obligations under the Credit Agreement, and the
Revolving Credit Commitments of the Assignor and the Assignee shall be as set
forth in Schedule I hereto.
6. Upon such acceptance and recording, from and after the Effective Date,
the Administrative Agent shall make all payments under the Credit Agreement and
the Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest, Commitment Fees and Letter of
Credit Fees with respect thereto) to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments under the Credit Agreement
and the Notes for periods prior to the Effective Date directly between
themselves.
7. The Assignor makes this assignment to the Assignee in consideration of
the payment by the Assignee to the Assignor of $________, receipt of which is
hereby acknowledged by the Assignee.
7. The Assignor has paid to the Administrative Agent, contemporaneously
with the execution and delivery of this Assignment and Assumption Agreement, the
$3,500 service fee required to be paid pursuant to Section 10.11 of the Credit
Agreement.
8. This Assignment and Assumption Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania
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9. [This section is applicable only if the Assignee is incorporated
outside of the United States.] Assignee has delivered at least five (5) Business
Days prior to the Effective Date two duly completed copies of Internal Revenue
Service Form W-9, 4224 or 1001, or other applicable form prescribed by the
Internal Revenue Service, certifying that such Assignee is entitled to receive
payments under the Credit Agreement and the other Loan Documents without
deduction or withholding of any United States federal income taxes, or is
subject to such tax at a reduced rate under an applicable tax treaty.
[Alternative: Assignee has delivered at least five (5) Business Days prior to
the Effective Date two duly completed copies of Internal Revenue Service Form
W-8 of Assignee indicating that Assignee is subject to withholding of United
States federal income taxes.]
[NAME OF ASSIGNOR]
By:________________________
Name:___________________
Title:__________________
[NAME OF ASSIGNEE]
By:________________________
Name:___________________
Title:__________________
Notice Address:
___________________________
___________________________
___________________________
Telephone No.:_____________
Telecopier No.:____________
Attn:______________________
CONSENTED TO this
day of ______________________, ____
TRIUMPH GROUP, INC.,
By: __________________________
Title: _______________________
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SCHEDULE I
Amount of Commitment Amount of Revolving Amount of Term Loans
for Revolving Credit Credit Loans as of the held as of the
Loans as of the Effective Date Effective Date
Effective Date
[Assignor] $__________________ $_________________ $_________________
[Assignee] $__________________ $__________________ $_________________
SCHEDULE 1.1(B)
--------------------------------------------------------------------------------
AMOUNT OF COMMITMENT FOR
BANK NAME REVOLVING CREDIT LOANS PERCENTAGE
--------------------------------------------------------------------------------
PNC Bank, National 85,000,000 0.2428571429
Association
--------------------------------------------------------------------------------
First Union National Bank 60,000,000 0.1714285714
--------------------------------------------------------------------------------
Bank of America, N.A. 50,000,000 0.1428571429
--------------------------------------------------------------------------------
Mellon Bank, N.A. 45,000,000 0.1285714286
--------------------------------------------------------------------------------
National City Bank 20,000,000 0.0571428571
--------------------------------------------------------------------------------
Fleet National Bank 20,000,000 0.0571428571
--------------------------------------------------------------------------------
Summit Bank 20,000,000 0.0571428571
--------------------------------------------------------------------------------
SunTrust Bank 20,000,000 0.0571428571
--------------------------------------------------------------------------------
Allfirst Bank 17,500,000 0.0500000000
--------------------------------------------------------------------------------
The Bank of New York 12,500,000 0.0357142857
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Total 350,000,000 1.00000
--------------------------------------------------------------------------------
EXHIBIT 1.1(P)
Pricing Grid(1)
----------------------------------------------------------------------------------------------
LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
----------------------------------------------------------------------------------------------
If the Total If the Total If the Total
Indebtedness Indebtedness Indebtedness If the
to EBITDA to EBITDA to EBITDA Company's
If the Total Ratio is Ratio is Ratio is Total
Indebtedness greater than greater than greater than Indebtedness
to EBITDA 1.00 to 1 but 1.50 to 1 but 2.00 to 1 but to EBITDA
Ratio is less less than or less than or less than or ratio is
than or equal equal to 1.50 equal to 2.00 equal to 2.50 greater than
Basis for Pricing to 1.00 to 1. to 1. to 1. to 1. 2.50 to 1.
----------------------------------------------------------------------------------------------
Commitment Fee(2) 17.5 20.0 25.0 30.0 37.5
----------------------------------------------------------------------------------------------
Euro-Rate plus(3) 75.0 100.0 125.0 150.0 175.0
----------------------------------------------------------------------------------------------
Base Rate plus(2) 0 0 0 0 0
----------------------------------------------------------------------------------------------
Letter of Credit 75.0 100.0 125.0 150.0 175.0
Fee (2)
----------------------------------------------------------------------------------------------
(1) All prices are expressed in basis points per annum; basis points in
"Euro-Rate" and "Base Rate" rows represent margins added to those rates in
computing the interest rate(s) payable on the Revolving Credit Loans.
Pricing levels are determined quarterly on the basis of the Total
Indebtedness to EBITDA Ratio set forth in the compliance certificates
submitted under Section 7.3.3. which shall be on a pro forma basis to take
into account acquisitions made during such quarter, as more specifically
described in Section 7.2.6(ii) (e) and (f). Changes in pricing levels will
become effective on the fifth Business Day following the Administrative
Agent's receipt of a compliance certificate indicating a change in the
Total Indebtedness to EBITDA Ratio which requires a change in pricing
level. Pricing will commence and continue at Level IV until any change is
necessitated by the Total Indebtedness to EBITDA Ratio. Other Pricing
Levels will not be available to the Borrower prior to the receipt by the
Administrative Agent of Borrower's compliance certificate for the quarter
ended June 30, 2000.
(2) Commitment Fees, Base Rate interest and Letter of Credit Fees are
calculated on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed.
(3) Euro-Rate interest is calculated on the basis of a year of 360 days and
actual days elapsed.
EXHIBIT 1.1(R)
FORM OF
REVOLVING CREDIT NOTE
$___________________________ Pittsburgh, Pennsylvania
------------------, ----
FOR VALUE RECEIVED, the undersigned, Triumph Group, Inc., a Delaware
corporation (herein called the "Borrower"), hereby promises to pay to the order
of ___________ (the "Bank") the lesser of (i) the principal sum of
__________________________ U.S. Dollars (U.S. $_____________), or (ii) the
aggregate unpaid principal balance of all Revolving Credit Loans made by the
Bank to the Borrower pursuant to Section 2.1 of the Amended and Restated Credit
Agreement dated October 16, 2000 between the Borrower, the Bank and PNC Bank,
National Association, as Administrative Agent (the "Credit Agreement"),
whichever is less, payable on the Expiration Date.
The Borrower shall pay interest on the unpaid principal balance
hereof from time to time outstanding from the date hereof at the rate or rates
per annum specified by the Borrower pursuant to Section 3 of, or as otherwise
provided in, the Credit Agreement.
Upon the occurrence and during the continuation of an Event of
Default, the Borrower shall pay interest on the entire principal amount of the
then outstanding Revolving Credit Loans evidenced by this Revolving Credit Note
at a rate per annum (based on a year of 360 days and actual days elapsed) equal
to two hundred basis points (2% per annum) above the rate of interest otherwise
applicable with respect to such loans. Such interest rate will accrue before and
after any judgment has been entered.
Subject to the provisions of the Credit Agreement, interest on this
Revolving Credit Note will be payable on the last Business Day of each calendar
month after the date hereof and on the Expiration Date.
If any payment or action to be made or taken hereunder shall be
stated to be or become due on a day which is not a Business Day, such payment or
action shall be made or taken on the next following Business Day and such
extension of time shall be included in computing interest or fees, if any, in
connection with such payment or action.
Subject to the provisions of the Credit Agreement, payments of both
principal and interest shall be made without setoff, counterclaim or other
deduction of any nature at the office of the Administrative Agent located at
Xxxxx Xxxxxx xxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, in lawful money of
the United States of America in immediately available funds.
This Note is the Revolving Credit Note referred to in, and is
entitled to the benefits of, the Credit Agreement and other Loan Documents,
including the representations,
warranties, covenants, conditions, security interests or Liens contained or
granted therein. The Credit Agreement among other things contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayment, in certain circumstances, on account of principal
hereof prior to maturity upon the terms and conditions therein specified.
All capitalized terms used herein shall, unless otherwise defined
herein, have the same meanings given to such terms in the Credit Agreement.
Except as otherwise provided in the Credit Agreement, the Borrower
waives presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of
this Note and the Credit Agreement.
This Note shall bind the Borrower and its successors and assigns,
and the benefits hereof shall inure to the benefit of the Bank and its
successors and assigns. All references herein to the "Borrower" and the "Bank"
shall be deemed to apply to the Borrower and the Bank, respectively, and their
respective successors and assigns.
This Note and any other documents delivered in connection herewith
and the rights and obligations of the parties hereto and thereto shall for all
purposes be governed by and construed and enforced in accordance with the
internal laws of the Commonwealth of Pennsylvania without giving effect to its
conflicts of law principles.
IN WITNESS WHEREOF, the undersigned has executed this Note by its
duly authorized officers with the intention that it constitute a sealed
instrument.
ATTEST: TRIUMPH GROUP, INC.
Title:____________________ By:_______________________
Title:____________________
[Seal]
-2-
EXHIBIT 2.4
FORM OF
LOAN REQUEST FORM
TO: PNC BANK, NATIONAL ASSOCIATION AS AGENT
Telephone No.: [____________]
Telecopier No.: [____________]
Attention: [________________]
FROM: TRIUMPH GROUP, INC.
RE: Amended and Restated Credit Agreement (the "Credit Agreement") dated as of
October 16, 2000 by and among TRIUMPH GROUP, INC. the "Borrower"), the
banks named therein (the "Banks") and PNC BANK, NATIONAL ASSOCIATION, in
its capacity as agent for the Banks.
(A) Pursuant to Section 2.4 of the Credit Agreement, the undersigned
hereby makes the following Revolving Credit Loan Request:
(1) Principal Amount of Loan
U.S.$__________________
(2) Proposed Borrowing Date: _______________________
(B) As of the date hereof and the date of making of the
Loans: the representations and warranties contained in
Article 5 of the Credit Agreement are and will be true
(except representations and warranties that expressly
relate solely to an earlier date or time, which
representations and warranties were true on and as of
the specific date referred to therein); the Borrower has
performed and complied with all covenants and conditions
of the Agreement; no Event of Default or Potential
Default has occurred and is continuing or shall exist;
and the making of the Loans shall not contravene any Law
applicable to the Borrower.
Capitalized terms used but not defined herein shall have the
meanings given to them in the Agreement.
The undersigned certifies to the accuracy of the foregoing.
TRIUMPH GROUP, INC.
Date:___________________ By:________________________
Its:_______________________
EXHIBIT 7.3.3
FORM OF
COMPLIANCE CERTIFICATE
[Date]
PNC Bank, National Association, as Agent
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Ladies and Gentlemen:
I refer to the Amended and Restated Credit Agreement dated as of
October 16, 2000 (the "Credit Agreement") among Triumph Group, Inc., the Banks
named therein, and PNC Bank, National Association, as Administrative Agent for
the Banks. Unless otherwise defined herein, terms defined in the Credit
Agreement are used herein with the same meanings.
I, _______________, [President/Chief Executive Officer/Chief
Financial Officer] of the Borrower, do hereby certify on behalf of the Borrower
as of the quarter ended ____________, ____] (the "Report Date"), as follows:
(1) Operating Leases (Section 7.2.15). Payments by the Borrower
and its Subsidiaries on account of operating leases for the
quarter ended on the Report Date were $__________ in the
aggregate, and for the current fiscal year to the Report Date
were $__________ in the aggregate, which is not more than the
permitted amount of 15% of Consolidated Adjusted EBITDA for
the current fiscal year.
(2) Minimum Interest Coverage Ratio (Section 7.2.16) The ratio of
Consolidated EBITDA to Consolidated Interest Expense of the
Borrower is ___ to 1.0 as of the Report Date, which is not
less than the required minimum ratio of 3.0 to 1.0 as of the
Report Date.
(3) Maximum Total Indebtedness to EBITDA Ratio (Section 7.2.17).
The ratio of Consolidated Total Indebtedness to Consolidated
Adjusted EBITDA of the Borrower for the quarter is _______ to
1.0 as of the Report Date, which is not more than the maximum
permitted ratio of 3.0 to 1.0 as of the Report Date.
(4) Minimum Net Worth (Section 7.2.18). The Consolidated Net Worth
of the Borrower is $__________ as of the Report Date, which
amount is not less than the required sum of $219,933,000 plus
(i) 50% of Consolidated Net Income for each fiscal year in
which net income was earned (as opposed to net loss) beginning
with the fiscal year ending March 31, 2001, and each fiscal
year thereafter (with the necessary adjustment to be made as
of the end of the relevant fiscal year) and (ii) 100% of the
proceeds (after the payment of any fees and expenses) from any
capital contribution to, or any sale or issuance of Capital
Stock by the Borrower (with any necessary adjustment to be
made upon the receipt of such proceeds).
(5) Capital Expenditures (Section 7.2.20). Capital expenditures by
the Borrower and its Subsidiaries for the quarter ended on the
Report Date were $__________ in the aggregate, and for the
current fiscal year to the Report Date were $__________ in the
aggregate, which is not more than the permitted amount of 200%
of consolidated depreciation expense for this fiscal year.
(6) Other Covenants The Borrower is in compliance with, and since
the most recent prior Report Date, has at all times complied
with, all other covenants contained in the Credit Agreement
and the Loan Documents.
(7) Representations and Warranties The representations and
warranties of the Borrower contained in Article 5 of the
Credit Agreement are still true as of today.
(8) No Defaults No event has occurred and is continuing which
constitutes an Event of Default or Potential Default or would
constitute an Event of Default but for the requirement that
notice be given or time to elapse or both.
IN WITNESS WHEREOF, the undersigned has executed this Certificate
this _____ day of __________, _____.
TRIUMPH GROUP, INC.
By:___________________________
Name:
Title: [President/Chief
Executive Officer/Chief
Financial Officer]
