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CONFORMED COPY
EXHIBIT 10.45
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CREDIT AGREEMENT
dated as of August 8, 2000,
among
FLOWSERVE CORPORATION,
THE LENDERS NAMED HEREIN,
CREDIT SUISSE FIRST BOSTON,
as Syndication Agent
and
BANK OF AMERICA, N.A.,
as Administrative Agent, Swingline Lender
and Collateral Agent
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CREDIT SUISSE FIRST BOSTON
Joint Lead Book Manager and Joint Lead Arranger
BANK OF AMERICA, N.A.
Joint Lead Book Manager
BANC OF AMERICA SECURITIES LLC
Joint Lead Arranger
ABN AMRO BANK N.V.,
BANK ONE, NA
and
XXXXXXX XXXXX XXXXXX INC.
Co-Documentation Agents
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[CS&M Ref. No. 2163-598]
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Table of Contents
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms .............................................................2
SECTION 1.02. Terms Generally ..........................................................28
SECTION 1.03. Classification of Loans and Borrowings ...................................28
SECTION 1.04. Exchange Rates ...........................................................29
ARTICLE II
The Credits
SECTION 2.01. Commitments ..............................................................29
SECTION 2.02. Loans ....................................................................29
SECTION 2.03. Borrowing Procedure ......................................................31
SECTION 2.04. Evidence of Debt; Repayment of Loans .....................................32
SECTION 2.05. Fees .....................................................................33
SECTION 2.06. Interest on Loans ........................................................34
SECTION 2.07. Default Interest .........................................................34
SECTION 2.08. Alternate Rate of Interest ...............................................35
SECTION 2.09. Termination and Reduction of Commitments .................................35
SECTION 2.10. Conversion and Continuation of Borrowings ................................36
SECTION 2.11. Repayment of Term Borrowings .............................................37
SECTION 2.12. Prepayment ...............................................................40
SECTION 2.13. Mandatory Prepayments ....................................................40
SECTION 2.14. Reserve Requirements; Change in Circumstances ............................42
SECTION 2.15. Change in Legality .......................................................43
SECTION 2.16. Indemnity ................................................................44
SECTION 2.17. Pro Rata Treatment .......................................................45
SECTION 2.18. Sharing of Setoffs .......................................................45
SECTION 2.19. Payments .................................................................46
SECTION 2.20. Taxes ....................................................................46
SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty to
Mitigate ...............................................................................47
SECTION 2.22. Swingline Loans ..........................................................49
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SECTION 2.23. Letters of Credit ........................................................50
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers .....................................................55
SECTION 3.04. Governmental Approvals ...................................................56
SECTION 3.05. Financial Statements .....................................................56
SECTION 3.06. No Material Adverse Change ...............................................57
SECTION 3.07. Title to Properties; Possession Under Leases .............................57
SECTION 3.08. Subsidiaries .............................................................57
SECTION 3.09. Litigation; Compliance with Laws .........................................58
SECTION 3.10. Agreements ...............................................................58
SECTION 3.11. Federal Reserve Regulations ..............................................58
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act ...............58
SECTION 3.13. Use of Proceeds ..........................................................58
SECTION 3.14. Tax Returns ..............................................................59
SECTION 3.15. No Material Misstatements ................................................59
SECTION 3.16. Employee Benefit Plans ...................................................59
SECTION 3.17. Environmental Matters ....................................................59
SECTION 3.18. Insurance ................................................................59
SECTION 3.19. Security Documents .......................................................60
SECTION 3.20. Location of Real Property and Leased Premises ............................60
SECTION 3.21. Labor Matters ............................................................61
SECTION 3.22. Solvency .................................................................61
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events ........................................................62
SECTION 4.02. First Credit Event .......................................................62
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties .....................................67
SECTION 5.02. Insurance ................................................................67
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SECTION 5.03. Obligations and Taxes ....................................................68
SECTION 5.04. Financial Statements, Reports, etc. ......................................69
SECTION 5.05. Litigation and Other Notices .............................................70
SECTION 5.06. Information Regarding Collateral .........................................71
SECTION 5.07. Maintaining Records; Access to Properties and Inspections ................71
SECTION 5.08. Use of Proceeds ..........................................................72
SECTION 5.09. Further Assurances .......................................................72
SECTION 5.10. Interest Rate Protection .................................................73
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness .............................................................73
SECTION 6.02. Liens ....................................................................75
SECTION 6.03. Sale and Lease-Back Transactions .........................................77
SECTION 6.04. Investments, Loans and Advances ..........................................77
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions ................79
SECTION 6.06. Dividends and Distributions; Restrictive Agreements ......................80
SECTION 6.07. Transactions with Affiliates .............................................81
SECTION 6.08. Business of Borrower and Subsidiaries ....................................81
SECTION 6.09. Other Indebtedness and Agreements ........................................82
SECTION 6.10. Capital Expenditures .....................................................82
SECTION 6.11. Interest Coverage Ratio ..................................................83
SECTION 6.12. Fixed Charge Coverage Ratio ..............................................83
SECTION 6.13. Maximum Leverage Ratio ...................................................84
SECTION 6.14. Designated Senior Indebtedness ...........................................84
SECTION 6.15. Fiscal Year ..............................................................84
ARTICLE VII
Events of Default
ARTICLE VIII
The Agents
SECTION 8.01. Appointment ..............................................................88
SECTION 8.02. Liability of Agents ......................................................89
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SECTION 8.03. Resignation and Replacement ..............................................89
SECTION 8.04. Agent in Individual Capacity .............................................90
SECTION 8.05. Indemnification of Agents ................................................90
SECTION 8.06. No Reliance ..............................................................90
SECTION 8.07. Notice of Default ........................................................91
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices ..................................................................91
SECTION 9.02. Survival of Agreement ....................................................92
SECTION 9.03. Binding Effect ...........................................................92
SECTION 9.04. Successors and Assigns ...................................................92
SECTION 9.05. Expenses; Indemnity ......................................................96
SECTION 9.06. Right of Setoff ..........................................................97
SECTION 9.07. Applicable Law ...........................................................97
SECTION 9.08. Waivers; Amendment .......................................................97
SECTION 9.09. Interest Rate Limitation .................................................98
SECTION 9.10. Entire Agreement .........................................................99
SECTION 9.11. WAIVER OF JURY TRIAL .....................................................99
SECTION 9.12. Severability .............................................................99
SECTION 9.13. Counterparts .............................................................99
SECTION 9.14. Headings ................................................................100
SECTION 9.15. Jurisdiction; Consent to Service of Process .............................100
SECTION 9.16. Judgment Currency .......................................................100
SECTION 9.17. Confidentiality .........................................................101
SECTION 9.18. European Monetary Union .................................................102
SECTION 9.19. Release of Collateral ...................................................102
SCHEDULES:
Schedule 1.01(a) -- Guarantors
Schedule 1.01(b) -- Mortgaged Properties
Schedule 1.01(c) -- Inactive Subsidiaries
Schedule 1.01(d) -- Consolidated EBITDA
Schedule 1.01(e) -- Existing Letters of Credit
Schedule 1.01(f) -- Fifth Third Letters of Credit
Schedule 2.01 -- Commitments
Schedule 3.08 -- Subsidiaries
Schedule 3.09 -- Litigation
Schedule 3.17 -- Environmental Matters
Schedule 3.18 -- Insurance
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Schedule 3.19(d) -- Mortgage Filing Offices
Schedule 3.20(a) -- Owned Real Property
Schedule 3.20(b) -- Leased Real Property
Schedule 3.20(c) -- Designated Properties
Schedule 4.02(a) -- Local Counsel
Schedule 6.01(a) -- Existing Indebtedness
Schedule 6.01(d) -- Existing Purchase Money Indebtedness
Schedule 6.01(e) -- Existing Capital Lease Obligations
Schedule 6.01(f) -- Outstanding Industrial Revenue Bonds
Schedule 6.01(g) -- Existing Indebtedness of Foreign Subsidiaries
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Existing Intercompany Loans
EXHIBITS:
Exhibit A -- Administrative Questionnaire
Exhibit B -- Assignment and Acceptance
Exhibit C -- Borrowing Request
Exhibit D -- Guarantee Agreement
Exhibit E -- Indemnity, Subrogation and Contribution Agreement
Exhibit F-1 -- Mortgage
Exhibit F-2 -- Deed of Trust
Exhibit G -- Pledge Agreement
Exhibit H -- Security Agreement
Exhibit I-1 -- Opinion of Shearman & Sterling
Exhibit I-2 -- Opinion of Xxxx X. Xxxxx
Exhibit I-3 -- Opinion of Local Counsel
Exhibit J -- U.K. Debenture
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CREDIT AGREEMENT dated as of August 8, 2000,
among FLOWSERVE CORPORATION, a New York corporation
(the "Borrower"), the Lenders (as defined in Article
I), CREDIT SUISSE FIRST BOSTON, a bank organized
under the laws of Switzerland, acting through its New
York branch ("CSFB"), as syndication agent (the
"Syndication Agent"), and BANK OF AMERICA, N.A., a
national banking association ("BofA"), as swingline
lender (in such capacity, the "Swingline Lender"), as
administrative agent (in such capacity, the
"Administrative Agent") and as collateral agent (in
such capacity, the "Collateral Agent") for the
Lenders.
Pursuant to the Purchase Agreement (such term and each other
capitalized term used but not defined herein having the meaning given it in
Article I), the Borrower will acquire (the "Acquisition"), directly or
indirectly, 100% of the partnership interests of IDP from the Sellers for
$775,000,000 in cash, subject to adjustment as set forth in the Purchase
Agreement.
The Borrower has requested the Lenders to extend credit in the form of
(a) Tranche A Term Loans on the Closing Date, in an aggregate principal amount
not in excess of $275,000,000, (b) Tranche B Term Loans on the Closing Date, in
an aggregate principal amount not in excess of $475,000,000, and (c) Revolving
Loans at any time and from time to time prior to the Revolving Credit Maturity
Date, in an aggregate principal amount at any time outstanding not in excess of
$300,000,000. The Borrower has requested the Swingline Lender to extend credit,
at any time and from time to time prior to the Revolving Credit Maturity Date,
in the form of Swingline Loans. The Borrower has requested the Issuing Banks to
issue letters of credit, in an aggregate face amount at any time outstanding not
in excess of $200,000,000 (or the Alternative Currency Equivalent thereof), to
support payment obligations incurred in the ordinary course of business by the
Borrower and its Subsidiaries. The proceeds of the Term Loans are to be used,
together with the proceeds of the Subordinated Notes, solely to finance the
Acquisition, to refinance the Existing Debt and to pay related fees and
expenses, and the proceeds of the Revolving Loans and the Swingline Loans are to
be used solely for general corporate purposes.
The Lenders are willing to extend such credit to the Borrower and the
Issuing Banks are willing to issue letters of credit for the account of the
Borrower and the Subsidiaries on the terms and subject to the conditions set
forth herein. Accordingly, the parties hereto agree as follows:
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABN" shall mean ABN Amro Bank N.V. and any successor thereto.
"ABN Standby Credit" shall mean bank guarantees, surety and performance
bonds, letters of credit and similar financial accommodations issued by ABN or
any Affiliate thereof for the account of the Borrower or any Subsidiary solely
to support contractual obligations of the Borrower and its Subsidiaries incurred
in the ordinary course of business of the Borrower and its Subsidiaries.
"ABN Standby Credit Exposure" shall mean, at any time, the sum of (a)
the aggregate principal amount available to be drawn under all ABN Standby
Credits at such time and (b) the aggregate principal amount of all disbursements
or payments made by ABN or any of its Affiliates under any ABN Standby Credit
and not reimbursed by the Borrower or its Subsidiaries at such time. For
purposes of determining the ABN Standby Credit Exposure at any time, any amount
included therein that is denominated in a currency other than dollars shall be
converted to dollars at the applicable Exchange Rate in effect at such time.
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Acquisition" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Adjusted LIBO Rate" shall mean, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the product of (a) the LIBO Rate
in effect for such Interest Period and (b) Statutory Reserves.
"Administrative Agent Fees" shall have the meaning assigned to such
term in Section 2.05(b).
"Administrative Agent's Fee Letter" shall mean the Administrative
Agent's Fee Letter dated March 23, 2000, between the Borrower and BofA.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A, or such other form as may be supplied
from time to time by the Administrative Agent.
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"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified, provided that for purposes of Section 6.07, the term "Affiliate"
shall also include any person that directly or indirectly owns more than 5% of
any class of capital stock or other equity interests of the person specified or
that is an officer or director of the person specified.
"Agents" shall mean the Administrative Agent, the Collateral Agent and
the Syndication Agent.
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount
of the Lenders' Revolving Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. If for any reason the Administrative
Agent shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Federal Funds Effective Rate
for any reason, including the inability or failure of the Administrative Agent
to obtain sufficient quotations in accordance with the terms of the definition
thereof, the Alternate Base Rate shall be determined without regard to clause
(b) of the preceding sentence, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to a change
in the Prime Rate or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively. The term "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by the Administrative Agent as its
prime rate in effect at its principal office in Charlotte, North Carolina; each
change in the Prime Rate shall be effective on the date such change is publicly
announced as being effective. The term "Federal Funds Effective Rate" shall
mean, for any day, the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average of the quotations for the day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Alternative Currency" shall mean, with respect to any Letter of
Credit, Sterling, euro and any other freely transferable currency (other than
dollars) in which such Letter of Credit shall be denominated, as requested by
the Borrower and agreed to by the applicable Issuing Bank, with prior written
notice to the Administrative Agent.
"Alternative Currency Equivalent" shall mean, on any date of
determination, with respect to an amount in dollars, the equivalent thereof in
the relevant Alternative Currency of such amount, determined by the
Administrative Agent using the Exchange Rate with respect to such Alternative
Currency then in effect pursuant to Section 1.04.
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"Alternative Currency Letter of Credit" shall mean any Letter of Credit
denominated in an Alternative Currency.
"Applicable Percentage" shall mean, for any day, with respect to any
Loan, the applicable percentage set forth below under the caption "Eurocurrency
Spread--Tranche A Term Loans and Revolving Loans", "ABR Spread--Tranche A Term
Loans and Revolving Loans", "Eurocurrency Spread--Tranche B Term Loans" or "ABR
Spread-- Tranche B Term Loans", as the case may be, based upon the Leverage
Ratio as of the relevant date of determination (provided that in the case of
Swingline Loans, the applicable percentage shall be as set forth below under the
caption "ABR Spread-- Tranche A Term Loans and Revolving Loans"):
==============================================================================================================
Eurocurrency ABR Spread--
Spread--Tranche A Tranche A Term Eurocurrency ABR Spread--
Term Loans and Loans and Spread--Tranche B Tranche B
Leverage Ratio Revolving Loans Revolving Loans Term Loans Term Loans
--------------------------------------------------------------------------------------------------------------
Category 1
Greater than or
equal to 4.00 to 2.75% 1.75% 3.50% 2.50%
1.00
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Category 2
Greater than or
equal to 3.50 to
1.00 but less 2.50% 1.50% 3.50% 2.50%
than 4.00 to
1.00
--------------------------------------------------------------------------------------------------------------
Category 3
Greater than or
equal to 3.00 to
1.00 but less 2.25% 1.25% 3.25% 2.25%
than 3.50 to
1.00
--------------------------------------------------------------------------------------------------------------
Category 4
Greater than or
equal to 2.50 to
1.00 but less 1.75% 0.75% 3.25% 2.25%
than 3.00 to
1.00
--------------------------------------------------------------------------------------------------------------
Category 5
1.50% 0.50% 3.25% 2.25%
Less than 2.50
to 1.00
==============================================================================================================
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Each change in the Applicable Percentage resulting from a change in the
Leverage Ratio shall be effective with respect to all Loans and Letters of
Credit outstanding on and after the date of delivery to the Administrative Agent
of the financial statements and certificates required by Section 5.04(a) or (b)
and Section 5.04(d), respectively, indicating such change until the date
immediately preceding the next date of delivery of such financial statements and
certificates indicating another such change. Notwithstanding the foregoing,
until the Borrower shall have delivered the financial statements and
certificates required by Section 5.04(a) or (b) and Section 5.04(d),
respectively, for the period ended March 31, 2001, the Leverage Ratio shall be
deemed to be in Category 1 for purposes of determining the Applicable
Percentage; provided, however, that (a) at any time during which the Borrower
has failed to deliver the financial statements and certificates required by
Section 5.04(a) or (b) and Section 5.04(d), respectively, or (b) at any time
after the occurrence and during the continuance of an Event of Default, the
Leverage Ratio shall be deemed to be in Category 1 for purposes of determining
the Applicable Percentage.
"Asset Sale" shall mean the sale, transfer or other disposition (by way
of merger, casualty, condemnation or otherwise), other than an Asset Swap, by
the Borrower or any of the Subsidiaries to any person other than the Borrower or
any Subsidiary Guarantor of (a) any capital stock or other equity interests of
any of the Subsidiaries (other than directors' qualifying shares) or (b) any
other assets of the Borrower or any of the Subsidiaries (other than (i)
inventory, damaged, obsolete or worn out assets, scrap and Permitted
Investments, in each case disposed of in the ordinary course of business, (ii)
the sale of Program Receivables pursuant to the Receivables Program, (iii)
dispositions between or among Subsidiaries that are not Loan Parties, (iv)
dispositions from Loan Parties to Subsidiaries that are not Loan Parties of
assets having an aggregate value not in excess of $25,000,000 and (v) sales,
transfers or other dispositions (in addition to those described in clauses (i)
through (iv) above) in any fiscal year of the Borrower of assets (other than
Consent Decree Assets) having an aggregate value not in excess of $5,000,000).
"Asset Swap" shall mean any transfer of assets of the Borrower or any
Subsidiary to any person other than the Borrower or any Affiliate of the
Borrower in exchange for assets of such person if such exchange would qualify,
whether in part or in full, as a
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like-kind exchange pursuant to Section 1031 of the Code. Nothing in this
definition shall require the Borrower or any Subsidiary to elect that Section
1031 of the Code be applicable to any Asset Swap.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrowing" shall mean (a) Loans of the same Class and Type made,
converted or continued on the same date and, in the case of a Eurocurrency
Borrowing, as to which a single Interest Period is in effect or (b) a Swingline
Loan.
"Borrowing Request" shall mean a request by the Borrower in accordance
with the terms of Section 2.03 and substantially in the form of Exhibit C, or
such other form as shall be approved by the Administrative Agent.
"Business Day" shall mean any day other than a Saturday, Sunday or day
on which banks in New York City or Los Angeles are authorized or required by law
to close; provided, however, that when used in connection with a Eurocurrency
Loan, the term "Business Day" shall also exclude any day on which banks are not
open for dealings in dollar deposits in the London interbank market.
"Calculation Date" shall mean (a) the last Business Day of each month,
if any Alternative Currency Letter of Credit is outstanding on such day, and (b)
the Business Day preceding the date of issuance, extension, renewal or amendment
of any Alternative Currency Letter of Credit.
"Capital Expenditures" shall mean, for any period, (a) the additions to
property, plant and equipment and other capital expenditures of the Borrower and
its consolidated Subsidiaries that are (or should be) set forth in a
consolidated statement of cash flows of the Borrower for such period prepared in
accordance with GAAP and (b) Capital Lease Obligations incurred by the Borrower
and its consolidated Subsidiaries during such period, but excluding in each case
any such expenditure made to restore, replace or rebuild property to the
condition of such property immediately prior to any damage, loss, destruction or
condemnation of such property, to the extent such expenditure is made with
insurance proceeds, condemnation awards or damage recovery proceeds relating to
any such damage, loss, destruction or condemnation; provided, however, that
amounts reinvested as contemplated in the proviso to clause (a) in the
definition of Net Cash Proceeds shall not be deemed Capital Expenditures.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of
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such person under GAAP, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with GAAP.
"Casualty" shall have the meaning assigned to such term in the
Mortgages.
"Casualty Proceeds" shall have the meaning assigned to such term in the
Mortgages.
A "Change in Control" shall be deemed to have occurred if (a) any
person or group (within the meaning of Rule 13d-5 of the Securities Exchange Act
of 1934 as in effect on the date hereof) shall own directly or indirectly,
beneficially or of record, shares representing more than 25% of the aggregate
ordinary voting power represented by the issued and outstanding capital stock of
the Borrower; (b) a majority of the seats (other than vacant seats) on the board
of directors of the Borrower shall at any time be occupied by persons who were
neither (i) nominated by the board of directors of the Borrower, nor (ii)
appointed by directors so nominated; or (c) any change in control (or similar
event, however denominated) with respect to the Borrower or any Subsidiary shall
occur under and as defined in any indenture or agreement in respect of Material
Indebtedness to which the Borrower or any Subsidiary is a party.
"Change in Law" shall mean (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
Issuing Bank (or, for purposes of Section 2.14, by any lending office of such
Lender or by such Lender's or Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Tranche A Term Loans, Tranche B Term Loans or Swingline Loans and, when used in
reference to any Commitment, refers to whether such Commitment is a Revolving
Credit Commitment, Tranche A Commitment, Tranche B Commitment or Swingline
Commitment.
"Closing Date" shall mean August 8, 2000.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean all the "Collateral" as defined in any Security
Document and shall also include the Mortgaged Properties.
"Commitment" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment, Term Loan Commitment and/or Swingline Commitment.
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"Commitment Fee" shall have the meaning assigned to such term in
Section 2.05(a).
"Condemnation" shall have the meaning assigned to such term in the
Mortgages.
"Condemnation Proceeds" shall have the meaning assigned to such term in
the Mortgages.
"Confidential Information Memorandum" shall mean the
Confidential Information Memorandum of the Borrower dated March 2000.
"Consent Decree" shall mean the consent decree dated July 28, 2000, in
the matter of United States of America v. Flowserve Corporation,
Ingersoll-Dresser Pump Company and Xxxxxxxxx Xxxx Company relating to the
purchase of Ingersoll-Dresser Pump Company by Flowserve Corporation.
"Consent Decree Assets" shall mean the assets identified in the Consent
Decree that the Borrower, IDP and Xxxxxxxxx-Xxxx Company have been ordered and
directed to divest in connection with the Acquisition.
"Consolidated EBITDA" shall mean, for any period, Consolidated Net
Income for such period, plus (a) without duplication and to the extent deducted
in determining such Consolidated Net Income, the sum of (i) Consolidated
Interest Expense for such period, (ii) consolidated income tax expense for such
period, (iii) all amounts attributable to depreciation and amortization for such
period, (iv) any extraordinary non-cash charges for such period and (v) cash
integration and restructuring charges in connection with the Acquisition and
taken with respect to periods ended on or prior to December 31, 2001, in an
aggregate amount not to exceed $65,000,000, and minus (b) without duplication
and to the extent included in determining such Consolidated Net Income, any
extraordinary gains for such period, all determined on a consolidated basis in
accordance with GAAP; provided that in the case of the Borrower, Consolidated
EBITDA shall be determined with reference to Schedule 1.01(d).
"Consolidated Fixed Charges" shall mean, for any period, the sum of (a)
Consolidated Interest Expense for such period, (b) the aggregate amount of
scheduled principal payments (whether or not made) during such period in respect
of long term Indebtedness of the Borrower and the Subsidiaries (other than
payments made by the Borrower or any Subsidiary to the Borrower or a
Subsidiary), (c) Capital Expenditures for such period, (d) the aggregate amount
of Taxes paid in cash by the Borrower and the Subsidiaries during such period
and (e) the aggregate amount of Restricted Payments made in cash by the Borrower
and the Subsidiaries during such period in accordance with Section 6.06(a)
(other than Section 6.06(a)(i)).
"Consolidated Interest Expense" shall mean, for any period, for the
Borrower and its Subsidiaries on a consolidated basis, the sum, without
duplication, of (a) all interest, premium payments, fees, charges and related
expenses payable by the Borrower and its Subsidiaries in connection with
borrowed money (including capitalized interest) or in
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connection with the deferred purchase price of assets, in each case to the
extent treated as interest in accordance with GAAP and payable in cash, (b) the
portion of rent payable by the Borrower and its Subsidiaries with respect to
such period under capital leases that is treated as interest in accordance with
GAAP and payable in cash and (c) all fees, discounts, premiums, expenses or
similar amounts incurred by the Borrower or any of its Subsidiaries in
connection with the Receivables Program for such period, including purchase
discounts (net of any loss reserves), purchase premiums, operating expense fees,
structuring fees, collection agent fees, unutilized purchase limit fees and
other similar fees and expenses. For purposes of determining the Interest
Coverage Ratio and the Fixed Charge Coverage Ratio at (i) September 30, 2000,
(ii) December 31, 2000 and (iii) March 31, 2001, Consolidated Interest Expense
shall be deemed to be (x) the sum of the actual Consolidated Interest Expense
for the fiscal quarter ending September 30, 2000, plus $87,000,000, (y) the sum
of the actual Consolidated Interest Expense for the two-fiscal quarter period
ending December 31, 2000, plus $57,000,000, and (z) the sum of the actual
Consolidated Interest Expense for the three-fiscal quarter period ending March
31, 2001, plus $29,000,000, respectively.
"Consolidated Net Income" shall mean, for any period, the net income or
loss of the Borrower and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income of any Subsidiary to the extent that the declaration or
payment of dividends or similar distributions by the Subsidiary of that income
is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, statute, rule or regulation applicable
to such Subsidiary and (b) the income or loss of any person accrued prior to the
date it becomes a Subsidiary or is merged into or consolidated with the Borrower
or any Subsidiary or the date that such person's assets are acquired by the
Borrower or any Subsidiary.
"Control" 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, and the terms "Controlling" and "Controlled" shall have meanings
correlative thereto.
"Credit Event" shall have the meaning assigned to such term in Section
4.01.
"Current Assets" shall mean, at any time, the consolidated current
assets (other than cash and Permitted Investments) of the Borrower and the
Subsidiaries.
"Current Liabilities" shall mean, at any time, the consolidated current
liabilities of the Borrower and the Subsidiaries at such time, but excluding,
without duplication, (a) the current portion of any long-term Indebtedness and
(b) outstanding Revolving Loans and Swingline Loans.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
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"Defeased IRBs" shall mean the industrial revenue bonds due January 15,
2015 and issued by The City of Albuquerque, New Mexico in the aggregate
principal amount of $15,000,000.
"Designated Properties" shall have the meaning assigned to such term in
Section 3.20(c).
"dollars" or "$" shall mean lawful money of the United States of
America.
"Dollar Equivalent" shall mean, with respect to an amount of any
Alternative Currency on any date, the equivalent in dollars of such amount,
determined by the Administrative Agent pursuant to Section 1.04 using the
applicable Exchange Rate with respect to such currency at the time in effect.
"Dollar Subordinated Note Indenture" shall mean the indenture dated as
of August 8, 2000, between the Borrower, the Guarantors identified therein and
The Bank of New York, as trustee, as in effect on the Closing Date and as
thereafter amended from time to time in accordance with the requirements thereof
and of this Agreement, pursuant to which the Dollar Subordinated Notes are
issued.
"Dollar Subordinated Notes" shall mean the Borrower's 12-1/4% Senior
Subordinated Notes due 2010, in an initial aggregate principal amount of
$290,000,000, issued pursuant to the Dollar Subordinated Note Indenture and any
notes issued by the Borrower in exchange for the Dollar Subordinated Notes, as
contemplated by the Dollar Subordinated Note Indenture, with substantially
identical terms as the Dollar Subordinated Notes.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"EMU Legislation" shall mean the legislative measures of the European
Union for the introduction of, changeover to or operation of the euro in one or
more member states.
"Environmental Laws" shall mean all applicable Federal, state, local
and foreign laws (including common law), treaties, regulations, rules,
ordinances, codes, decrees, judgments and orders (including consent orders), in
each case, relating to protection of the environment, natural resources, human
health and safety as related to Hazardous Materials or the presence, Release of,
or exposure to, Hazardous Materials, or the generation, manufacture, processing,
distribution, use, treatment, storage, transport, recycling or handling of, or
the arrangement for such activities with respect to, Hazardous Materials.
"Environmental Liability" shall mean liabilities,obligations,claims,
actions, suits, judgments or orders under or relating to any Environmental Law
for any damages, injunctive relief, losses, fines, penalties, fees, expenses
(including fees and expenses of
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attorneys and consultants) or costs, including those arising from or relating
to: (a) any action to address the on- or off-site presence, Release of, or
exposure to, Hazardous Materials; (b) permitting and licensing, administrative
oversight, insurance premiums and financial assurance requirements;(c)any
personal injury (including death), property damage (real or personal) or natural
resource damage; and (d) the compliance or non-compliance with any Environmental
Law.
"Equity Issuance" shall mean any issuance or sale by the Borrower or
any of its Subsidiaries of any capital stock or other equity interests of the
Borrower or any Subsidiary, as applicable, or any obligations convertible into
or exchangeable for, or giving any person a right, option or warrant to acquire
such capital stock or equity interests or such convertible or exchangeable
obligations, except in each case for (a) any issuance or sale to the Borrower or
any Subsidiary, (b) any issuance of directors' qualifying shares and (c) sales
or issuances of common stock of the Borrower to management or employees of the
Borrower or any Subsidiary under any employee stock option or stock purchase
plan or employee benefit plan in existence from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of, or withdrawal from, any Plan or the withdrawal or partial
withdrawal of the Borrower or any of its ERISA Affiliates from any Multiemployer
Plan; (e) the receipt by the Borrower or any of its ERISA Affiliates from the
PBGC or a plan administrator of any notice relating to the intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the adoption of any amendment to a Plan that would require the provision of
security pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA; (g)
the receipt by the Borrower or any of its ERISA Affiliates of any notice, or the
receipt by any Multiemployer Plan from the Borrower or any of its ERISA
Affiliates of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA; (h) the occurrence
of a "prohibited transaction" (within the meaning of Section 4975 of the Code)
with respect to which the Borrower or any such Subsidiary incurs liability; (i)
any other event or
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condition with respect to a Plan or Multiemployer Plan that could reasonably be
expected to result in liability of the Borrower; or (j) any Foreign Benefit
Event.
"euro" shall mean the single currency of the European Union as
constituted by the Treaty on European Union and as referred to in the EMU
Legislation.
"Eurocurrency", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Euro Subordinated Note Indenture" shall mean the indenture dated as of
August 8, 2000, between FFBV, the Borrower and the other Guarantors identified
therein and The Bank of New York, as trustee, as in effect on the Closing Date
and as thereafter amended from time to time in accordance with the requirements
thereof and of this Agreement, pursuant to which the Euro Subordinated Notes are
issued.
"Euro Subordinated Notes" shall mean FFBV's 12-1/4% Senior Subordinated
Notes due 2010, in an initial aggregate principal amount of euro 100,000,000,
issued pursuant to the Euro Subordinated Note Indenture and any notes issued by
FFBV in exchange for the Euro Subordinated Notes, as contemplated by the Euro
Subordinated Note Indenture, with substantially identical terms as the Euro
Subordinated Notes.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Excess Cash Flow" shall mean, for any fiscal year of the Borrower, (a)
the sum, without duplication, of (i) Consolidated EBITDA for such fiscal year
and (ii) reductions to noncash working capital of the Borrower and the
Subsidiaries for such fiscal year (i.e., the decrease, if any, in Current Assets
minus Current Liabilities from the beginning to the end of such fiscal year),
other than any such reduction attributable solely to the establishment during
such fiscal year of the Receivables Program, less (b) the sum, without
duplication, of (i) the amount of any Taxes payable in cash by the Borrower and
the Subsidiaries with respect to such fiscal year, (ii) Consolidated Interest
Expense for such fiscal year, (iii) Capital Expenditures made in cash in
accordance with Section 6.10 during such fiscal year, except to the extent
financed with the proceeds of Indebtedness, Equity Issuances, Casualty Proceeds,
Condemnation Proceeds or other proceeds that would not be included in
Consolidated EBITDA, (iv) permanent repayments of Indebtedness (other than
mandatory prepayments of Loans under Section 2.13) made by the Borrower and the
Subsidiaries during such fiscal year, but only to the extent that such
prepayments by their terms cannot be reborrowed or redrawn and do not occur in
connection with a refinancing of all or any portion of such Indebtedness, (v)
for the fiscal year ending December 31, 2001, cash restructuring expenses and
cash integration expenses, to the extent added to Consolidated Net Income in
determining Consolidated EBITDA for such year, (vi) for the fiscal year ending
December 31, 2001, capitalized cash restructuring expenses and cash integration
expenses in an amount not to exceed $15,000,000, (vii) for any period set forth
on Schedule 1.01(d), the amount of synergies and cost savings for such period
added to Consolidated Net Income in determining Consolidated EBITDA for such
period, and (viii) additions to noncash working capital
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for such fiscal year (i.e., the increase, if any, in Current Assets minus
Current Liabilities from the beginning to the end of such fiscal year); provided
that to the extent otherwise included therein, the Net Cash Proceeds of Asset
Sales shall be excluded from the calculation of Excess Cash Flow.
"Exchange Rate" shall mean, on any day with respect to Alternative
Currency, the rate at which such Alternative Currency may be exchanged into
dollars (or, for purposes of the definition of "Alternative Currency Equivalent"
and Section 2.02(f) or any other provision of this Agreement requiring or
permitting the conversion of an Alternative Currency to dollars, the rate at
which dollars may be exchanged into an Alternative Currency), as set forth at
approximately 11:00 a.m., London time, on such date on the Reuters World
Currency Page for such Alternative Currency. In the event that such rate does
not appear on any Reuters World Currency Page, the Exchange Rate shall be
determined by reference to such other publicly available service for displaying
exchange rates as may be agreed upon by the Administrative Agent and the
Borrower, or, in the absence of such agreement, such Exchange Rate shall instead
be the arithmetic average of the spot rates of exchange of the Administrative
Agent in the primary market where its foreign currency exchange operations in
respect of such Alternative Currency are then being conducted, at or about 10:00
a.m., local time, on such date for the purchase of dollars (or such Alternative
Currency, as the case may be) for delivery two Business Days later; provided
that if at the time of any such determination, for any reason, no such spot rate
is being quoted, the Administrative Agent may use any reasonable method it
deems appropriate to determine such rate, and such determination shall be
presumed correct absent manifest error.
"Excluded Taxes" shall mean, with respect to the Administrative Agent,
any Lender, any Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed (or measured) on the basis of the net income of such
recipient by the United States of America, or by the jurisdiction under the laws
of which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable lending office is
located, (b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction in which such recipient is
located and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 2.21(a)), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office) or
is attributable to such Foreign Lender's failure to comply with Section 2.20(e),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from the Borrower with respect to such withholding
tax pursuant to Section 2.20(a).
"Existing Debt" shall mean all principal, premium, if any, interest,
fees and other amounts outstanding under (a) the Credit Agreement dated as of
October 7, 1999, as amended, among the Borrower, the Lenders party thereto,
BofA, as administrative agent, Bank One, Texas, NA, as syndication agent, and
ABN Amro Bank N.V., as
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documentation agent, (b) the 7.14% Series A Senior Notes due November 15, 2006
and (c) the 7.17% Series B Senior Notes due March 31, 2007.
"Existing Letter of Credit" shall mean each Letter of Credit previously
issued for the account of the Borrower or a Subsidiary that (a) is outstanding
on the Closing Date and (b) is listed on Schedule 1.01(e). Existing Letters of
Credit shall be Financial Letters of Credit, Performance Letters of Credit or
Trade Letters of Credit, as indicated on Schedule 1.01(e).
"Fee Letter" shall mean the Fee Letter dated February 9, 2000, among
the Borrower, CSFB, BofA, Banc of America Securities LLC and the Administrative
Agent.
"Fees" shall mean the Commitment Fees, the Administrative Agent's Fees,
the L/C Participation Fees and the Issuing Bank Fees.
"FFBV" shall mean Flowserve Finance B.V.,a Netherlands corporation
(besloten vennootschap) and a wholly owned subsidiary of the Borrower.
"Fifth Third" shall mean Fifth Third Bancorp, an Ohio corporation, its
subsidiaries and any successor thereto.
"Fifth Third Letter of Credit" shall mean each letter of credit
previously issued for the account of the Borrower or a Subsidiary that (a) is
outstanding on the Closing Date and (b) is listed on Schedule 1.01(f).
"Fifth Third Letter of Credit Exposure" shall mean, at any time, the
sum of (a) the aggregate undrawn amount of all outstanding Fifth Third Letters
of Credit at such time and (b) the aggregate principal amount of all
disbursements or payments made by Fifth Third or any of its Affiliates in
respect of Fifth Third Letters of Credit that have not yet been reimbursed by
the Borrower or its Subsidiaries at such time. For purposes of determining the
Fifth Third Letter of Credit Exposure at any time, any amount included therein
that is denominated in a currency other than dollars shall be converted to
dollars at the applicable Exchange Rate in effect at such time.
"Financial Letter of Credit" shall mean each letter of credit issued
(or deemed issued) pursuant to Section 2.23 under which an Issuing Bank agrees
to make payments for the account of the Borrower or any Subsidiary in respect of
Indebtedness incurred or proposed to be incurred by the Borrower or such
Subsidiary. Any Letter of Credit that is neither a Performance Letter of Credit
nor a Trade Letter of Credit shall be deemed to be a Financial Letter of Credit.
"Financial Officer" of any person shall mean the chief financial
officer, principal accounting officer, treasurer or controller of such person.
"Finsub" shall mean a bankruptcy-remote, wholly owned subsidiary of the
Borrower, organized solely for the purpose of engaging in the Receivables
Program.
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"Fixed Charge Coverage Ratio" shall mean, for any period, the ratio of
(a) Consolidated EBITDA for such period to (b) Consolidated Fixed Charges for
such period.
"Flowserve RED" shall mean Flowserve RED Corporation, a Delaware
corporation and a wholly owned subsidiary of the Borrower.
"Foreign Benefit Event" shall mean, with respect to any Foreign Pension
Plan, (a) the existence of unfunded liabilities in excess of the amount
permitted under any applicable law, or in excess of the amount that would be
permitted absent a waiver from a Governmental Authority, (b) the failure to make
the required contributions or payments, under any applicable law, on or before
the due date for such contributions or payments, (c) the receipt of a notice by
a Governmental Authority relating to the intention to terminate any such Foreign
Pension Plan or to appoint a trustee or similar official to administer any such
Foreign Pension Plan, or alleging the insolvency of any such Foreign Pension
Plan and (d) the incurrence of any liability in excess of $5,000,000 (or the
Dollar Equivalent thereof in another currency) by the Borrower or any of its
Subsidiaries under applicable law on account of the complete or partial
termination of such Foreign Pension Plan or the complete or partial withdrawal
of any participating employer therein, or (e) the occurrence of any transaction
that is prohibited under any applicable law that results in the incurrence of
any liability by the Borrower or any of its Subsidiaries, or the imposition on
the Borrower or any of its Subsidiaries of any fine, excise tax or penalty
resulting from any noncompliance with any applicable law, in each case in excess
of $5,000,000 (or the Dollar Equivalent thereof in another currency).
"Foreign Lender" shall mean any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Pension Plan" shall mean any benefit plan which under
applicable law is required to be funded through a trust or other funding vehicle
other than a trust or funding vehicle maintained exclusively by a Governmental
Authority.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" shall mean United States generally accepted accounting
principles applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Granting Lender" shall have the meaning assigned to such term in
Section 9.04(i).
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"Guarantee" of or by any person shall mean any obligation, contingent
or otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of such person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment of such Indebtedness or other obligation, (b)
to purchase or lease property, securities or services for the purpose of
assuring the owner of such Indebtedness or other obligation of the payment of
such Indebtedness or other obligation or (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation; provided,however, that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantee Agreement" shall mean the Guarantee Agreement,substantially
in the form of Exhibit D, made by the Guarantors in favor of the Collateral
Agent for the benefit of the Secured Parties.
"Guarantors" shall mean each person listed on Schedule 1.01(a) and each
other person that becomes party to a Guarantee Agreement as a Guarantor, and the
permitted successors and assigns of each such person.
"Hazardous Materials" shall mean (a) any petroleum products or
byproducts and all other hydrocarbons, coal ash, radon gas, asbestos, urea
formaldehyde foam insulation, polychlorinated biphenyls, chlorofluorocarbons
and all other ozone-depleting substances, in each case regulated by any
Environmental Law, and (b) any chemical, material, substance or waste that is
prohibited, limited or regulated by or pursuant to any Environmental Law.
"Hedging Agreement" shall mean any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"IDP" shall mean Ingersoll-Dresser Pump Company, a Delaware general
partnership.
"Inactive Subsidiary" shall mean each Subsidiary that (i) has not
conducted any business during the twelve-month period preceding the date of
determination and (ii) has less than $50,000 in assets. The Inactive
Subsidiaries on the Closing Date are listed on Schedule 1.01(c).
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money, (b) all obligations of such
person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such person upon which interest charges are customarily paid, (d)
all obligations of such person under conditional sale or other title retention
agreements relating to property or assets
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purchased by such person, (e) all obligations of such person issued or assumed
as the deferred purchase price of property or services (excluding trade accounts
payable and accrued obligations incurred in the ordinary course of business),
(f) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on property owned or acquired by such person, whether or not the
obligations secured thereby have been assumed, (g) all Guarantees by such person
of Indebtedness of third parties, (h) all Capital Lease Obligations of such
person, (i) all obligations of such person as an account party in respect of
letters of credit and (j) all obligations of such person in respect of bankers'
acceptances. The Indebtedness of any person shall include the Indebtedness of
any partnership in which such person is a general partner. In addition, for
purposes of this Agreement, the Indebtedness of Finsub shall also include all
consideration provided to Finsub by the purchaser of Program Receivables less
any amounts collected with respect to such Program Receivables. Notwithstanding
the foregoing, so long as the Defeased IRBs are owned by the Borrower or a
wholly owned subsidiary, neither the Defeased IRBs nor any Guarantee thereof
shall constitute Indebtedness hereunder.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnity, Subrogation and Contribution Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit E, among the Borrower, the Guarantors and the Collateral Agent.
"Interest Coverage Ratio" shall mean, for any period, the ratio of (a)
Consolidated EBITDA for such period to (b) Consolidated Interest Expense for
such period.
"Interest Payment Date" shall mean, (a) with respect to any ABR Loan
(other than a Swingline Loan), the last Business Day of each March, June,
September and December, (b) with respect to any Eurocurrency Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurocurrency Borrowing with an Interest Period of more
than three months' duration, each day that would have been an Interest Payment
Date had successive Interest Periods of three months' duration been applicable
to such Borrowing, and (c) with respect to any Swingline Loan, the day that such
Loan is required to be repaid pursuant to Section 2.04(a).
"Interest Period" shall mean, with respect to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day (or, if there is no numerically corresponding day,
on the last day) in the calendar month that is 1, 2, 3 or 6 months (or, if each
Lender participating in such Borrowing confirms to the Administrative Agent that
Interest Periods of such duration are acceptable to such Lender, 9 or 12 months)
thereafter, as the Borrower may elect; provided, however, that if any Interest
Period would end on a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day. Interest shall accrue from
and including the first day of an Interest Period to but excluding the last day
of
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such Interest Period. For purposes hereof, the date of a Borrowing initially
shall be the date on which such Borrowing is made and thereafter shall be the
effective date of the most recent conversion or continuation of such Borrowing.
"Invatec" shall mean Innovative Valve Technologies, Inc., a Delaware
corporation.
"Investment Grade Ratings" shall mean that the credit rating of the
Borrower's senior unsecured, non-credit-enhanced long-term debt (the "Senior
Unsecured Debt") is (a) BBB- or higher, as determined by S&P, and (b) Baa3 or
higher, as determined by Moody's. The Borrower shall be deemed to have obtained
Investment Grade Ratings if it shall deliver to the Agents letters from S&P and
Moody's to the effect that the Senior Unsecured Debt would be so rated assuming
that the Secured Parties had released their liens in the Collateral.
"Issuing Bank" shall mean, as the context may require, (a) BofA, (b)
with respect to each Existing Letter of Credit, the Lender that issued such
Existing Letter of Credit, or (c) any other Lender that may become an Issuing
Bank pursuant to Section 2.23(i) or 2.23(k), with respect to Letters of Credit
issued by such Lender.
"Issuing Bank Fees" shall have the meaning assigned to such term in
Section 2.05(c).
"L/C Commitment" shall mean, with respect to any Issuing Bank, the
commitment of such Issuing Bank to issue Letters of Credit pursuant to Section
2.23.
"L/C Disbursement" shall mean a payment or disbursement made by an
Issuing Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean, at any time, the sum of (a) the Trade L/C
Exposure and (b) the Standby L/C Exposure at such time. The L/C Exposure of any
Revolving Credit Lender at any time shall equal its Pro Rata Percentage of the
aggregate L/C Exposure at such time.
"L/C Participation Fees" shall have the meaning assigned to such term
in Section 2.05(c).
"Lenders" shall mean (a) the financial institutions listed on Schedule
2.01 (other than any such financial institution that has ceased to be a party
hereto pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance. Unless the context clearly indicates otherwise, the term "Lenders"
shall include the Swingline Lender.
"Letter of Credit" shall mean any letter of credit issued pursuant to
Section 2.23 and any Existing Letter of Credit.
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"Leverage Ratio" shall mean, on any date, the ratio of Total Debt on
such date to Consolidated EBITDA for the period of four consecutive fiscal
quarters most recently ended on or prior to such date. Solely for purposes of
this definition, if at any time the Leverage Ratio is being determined the
Borrower or any Subsidiary shall have completed a Permitted Acquisition or an
Asset Sale since the beginning of the relevant four fiscal quarter period, the
Leverage Ratio shall be computed on a pro forma basis (in accordance with the
last sentence of Section 6.04(g)) as if such Permitted Acquisition or Asset Sale
and any related incurrence of Indebtedness, had occurred at the beginning of
such period.
"LIBO Rate" shall mean, with respect to any Eurocurrency Borrowing for
any Interest Period, the rate per annum determined by the Administrative Agent
at approximately 11:00 a.m., London time, on the date that is two Business Days
prior to the commencement of such Interest Period by reference to the British
Bankers' Association Interest Settlement Rates for deposits in dollars (as
reflected on the applicable Telerate screen) for a period equal to such Interest
Period; provided that, to the extent that an interest rate is not ascertainable
pursuant to the foregoing provisions of this definition, the "LIBO Rate" shall
be the interest rate per annum determined by the Administrative Agent to be the
rate per annum at which deposits in dollars are offered for such relevant
Interest Period to major banks in the London interbank market by the
Administrative Agent at approximately 11:00 a.m. (London time) on the date that
is two Business Days prior to the beginning of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Letters of Credit, the
Guarantee Agreement, the Security Documents and the Indemnity, Subrogation and
Contribution Agreement.
"Loan Parties" shall mean the Borrower and the Guarantors.
"Loans" shall mean the Revolving Loans, the Term Loans and the
Swingline Loans.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" shall mean (a) a materially adverse effect on
the business, assets, results of operations or financial condition of the
Borrower and the Subsidiaries, taken as a whole, (b) material impairment of the
ability of the Borrower or any other Loan Party to perform any of its
obligations under any Loan Document to which it is or will be a party or (c)
material impairment of the rights of or benefits available to the Lenders under
any Loan Document.
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"Material Indebtedness" shall mean Indebtedness (other than the Loans
and Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower and the Subsidiaries in an
aggregate principal amount exceeding $10,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the Borrower
or any Subsidiary in respect of any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that the
Borrower or such Subsidiary would be required to pay if such Hedging Agreement
were terminated at such time.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or any successor
thereto.
"Mortgaged Properties" shall mean the owned real properties and
leasehold and subleasehold interests of the Loan Parties specified on Schedule
1.01(b).
"Mortgages" shall mean the mortgages, deeds of trust, leasehold
mortgages, assignments of leases and rents, modifications and other security
documents delivered pursuant to clause (i) of Section 4.02(j) or pursuant to
Section 5.09, each substantially in the form of Exhibit F.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale, the
cash proceeds (including cash proceeds subsequently received (as and when
received) in respect of noncash consideration initially received), net of (i)
selling expenses (including broker's fees or commissions, legal fees, transfer
and similar taxes and the Borrower's good faith estimate of income taxes paid or
payable in connection with such sale), (ii) amounts provided as a reserve, in
accordance with GAAP, against any liabilities under any indemnification
obligations or purchase price adjustment associated with such Asset Sale
(provided that, to the extent and at the time any such amounts are released from
such reserve, such amounts shall constitute Net Cash Proceeds) and (iii) the
principal amount, premium or penalty, if any, interest and other amounts on any
Indebtedness for borrowed money which is secured by the asset sold in such Asset
Sale and which is required to be repaid with such proceeds (other than any such
Indebtedness assumed by the purchaser of such asset); provided, however, that,
except with respect to the Net Cash Proceeds of Consent Decree Assets, if (x)
the Borrower shall deliver a certificate of a Financial Officer to the
Administrative Agent at the time of receipt thereof setting forth the Borrower's
intent to reinvest such proceeds in productive assets of a kind then used or
usable in the business of the Borrower and its Subsidiaries within 270 days of
receipt of such proceeds and (y) no Default or Event of Default shall have
occurred and shall be continuing at the time of such certificate or at the
proposed time of the application of such proceeds, such proceeds shall not
constitute Net Cash Proceeds except to the extent not so used or contractually
committed to be used at the end of such 270-day period, at which time such
proceeds shall be deemed to be Net Cash Proceeds; and (b) with respect to any
issuance or disposition of Indebtedness or any Equity Issuance or the initial
sale of Program Receivables pursuant to the Receivables Program (or any
subsequent increase thereto permitted hereunder), the cash
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proceeds thereof, net of all taxes and fees, commissions, costs and other
expenses incurred in connection therewith. Any "boot" or other non-like-kind
assets received in connection with an Asset Swap shall, to the extent received
in cash or at the time converted into cash, be considered cash proceeds from the
sale of an asset.
"Obligation Currency" shall have the meaning assigned to such term in
Section 9.16.
"Obligations" shall mean all obligations defined as "Obligations" in
the Guarantee Agreement and the Security Documents.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"Pari Passu Exposure" shall mean, at any time, the sum of the ABN
Standby Credit Exposure at such time and the Fifth Third Letter of Credit
Exposure at such time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"Perfection Certificate" shall mean the Perfection Certificate
substantially in the form of Annex 1 to the Security Agreement.
"Performance Letter of Credit" shall mean each letter of credit issued
(or deemed issued) pursuant to Section 2.23 under which an Issuing Bank agrees
to make payments for the account of the Borrower or any Subsidiary in respect of
obligations (other than Indebtedness) of, or performance by, the Borrower or
such Subsidiary pursuant to contracts to which the Borrower or such Subsidiary
is or proposes to be a party, in each case in the ordinary course of business of
the Borrower or such Subsidiary.
"Permitted Acquisition" shall have the meaning assigned to such term in
Section 6.04(g).
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations
are backed by the full faith and credit of the United States of
America), in each case maturing within one year from the date of
acquisition thereof;
(b) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having, at such date of
acquisition, one of the three highest credit ratings obtainable from
S&P or from Moody's;
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(c) investments in certificates of deposit, banker's acceptances
and time deposits maturing within one year from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any Agent or any
domestic office of any commercial bank organized under the laws of the
United States of America or any State thereof that has a combined
capital and surplus and undivided profits of not less than
$500,000,000;
(d) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria of
clause (c) above;
(e) investments in "money market funds" within the meaning of
Rule 2a-7 of the Investment Company Act of 1940, as amended,
substantially all of whose assets are invested in investments of the
type described in clauses (a) through (d) above; and
(f) other short-term investments utilized by Foreign Subsidiaries
in accordance with normal investment practices for cash management in
investments of a type analogous to the foregoing.
"Person" shall mean any natural person, corporation, business trust,
joint venture, association, company, limited liability company, partnership or
government, or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" shall mean the Pledge Agreement, substantially in
the form of Exhibit G, between the Borrower, the Subsidiaries party thereto and
the Collateral Agent for the benefit of the Secured Parties.
"Program Receivables" shall mean all trade receivables and related
contract rights originated and owned by the Borrower or any Subsidiary and sold
pursuant to the Receivables Program.
"Pro Rata Percentage" of any Revolving Credit Lender at any time shall
mean the percentage of the Total Revolving Credit Commitment represented by such
Lender's Revolving Credit Commitment. In the event the Revolving Credit
Commitments shall have expired or been terminated, the Pro Rata Percentages
shall be determined on the basis of the Revolving Credit Commitments most
recently in effect.
"Purchase Agreement" shall mean the Purchase Agreement dated as of
February 9, 2000, as amended by Amendment No. 1 dated as of July 14, 2000, among
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the Borrower, Flowserve RED and the Sellers, as the same may be further amended,
supplemented or otherwise modified from time to time in accordance with the
terms thereof and hereof.
"Receivables Program" shall mean, collectively, (a) the sale of, or
transfer of interests in, Program Receivables to Finsub in a "true sale"
transaction and (b) the sale of, or transfer of interests in, such Program
Receivables by Finsub to persons that are not Affiliates of the Borrower;
provided, that all governing terms and conditions (including any terms or
conditions providing for recourse to the Borrower or any of its Subsidiaries
(other than Finsub)) of the Receivables Program shall be subject to the prior
written approval of the Agents, which approval shall not be unreasonably
withheld.
"Receivables Program Documentation" shall mean all written agreements
that may from time to time be entered into by the Borrower and/or any Subsidiary
in connection with the Receivables Program, as such agreements may be amended,
supplemented or otherwise modified from time to time in accordance with the
provisions thereof and hereof.
"Register" shall have the meaning given such term in Section 9.04(d).
"Regulation T" shall mean Regulation T of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Related Fund" shall mean, with respect to any Lender that is a fund
that invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Release" shall mean any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into or through the environment or within or upon any building,
structure, facility or fixture.
"Release Date" shall have the meaning assigned to such term in Section
9.19.
"Required Lenders" shall mean, at any time, Lenders having Loans
(excluding Swingline Loans), L/C Exposure, Swingline Exposure and unused
Revolving Credit Commitments and Term Loan Commitments representing at least a
majority of the sum of all Loans outstanding (excluding Swingline Loans), L/C
Exposure, Swingline Exposure and unused Revolving Credit Commitments and Term
Loan Commitments at such time.
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"Responsible Officer" of any person shall mean any executive officer or
Financial Officer of such person and any other officer or similar official
thereof responsible for the administration of the obligations of such person in
respect of this Agreement.
"Restricted Payment" shall have the meaning assigned to such term in
Section 6.06(a).
"Revolving Credit Borrowing" shall mean a Borrowing comprised of
Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each Lender,
the commitment of such Lender to make Revolving Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Revolving Credit Commitment, as applicable, as the same may be (a)
reduced from time to time pursuant to Section 2.09 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04.
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the aggregate principal amount at such time of all outstanding
Revolving Loans of such Lender, plus the aggregate amount at such time of such
Lender's L/C Exposure, plus the aggregate amount at such time of such Lender's
Swingline Exposure.
"Revolving Credit Lender" shall mean a Lender with a Revolving Credit
Commitment or an outstanding Revolving Loan.
"Revolving Credit Maturity Date" shall mean June 30, 2006.
"Revolving Loans" shall mean the revolving loans made by the Lenders to
the Borrower pursuant to clause (c) of Section 2.01.
"Secured Parties" shall have the meaning assigned to such term in the
Security Agreement.
"Security Agreement" shall mean the Security Agreement, substantially
in the form of Exhibit H, among the Borrower, the Subsidiaries party thereto and
the Collateral Agent for the benefit of the Secured Parties.
"Security Documents" shall mean the Mortgages, the Security Agreement,
the Pledge Agreement, the U.K. Debenture and each of the security agreements,
mortgages and other instruments and documents executed and delivered pursuant to
any of the foregoing or pursuant to Section 5.09.
"Sellers" shall mean IDP Acquisition, LLC, a Delaware limited liability
company, and Xxxxxxxxx-Xxxx Company, a New Jersey corporation.
"SPC" shall have the meaning assigned to such term in Section 9.04(i).
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"S&P" shall mean Standard & Poor's Ratings Services or any successor
thereto.
"Standby Letter of Credit" shall mean any Financial Letter of Credit or
any Performance Letter of Credit.
"Standby L/C Exposure" shall mean, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Standby Letters of Credit at such
time that are denominated in dollars, plus the Dollar Equivalent at such time of
the aggregate undrawn amount of all outstanding Alternative Currency Standby
Letters of Credit, and (b) the aggregate principal amount of all L/C
Disbursements in respect of Standby Letters of Credit denominated in dollars
that have not yet been reimbursed at such time plus the Dollar Equivalent at
such time of the aggregate principal amount of all L/C Disbursements in respect
of Standby Letters of Credit denominated in Alternative Currencies that have not
yet been reimbursed at such time. The Standby L/C Exposure of any Revolving
Credit Lender at any time shall equal its Pro Rata Percentage of the aggregate
Standby L/C Exposure at such time.
"Statutory Reserves" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board. Statutory Reserves shall be adjusted automatically on
and as of the effective date of any change in any reserve percentage.
"Sterling" or "(pound)" shall mean lawful money of the United Kingdom.
"Subordinated Note Documents" shall mean the Subordinated Notes, the
Subordinated Note Indentures and all other documents executed and delivered with
respect to the Subordinated Notes and the Subordinated Note Indentures.
"Subordinated Note Indentures" shall mean the Dollar Subordinated Note
Indenture and the Euro Subordinated Note Indenture.
"Subordinated Notes" shall mean the Dollar Subordinated Notes and the
Euro Subordinated Notes.
"subsidiary" shall mean, with respect to any person (herein referred to
as the "parent"), any corporation, partnership, association or other business
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or more than 50%
of the general partnership interests are, at the time any determination is being
made, owned, controlled or held.
"Subsidiary" shall mean any subsidiary of the Borrower.
"Swingline Commitment" shall mean the commitment of the Swingline
Lender to make loans pursuant to Section 2.22, as the same may be reduced from
time to time pursuant to Section 2.09.
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"Swingline Exposure" shall mean at any time the aggregate principal
amount at such time of all outstanding Swingline Loans. The Swingline Exposure
of any Revolving Credit Lender at any time shall equal its Pro Rata Percentage
of the aggregate Swingline Exposure at such time.
"Swingline Loan" shall mean any loan made by the Swingline Lender
pursuant to Section 2.22.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Borrowing" shall mean a Borrowing comprised of Tranche A Term
Loans or Tranche B Term Loans.
"Term Loan Commitments" shall mean the Tranche A Commitments and the
Tranche B Commitments.
"Term Loan Repayment Dates" shall mean the Tranche A Term Loan
Repayment Dates and the Tranche B Term Loan Repayment Dates.
"Term Loans" shall mean the Tranche A Term Loans and the Tranche B Term
Loans.
"Total Debt" shall mean, at any time, the total Indebtedness of the
Borrower and the Subsidiaries at such time (excluding (a) Indebtedness under
Section 6.01(k), (b) Indebtedness under Section 6.01(o) and (c) Indebtedness of
the type described in clause (i) of the definition of such term and under
Section 6.01(l), except in each case to the extent of any unreimbursed drawings
or payments thereunder).
"Total Revolving Credit Commitment" shall mean, at any time, the
aggregate amount of the Revolving Credit Commitments, as in effect at such time.
The initial amount of the Total Revolving Credit Commitment is $300,000,000.
"Trade Letter of Credit" shall mean each commercial documentary letter
of credit issued (or deemed issued) by BofA for the account of the Borrower or
any Subsidiary pursuant to Section 2.23 for the purchase of goods by the
Borrower or such Subsidiary in the ordinary course of its business.
"Trade L/C Exposure" shall mean at any time the sum of (a) the
aggregate undrawn amount of all outstanding Trade Letters of Credit at such time
that are denominated in dollars, plus the Dollar Equivalent at such time of the
aggregate undrawn amount of all outstanding Alternative Currency Trade Letters
of Credit, and (b) the aggregate principal amount of all L/C Disbursements in
respect of Trade Letters of Credit denominated in dollars that have not yet been
reimbursed at such time plus the Dollar Equivalent at such time of the aggregate
principal amount of all L/C Disbursements in respect of Trade Letters of Credit
denominated in Alternative Currencies that have not yet been reimbursed at such
time.
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"Tranche A Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Tranche A Term Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Term Loan Commitment, as applicable, as the same may be (a) reduced
from time to time pursuant to Section 2.09 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
9.04. The initial amount of the aggregate Tranche A Commitments is $275,000,000.
"Tranche A Maturity Date" shall mean June 30, 2006.
"Tranche A Term Borrowing" shall mean a Borrowing comprised of Tranche
A Term Loans.
"Tranche A Term Loan Repayment Date" shall have the meaning assigned to
such term in Section 2.11(a)(i).
"Tranche A Term Loans" shall mean the term loans made by the Lenders to
the Borrower pursuant to clause (a) of Section 2.01.
"Tranche B Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Tranche B Term Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Term Loan Commitment, as applicable, as the same may be (a) reduced
from time to time pursuant to Section 2.09 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
9.04. The initial amount of the aggregate Tranche B Commitments is $475,000,000.
"Tranche B Maturity Date" shall mean June 30, 2008.
"Tranche B Term Borrowing" shall mean a Borrowing comprised of Tranche
B Term Loans.
"Tranche B Term Loan Repayment Date" shall have the meaning assigned to
such term in Section 2.11(a)(ii).
"Tranche B Term Loans" shall mean the term loans made by the Lenders to
the Borrower pursuant to clause (b) of Section 2.01.
"Transactions" shall mean, collectively, the transactions to occur
pursuant to the Purchase Agreement and the Loan Documents, including (a) the
execution and delivery of the Purchase Agreement and the consummation of the
Acquisition, (b) the execution and delivery of the Loan Documents, the
performance by the Loan Parties of their respective obligations thereunder and
the initial Borrowings hereunder, (c) the execution and delivery of the
Subordinated Note Documents and the issuance of the Subordinated Notes and (d)
the payment of all fees and expenses to be paid on or prior to the Closing Date
and owing in connection with the foregoing.
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"Type", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, the term "Rate" shall include
the Adjusted LIBO Rate and the Alternate Base Rate.
"U.K. Debenture", shall mean the Debenture, substantially in the form
of Exhibit J, between Flowserve International Limited, a Foreign Subsidiary of
the Borrower organized under the laws of the United Kingdom, and Bank of
America, N.A., as Collateral Agent.
"wholly owned subsidiary" of any person shall mean a subsidiary of such
person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the equity or 100% of the ordinary
voting power or 100% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held by such person or one or
more wholly owned subsidiaries of such person or by such person and one or more
wholly owned subsidiaries of such person.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any covenant in Article
VI or any related definition to eliminate the effect of any change in GAAP
occurring after the date of this Agreement on the operation of such covenant (or
if the Administrative Agent notifies the Borrower that the Required Lenders wish
to amend Article VI or any related definition for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
GAAP in effect immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders.
SECTION 1.03. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type
(e.g., a "Eurocurrency Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurocurrency Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving
Borrowing").
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SECTION 1.04. Exchange Rates. (a) On each Calculation Date, the
Administrative Agent shall (i) determine the relevant Exchange Rates as of such
Calculation Date and (ii) give notice thereof to the Lenders and the Company.
The Exchange Rates so determined shall become effective on the first Business
Day immediately following the relevant Calculation Date (a "Reset Date"), shall
remain effective until the next succeeding Reset Date, and shall for all
purposes of this Agreement (other than Section 2.02(f), Section 2.05(c), Section
2.22(c), Section 9.16 or any other provision expressly requiring the use of a
current Exchange Rate) be the Exchange Rates employed in converting any amounts
between dollars and Alternative Currencies.
(b) Notwithstanding the foregoing, no Default shall be deemed to have
occurred if, solely as a result of changes in exchange rates and not as the
result of additional incurrences of Indebtedness, investments, loans or
advances, the dollar equivalent of any amount subject to a cash basket set forth
in Section 6.01, 6.02 or 6.04 is exceeded.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, (a) to make a Tranche A Term Loan to the
Borrower, in dollars, on the Closing Date in a principal amount not to exceed
its Tranche A Commitment, (b) to make a Tranche B Term Loan to the Borrower, in
dollars, on the Closing Date in a principal amount not to exceed its Tranche B
Commitment, and (c) to make Revolving Loans to the Borrower, at any time and
from time to time on or after the date hereof, and until the earlier of the
Revolving Credit Maturity Date and the termination of the Revolving Credit
Commitment of such Lender in accordance with the terms hereof, in dollars, in an
aggregate principal amount at any time outstanding that will not result in (i)
such Lender's Revolving Credit Exposure exceeding such Lender's Revolving Credit
Commitment or (ii) the sum of (x) the Aggregate Revolving Credit Exposure and
(y) the Pari Passu Exposure exceeding the Total Revolving Credit Commitment.
Within the limits set forth in clause (c) of the preceding sentence and subject
to the terms, conditions and limitations set forth herein, the Borrower may
borrow, pay or prepay and reborrow Revolving Loans. Amounts paid or prepaid in
respect of Term Loans may not be reborrowed.
SECTION 2.02. Loans. (a) Each Loan (other than Swingline Loans) shall
be made as part of a Borrowing consisting of Loans made by the Lenders ratably
in accordance with their applicable Commitments; provided, however, that the
failure of any Lender to make any Loan shall not in itself relieve any other
Lender of its obligation to lend hereunder (it being understood, however, that
no Lender shall be responsible for the failure of any other Lender to make any
Loan required to be made by such other Lender). Except for Loans deemed made
pursuant to Section 2.02(f), the Loans
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comprising any Borrowing shall be in an aggregate principal amount that is (i)
an integral multiple of $1,000,000 and not less than $5,000,000 or (ii) equal to
the remaining available balance of the applicable Commitments.
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be
comprised entirely of ABR Loans or Eurocurrency Loans as the Borrower may
request pursuant to Section 2.03. Each Lender may at its option make any
Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement. Borrowings of more than one Type may be outstanding at
the same time; provided, however, that the Borrower shall not be entitled to
request any Borrowing that, if made, would result in more than 25 Eurocurrency
Borrowings outstanding hereunder at any time. For purposes of the foregoing,
Borrowings having different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate Borrowings.
(c) Except with respect to Loans made pursuant to Section 2.02(f), each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds to such account as the
Administrative Agent may designate not later than 11:00 a.m., California time,
and the Administrative Agent shall promptly credit the amounts so received to an
account in the name of the Borrower, maintained with the Administrative Agent
and designated by the Borrower in the applicable Borrowing Request or, if a
Borrowing shall not occur on such date because any condition precedent herein
specified shall not have been met, return the amounts so received to the
respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, a rate determined by the Administrative Agent
to represent its cost of overnight or short-term funds (which determination
shall be conclusive absent manifest error). If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount shall constitute
such Lender's Loan as part of such Borrowing for purposes of this Agreement.
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(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Revolving Credit Borrowing if the Interest
Period requested with respect thereto would end after the Revolving Credit
Maturity Date.
(f) If, with respect to any L/C Disbursement made under a Standby
Letter of Credit, the applicable Issuing Bank shall not have received from the
Borrower the payment required to be made by Section 2.23(e) within the time
specified in such Section, such Issuing Bank will promptly notify the
Administrative Agent of the L/C Disbursement and the Administrative Agent will
promptly notify each Revolving Credit Lender of such L/C Disbursement, the
Dollar Equivalent thereof (if denominated in an Alternative Currency) and its
Pro Rata Percentage thereof. Each Revolving Credit Lender shall pay by wire
transfer of immediately available dollars to the Administrative Agent not later
than 11:00 a.m., California time, on such date (or, if such Revolving Credit
Lender shall have received such notice later than 9:00 a.m., California time, on
any day, not later than 11:00 a.m., California time, on the immediately
following Business Day), an amount equal to such Lender's Pro Rata Percentage of
such L/C Disbursement (or the Dollar Equivalent thereof, if such L/C
Disbursement was denominated in an Alternative Currency) (it being understood
that such amount shall be deemed to constitute an ABR Revolving Loan of such
Lender and such payment shall be deemed to have reduced the Standby L/C
Exposure), and the Administrative Agent will promptly pay to the applicable
Issuing Bank amounts so received by it from the Revolving Credit Lenders. The
Administrative Agent will promptly pay to the applicable Issuing Bank any
amounts received by it from the Borrower pursuant to Section 2.23(e) prior to
the time that any Revolving Credit Lender makes any payment pursuant to this
paragraph (f); any such amounts received by the Administrative Agent thereafter
will be promptly remitted by the Administrative Agent to the Revolving Credit
Lenders that shall have made such payments and to the applicable Issuing Bank,
as their interests may appear. If any Revolving Credit Lender shall not have
made its Pro Rata Percentage of such L/C Disbursement available to the
Administrative Agent as provided above, such Lender and the Borrower severally
agree to pay interest on such amount, for each day from and including the date
such amount is required to be paid in accordance with this paragraph to but
excluding the date such amount is paid, to the Administrative Agent for the
account of the applicable Issuing Bank at (i) in the case of the Borrower, a
rate per annum equal to the interest rate applicable to Revolving Loans pursuant
to Section 2.06(a), and (ii) in the case of such Lender, for the first such day,
the Federal Funds Effective Rate, and for each day thereafter, the Alternate
Base Rate.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing
(other than a Swingline Loan or a deemed Borrowing pursuant to Section 2.02(f),
as to which this Section 2.03 shall not apply), the Borrower shall hand deliver
or telecopy to the Administrative Agent a duly completed Borrowing Request (a)
in the case of a Eurocurrency Borrowing, not later than 10:00 a.m., California
time, three Business Days before a proposed Borrowing, and (b) in the case of an
ABR Borrowing, not later than 12:00 noon, California time, one Business Day
before a proposed Borrowing. Each Borrowing Request shall be irrevocable, shall
be signed by or on behalf of the Borrower and shall specify the following
information: (i) whether the Borrowing then being
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requested is to be a Tranche A Term Borrowing, a Tranche B Term Borrowing or a
Revolving Credit Borrowing, and whether such Borrowing is to be a Eurocurrency
Borrowing or an ABR Borrowing (provided that until the Syndication Agent shall
have notified the Borrower and the Administrative Agent that the primary
syndication of the Commitments has been completed (which notice shall be given
as promptly as practicable and, in any event, within 30 days after the Closing
Date), the Borrower shall only request, at its option, either (x) ABR Borrowings
or (y) Eurocurrency Borrowings with one-month Interest Periods all ending on the
same date); (ii) the date of such Borrowing (which shall be a Business Day);
(iii) the number and location of the account to which funds are to be disbursed
(which shall be an account that complies with the requirements of Section
2.02(c); (iv) the amount of such Borrowing and (v) if such Borrowing is to be a
Eurocurrency Borrowing, the Interest Period with respect thereto; provided,
however, that, notwithstanding any contrary specification in any Borrowing
Request, each requested Borrowing shall comply with the requirements set forth
in Section 2.02. If no election as to the Type of Borrowing is specified in any
such notice, then the requested Borrowing shall be an ABR Borrowing. If no
Interest Period with respect to any Eurocurrency Borrowing is specified in any
such notice, then the Borrower shall be deemed to have selected an Interest
Period of one month's duration. The Administrative Agent shall promptly advise
the applicable Lenders of any notice given pursuant to this Section 2.03 (and
the contents thereof), and of each Lender's portion of the requested Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender (i) the principal amount of each Term Loan of such Lender
as provided in Section 2.11 and (ii) the then unpaid principal amount of each
Revolving Loan of such Lender on the Revolving Credit Maturity Date. The
Borrower hereby promises to pay the Swingline Lender the then unpaid principal
amount of each Swingline Loan on the earlier of the Revolving Credit Maturity
Date and the first date after such Swingline Loan is made that is the last day
of a calendar month and is at least fifteen days after such Swingline Loan is
made.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain the Register in which it
will record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower or any Guarantor and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs
(b) and (c) above shall be prima facie evidence of the existence and amounts of
the obligations therein recorded; provided, however, that the failure of any
Lender or the
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Administrative Agent to maintain such accounts or any error therein shall not in
any manner affect the obligations of the Borrower to repay the Loans in
accordance with their terms. In the event of any inconsistency between the
Register and any Lender's records, the recordations of the Register shall
govern.
(e) Any Lender may request that Loans made by it hereunder be evidenced
by a promissory note. In such event, the Borrower shall execute and deliver to
such Lender a promissory note payable to such Lender and its registered assigns
and in a form and substance reasonably acceptable to the Administrative Agent
and the Borrower. Notwithstanding any other provision of this Agreement, in the
event any Lender shall request and receive such a promissory note, the interests
represented by such note shall at all times (including after any assignment of
all or part of such interests pursuant to Section 9.04) be represented by one or
more promissory notes payable to the payee named therein or its registered
assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each Lender,
through the Administrative Agent, on the last Business Day of March, June,
September and December, in each year and on each date on which any Commitment of
such Lender shall expire or be terminated as provided herein, a commitment fee
(a "Commitment Fee") equal to 0.50% per annum on the average daily unused amount
(treating Standby L/C Exposure as usage of the Revolving Credit Commitments) of
the Commitments of such Lender (other than the Swingline Commitment) during the
preceding quarter (or other period commencing with the date hereof or ending
with the Revolving Credit Maturity Date or the date on which the Commitments of
such Lender shall expire or be terminated). All Commitment Fees shall be
computed on the basis of the actual number of days elapsed in a year of 360
days. The Commitment Fee due to each Lender shall commence to accrue on the date
hereof and shall cease to accrue on the date on which the Commitment of such
Lender shall expire or be terminated as provided herein. For purposes of
calculating Commitment Fees only, no portion of the Revolving Credit Commitments
shall be deemed utilized as a result of outstanding Swingline Loans or Trade
Letters of Credit.
(b) The Borrower agrees to pay to the Administrative Agent, for its own
account, the administrative fees set forth in the Administrative Agent's Fee
Letter at the times and in the amounts specified therein (the "Administrative
Agent Fees").
(c) The Borrower agrees to pay (i) to each Revolving Credit Lender, in
dollars, through the Administrative Agent, on the last Business Day of March,
June, September and December, of each year and on the date on which the
Revolving Credit Commitment of such Lender shall be terminated as provided
herein, a fee (an "L/C Participation Fee") calculated on such Lender's Pro Rata
Percentage of the daily aggregate Standby L/C Exposure (excluding the portion
thereof attributable to unreimbursed L/C Disbursements) during the preceding
quarter (or shorter period commencing with the date hereof or ending with the
Revolving Credit Maturity Date or the date on which all Letters of Credit have
been canceled or have expired and the Revolving Credit Commitments of all
Lenders shall have been terminated) at a rate equal to (x) in the case of
Financial Letters of Credit and, during any time the Borrower
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has not obtained and maintained Investment Grade Ratings, Performance Letters of
Credit, the Applicable Percentage from time to time used to determine the
interest rate on Revolving Credit Borrowings comprised of Eurocurrency Loans
pursuant to Section 2.06 (the "Financial L/C Rate") and (y) in the case of
Performance Letters of Credit at any time that the Borrower has obtained and
maintained Investment Grade Ratings, 65% of the Financial L/C Rate, and (ii) to
the applicable Issuing Bank with respect to each Standby Letter of Credit a
fronting fee equal to 1/8 of 1% per annum (or such other amount as may be agreed
upon by the Borrower and the applicable Issuing Bank) on the aggregate face
amount of such Letter of Credit plus the amount of any other issuance and
drawing costs specified from time to time by such Issuing Bank with regard to a
Letter of Credit (the "Issuing Bank Fees"). All L/C Participation Fees and,
except as otherwise agreed by the Borrower and the applicable Issuing Bank,
Issuing Bank Fees shall be computed on the basis of the actual number of days
elapsed in a year of 360 days. For purposes of determining the amount of the L/C
Participation Fees with respect to any Alternative Currency Letter of Credit,
the Standby L/C Exposure shall be determined by the Administrative Agent using
the Exchange Rates in effect at approximately 11:00 a.m., New York City time, on
the date that is two Business Days before the payment of the L/C Participation
Fee.
(d) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Issuing Bank Fees shall be paid directly to
the applicable Issuing Bank. Once paid, none of the Fees shall be refundable
under any circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of
Section 2.07, the Loans comprising each ABR Borrowing, including each Swingline
Loan, shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 365 or 366 days, as the case may be, when the Alternate
Base Rate is determined by reference to the Prime Rate and over a year of 360
days at all other times) at a rate per annum equal to the Alternate Base Rate
plus the Applicable Percentage in effect from time to time.
(b) Subject to the provisions of Section 2.07, the Loans comprising
each Eurocurrency Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate per annum equal
to the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Percentage in effect from time to time.
(c) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest
Period or day within an Interest Period, as the case may be, shall be determined
by the Administrative Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, or under any other Loan Document,
the Borrower shall on
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demand from time to time pay interest, to the extent permitted by law, on such
defaulted amount to but excluding the date of actual payment (after as well as
before judgment) (a) in the case of overdue principal, at the rate otherwise
applicable to such Loan pursuant to Section 2.06 plus 2.00% per annum and (b) in
all other cases, at a rate per annum (computed on the basis of the actual number
of days elapsed over a year of 365 or 366 days, as the case may be, when
determined by reference to the Prime Rate and over a year of 360 days at all
other times) equal to the rate that would be applicable to an ABR Revolving Loan
plus 2.00%.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurocurrency Borrowing the Administrative Agent shall have
determined that dollar deposits in the principal amounts of the Loans comprising
such Borrowing are not generally available in the London interbank market, or
that the rates at which such dollar deposits are being offered will not
adequately and fairly reflect the cost to any Lender of making or maintaining
its Eurocurrency Loan during such Interest Period, or that reasonable means do
not exist for ascertaining the Adjusted LIBO Rate, the Administrative Agent
shall, as soon as practicable thereafter, give written or telecopy notice of
such determination to the Borrower and the Lenders. In the event of any such
determination, until the Administrative Agent shall have advised the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist, any request by the Borrower for a Eurocurrency Borrowing pursuant to
Section 2.03 or 2.10 shall be deemed to be a request for an ABR Borrowing. Each
determination by the Administrative Agent under this Section 2.08 shall be
conclusive absent manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) The Term
Loan Commitments shall automatically terminate at 5:00 p.m., California time, on
the Closing Date. The Revolving Credit Commitments, the Swingline Commitment and
the L/C Commitments shall automatically terminate on the Revolving Credit
Maturity Date. Notwithstanding the foregoing, all the Commitments shall
automatically terminate at 5:00 p.m., California time, on August 8, 2000, if the
first Credit Event shall not have occurred by such time.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Term Loan Commitments or the Revolving Credit Commitments; provided,
however, that (i) each partial reduction of the Term Loan Commitments or the
Revolving Credit Commitments shall be in an integral multiple of $1,000,000 and
in a minimum amount of $5,000,000 and (ii) the Total Revolving Credit Commitment
shall not be reduced to an amount that is less than the sum of the Aggregate
Revolving Credit Exposure at the time.
(c) Each reduction in the Term Loan Commitments or the Revolving Credit
Commitments hereunder shall be made ratably among the Lenders in accordance with
their respective applicable Commitments. The Borrower shall pay to the
Administrative Agent for the account of the applicable Lenders, on the date of
each termination or
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reduction, the Commitment Fees on the amount of the Commitments so terminated or
reduced accrued to but excluding the date of such termination or reduction.
SECTION 2.10. Conversion and Continuation of Borrowings. The Borrower
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 10:00 a.m., California time, one
Business Day prior to conversion, to convert any Eurocurrency Borrowing into an
ABR Borrowing, (b) not later than 10:00 a.m., California time, three Business
Days prior to conversion or continuation, to convert any ABR Borrowing into a
Eurocurrency Borrowing or to continue any Eurocurrency Borrowing as a
Eurocurrency Borrowing for an additional Interest Period, and (c) not later than
10:00 a.m., California time, three Business Days prior to conversion, to convert
the Interest Period with respect to any Eurocurrency Borrowing to another
permissible Interest Period, subject in each case to the following:
(i) each conversion or continuation shall be made pro rata among
the Lenders in accordance with the respective principal amounts of the
Loans comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting
Borrowing shall satisfy the limitations specified in Sections 2.02(a)
and 2.02(b) regarding the principal amount and maximum number of
Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the
new Loan of such Lender resulting from such conversion and reducing
the Loan (or portion thereof) of such Lender being converted by an
equivalent principal amount; accrued interest on any Eurocurrency Loan
(or portion thereof) being converted shall be paid by the Borrower at
the time of conversion;
(iv) if any Eurocurrency Borrowing is converted at a time other
than the end of the Interest Period applicable thereto, the Borrower
shall pay, upon demand, any amounts due to the Lenders pursuant to
Section 2.16;
(v) any portion of a Borrowing maturing or required to be repaid
in less than one month may not be converted into or continued as a
Eurocurrency Borrowing;
(vi) any portion of a Eurocurrency Borrowing that cannot be
converted into or continued as a Eurocurrency Borrowing by reason of
the immediately preceding clause shall be automatically converted at
the end of the Interest Period in effect for such Borrowing into an
ABR Borrowing;
(vii) no Interest Period may be selected for any Eurocurrency
Term Borrowing that would end later than a Term Loan Repayment Date
occurring on or after the first day of such Interest Period if, after
giving effect to such selection, the aggregate outstanding amount of
(A) the Eurocurrency Term
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Borrowings comprised of Tranche A Term Loans or Tranche B Term Loans,
as applicable, with Interest Periods ending on or prior to such Term
Loan Repayment Date and (B) the ABR Term Borrowings comprised of
Tranche A Term Loans or Tranche B Term Loans, as applicable would not
be at least equal to the principal amount of Term Borrowings to be
paid on such Term Loan Repayment Date;
(viii) upon notice to the Borrower from the Administrative Agent
given at the request of the Required Lenders, after the occurrence and
during the continuance of a Default or Event of Default, no
outstanding Loan may be converted into, or continued as, a
Eurocurrency Loan; and
(ix) until the Syndication Agent shall have notified the Borrower
and the Administrative Agent that the primary syndication of the
Commitments has been completed (which notice shall be given by the
Syndication Agent as promptly as practicable and, in any event, within
30 days after the Closing Date), no ABR Borrowing may be converted
into a Eurocurrency Borrowing (other than a Eurocurrency Borrowing
with an Interest Period of not more than one-month's duration and
which does not end on a date different from any other outstanding
Eurocurrency Borrowing).
Each notice pursuant to this Section 2.10 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing that the Borrower requests be converted or continued, (ii) whether
such Borrowing is to be converted to or continued as a Eurocurrency Borrowing or
an ABR Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted to or continued as a Eurocurrency Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurocurrency Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders of any notice given
pursuant to this Section 2.10 and of each Lender's portion of any converted or
continued Borrowing. If the Borrower shall not have given notice in accordance
with this Section 2.10 to continue any Borrowing into a subsequent Interest
Period (and shall not otherwise have given notice in accordance with this
Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be continued into a new Interest Period as an ABR Borrowing.
SECTION 2.11. Repayment of Term Borrowings. (a) (i) The Borrower shall
pay to the Administrative Agent, for the account of the Lenders, on the dates
set forth below, or if any such date is not a Business Day, on the next
preceding Business Day (each such date being a "Tranche A Term Loan Repayment
Date"), a principal amount of the Tranche A Term Loans (as adjusted from time to
time pursuant to Sections 2.11(b), 2.12 and 2.13(g)) equal to the amount set
forth below for such date, together in each case with accrued and unpaid
interest on the principal amount to be paid to but excluding the
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date of such payment:
Date Amount
---- ------
June 30, 2001 $ 5,000,000
September 30, 2001 5,000,000
December 31, 2001 5,000,000
March 31, 2002 7,500,000
June 30, 2002 7,500,000
September 30, 2002 13,000,000
December 31, 2002 13,000,000
March 31, 2003 13,000,000
June 30, 2003 13,000,000
September 30, 2003 15,000,000
December 31, 2003 15,000,000
March 31, 2004 15,000,000
June 30, 2004 15,000,000
September 30, 2004 15,000,000
December 31, 2004 15,000,000
March 31, 2005 15,000,000
June 30, 2005 15,000,000
September 30, 2005 17,000,000
December 31, 2005 17,000,000
March 31, 2006 17,000,000
Tranche A Maturity Date 22,000,000
(ii) The Borrower shall pay to the Administrative Agent, for the
account of the Lenders, on the dates set forth below or, if any such date is not
a Business Day, on the next preceding Business Day (each such date being a
"Tranche B Term Loan Repayment Date"), a principal amount of the Tranche B Term
Loans (as adjusted from time to time pursuant to Sections 2.11(b), 2.12 and
2.13(g)) equal to the amount set forth below for such date, together in each
case with accrued and unpaid interest on the principal amount to be paid to but
excluding the date of such payment:
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Date Amount
---- ------
June 30, 2001 $ 1,000,000
September 30, 2001 1,000,000
December 31, 2001 1,000,000
March 31, 2002 1,000,000
June 30, 2002 1,000,000
September 30, 2002 1,000,000
December 31, 2002 1,000,000
March 31, 2003 1,000,000
June 30, 2003 1,000,000
September 30, 2003 1,000,000
December 31, 2003 1,000,000
March 31, 2004 1,000,000
June 30, 2004 1,000,000
September 30, 2004 1,000,000
December 31, 2004 1,000,000
March 31, 2005 1,000,000
June 30, 2005 1,000,000
September 30, 2005 1,000,000
December 31, 2005 1,000,000
March 31, 2006 1,000,000
June 30, 2006 1,000,000
September 30, 2006 1,000,000
December 31, 2006 64,607,143
March 31, 2007 64,607,143
June 30, 2007 64,607,143
September 30, 2007 64,607,143
December 31, 2007 64,857,143
March 31, 2008 64,857,143
Tranche B Maturity Date 64,857,142
(b) In the event and on each occasion that any Term Loan Commitments
shall be reduced or shall expire or terminate other than as a result of the
making of a Term Loan, the installments payable on each Term Loan Repayment Date
shall be reduced pro rata by an aggregate amount equal to the amount of such
reduction, expiration or termination.
(c) To the extent not previously paid, all Tranche A Term Loans and
Tranche B Term Loans shall be due and payable on the Tranche A Maturity Date and
Tranche B Maturity Date, respectively, together with accrued and unpaid interest
on the principal amount to be paid to but excluding the date of payment.
(d) All repayments pursuant to this Section 2.11 shall be subject to
Section 2.16, but shall otherwise be without premium or penalty.
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SECTION 2.12. Prepayment. (a) The Borrower shall have the right at any
time and from time to time to prepay any Borrowing, in whole or in part, upon at
least three Business Days' prior written or telecopy notice (or telephone notice
promptly confirmed by written or telecopy notice) in the case of Eurocurrency
Loans, or written or telecopy notice (or telephone notice promptly confirmed by
written or telecopy notice) at least one Business Day prior to the date of
prepayment in the case of ABR Loans, to the Administrative Agent before
10:00a.m., California time; provided, however, that each partial prepayment
shall be in an amount that is an integral multiple of $1,000,000 and not less
than $5,000,000.
(b) Optional prepayments of Term Loans shall be allocated pro rata
between the then-outstanding Tranche A Term Loans and Tranche B Term Loans and
applied first, in chronological order to the installments of principal scheduled
to be paid within 12 months after such prepayment and second, pro rata against
the remaining scheduled installments of principal due in respect of the Tranche
A Term Loans and Tranche B Term Loans under Sections 2.11(a)(i) and (ii),
respectively.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments under this Section
2.12 shall be subject to Section 2.16 but otherwise without premium or penalty.
All prepayments under this Section 2.12 shall be accompanied by accrued interest
on the principal amount being prepaid to the date of payment.
SECTION 2.13. Mandatory Prepayments. (a) In the event of any
termination of all the Revolving Credit Commitments, the Borrower shall, on the
date of such termination, repay or prepay all its outstanding Revolving Credit
Borrowings and all outstanding Swingline Loans and replace all outstanding
Letters of Credit and/or deposit an amount equal to the L/C Exposure in cash in
a cash collateral account established with the Collateral Agent for the benefit
of the Secured Parties. If (i) at any time as a result of any partial reduction
of the Revolving Credit Commitments, or (ii) on any Calculation Date as a result
of fluctuations in exchange rates, the Aggregate Revolving Credit Exposure would
exceed the Total Revolving Credit Commitment after giving effect thereto, then
the Borrower shall, on the date of such reduction or termination or on such
Calculation Date, as the case may be, repay or prepay Revolving Credit
Borrowings or Swingline Loans (or a combination thereof) and/or replace or cash
collateralize outstanding Letters of Credit in an amount sufficient to eliminate
such excess. In addition, if on any date the sum of the Aggregate Revolving
Credit Exposure and the Pari Passu Exposure would exceed the Total Revolving
Credit Commitment, then on such date the Borrower shall either (i) repay or
prepay Revolving Credit Borrowings or Swingline Loans (or a combination thereof)
and replace or cash collateralize outstanding Letters of Credit and/or (ii)
reduce the Pari Passu Exposure, in either case in an aggregate amount sufficient
to eliminate such excess.
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(b) Not later than the fifth Business Day following the completion of
any Asset Sale, the Borrower shall apply 100% of the Net Cash Proceeds received
with respect thereto to prepay outstanding Term Loans in accordance with Section
2.13(g).
(c) Subject to paragraph (j) below, in the event and on each occasion
that an Equity Issuance occurs, the Borrower shall, substantially simultaneously
with (and in any event not later than the fifth Business Day next following) the
occurrence of such Equity Issuance, apply 75% of the Net Cash Proceeds therefrom
to prepay outstanding Term Loans in accordance with Section 2.13(g); provided,
however, that in the event the Leverage Ratio on the date of such Equity
Issuance (and after giving effect thereto and to the use of the proceeds
thereof) is less than 3.0 to 1.0, such amount shall be reduced to 50%.
(d) Subject to paragraph (j) below, no later than the earlier of (i)
100 days after the end of each fiscal year of the Borrower, commencing with the
fiscal year ending on December 31, 2001, and (ii) the date on which the
financial statements with respect to such period are delivered pursuant to
Section 5.04(a), the Borrower shall prepay outstanding Term Loans in accordance
with Section 2.13(g) in an aggregate principal amount equal to 75% of Excess
Cash Flow for the fiscal year then ended; provided, however, that in the event
the Leverage Ratio at the end of such fiscal year was less than 3.0 to 1.0, such
amount shall be reduced to 50%.
(e) Subject to paragraph (j) below, in the event that any Loan Party or
any subsidiary of a Loan Party shall receive Net Cash Proceeds from (i) the
issuance or other disposition of Indebtedness for money borrowed of any Loan
Party or any subsidiary of a Loan Party (other than Indebtedness for money
borrowed permitted pursuant to Section 6.01) or (ii) the establishment of the
Receivables Program or any subsequent increase thereto, the Borrower shall,
substantially simultaneously with (and in any event not later than the fifth
Business Day next following) the receipt of such Net Cash Proceeds by such Loan
Party or such subsidiary, apply an amount equal to 100% of such Net Cash
Proceeds to prepay outstanding Term Loans in accordance with Section 2.13(g).
(f) Subject to paragraph (j) below, in the event that there shall occur
any Casualty or Condemnation and, pursuant to the applicable Mortgage, the
Casualty Proceeds or Condemnation Proceeds, as the case may be, are required to
be used to prepay the Term Loans, then the Borrower shall apply an amount up to
100% (as determined pursuant to the applicable Mortgage) of such Casualty
Proceeds or Condemnation Proceeds, as the case may be, to prepay outstanding
Term Loans in accordance with Section 2.13(g).
(g) Mandatory prepayments of outstanding Term Loans under this
Agreement shall be allocated pro rata between the then-outstanding Tranche A
Term Loans and Tranche B Term Loans, and, subject to paragraph (i) below,
applied pro rata against the remaining scheduled installments of principal due
in respect of Tranche A Term Loans and Tranche B Term Loans under Sections
2.11(a)(i) and (ii), respectively.
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(h) The Borrower shall deliver to the Administrative Agent, at the time
of each prepayment required under this Section 2.13, (i) a certificate signed by
a Financial Officer of the Borrower setting forth in reasonable detail the
calculation of the amount of such prepayment and (ii) to the extent practicable,
at least three days prior written notice of such prepayment. Each notice of
prepayment shall specify the prepayment date, the Type of each Loan being
prepaid and the principal amount of each Loan (or portion thereof) to be
prepaid. All prepayments of Borrowings under this Section 2.13 shall be subject
to Section 2.16, but shall otherwise be without premium or penalty.
(i) Until the payment in full of the Tranche A Term Loans, any Tranche
B Lender may elect, by notice to the Administrative Agent in writing (or by
telephone or telecopy promptly confirmed in writing) at least two Business Days
prior to any prepayment of Tranche B Term Loans required to be made by the
Borrower for the account of such Lender pursuant to this Section 2.13, to cause
all or a portion of such prepayment to be allocated instead to the
then-outstanding Tranche A Term Loans to be applied pro rata against the
remaining scheduled installments of principal due in respect thereof under
Section 2.11(a)(i).
(j) The provisions of paragraphs (c), (d), (e) and (f) of this Section
2.13 shall cease to be effective upon the Borrower's obtaining, and so long as
the Borrower maintains, Investment Grade Ratings.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if any Change in Law
shall impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of or credit
extended by any Lender or any Issuing Bank (except any such reserve requirement
which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or
such Issuing Bank or the London interbank market (or other relevant interbank
market) any other condition affecting this Agreement or Eurocurrency Loans made
by such Lender or any Letter of Credit or participation therein, and the result
of any of the foregoing shall be to increase the cost to such Lender or such
Issuing Bank of making or maintaining any Eurocurrency Loan or increase the cost
to any Lender of issuing or maintaining any Letter of Credit or purchasing or
maintaining a participation therein or to reduce the amount of any sum received
or receivable by such Lender or such Issuing Bank hereunder (whether of
principal, interest or otherwise) by an amount deemed by such Lender or such
Issuing Bank to be material, then the Borrower will pay to such Lender or such
Issuing Bank, as the case may be, upon demand such additional amount or amounts
as will compensate such Lender or Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender or Issuing Bank shall have determined that any Change
in Law regarding capital adequacy has or would have the effect of reducing the
rate of return on such Lender's or Issuing Bank's capital or on the capital of
such Lender's or Issuing Bank's holding company, if any, as a consequence of
this Agreement or the Loans made or participations in Letters of Credit
purchased by such Lender pursuant hereto or the Letters of Credit issued by such
Issuing Bank pursuant hereto to a level below that
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which such Lender or Issuing Bank or such Lender's or Issuing Bank's holding
company could have achieved but for such Change in Law (taking into
consideration such Lender's or Issuing Bank's policies and the policies of such
Lender's or Issuing Bank's holding company with respect to capital adequacy) by
an amount deemed by such Lender or Issuing Bank to be material, then from time
to time the Borrower shall pay to such Lender or Issuing Bank, as the case may
be, such additional amount or amounts as will compensate such Lender or Issuing
Bank or such Lender's or Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or Issuing Bank setting forth the amount
or amounts necessary to compensate such Lender or Issuing Bank or its holding
company, as applicable, as specified in paragraph (a) or (b) above shall be
delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender or Issuing Bank the amount shown as due on any
such certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender or any Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or Issuing Bank's right to demand such compensation; provided that
the Borrower shall not be under any obligation to compensate any Lender or
Issuing Bank under paragraph (a) or (b) above with respect to increased costs or
reductions with respect to any period prior to the date that is 90 days prior to
such request if such Lender or Issuing Bank knew or could reasonably have been
expected to know of the circumstances giving rise to such increased costs or
reductions and of the fact that such circumstances would result in a claim for
increased compensation by reason of such increased costs or reductions; provided
further that the foregoing limitation shall not apply to any increased costs or
reductions arising out of the retroactive application of any Change in Law
within such 90-day period. The protection of this Section shall be available to
each Lender and Issuing Bank regardless of any possible contention of the
invalidity or inapplicability of the law, rule, regulation, agreement, guideline
or other change or condition that shall have occurred or been imposed.
(e) This Section 2.14 shall not apply to any Change in Law with respect
to Taxes, including, but not limited to, changes in the rate of Taxes pertaining
to any particular Lender.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other
provision of this Agreement, if (i) any Change in Law shall make it unlawful for
any Lender to make or maintain any Eurocurrency Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurocurrency Loan, or
shall make it unlawful for any Issuing Bank to issue Letters of Credit
denominated in an Alternative Currency, or (ii) there shall have occurred any
change in national or international financial, political or
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economic conditions (including the imposition of or any change in exchange
controls) or currency exchange rates which would make it impracticable for any
Issuing Bank to issue Letters of Credit denominated in such Alternative
Currency, then, by written notice to the Borrower and to the Administrative
Agent:
(i) such Lender may declare that Eurocurrency Loans will not
thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder (or be continued for additional Interest Periods) and
ABR Loans will not thereafter (for such duration) be converted into
Eurocurrency Loans, whereupon any request for a Eurocurrency Borrowing
(or to convert an ABR Borrowing to a Eurocurrency Borrowing or to
continue a Eurocurrency Borrowing, as the case may be, for an
additional Interest Period) shall, as to such Lender only, be deemed a
request for an ABR Loan (or a request to continue an ABR Loan as such
for an additional Interest Period or to convert a Eurocurrency Loan
into an ABR Loan, as the case may be), unless such declaration shall
be subsequently withdrawn;
(ii) such Lender may require that all outstanding Eurocurrency
Loans made by it be converted to ABR Loans in which event all such
Eurocurrency Loans shall be automatically converted to ABR Loans as of
the effective date of such notice as provided in paragraph (b) below;
and
(iii) in the case of any such change affecting an Issuing Bank's
ability to issue Letters of Credit denominated in an Alternative
Currency, such Issuing Bank may declare that Letters of Credit will
not thereafter be issued in the affected Alternative Currency or
Currencies, whereupon the affected Alternative Currency or Currencies
shall be deemed (for the duration of such unlawfulness and with
respect to such Issuing Bank only) not to constitute an Alternative
Currency.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurocurrency Loans that would have been made by such Lender or the
converted Eurocurrency Loans of such Lender shall instead be applied to repay
the ABR Loans made by such Lender in lieu of, or resulting from the conversion
of, such Eurocurrency Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by any
Lender shall be effective as to each Eurocurrency Loan made by such Lender, if
lawful, on the last day of the Interest Period currently applicable to such
Eurocurrency Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender
against any loss or expense that such Lender may sustain or incur as a
consequence of (a) any event, other than a default by such Lender in the
performance of its obligations hereunder, which results in (i) such Lender
receiving or being deemed to receive any amount on account of the principal of
any Eurocurrency Loan prior to the end of the
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Interest Period in effect therefor, (ii) the conversion of any Eurocurrency Loan
to an ABR Loan, or the conversion of the Interest Period with respect to any
Eurocurrency Loan, in each case other than on the last day of the Interest
Period in effect therefor, or (iii) any Eurocurrency Loan to be made by such
Lender (including any Eurocurrency Loan to be made pursuant to a conversion or
continuation under Section 2.10) not being made after notice of such Loan shall
have been given by the Borrower hereunder (any of the events referred to in this
clause (a) being called a "Breakage Event") or (b) any default in the making of
any payment or prepayment required to be made hereunder. In the case of any
Breakage Event, such loss shall include an amount equal to the excess, as
reasonably determined by such Lender, of (i) its cost of obtaining funds for the
Eurocurrency Loan that is the subject of such Breakage Event for the period from
the date of such Breakage Event to the last day of the Interest Period in effect
(or that would have been in effect) for such Loan over (ii) the amount of
interest likely to be realized by such Lender in redeploying the funds released
or not utilized by reason of such Breakage Event for such period. A certificate
of any Lender setting forth any amount or amounts which such Lender is entitled
to receive pursuant to this Section 2.16 shall be delivered to the Borrower and
shall be conclusive absent manifest error.
SECTION 2.17. Pro Rata Treatment. Except as provided below in this
Section 2.17 with respect to Swingline Loans and as required under Sections
2.13(i) and 2.15, each Borrowing, each payment or prepayment of principal of any
Borrowing, each payment of interest on the Loans, each payment of the Commitment
Fees, each reduction of the Term Loan Commitments or the Revolving Credit
Commitments and each conversion of any Borrowing to or continuation of any
Borrowing as a Borrowing of any Type shall be allocated pro rata among the
Lenders in accordance with their respective applicable Commitments (or, if such
Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their outstanding Loans). For purposes of
determining the available Revolving Credit Commitments of the Lenders at any
time, each outstanding Swingline Loan shall be deemed to have utilized the
Revolving Credit Commitments of the Lenders (including those Lenders which shall
not have made Swingline Loans) pro rata in accordance with such respective
Revolving Credit Commitments. Each Lender agrees that in computing such Lender's
portion of any Borrowing to be made hereunder, the Administrative Agent may, in
its discretion, round each Lender's percentage of such Borrowing to the next
higher or lower whole dollar amount.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower or any other Loan Party, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Loan or Loans or L/C Disbursement as a result of which the unpaid principal
portion of its Loans and participations in L/C Disbursements shall be
proportionately less than the unpaid principal portion of the Loans and
participations in L/C Disbursements of any other Lender, it shall be deemed
simultaneously to have
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purchased from such other Lender at face value, and shall promptly pay to such
other Lender the purchase price for, a participation in the Loans and L/C
Exposure of such other Lender, so that the aggregate unpaid principal amount of
the Loans and L/C Exposure and participations in Loans and L/C Exposure held by
each Lender shall be in the same proportion to the aggregate unpaid principal
amount of all Loans and L/C Exposure then outstanding as the principal amount of
its Loans and L/C Exposure prior to such exercise of banker's lien, setoff or
counterclaim or other event was to the principal amount of all Loans and L/C
Exposure outstanding prior to such exercise of banker's lien, setoff or
counterclaim or other event; provided, however, that if any such purchase or
purchases or adjustments shall be made pursuant to this Section 2.18 and the
payment giving rise thereto shall thereafter be recovered, such purchase or
purchases or adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustment restored without interest. The
Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation in a Loan or L/C Disbursement deemed to have been
so purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by the Borrower to such
Lender by reason thereof as fully as if such Lender had made a Loan directly to
the Borrower in the amount of such participation.
SECTION 2.19. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any L/C Disbursement or
any Fees or other amounts) hereunder and under any other Loan Document not later
than 10:00 a.m., California time, on the date when due in immediately available
funds, without setoff, defense or counterclaim. Each such payment (other than
(i) Issuing Bank Fees, which shall be paid directly to the applicable Issuing
Bank, and (ii) principal of and interest on Swingline Loans, which shall be paid
directly to the Swingline Lender except as otherwise provided in Section
2.21(e)) shall be made to the Administrative Agent at its offices at Bank of
America, N.A., Agency Administrative Services-West, 0000 Xxxxxxx Xxxx., 0xx
Xxxxx, Xxxxxxx, XX, 00000, Mail Code CA4-706-05-09, Attention of: Xxxxx Xxxx;
ABA #000 000 000, Xxxxxx, Xxxxx, Account No. 3750836479, Ref: Flowserve
Corporation. Each such payment (other than L/C Disbursements denominated in an
Alternative Currency and Issuing Bank Fees with respect to Letters of Credit
dominated in an Alternative Currency, which shall be made in the applicable
Alternative Currency) shall be made in dollars.
(b) Except as otherwise expressly provided herein, whenever any payment
(including principal of or interest on any Borrowing or any Fees or other
amounts) hereunder or under any other Loan Document shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment may be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower or any Loan Party hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower or any Loan
Party shall be required by law to deduct any Indemnified Taxes or Other Taxes
from such payments, then
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(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent or such Lender (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower or such Loan Party shall make such
deductions and (iii) the Borrower or such Loan Party shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each
Lender, within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, as the case may be, on or with respect to any payment on account of any
obligation of the Borrower or any Loan Party hereunder or under any other Loan
Document (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable out-of-pocket expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender,
or by the Administrative Agent on its behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower or any other Loan Party to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate.
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate. (a) In the event (i) any Lender or Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or
Issuing Bank delivers a notice described in Section 2.15 or (iii) the Borrower
is required to pay any additional amount to any Lender or Issuing Bank or any
Governmental Authority on account of any Lender or Issuing Bank pursuant to
Section 2.20, the Borrower may, at its sole expense and effort (including with
respect to the processing and recordation fee referred to in Section 9.04(b)),
upon notice to such Lender or Issuing Bank and the
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Administrative Agent, require such Lender or Issuing Bank to transfer and
assign, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all of its interests, rights and obligations under
this Agreement to an assignee that shall assume such assigned obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that (x) such assignment shall not conflict with any law, rule or regulation or
order of any court or other Governmental Authority having jurisdiction, (y) the
Borrower shall have received the prior written consent of the Administrative
Agent (and, if a Revolving Credit Commitment is being assigned, of the Issuing
Banks and the Swingline Lender), which consent shall not unreasonably be
withheld, and (z) the Borrower or such assignee shall have paid to the affected
Lender or Issuing Bank in immediately available funds an amount equal to the sum
of the principal of and interest accrued to the date of such payment on the
outstanding Loans or L/C Disbursements of such Lender or Issuing Bank,
respectively, plus all Fees and other amounts accrued for the account of such
Lender or Issuing Bank hereunder (including any amounts under Section 2.14 and
Section 2.16); provided further that, if prior to any such transfer and
assignment the circumstances or event that resulted in such Lender's or Issuing
Bank's claim for compensation under Section 2.14 or notice under Section 2.15 or
the amounts paid pursuant to Section 2.20, as the case may be, cease to cause
such Lender or Issuing Bank to suffer increased costs or reductions in amounts
received or receivable or reduction in return on capital, or cease to have the
consequences specified in Section 2.15, or cease to result in amounts being
payable under Section 2.20, as the case may be (including as a result of any
action taken by such Lender or Issuing Bank pursuant to paragraph (b) below), or
if such Lender or Issuing Bank shall waive its right to claim further
compensation under Section 2.14 in respect of such circumstances or event or
shall withdraw its notice under Section 2.15 or shall waive its right to further
payments under Section 2.20 in respect of such circumstances or event, as the
case may be, then such Lender or Issuing Bank shall not thereafter be required
to make any such transfer and assignment hereunder.
(b) If (i) any Lender or Issuing Bank shall request compensation under
Section 2.14, (ii) any Lender or Issuing Bank delivers a notice described in
Section 2.15 or (iii) the Borrower is required to pay any additional amount to
any Lender or Issuing Bank or any Governmental Authority on account of any
Lender or Issuing Bank, pursuant to Section 2.20, then such Lender or Issuing
Bank shall use reasonable efforts (which shall not require such Lender or
Issuing Bank to incur an unreimbursed loss or unreimbursed cost or expense or
otherwise take any action inconsistent with its internal policies or legal or
regulatory restrictions or suffer any disadvantage or burden deemed by it to be
significant) (x) to file any certificate or document reasonably requested in
writing by the Borrower or (y) to assign its rights and delegate and transfer
its obligations hereunder to another of its offices, branches or affiliates, if
such filing or assignment would reduce its claims for compensation under Section
2.14 or enable it to withdraw its notice pursuant to Section 2.15 or would
reduce amounts payable pursuant to Section 2.20, as the case may be, in the
future. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender or Issuing Bank in connection with any such filing or
assignment, delegation and transfer.
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SECTION 2.22. Swingline Loans. (a) Swingline Commitment. Subject to the
terms and conditions and relying upon the representations and warranties herein
set forth, the Swingline Lender agrees to make loans to the Borrower, in
dollars, at any time and from time to time on and after the Closing Date and
until the earlier of the Revolving Credit Maturity Date and the termination of
the Revolving Credit Commitments in accordance with the terms hereof, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of all Swingline Loans (other than Swingline
Loans made pursuant to Section 2.22(c)) exceeding $25,000,000 or (ii) the sum of
the Pari Passu Exposure and the Aggregate Revolving Credit Exposure exceeding
the Total Revolving Credit Commitment. Except for Swingline Loans made pursuant
to Section 2.22(c), each Swingline Loan shall be in a principal amount that is
an integral multiple of $500,000. The Swingline Commitment may be terminated or
reduced from time to time as provided herein. Within the foregoing limits, the
Borrower may borrow, pay or prepay and reborrow Swingline Loans hereunder,
subject to the terms, conditions and limitations set forth herein.
(b) Making of Swingline Loans. Except with respect to Swingline Loans
made pursuant to Section 2.22(c) (as to which this Section 2.22(b) shall not
apply), the Borrower shall notify the Administrative Agent by telecopy, or by
telephone (confirmed by telecopy), not later than 10:00 a.m., California time,
on the day of a proposed Swingline Loan. Such notice shall be delivered on a
Business Day, shall be irrevocable and shall refer to this Agreement and shall
specify the requested date (which shall be a Business Day) and amount of such
Swingline Loan. The Administrative Agent will promptly advise the Swingline
Lender of any notice received from the Borrower pursuant to this paragraph (b).
The Swingline Lender shall make each Swingline Loan available to the Borrower by
means of a credit to the general deposit account of the Borrower with the
Swingline Lender by 3:00 p.m., California time, on the date such Swingline Loan
is so requested.
(c) Trade L/C Disbursements. If the Issuing Bank of any Trade Letters
of Credit shall not have received from the Borrower the payment required to be
made by Section 2.23(e) with respect to such Trade Letters of Credit within the
time specified in such Section, such Issuing Bank will promptly notify the
Administrative Agent and the Swingline Lender of the L/C Disbursement. The
amount of such L/C Disbursement (or the Dollar Equivalent thereof, if
denominated in an Alternative Currency) shall be deemed to constitute a
Swingline Loan of the Swingline Lender made to the Borrower on the date of such
L/C Disbursement and shall be deemed to have reduced the Trade L/C Exposure.
(d) Prepayment. The Borrower shall have the right at any time and from
time to time to prepay any Swingline Loan, in whole or in part, upon giving
written or telecopy notice (or telephone notice promptly confirmed by written,
or telecopy notice) to the Swingline Lender and to the Administrative Agent
before 12:00 (noon), California time, on the date of prepayment at the Swingline
Lender's address for notices specified on Schedule 2.01. All principal payments
of Swingline Loans shall be accompanied by accrued interest on the principal
amount being repaid to the date of payment.
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(e) Interest. Each Swingline Loan shall be an ABR Loan and, subject to
the provisions of Section 2.07, shall bear interest as provided in Section
2.06(a). Interest on each Swingline Loan shall be payable on the Interest
Payment Date with respect thereto.
(f) Participations. If the Borrower does not fully repay a Swingline
Loan on or prior to the due date therefor (whether by demand, acceleration or
otherwise), the Swingline Lender shall promptly notify the Administrative Agent
thereof (by telecopy or by telephone, confirmed in writing), and the
Administrative Agent shall promptly notify each Revolving Credit Lender thereof
(by telecopy or by telephone, confirmed in writing) and of its Pro Rata
Percentage of such Swingline Loan. Upon such notice but without any further
action, the Swingline Lender hereby agrees to grant to each Lender, and each
Lender hereby agrees to acquire from the Swingline Lender, a participation in
such defaulted Swingline Loan equal to such Lender's Pro Rata Percentage of the
aggregate principal amount of such defaulted Swingline Loan. In furtherance of
the foregoing, each Revolving Credit Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender's Pro
Rata Percentage of each Swingline Loan that is not repaid when due in accordance
with Section 2.04(a) or Article VII. Each Revolving Credit Lender acknowledges
and agrees that its obligation to acquire participations in Swingline Loans
pursuant to this paragraph is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or an Event of Default, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Revolving Credit Lender shall comply with its obligation under
this paragraph by wire transfer of immediately available funds, in the same
manner as provided in Section 2.02(c) with respect to Loans made by such Lender
(and Section 2.02(c) shall apply, mutatis mutandis, to the payment obligations
of the Lenders) and the Administrative Agent shall promptly pay to the Swingline
Lender the amounts so received by it from the Lenders. The Administrative Agent
shall notify the Borrower of any participations in any Swingline Loan acquired
pursuant to this paragraph and thereafter payments in respect of such Swingline
Loan shall be made to the Administrative Agent and not to the Swingline Lender.
Any amounts received by the Swingline Lender from the Borrower (or other party
on behalf of the Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower (or other party liable for obligations of the Borrower) of any
default in the payment thereof.
SECTION 2.23. Letters of Credit. (a) General. The Borrower may request
the issuance of a Letter of Credit for its own account or the account of any
wholly owned subsidiary of the Borrower (in which case the Borrower and such
wholly owned subsidiary of the Borrower shall be co-applicants with respect to
such Letter of Credit)
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in a form acceptable to the Administrative Agent and the applicable Issuing
Bank, at any time and from time to time while the Revolving Credit Commitments
remain in effect. This Section shall not be construed to impose an obligation
upon any Issuing Bank to issue any Letter of Credit that is inconsistent with
the terms and conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. In order to request the issuance of a Letter of Credit (or to amend,
renew or extend an existing Letter of Credit), the Borrower shall hand deliver,
telecopy or send electronically to the applicable Issuing Bank and the
Administrative Agent (two Business Days in advance of the requested date of
issuance, amendment, renewal or extension) a notice requesting the issuance of a
Letter of Credit, or identifying the Letter of Credit to be amended, renewed or
extended, and specifying whether such Letter of Credit is to be a Financial
Letter of Credit, a Performance Letter of Credit or a Trade Letter of Credit
(such designation to be subject to the satisfaction of the Administrative Agent,
acting reasonably), the date of issuance, amendment, renewal or extension, the
date on which such Letter of Credit is to expire (which shall comply with
paragraph (c) below), the amount of such Letter of Credit, the currency in which
such Letter of Credit is to be denominated (which shall be dollars or, subject
to Section 2.15, an Alternative Currency), the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare
such Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if, and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that,
after giving effect to such issuance, amendment, renewal or extension (i) the
sum of the L/C Exposure and the Pari Passu Exposure shall not exceed
$200,000,000, (ii) the Trade L/C Exposure shall not exceed $10,000,000 and (iii)
the sum of the Aggregate Revolving Credit Exposure and the Pari Passu Exposure
shall not exceed the Total Revolving Credit Commitment.
(c) Expiration Date. Each Trade Letter of Credit shall expire at the
close of business on the earlier of the date that is 180 days after the date of
issuance of such Letter of Credit and the date that is five Business Days prior
to the Revolving Credit Maturity Date, unless such Letter of Credit expires by
its terms on an earlier date. Each Financial Letter of Credit shall expire at
the close of business on the earlier of the date that is one year after the date
of the issuance of such Letter of Credit and the date that is five Business Days
prior to the Revolving Credit Maturity Date, unless such Letter of Credit
expires by its terms on an earlier date. Each Performance Letter of Credit shall
expire at the close of business on the earlier of the date that is three years
after the date of the issuance of such Letter of Credit and the date that is
five Business Days prior to the Revolving Credit Maturity Date, unless such
Letter of Credit expires by its terms on an earlier date. Notwithstanding the
foregoing, (i) one or more Performance Letters of Credit in an aggregate face
amount not to exceed $20,000,000 at any time outstanding may expire on a date
that is more than three years after the date of issuance thereof (but not later
than five business days prior to the Revolving Credit Maturity Date) and (ii)
one or more Financial Letters of Credit and/or Performance Letters of Credit
may, upon the request of the Borrower, include a provision whereby such Letter
of Credit shall be renewed automatically for additional consecutive periods of
12 months or less
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(but not beyond the date that is five Business Days prior to the Revolving
Credit Maturity Date) unless the applicable Issuing Bank notifies the
beneficiary thereof at least 30 days prior to the then-applicable expiration
date that such Letter of Credit will not be renewed.
(d) Participations. By the issuance of a Standby Letter of Credit and
without any further action on the part of the applicable Issuing Bank or the
Lenders, the applicable Issuing Bank hereby grants to each Revolving Credit
Lender, and each such Lender hereby acquires from the applicable Issuing Bank, a
participation in such Letter of Credit equal to such Lender's Pro Rata
Percentage of the aggregate amount available to be drawn under such Letter of
Credit, effective upon the issuance of such Letter of Credit. In consideration
and in furtherance of the foregoing, each Revolving Credit Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the applicable Issuing Bank, such Lender's Pro Rata Percentage of
each L/C Disbursement made by such Issuing Bank in respect of a Standby Letter
of Credit and not reimbursed by the Borrower (or, if applicable, another party
pursuant to its obligations under any other Loan Document) forthwith on the date
due as provided in Section 2.02(f), in dollars, notwithstanding that such L/C
Disbursement may be denominated in an Alternative Currency. Each Revolving
Credit Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Standby Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or an Event of Default, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If an Issuing Bank shall make any L/C Disbursement
in respect of a Letter of Credit, the Borrower shall pay to the Administrative
Agent an amount equal to such L/C Disbursement not later than two hours after
the Borrower shall have received notice from such Issuing Bank that payment of
such draft will be made, or, if the Borrower shall have received such notice
later than 10:00 a.m., California time, on any Business Day, not later than
10:00 a.m., California time, on the immediately following Business Day.
(f) Obligations Absolute. The Borrower's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of any Letter of Credit or any Loan
Document;
(iii) the existence of any claim, setoff, defense or other
right that the Borrower, any other party guaranteeing, or otherwise
obligated with, the Borrower, any Subsidiary or other Affiliate thereof
or any other person may at
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any time have against the beneficiary under any Letter of Credit, any
Issuing Bank, the Administrative Agent or any Lender or any other
person, whether in connection with this Agreement, any other Loan
Document or any other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a 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;
(v) payment by the applicable Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not
comply with the terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of
any Issuing Bank, the Lenders, the Administrative Agent or any other
person or any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of the
Borrower's obligations hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of the
Borrower hereunder to reimburse L/C Disbursements will not be excused by the
gross negligence or wilful misconduct of any Issuing Bank. However, the
foregoing shall not be construed to excuse any Issuing Bank from liability to
the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
such Issuing Bank's gross negligence or wilful misconduct in determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof; it is understood that each Issuing Bank may accept documents that
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary and, in
making any payment under any Letter of Credit (i) an Issuing Bank's exclusive
reliance on the documents presented to it under such Letter of Credit as to any
and all matters set forth therein, including reliance on the amount of any draft
presented under such Letter of Credit, whether or not the amount due to the
beneficiary thereunder equals the amount of such draft and whether or not any
document presented pursuant to such Letter of Credit proves to be insufficient
in any respect, if such document on its face appears to be in order, and whether
or not any other statement or any other document presented pursuant to such
Letter of Credit proves to be forged or invalid or any statement therein proves
to be inaccurate or untrue in any respect whatsoever and (ii) any noncompliance
in any immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute wilful
misconduct or gross negligence of an Issuing Bank.
(g) Disbursement Procedures. The applicable Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. Such Issuing Bank shall
as promptly as possible
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give telephonic notification, confirmed by telecopy, to the Administrative Agent
and the Borrower of such demand for payment and whether such Issuing Bank has
made or will make an L/C Disbursement thereunder; provided that any failure to
give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Revolving Credit Lenders with
respect to any such L/C Disbursement. The Administrative Agent shall promptly
give each Revolving Credit Lender notice thereof.
(h) Interim Interest. If an Issuing Bank shall make any L/C
Disbursement in respect of a Standby Letter of Credit, then, unless the Borrower
shall reimburse such L/C Disbursement in full on such date, the unpaid amount
thereof shall bear interest for the account of such Issuing Bank, for each day
from and including the date of such L/C Disbursement, to but excluding the
earlier of the date of payment by the Borrower or the date on which interest
shall commence to accrue thereon as provided in Section 2.02(f), at the rate per
annum that would apply to such amount if such amount were an ABR Revolving Loan.
If such amount is denominated in an Alternative Currency, then the interest rate
applicable thereto shall be determined by such Issuing Bank to be the average
rate (rounded upwards, if necessary, to the next 1/16 of 1%) at which overnight
deposits in such Alternative Currency are obtainable by such Issuing Bank on
such date in the relevant interbank market plus the Applicable Percentage for
Eurocurrency Loans at the time.
(i) Resignation or Removal of an Issuing Bank. An Issuing Bank may
resign at any time by giving 180 days' prior written notice to the
Administrative Agent, the Lenders and the Borrower, and may be removed at any
time by the Borrower by notice to the Issuing Bank, the Administrative Agent and
the Lenders. Subject to the next succeeding paragraph, upon the acceptance of
any appointment as an Issuing Bank hereunder by a Lender that shall agree to
serve as successor Issuing Bank, such successor shall succeed to and become
vested with all the interests, rights and obligations of the retiring Issuing
Bank and the retiring Issuing Bank shall be discharged from its obligations to
issue additional Letters of Credit hereunder. At the time such removal or
resignation shall become effective, the Borrower shall pay all accrued and
unpaid fees pursuant to Section 2.05(c)(ii). The acceptance of any appointment
as an Issuing Bank hereunder by a successor Lender shall be evidenced by an
agreement entered into by such successor, in a form satisfactory to the Borrower
and the Administrative Agent, and, from and after the effective date of such
agreement, (i) such successor Lender shall have all the rights and obligations
of the previous Issuing Bank under this Agreement and the other Loan Documents
and (ii) references herein and in the other Loan Documents to the term "Issuing
Bank" shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require. After the resignation or removal of an Issuing Bank hereunder, the
retiring Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement and the other
Loan Documents with respect to Letters of Credit issued by it prior to such
resignation or removal, but shall not be required to issue additional Letters of
Credit.
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(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, the Borrower shall, on the Business Day it receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Credit Lenders holding participations in
outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all outstanding Standby Letters of Credit) thereof and of the
amount to be deposited, deposit in an account with the Collateral Agent, for the
benefit of the Revolving Credit Lenders, an amount in cash equal to the L/C
Exposure as of such date. Such deposit shall be held by the Collateral Agent as
collateral for the payment and performance of the Obligations. The Collateral
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits in Permitted Investments, which investments shall be
made at the option and sole discretion of the Collateral Agent, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall (i) automatically be
applied by the Administrative Agent to reimburse the Issuing Banks for L/C
Disbursements for which they have not been reimbursed, (ii) be held for the
satisfaction of the reimbursement obligations of the Borrower for the L/C
Exposure at such time and (iii) if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Credit Lenders holding
participations in outstanding Standby Letters of Credit representing greater
than 50% of the aggregate undrawn amount of all outstanding Standby Letters of
Credit), be applied to satisfy the Obligations. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence of
an Event of Default, such amount (to the extent not applied as aforesaid) shall
be returned to the Borrower within three Business Days after all Events of
Default have been cured or waived.
(k) Additional Issuing Banks. The Borrower may, at any time and from
time to time with the consent of the Administrative Agent (which consent shall
not be unreasonably withheld) and such Lender, designate one or more additional
Lenders to act as an issuing bank under the terms of the Agreement. Any Lender
designated as an issuing bank pursuant to this paragraph (k) shall be deemed to
be an "Issuing Bank" (in addition to being a Lender) in respect of Letters of
Credit issued or to be issued by such Lender, and, with respect to such Letters
of Credit, such term shall thereafter apply to the other Issuing Banks and such
Lender.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Administrative Agent, the
Collateral Agent, the Issuing Banks and each of the Lenders that:
SECTION 3.01. Organization; Powers. The Borrower and each of the
Subsidiaries (a) (i) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (ii) has all requisite
power and authority to
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own its property and assets and to carry on its business as now conducted and as
proposed to be conducted and (iii) is qualified to do business in, and is in
good standing in, every jurisdiction where such qualification is required,
except where any such failure, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, and (b) has the
power and authority to execute, deliver and perform its obligations under each
of the Loan Documents and each other agreement or instrument contemplated hereby
to which it is or will be a party and, in the case of the Borrower, to borrow
hereunder.
SECTION 3.02. Authorization. The Transactions (a) have been duly
authorized by all requisite corporate and, if required, stockholder action and
(b) will not (i) violate (A) any provision of law, statute, rule or regulation,
or of the certificate or articles of incorporation or other constitutive
documents or by-laws of the Borrower or any Subsidiary, (B) any order of any
Governmental Authority or (C) any provision of any indenture, agreement or other
instrument to which the Borrower or any Subsidiary is a party or by which any of
them or any of their property is or may be bound, (ii) be in conflict with,
result in a breach of or constitute (alone or with notice or lapse of time or
both) a default under, or give rise to any right to accelerate or to require the
prepayment, repurchase or redemption of any obligation under any such indenture,
agreement or other instrument or (iii) result in the creation or imposition of
any Lien upon or with respect to any property or assets now owned or hereafter
acquired by the Borrower or any Subsidiary (other than any Lien created
hereunder or under the Security Documents).
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by the Borrower and constitutes, and each other Loan Document when
executed and delivered by the each Loan party thereto will constitute, a legal,
valid and binding obligation of such Loan Party enforceable against such Loan
Party in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws or equitable principles
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability.
SECTION 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except for
(a) the filing of Uniform Commercial Code financing statements and filings with
the United States Patent and Trademark Office and the United States Copyright
Office, (b) recordation of the Mortgages and (c) such as have been made or
obtained and are in full force and effect.
SECTION 3.05. Financial Statements. (a) The Borrower has heretofore
furnished to the Lenders its, IDP's and Invatec's consolidated balance sheets
and statements of income, stockholders' equity (in the case of the Borrower) and
cash flows (i) as of and for the fiscal year ended December 31, 1999, audited by
and accompanied by the opinion of Ernst & Young LLP, independent public
accountants in the case of the Borrower, PricewaterhouseCoopers LLP, independent
public accountants in the case of IDP, and Xxxxxx Xxxxxxxx LLP, independent
public accountants in the case of Invatec, and (ii) in the case of the Borrower
and IDP, as of and for the fiscal quarter and the
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portion of the fiscal year ended March 31, 2000, certified by its chief
financial officer. Such financial statements present fairly the financial
condition and results of operations and cash flows of the Borrower and its
consolidated Subsidiaries, IDP and Invatec, as the case may be, as of such dates
and for such periods. Such balance sheets and the notes thereto disclose all
material liabilities, direct or contingent, of the Borrower and its consolidated
Subsidiaries, IDP and Invatec, as the case may be, as of the dates thereof. Such
financial statements were prepared in accordance with GAAP.
(b) The Borrower has heretofore delivered to the Lenders its unaudited
pro forma consolidated balance sheet and statements of income as of December 31,
1999, prepared giving effect to the Transactions as if they had occurred, with
respect to such balance sheet, on such date and, with respect to such other
financial statements, on the first day of the 12-month period ending on such
date. Such pro forma financial statements have been prepared in good faith by
the Borrower, based on the assumptions used to prepare the pro forma financial
information contained in the Confidential Information Memorandum (which
assumptions are believed by the Borrower on the date hereof and on the Closing
Date to be reasonable), are based on the best information available to the
Borrower as of the date of delivery thereof, accurately reflect all adjustments
required to be made to give effect to the Transactions and present fairly on a
pro forma basis the estimated consolidated financial position of the Borrower
and its consolidated Subsidiaries as of such date and for such period, assuming
that the Transactions had actually occurred at such date or at the beginning of
such period, as the case may be.
SECTION 3.06. No Material Adverse Change. Since December 31, 1999 and
after giving effect to the Acquisition, no event, change or condition has
occurred that has had, or could reasonably be expected to have, a Material
Adverse Effect.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of
the Borrower and the Subsidiaries has valid title to, or valid leasehold
interests in, all its material properties and assets (including all Mortgaged
Property), except for defects in title that do not interfere with its ability to
conduct its business as currently conducted or to utilize such properties and
assets for their intended purposes. All such material properties and assets are
free and clear of Liens, other than Liens expressly permitted by Section 6.02.
(b) Each of the Borrower and the Subsidiaries has complied with all
material obligations under all material leases to which it is a party and, to
the Borrower's knowledge, all such leases are in full force and effect.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Closing
Date a list of all Subsidiaries and the percentage ownership interest of the
Borrower therein. The shares of capital stock or other ownership interests so
indicated on Schedule 3.08 are fully paid and non-assessable and are owned by
the Borrower, directly or indirectly, free and clear of all Liens (other than
Liens created under the Security Documents).
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SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set forth
on Schedule 3.09, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
Subsidiary or any business, property or rights of any such person (i) that
involve any Loan Document or the Transactions or (ii) which could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect.
(b) None of the Borrower or any of the Subsidiaries or any of their
respective material properties or assets is in violation of any law, rule or
regulation (including any zoning, building, Environmental Law, ordinance, code
or approval or any building permits) or any restrictions of record or agreements
affecting the Mortgaged Property, or is in default with respect to any judgment,
writ, injunction, decree or order of any Governmental Authority, where such
violation or default could reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.10. Agreements. (a) Neither the Borrower nor any of the
Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(b) Neither the Borrower nor any of the Subsidiaries is in default in
any manner under any provision of any indenture or other agreement or instrument
evidencing Indebtedness, or any other material agreement or instrument to which
it is a party or by which it or any of its properties or assets are or may be
bound, where such default could reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) Neither the Borrower nor
any of the Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of buying or
carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of the Regulations of the Board, including Regulation T, U
or X.
SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act. Neither the Borrower nor any Subsidiary is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of
the Loans and will request the issuance of Letters of Credit only for the
purposes specified in the preamble to this Agreement.
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SECTION 3.14. Tax Returns. Each of the Borrower and the Subsidiaries
has filed or caused to be filed all Federal, state, local and foreign tax
returns or materials required to have been filed by it and has paid or caused to
be paid all taxes due and payable by it and all material written assessments
received by it, except taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, shall have set aside on its books adequate reserves.
SECTION 3.15. No Material Misstatements. None of (a) the Confidential
Information Memorandum or (b) any other information, report, financial
statement, exhibit or schedule furnished by or on behalf of the Borrower to the
Administrative Agent or any Lender in connection with the negotiation of any
Loan Document or included therein or delivered pursuant thereto contained,
contains or will contain any material misstatement of fact or omitted, omits or
will omit to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were, are or will be made,
not misleading; provided that to the extent any such information, report,
financial statement, exhibit or schedule was based upon or constitutes a
forecast or projection, the Borrower represents only that it acted in good faith
and utilized reasonable assumptions and due care in the preparation of such
information, report, financial statement, exhibit or schedule.
SECTION 3.16. Employee Benefit Plans. Each of the Borrower and its
ERISA Affiliates is in compliance in all respects with the applicable provisions
of ERISA and the Code and the regulations and published interpretations
thereunder, except where such non-compliance, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. No
ERISA Event has occurred or is reasonably expected to occur that, when taken
together with all other such ERISA Events, could reasonably be expected to
result in a Material Adverse Effect. As of the date hereof and the Closing Date,
the present value of all benefit liabilities under each Plan (based on those
assumptions used to fund such Plan) did not, as of the last annual valuation
date applicable thereto, exceed by more than $10,000,000 the fair market value
of the assets of such Plan.
SECTION 3.17. Environmental Matters. (a) Except as set forth in
Schedule 3.17 and except with respect to any other matters that, individually or
in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect, neither the Borrower nor any of its Subsidiaries (i) has failed
to comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has
received notice of any claim with respect to any Environmental Liability or
(iii) knows of any basis for any Environmental Liability to which it is or
reasonably could become subject.
(b) Since the date of this Agreement, there has been no change in the
status of the matters disclosed on Schedule 3.17 that, individually or in the
aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and
correct description of all insurance maintained by the Borrower or by the
Borrower for its
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Subsidiaries as of the date hereof and the Closing Date. As of each such date,
such insurance is in full force and effect and all premiums have been duly paid.
The Borrower and its Subsidiaries have insurance in such amounts and covering
such risks and liabilities as are in accordance with normal industry practice.
SECTION 3.19. Security Documents. (a) Prior to the Release Date, the
Pledge Agreement is effective to create in favor of the Collateral Agent, for
the ratable benefit of the Secured Parties, a legal, valid and enforceable
security interest in the Collateral (as defined in the Pledge Agreement) and,
when the Collateral is delivered to the Collateral Agent, the Pledge Agreement
shall constitute a fully perfected first priority Lien on, and security interest
in, all right, title and interest of the pledgors thereunder in such Collateral,
in each case prior and superior in right to any other person.
(b) Prior to the Release Date, the Security Agreement is effective to
create in favor of the Collateral Agent, for the ratable benefit of the Secured
Parties, a legal, valid and enforceable security interest in the Collateral (as
defined in the Security Agreement) and, when financing statements in appropriate
form are filed in the offices specified on Schedule 6 to the Perfection
Certificate, the Security Agreement shall constitute a fully perfected Lien on,
and security interest in, all right, title and interest of the grantors
thereunder in such Collateral (other than the Intellectual Property, as defined
in the Security Agreement), in each case prior and superior in right to any
other person, other than with respect to Liens expressly permitted by Section
6.02.
(c) When the Security Agreement is filed in the United States Patent
and Trademark Office and the United States Copyright Office, prior to the
Release Date, the Security Agreement shall constitute a fully perfected Lien on,
and security interest in, all right, title and interest of the grantors
thereunder in the Intellectual Property (as defined in the Security Agreement),
in each case prior and superior in right to any other person (it being
understood that subsequent recordings in the United States Patent and Trademark
Office and the United States Copyright Office may be necessary to perfect a lien
on registered trademarks, trademark applications and copyrights acquired by the
grantors after the date hereof).
(d) Prior to the Release Date, the Mortgages are effective to create in
favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a
legal, valid and enforceable Lien on all of the Loan Parties' right, title and
interest in and to the Mortgaged Property thereunder and the proceeds thereof,
and when the Mortgages are filed in the offices specified on Schedule 3.19(d),
the Mortgages shall constitute a fully perfected Lien on, and security interest
in, all right, title and interest of the Loan Parties in such Mortgaged Property
and the proceeds thereof, in each case prior and superior in right to any other
person, other than with respect to the rights of persons pursuant to Liens
expressly permitted by Section 6.02.
SECTION 3.20. Location of Real Property and Leased Premises. (a)
Schedule 3.20(a) lists completely and correctly as of the Closing Date all real
property owned by the Borrower and the Domestic Subsidiaries (excluding sales
offices) and the addresses thereof.
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(b) Schedule 3.20(b) lists completely and correctly as of the Closing
Date all real property leased by the Borrower and the Domestic Subsidiaries
(excluding sales offices) and the addresses thereof.
(c) Schedule 3.20(c) sets forth certain real property (other than
Consent Decree Assets) of the Borrower and the Domestic Subsidiaries which, as
of the Closing Date, the Borrower intends to sell or otherwise dispose of
following the Closing Date (the "Designated Properties").
SECTION 3.21. Labor Matters. As of the date hereof and the Closing
Date, there are no strikes, lockouts or slowdowns against the Borrower or any
Subsidiary pending or, to the knowledge of the Borrower, threatened. Except with
respect to any violations that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, the hours worked
by and payments made to employees of the Borrower and the Subsidiaries have not
been in violation of the Fair Labor Standards Act or any other applicable
Federal, state, local or foreign law dealing with such matters. All payments due
from the Borrower or any Subsidiary, or for which any claim may be made against
the Borrower or any Subsidiary, on account of wages and employee health and
welfare insurance and other benefits, have been paid or accrued as a liability
on the books of the Borrower or such Subsidiary except where the failure to make
or accrue any such payments, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. The consummation
of the Transactions will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement
to which the Borrower or any Subsidiary is bound.
SECTION 3.22. Solvency. Immediately after the consummation of the
Transactions to occur on the Closing Date and immediately following the making
of each Loan and after giving effect to the application of the proceeds of each
Loan, (a) the fair value of the assets of each Loan Party, at a fair valuation,
will exceed its debts and liabilities, subordinated, contingent or otherwise;
(b) the present fair saleable value of the property of each Loan Party will be
greater than the amount that will be required to pay the probable liability of
its debts and other liabilities, subordinated, contingent or otherwise, as such
debts and other liabilities become absolute and matured; (c) each Loan Party
will be able to pay its debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured; and (d)
each Loan Party will not have unreasonably small capital with which to conduct
the business in which it is engaged as such business is now conducted and is
proposed to be conducted following the Closing Date.
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ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans and of the Issuing Banks
to issue Letters of Credit hereunder are subject to the satisfaction of the
following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing,
including each Borrowing of a Swingline Loan, and on the date of each issuance,
amendment, extension or renewal of a Letter of Credit (each such event being
called a "Credit Event"):
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 (or such notice shall have been deemed
given in accordance with Section 2.03) or, in the case of the issuance,
amendment, extension or renewal of a Letter of Credit, the applicable Issuing
Bank and the Administrative Agent shall have received a notice requesting the
issuance, amendment, extension or renewal of such Letter of Credit as required
by Section 2.23(b) or, in the case of the Borrowing of a Swingline Loan, the
Swingline Lender and the Administrative Agent shall have received a notice
requesting such Swingline Loan as required by Section 2.22(b).
(b) The representations and warranties set forth in Article III hereof
and in each other Loan Document shall be true and correct in all material
respects on and as of the date of such Credit Event with the same effect as
though made on and as of such date, except to the extent such representations
and warranties expressly relate to an earlier date.
(c) The Borrower and each other Loan Party shall be in compliance with
all the terms and provisions set forth herein and in each other Loan Document on
its part to be observed or performed, and at the time of and immediately after
such Credit Event, no Event of Default or Default shall have occurred and be
continuing.
Each Credit Event shall be deemed to constitute a representation and
warranty by the Borrower on the date of such Credit Event as to the matters
specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. First Credit Event. On the Closing Date:
(a) The Administrative Agent shall have received, on behalf of
itself, the Lenders and the Issuing Banks, a favorable written opinion
of (i) Shearman & Sterling, counsel for the Borrower, substantially to
the effect set forth in Exhibit I-1, (ii) Xxxx X. Xxxxx, Senior
Associate General Counsel of the Borrower, substantially to the effect
set forth in Exhibit I-2, and (iii) each local counsel listed on
Schedule 4.02(a), substantially to the effect set forth in Exhibit I-3,
in each case (A) dated the Closing Date, (B) addressed to the Issuing
Banks, the Administrative Agent and the Lenders, and (C) covering such
other matters relating to the Loan Documents and the Transactions as
the Agents shall
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reasonably request, and the Borrower hereby requests such counsel to
deliver such opinions.
(b) All legal matters incident to this Agreement, the
Borrowings and extensions of credit hereunder and the other Loan
Documents shall be satisfactory to the Lenders, to the Issuing Banks
and to the Agents.
(c) The Administrative Agent shall have received (i) a copy of
the certificate or articles of incorporation, including all amendments
thereto, of each Loan Party, certified (to the extent relevant) as of a
recent date by the Secretary of State of the state of its organization,
and (to the extent possible) a certificate as to the good standing of
each Loan Party as of a recent date, from such Secretary of State; (ii)
a certificate of the Secretary or Assistant Secretary (or similar
officer) of each Loan Party dated the Closing Date and certifying (A)
that attached thereto is a true and complete copy of the by-laws or
articles of association of such Loan Party as in effect on the Closing
Date and at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the Board of Directors of
such Loan Party authorizing the execution, delivery and performance of
the Loan Documents to which such person is a party and, in the case of
the Borrower, the borrowings hereunder, and that such resolutions have
not been modified, rescinded or amended and are in full force and
effect, (C) that the certificate or articles of incorporation of such
Loan Party have not been amended since the date of the last amendment
thereto shown on the certificate of good standing furnished pursuant to
clause (i) above, and (D) as to the incumbency and specimen signature
of each officer executing any Loan Document or any other document
delivered in connection herewith on behalf of such Loan Party; (iii) a
certificate of another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the
certificate pursuant to (ii) above; and (iv) such other documents as
the Lenders, the Issuing Banks or the Agents may reasonably request.
(d) The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a Financial Officer
of the Borrower, confirming compliance with the conditions precedent
set forth in paragraphs (b) and (c) of Section 4.01.
(e) The Administrative Agent shall have received all Fees and
other amounts due and payable on or prior to the Closing Date,
including, to the extent invoiced at least 1 Business Day prior to the
Closing Date, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder or under
any other Loan Document.
(f) The Pledge Agreement shall have been duly executed by the
parties thereto and delivered to the Collateral Agent and shall be in
full force and effect, and all the outstanding capital stock of the
Subsidiaries (other than Inactive Subsidiaries) shall have been duly
and validly pledged thereunder to the
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Collateral Agent for the ratable benefit of the Secured Parties and
certificates representing such shares, accompanied by instruments of
transfer and stock powers endorsed in blank, shall be in the actual
possession of the Collateral Agent (except with respect to Foreign
Subsidiaries, certificates for which (to the extent available under
applicable law) shall be delivered to the Collateral Agent within 60
days following the Closing Date); provided that to the extent to do so
would cause adverse tax consequences to the Borrower, (i) neither the
Borrower nor any Domestic Subsidiary shall be required to pledge more
than 65% of the voting stock of any Foreign Subsidiary and (ii) no
Foreign Subsidiary shall be required to pledge the capital stock of any
of its Subsidiaries.
(g) The Security Agreement shall have been duly executed by
the Loan Parties party thereto and shall have been delivered to the
Collateral Agent and shall be in full force and effect on such date and
each document (including each Uniform Commercial Code financing
statement) required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded in order to
create in favor of the Collateral Agent for the benefit of the Secured
Parties a valid, legal and perfected first-priority security interest
in and lien on the Collateral (subject to any Lien expressly permitted
by Section 6.02) described in such agreement shall have been delivered
to the Collateral Agent.
(h) The Collateral Agent shall have received the results of a
search of the Uniform Commercial Code filings (or equivalent filings)
made with respect to the Loan Parties in the states (or other
jurisdictions) in which the chief executive office of each such person
is located, any offices of such persons in which records have been kept
relating to accounts receivable and the other jurisdictions in which
Uniform Commercial Code filings (or equivalent filings) are to be made
pursuant to the preceding paragraph, together with copies of the
financing statements (or similar documents) disclosed by such search,
and accompanied by evidence satisfactory to the Collateral Agent that
the Liens indicated in any such financing statement (or similar
document) would be permitted under Section 6.02 or have been released.
(i) The Collateral Agent shall have received a Perfection
Certificate with respect to the Loan Parties dated the Closing Date and
duly executed by a Responsible Officer of the Borrower.
(j)(i) Each of the Security Documents, in form and substance
satisfactory to the Lenders, relating to each of the Mortgaged
Properties shall have been duly executed by the parties thereto and
delivered to the Collateral Agent and shall be in full force and
effect, (ii) each of such Mortgaged Properties shall not be subject to
any Lien other than those permitted under Section 6.02, (iii) each of
such Security Documents shall have been filed and recorded in the
recording office as specified on Schedule 3.19(d) (or a lender's title
insurance policy, in form and substance acceptable to the Collateral
Agent, insuring such Security Document as a first lien on such
Mortgaged Property (subject to any Lien permitted by Section 6.02)
shall have been received by the Collateral Agent)
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and, in connection therewith, the Collateral Agent shall have received
evidence satisfactory to it of each such filing and recordation and
(iv) the Collateral Agent shall have received such other documents,
including a policy or policies of title insurance issued by a
nationally recognized title insurance company, together with such
endorsements, coinsurance and reinsurance as may be requested by the
Collateral Agent and the Lenders, insuring the Mortgages as valid first
liens on the Mortgaged Properties, free of Liens other than those
permitted under Section 6.02, together with such surveys, abstracts,
appraisals and legal opinions required to be furnished pursuant to the
terms of the Mortgages or as reasonably requested by the Collateral
Agent or the Lenders.
(k) The Guarantee Agreement shall have been duly executed by
the parties thereto, shall have been delivered to the Collateral Agent
and shall be in full force and effect; provided that to the extent to
do so would cause adverse tax consequences to the Borrower, no Foreign
Subsidiary shall be required to guarantee any obligation of the
Borrower or any Domestic Subsidiary.
(l) The Indemnity, Subrogation and Contribution Agreement
shall have been duly executed by the parties thereto, shall have been
delivered to the Collateral Agent and shall be in full force and
effect.
(m) The Administrative Agent shall have received a copy of, or
a certificate as to coverage under, the insurance policies required by
Section 5.02 and the applicable provisions of the Security Documents,
each of which shall be endorsed or otherwise amended to include a
"standard" or "New York" lender's loss payable endorsement and to name
the Collateral Agent as additional insured, in form and substance
satisfactory to the Agents.
(n) The Lenders shall be reasonably satisfied as to the amount
and nature of any environmental exposures to which the Borrower or any
of the Subsidiaries may be subject and with the Borrower's plans with
respect thereto.
(o) The Acquisition shall be consummated simultaneously with
the initial Credit Event in accordance with applicable law and the
Purchase Agreement (without giving effect to any material waiver or
modification thereof not approved by the Lenders); and (i) the Lenders
shall be satisfied with any changes from the pro forma capitalization
and structure described in the Confidential Information Memorandum and
(ii) the sources and uses of funds to finance the Acquisition shall be
consistent with those described in the Confidential Information
Memorandum or, if not so consistent, shall otherwise be reasonably
satisfactory to the Lenders.
(p) The Borrower and FFBV, respectively, shall have received
(i) $285,899,400 in gross cash proceeds from the issuance of the Dollar
Subordinated Notes and (ii) euro 98,586,000 in gross cash proceeds from
the issuance of the Euro Subordinated Notes in a public offering or in
a Rule 144A or other private placement to one or more holders
reasonably satisfactory to the
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Agents, and the terms and conditions of the Subordinated Notes shall be
materially consistent with the terms and conditions described in
Confidential Information Memorandum.
(q) The Existing Debt shall have been repaid in full, all
commitments thereunder terminated and all guarantees thereof and
security therefor released and, after giving effect to the Transactions
and the other transactions contemplated hereby, the Borrower and its
Subsidiaries shall have outstanding no Indebtedness or preferred stock
other than (i) Indebtedness under the Loan Documents, (ii) the
Subordinated Notes and (iii) other Indebtedness set forth on Schedules
6.01(a), (d), (e), (f), (g) and 6.04.
(r) The Lenders shall have received audited consolidated
balance sheets and related statements of income, stockholders' equity
(in the case of the Borrower) and cash flows of the Borrower and IDP
for the 1997, 1998 and 1999 fiscal years (which audits for IDP shall be
reasonably satisfactory to the Lenders) and of Invatec for the 1999
fiscal year.
(s) The Lenders shall have received a pro forma income
statement and a pro forma balance sheet of the Borrower for the 1999
fiscal year, after giving effect to the Transactions and the other
transactions contemplated hereby, which financial statements shall not
be materially inconsistent with those previously provided to the
Lenders.
(t) There shall be no litigation or administrative proceeding
that could reasonably be expected to have a Material Adverse Effect.
(u) All requisite Governmental Authorities and third parties
shall have approved or consented to the Transactions and the other
transactions contemplated hereby to the extent required, all applicable
appeal periods shall have expired and there shall be no governmental or
judicial action, actual or threatened, that could reasonably be
expected to restrain, prevent or impose materially burdensome
conditions on the Transactions.
ARTICLE V
Affirmative Covenants
The Borrower covenants and agrees with each Lender that so long as this
Agreement shall remain in effect and until the Commitments have been terminated
and the principal of and interest on each Loan, all Fees and all other expenses
or amounts payable under any Loan Document shall have been paid in full and all
Letters of Credit have been canceled or have expired and all amounts drawn
thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and will cause each of the
Subsidiaries to:
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SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.05 and except, with respect to any Subsidiary, where the failure to do
so could not reasonably be expected, individually or in the aggregate, to result
in a Material Adverse Effect.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of the business of the Borrower and its Subsidiaries
taken as a whole; maintain and operate such business in substantially the manner
in which it is presently conducted and operated; comply in all material respects
with all applicable laws, rules, regulations (including (i) all Environmental
Laws and (ii) any zoning, building, ordinance, code or approval or any building
permits or any restrictions of record or agreements affecting the Mortgaged
Properties) and decrees and orders of any Governmental Authority, whether now in
effect or hereafter enacted, except where the failure to do so could not
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect; and at all times maintain and preserve all property
material to the conduct of such business and keep such property in good repair,
working order and condition and from time to time make, or cause to be made, all
needful and proper repairs, renewals, additions, improvements and replacements
thereto necessary in order that the business carried on in connection therewith
may be properly conducted at all times, except where the failure to do so could
not reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect.
SECTION 5.02. Insurance. (a) Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers; maintain such
other insurance, to such extent and against such risks, including fire and other
risks insured against by extended coverage, as is customary with companies in
the same or similar businesses operating in the same or similar locations,
including public liability insurance against claims for personal injury or death
or property damage occurring upon, in, about or in connection with the use of
any properties owned, occupied or controlled by it; and maintain such other
insurance as may be required by law.
(b) Cause all such policies covering any Collateral to be endorsed or
otherwise amended to include a "standard" or "New York" lender's loss payable
endorsement, in form and substance satisfactory to the Administrative Agent and
the Collateral Agent, which endorsement shall provide that, from and after the
Closing Date, if the insurance carrier shall have received written notice from
the Administrative Agent or the Collateral Agent of the occurrence of an Event
of Default, the insurance carrier shall pay all proceeds otherwise payable to
the Borrower or the Loan Parties under such policies directly to the Collateral
Agent; cause all such policies to provide that neither the Borrower, the
Administrative Agent, the Collateral Agent nor any other party shall be a
coinsurer thereunder and to contain a "Replacement Cost Endorsement", without
any deduction for depreciation, and such other provisions as the Administrative
Agent or the Collateral Agent may reasonably require from time to time to
protect their interests; deliver original or certified copies of all such
policies to the Collateral Agent;
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cause each such policy to provide that it shall not be canceled, modified or not
renewed (i) by reason of nonpayment of premium upon not less than 10 days' prior
written notice thereof by the insurer to the Administrative Agent and the
Collateral Agent (giving the Administrative Agent and the Collateral Agent the
right to cure defaults in the payment of premiums) or (ii) for any other reason
upon not less than 30 days' prior written notice thereof by the insurer to the
Administrative Agent and the Collateral Agent; deliver to the Administrative
Agent and the Collateral Agent, prior to the cancelation, modification or
nonrenewal of any such policy of insurance, a copy of a renewal or replacement
policy (or other evidence of renewal of a policy previously delivered to the
Administrative Agent and the Collateral Agent) together with evidence
satisfactory to the Administrative Agent and the Collateral Agent of payment of
the premium therefor.
(c) If at any time the area in which the Premises (as defined in the
Mortgages) are located is designated (i) a "flood hazard area" in any Flood
Insurance Rate Map published by the Federal Emergency Management Agency (or any
successor agency), obtain flood insurance in such total amount as the
Administrative Agent, the Collateral Agent or the Required Lenders may from time
to time require, and otherwise comply with the National Flood Insurance Program
as set forth in the Flood Disaster Protection Act of 1973, as it may be amended
from time to time, or (ii) a "Zone 1" area, obtain earthquake insurance in such
total amount as the Administrative Agent, the Collateral Agent or the Required
Lenders may from time to time require.
(d) With respect to any Mortgaged Property, carry and maintain
comprehensive general liability insurance including the "broad form CGL
endorsement" and coverage on an occurrence basis against claims made for
personal injury (including bodily injury, death and property damage) and
umbrella liability insurance against any and all claims, in no event for a
combined single limit of less than $50,000,000, naming the Collateral Agent as
an additional insured, on forms satisfactory to the Collateral Agent.
(e) Notify the Administrative Agent and the Collateral Agent
immediately whenever any separate insurance concurrent in form or contributing
in the event of loss with that required to be maintained under this Section 5.02
is taken out by the Borrower; and promptly deliver to the Administrative Agent
and the Collateral Agent a duplicate original copy of such policy or policies.
SECTION 5.03. Obligations and Taxes. Pay its Indebtedness promptly and
in accordance with their terms and pay and discharge promptly when due all
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits or in respect of its property, before the same shall
become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise that, if unpaid, might give rise to a Lien
upon such properties or any part thereof; provided, however, that such payment
and discharge shall not be required with respect to any such tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and the Borrower shall have
set aside on its books adequate reserves with respect thereto in accordance with
GAAP and such contest operates to suspend collection of the contested
obligation, tax, assessment or
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charge and enforcement of a Lien and, in the case of a Mortgaged Property, there
is no risk of forfeiture of such property.
SECTION 5.04. Financial Statements, Reports, etc. In the case of the
Borrower, furnish to the Administrative Agent and each Lender:
(a) within 100 days after the end of each fiscal year, its
consolidated balance sheet and related statements of income,
stockholders' equity and cash flows showing the financial condition of
the Borrower and its consolidated Subsidiaries as of the close of such
fiscal year and the results of its operations and the operations of
such Subsidiaries during such year, all audited by Ernst & Young LLP or
other independent public accountants of recognized national standing
and accompanied by an opinion of such accountants (which shall not be
qualified in any material respect) to the effect that such consolidated
financial statements fairly present the financial condition and results
of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP;
(b) within 50 days after the end of each of the first three
fiscal quarters of each fiscal year, its consolidated balance sheet and
related statements of income, stockholders' equity and cash flows
showing the financial condition of the Borrower and its consolidated
Subsidiaries as of the close of such fiscal quarter and the results of
its operations and the operations of such Subsidiaries during such
fiscal quarter and the then elapsed portion of the fiscal year,
compared with the consolidated budget for such fiscal quarter as well
as the results of its operations and the operations of its Subsidiaries
in the corresponding quarter from the prior fiscal year, all certified
by one of its Financial Officers as fairly presenting the financial
condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP, subject to normal year-end audit adjustments;
(c) unless and until the Borrower shall have obtained, and
during any period the Borrower does not maintain, Investment Grade
Ratings, within 30 days after the end of each of the first two fiscal
months of each fiscal quarter, its consolidated balance sheet and
related statement of income showing the financial condition of the
Borrower and its consolidated Subsidiaries during such fiscal month and
the then elapsed portion of the fiscal year, in such form as the
Borrower shall generally prepare for its internal purposes;
(d) concurrently with any delivery of financial statements
under paragraph (a), (b) or (c) above, a certificate of the accounting
firm (in the case of paragraph (a)) or Financial Officer (in the case
of paragraph (b) or (c)) opining on or certifying such statements
(which certificate, when furnished by an accounting firm, may be
limited to accounting matters and disclaim responsibility for legal
interpretations) certifying that no Event of Default or Default has
occurred or, if such an Event of Default or Default has occurred,
specifying the nature and extent thereof and any corrective action
taken or
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proposed to be taken with respect thereto and, in the case of a
certificate delivered with the financial statements required by
paragraph (a) above, setting forth the Borrower's calculation of Excess
Cash Flow;
(e) at least 10 days prior to the commencement of each fiscal
year of the Borrower, a detailed consolidated budget for such fiscal
year (including a projected consolidated balance sheet and related
statements of projected operations and cash flow as of the end of and
for each quarter of such fiscal year and as of the end of and for such
fiscal year and describing the assumptions used for purposes of
preparing such budget) and, promptly when available, any significant
revisions of such budget;
(f) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Borrower or any Subsidiary with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national
securities exchange, or distributed to its share-holders, as the case
may be;
(g) promptly after the receipt thereof by the Borrower or any
of its Subsidiaries, a copy of any final "management letter" received
by any such person from its certified public accountants and the
management's response thereto; and
(h) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
the Borrower or any Subsidiary, or compliance with the terms of any
Loan Document, as the Administrative Agent or any Lender may reasonably
request.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent, each Issuing Bank and each Lender prompt written notice of
the following:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) taken or proposed to
be taken with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any
Governmental Authority, against the Borrower or any Affiliate thereof
that could reasonably be expected to result in a Material Adverse
Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and the Subsidiaries in
an aggregate amount exceeding $5,000,000;
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(d) any notice from S&P or Xxxxx'x indicating the possibility
of an adverse change in the credit ratings applicable to the Borrower
or any of its Indebtedness assigned by S&P or Xxxxx'x;
(e) any modification of the Consent Decree that imposes
additional obligations on the Borrower or any Subsidiary or otherwise
adversely affects the Borrower or any Subsidiary; and
(f) any development that has resulted in, or could reasonably
be expected to result in, a Material Adverse Effect.
SECTION 5.06. Information Regarding Collateral. (a) Furnish to the
Administrative Agent prompt written notice of any change (i) in any Loan Party's
corporate name or in any trade name used to identify it in the conduct of its
business or in the ownership of its properties, (ii) in the location of any Loan
Party's chief executive office, its principal place of business, any office in
which it maintains books or records relating to Collateral owned by it or any
office or facility at which Collateral owned by it is located (including the
establishment of any such new office or facility), (iii) in any Loan Party's
identity or corporate structure or (iv) in any Loan Party's Federal Taxpayer
Identification Number. The Borrower agrees not to effect or permit any change
referred to in the preceding sentence unless all filings have been made under
the Uniform Commercial Code or otherwise that are required in order for the
Collateral Agent to continue at all times following such change to have a valid,
legal and perfected security interest in all the Collateral. The Borrower also
agrees promptly to notify the Administrative Agent if any material portion of
the Collateral is damaged or destroyed.
(b) Each year, at the time of delivery of the annual financial
statements with respect to the preceding fiscal year pursuant to Section
5.04(a), deliver to the Administrative Agent a certificate of a Financial
Officer setting forth the information required pursuant to Section 2 of the
Perfection Certificate or confirming that there has been no change in such
information since the date of the Perfection Certificate delivered on the
Closing Date or the date of the most recent certificate delivered pursuant to
this Section 5.06.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all requirements of law are made of
all dealings and transactions in relation to its business and activities. Each
Loan Party will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender to visit
and inspect the financial records and the properties of the Borrower or any
Subsidiary at reasonable times and as often as reasonably requested and to make
extracts from and copies of such financial records, and permit any
representatives designated by the Administrative Agent or any Lender to discuss
the affairs, finances and condition of the Borrower or any Subsidiary with the
officers thereof and independent accountants therefor; provided that any such
visit or inspection does not interfere with the normal operation of such
business conducted at the properties.
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SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans and
request the issuance of Letters of Credit only for the purposes set forth in the
preamble to this Agreement.
SECTION 5.09. Further Assurances. (a) Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing Uniform Commercial Code and other financing
statements, mortgages and deeds of trust) that may be required under applicable
law, or that the Required Lenders or the Agents may reasonably request, in order
to effectuate the transactions contemplated by the Loan Documents and in order
to grant, preserve, protect and perfect the validity and first priority of the
security interests created or intended to be created by the Security Documents.
The Borrower will cause any subsequently acquired or organized Domestic
Subsidiary (other than Finsub) to execute a Guarantee Agreement, Indemnity
Subrogation and Contribution Agreement and each applicable Security Document in
favor of the Collateral Agent. In addition, from time to time, the Borrower
will, at its cost and expense, promptly secure the Obligations by pledging or
creating, or causing to be pledged or created, perfected security interests with
respect to such of its assets and properties as the Administrative Agent or the
Required Lenders shall designate (it being understood that it is the intent of
the parties that the Obligations shall be secured by, among other things,
substantially all the assets of the Borrower and its Subsidiaries (including
real and other properties acquired subsequent to the Closing Date but excluding
Program Receivables sold to Finsub pursuant to the Receivables Program
Documentation)). Such security interests and Liens will be created under the
Security Documents and other security agreements, mortgages, deeds of trust and
other instruments and documents in form and substance satisfactory to the
Collateral Agent, and the Borrower shall deliver or cause to be delivered to the
Lenders all such instruments and documents (including legal opinions, title
insurance policies and lien searches) as the Collateral Agent shall reasonably
request to evidence compliance with this Section. The Borrower agrees to provide
such evidence as the Collateral Agent shall reasonably request as to the
perfection and priority status of each such security interest and Lien.
(b) In the event that any one or more of the Designated Properties
continues to be owned by the Borrower or any Domestic Subsidiary and is not
subject to a definitive contract for its sale on the day that is 12 months
following the Closing Date, or, in the event the Borrower determines not to sell
or otherwise dispose of any Designated Property, within 90 days of such
decision, if earlier, execute any and all documents, financing statements,
agreements and instruments, and take all action (including filing Uniform
Commercial Code and other financing statements, mortgages and deeds of trust)
that may be required under applicable law, or that the Required Lenders or the
Agents may reasonably request, in order to grant, preserve, protect and perfect
a valid and first priority security interest in each such Designated Property in
favor of the Collateral Agent for the ratable benefit of the Secured Parties.
(c) Within 60 days after the Closing Date, the Borrower shall deliver
or cause to be delivered to the Collateral Agent such share certificates,
corporate records, instruments and other documents as shall be necessary to
perfect under the laws of the
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relevant jurisdictions the pledge of capital stock or other equity interests of
the Foreign Subsidiaries and other foreign companies listed on Schedule II to
the Pledge Agreement.
SECTION 5.10. Interest Rate Protection. The Borrower shall maintain the
lesser of (a) $375,000,000 in principal amount and (b) 50% of its long-term
Indebtedness as Indebtedness bearing a fixed rate of interest, whether pursuant
to Hedging Agreements (which shall be acceptable to the Agents) or otherwise.
ARTICLE VI
Negative Covenants
The Borrower covenants and agrees with each Lender that, so long as
this Agreement shall remain in effect and until the Commitments have been
terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document have been paid in full
and all Letters of Credit have been canceled or have expired and all amounts
drawn thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, the Borrower will not, and will not cause or
permit any of the Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist
any Indebtedness, except:
(a) Indebtedness for borrowed money existing on the date
hereof and set forth in Schedules 6.01(a), (d), (e), (f) and (g), and
any extensions, renewals or replacements of such Indebtedness to the
extent the principal amount of such Indebtedness is not increased, the
weighted average life to maturity of such Indebtedness is not
decreased, such Indebtedness, if subordinated to the Obligations,
remains so subordinated on terms not less favorable to the Lenders, and
no Loan Party (unless the original obligor in respect of such
Indebtedness) becomes an obligor with respect thereto;
(b) Indebtedness created hereunder and under the other Loan
Documents;
(c) Intercompany Indebtedness of the Borrower and the
Subsidiaries to the extent permitted by Section 6.04(c);
(d) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or
capital assets, including any Indebtedness assumed in connection with
the acquisition of any such assets or secured by a Lien on any such
assets prior to the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof; provided that (i) such
Indebtedness is incurred prior to or within 90 days after such
acquisition or within 90 days after the completion of such construction
or improvement and (ii)
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the aggregate principal amount of Indebtedness permitted by this
Section 6.01(d), when combined with the aggregate principal amount of
all Capital Lease Obligations incurred pursuant to Section 6.01(e) and
outstanding Indebtedness listed on Schedules 6.01(d) and 6.01(e), shall
not exceed $25,000,000 at any time outstanding;
(e) Capital Lease Obligations in an aggregate principal
amount, when combined with the aggregate principal amount of all
Indebtedness incurred pursuant to Section 6.01(d) and outstanding
Indebtedness listed on Schedules 6.01(d) and 6.01(e), not in excess of
$25,000,000 at any time outstanding;
(f) Indebtedness under industrial revenue bonds in an
aggregate principal amount, when combined with the outstanding
principal amounts of industrial revenue bonds listed on Schedule
6.01(f), not to exceed $20,000,000 at any time outstanding;
(g) Indebtedness incurred by Foreign Subsidiaries in an
aggregate principal amount, when combined with the outstanding
principal amount of all Indebtedness listed on Schedule 6.01(g), not to
exceed $25,000,000 at any time outstanding;
(h) in respect of the Borrower, unsecured Guarantees of
Indebtedness of Subsidiaries permitted to be incurred pursuant to this
Agreement, provided that if such Indebtedness is subordinated to the
Obligations, the Guarantee thereof by the Borrower shall be
subordinated on terms no less favorable to the Lenders;
(i) Indebtedness of (x) the Borrower under the Dollar
Subordinated Notes in an aggregate principal amount not to exceed
$290,000,000, and the senior subordinated Guarantees thereof by the
Guarantors, and (y) FFBV under the Euro Subordinated Notes in an
aggregate principal amount not to exceed euro 100,000,000, and the
senior subordinated Guarantees thereof by the Guarantors (other than
FFBV) and the Borrower, in each case less the amount of any prepayments
or repurchases thereof after the Closing Date;
(j) Indebtedness of Finsub incurred pursuant to the
Receivables Program Documentation in an amount not exceeding
$200,000,000 in the aggregate at any time outstanding;
(k) in respect of the Loan Parties and after March 31, 2001,
Guarantees of loans, in an aggregate amount outstanding at any time not
to exceed $30,000,000, made by third parties to employees who are
participants in the Borrower's stock purchase program, if implemented,
to enable such employees to purchase common stock of the Borrower;
(l) Indebtedness or other contingent obligations (including
obligations as an account party under any letter of credit), solely in
respect of surety and performance bonds, bank guarantees and similar
obligations in respect of
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contractual obligations of the Borrower or its Subsidiaries, provided
that such obligations are (i) incurred in the ordinary course of
business of the Borrower and the Subsidiaries and (ii) except as
expressly permitted under Section 6.02(l), unsecured;
(m) Indebtedness in respect of the ABN Standby Credit in an
aggregate amount outstanding at any time not to exceed $10,000,000;
(n) Indebtedness in respect of the Fifth Third Letters of
Credit, but not any renewals, extensions or replacements thereof;
(o) to the extent constituting Indebtedness, the unsecured
corporate Guarantee of the Borrower set forth in Section 4.7 of the
Purchase Agreement; and
(p) other unsecured Indebtedness of the Borrower or the
Subsidiaries (other than Foreign Subsidiaries) in an aggregate
principal amount not exceeding $25,000,000 at any time outstanding.
SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien
on any property or assets (including stock or other securities of any person,
including any Subsidiary) now owned or hereafter acquired by it or on any income
or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower and its
Subsidiaries existing on the date hereof and set forth in Schedule
6.02; provided that to the extent such Liens secure obligations, they
shall secure only those obligations which they secure on the date
hereof;
(b) any Lien created under the Loan Documents, including Liens
created under the Security Documents to secure the Pari Passu Exposure,
Hedging Agreements entered into with Lenders or Affiliates of Lenders,
and the Guarantees described in Section 6.01(k);
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with
such acquisition, (ii) such Lien does not apply to any other property
or assets of the Borrower or any Subsidiary and (iii) such Lien does
not (A) materially interfere with the use, occupancy and operation of
any Mortgaged Property, (B) materially reduce the fair market value of
such Mortgaged Property but for such Lien or (C) result in any material
increase in the cost of operating, occupying or owning or leasing such
Mortgaged Property;
(d) Liens for taxes not yet due or which are being contested
in compliance with Section 5.03;
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(e) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business and securing obligations that are not due and payable or
which are being contested in compliance with Section 5.03;
(f) pledges and deposits made in the ordinary course of
business in compliance with workmen's compensation, unemployment
insurance and other social security laws or regulations;
(g) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases (other than Capital
Lease Obligations), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(h) zoning restrictions, easements, rights-of-way,
restrictions on use of real property and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate,
are not substantial in amount and do not materially detract from the
value of the property subject thereto or interfere with the ordinary
conduct of the business of the Borrower or any of its Subsidiaries;
(i) purchase money security interests in real property,
improvements thereto or equipment hereafter acquired (or, in the case
of improvements, constructed) by the Borrower or any Subsidiary;
provided that (i) such security interests secure Indebtedness permitted
by Section 6.01, (ii) such security interests are incurred, and the
Indebtedness secured thereby is created, within 90 days after such
acquisition (or construction), (iii) the Indebtedness secured thereby
does not exceed 90% of the lesser of the cost or the fair market value
of such real property, improvements or equipment at the time of such
acquisition (or construction) and (iv) such security interests do not
apply to any other property or assets of the Borrower or any
Subsidiary;
(j) Liens on the property of Finsub incurred pursuant to the
Receivables Program Documentation;
(k) Liens arising out of judgments or awards in respect of
which the Borrower or any of the Subsidiaries shall in good faith be
prosecuting an appeal or proceedings for review in respect of which
there shall be secured a subsisting stay of execution pending such
appeal or proceedings; provided that the aggregate amount of all such
judgments or awards (and any cash and the fair market value of any
property subject to such Liens) does not exceed $10,000,000 at any time
outstanding; and
(l) Liens on assets of Foreign Subsidiaries; provided that (i)
such Liens do not extend to, or encumber, assets which constitute
Collateral or the capital stock of any of the Subsidiaries, and (ii)
such Liens extending to the assets of any Foreign Subsidiary secure
only Indebtedness (x) incurred by such Foreign
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Subsidiary pursuant to Section 6.01(g) or (y) of up to $5,000,000 in
the aggregate incurred by Foreign Subsidiaries pursuant to Section
6.01(l).
SECTION 6.03. Sale and Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred unless (a) the sale of such
property is permitted by Section 6.05 and (b) any Capital Lease Obligations or
Liens arising in connection therewith are permitted by Sections 6.01 and 6.02,
respectively.
SECTION 6.04. Investments, Loans and Advances. Purchase, hold or
acquire any capital stock, evidences of indebtedness or other securities of,
make or permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other person, except:
(a) (i) investments by the Borrower and the Subsidiaries
existing on the date hereof in the capital stock or other equity
interests of the Subsidiaries, (ii) investments in an aggregate amount
not to exceed $30,000,000, the proceeds of which are used, directly or
indirectly, to acquire from any third-party joint venture participant
all such participant's interest in a joint venture, with the result
that the joint venture becomes a wholly owned subsidiary, and (iii)
additional investments by the Borrower and the Subsidiaries in the
capital stock or other equity interests of the Subsidiaries; provided
that (A) any such capital stock or other equity interests held by a
Loan Party shall be pledged pursuant to the Pledge Agreement (subject
to the limitations applicable to voting stock of a Foreign Subsidiary
referred to in Section 4.02(f)) and (B) the aggregate amount of equity
investments made after the Closing Date pursuant to this clause (iii)
by Loan Parties in Subsidiaries that are not Loan Parties shall not
exceed $25,000,000 at any time outstanding;
(b) Permitted Investments;
(c) (i) intercompany loans and advances existing on the
Closing Date (after giving effect to the Acquisition and the financing
therefor) and set forth on Schedule 6.04 and renewals, refinancings,
substitutions and replacements of such intercompany loans and advances
to the extent the aggregate principal amount of all such loans and
advances is not increased, (ii) other loans or advances made by the
Borrower to any Subsidiary and made by any Subsidiary to the Borrower
or any other Subsidiary; provided that (x) any such loans and advances
pursuant to this paragraph (c) made by a Loan Party to a Subsidiary
that is not a Loan Party shall be evidenced by a senior promissory note
(in form and substance satisfactory to the Agents) and (y) the amount
of such loans and advances made pursuant to clause (ii) of this
paragraph (c) by Loan Parties to Subsidiaries that are not Loan Parties
shall not exceed (A) $40,000,000 at any time outstanding prior to the
six-month anniversary of the Closing Date and
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(B) $25,000,000 at any time outstanding thereafter; (iii) a loan of
approximately $3,000,000 (or the equivalent thereof in another
currency) to be made to a subsidiary of Xxxxxxxxx-Xxxx Company in
connection with the Acquisition and required to be repaid within five
Business Days following the Closing Date and (iv) the Borrower or a
wholly owned subsidiary may own the Defeased IRBs;
(d) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes
with, customers and suppliers, in each case in the ordinary course of
business;
(e) the Borrower and the Subsidiaries may make loans and
advances in the ordinary course of business to their respective
employees so long as the aggregate principal amount thereof at any time
outstanding (determined without regard to any write-downs or write-offs
of such loans and advances) shall not exceed $5,000,000;
(f) the Borrower may enter into Hedging Agreements that (i)
are required by Section 5.10 or (ii) are not speculative in nature, are
entered into in the ordinary course of business and are related to
interest rate hedging for floating interest rate exposure or hedging of
bookings, sales, income and dividends derived from the foreign
operations of the Borrower or any Subsidiary or otherwise related to
purchases from foreign suppliers;
(g) the Borrower or any Subsidiary may acquire all or
substantially all the assets of a person or line of business of such
person, or not less than 100% of the capital stock or other equity
interests of a person (referred to herein as the "Acquired Entity");
provided that (i) such acquisition was not preceded by an unsolicited
tender offer for such capital stock or other equity interest by, or
proxy contest initiated by, the Borrower or any Subsidiary; (ii) the
Acquired Entity shall be a going concern, shall be in a similar line of
business as that of the Borrower and the Subsidiaries as conducted
during the current and most recent calendar year and shall have had
positive Consolidated EBITDA over the twelve month period preceding the
Acquisition; and (iii) at the time of such transaction (A) both before
and after giving effect thereto, no Event of Default or Default shall
have occurred and be continuing; (B) the Borrower would be in
compliance with the covenants set forth in Sections 6.11 and 6.12 and
the Leverage Ratio shall be at least 25 basis points below the maximum
Leverage Ratio permitted at the time pursuant to Section 6.13, in each
case as of the most recently completed period of four consecutive
fiscal quarters ending prior to such transaction for which the
financial statements and certificates required by Section 5.04(a) or
5.04(b) have been delivered or for which comparable financial
statements have been filed with the Securities and Exchange Commission,
after giving pro forma effect to such transaction and to any other
event occurring after such period as to which pro forma recalculation
is appropriate (including any other transaction described in this
Section 6.04(g) occurring after such period) as if such transaction had
occurred as of the first day of such period; (C) after giving effect to
such acquisition, there must be at least $60,000,000 of unused
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and available Revolving Credit Commitments; and (D) the aggregate of
the consideration paid in connection with all such acquisitions
(including any Indebtedness of the Acquired Entity that is assumed by
the Borrower or any Subsidiary following such acquisition) shall not
exceed (x) in the event that the Borrower's Leverage Ratio calculated
as provided under clause (iii)(B) above is greater than 2.5 to 1.0,
$50,000,000 for all such acquisitions, and (y) in the event that the
Borrower's Leverage Ratio calculated as provided under clause
(iii)(B) above is equal to or less than 2.5 to 1.0, $100,000,000 in any
fiscal year of the Borrower, which amount may be increased in any
fiscal year (to an amount not to exceed $150,000,000) by the amount of
consideration for any such acquisition in such fiscal year consisting
solely of common stock of the Borrower (any acquisition of an Acquired
Entity meeting all the criteria of this Section 6.04(g) being referred
to herein as a "Permitted Acquisition"). All pro forma calculations
required to be made pursuant to this Section 6.04(g) shall (i) include
only those adjustments that would be permitted or required by
Regulation S-X under the Securities Act of 1933, as amended, are
reviewed by the Borrower's independent certified public accountants and
are based on reasonably detailed written assumptions reasonably
acceptable to the Agents and (ii) be certified to by a Financial
Officer as having been prepared in good faith based upon reasonable
assumptions; and
(h) in addition to investments permitted by clauses (a)
through (g) above, additional investments, loans and advances by the
Borrower and the Subsidiaries (other than equity investments in Foreign
Subsidiaries) so long as the aggregate amount invested, loaned or
advanced pursuant to this paragraph (h) (determined without regard to
any write-downs or write-offs of such investments, loans and advances)
does not exceed $10,000,000 in the aggregate.
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions. (a) Merge into or consolidate with any other person, or permit any
other person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all or
substantially all the assets of the Borrower (whether now owned or hereafter
acquired) or any capital stock of any Subsidiary, or purchase, lease or
otherwise acquire (in one transaction or a series of transactions) all or any
substantial part of the assets of any other person, except that (i) the Borrower
and any Subsidiary may purchase and sell inventory in the ordinary course of
business, (ii) if at the time thereof and immediately after giving effect
thereto no Event of Default or Default shall have occurred and be continuing (x)
any wholly owned subsidiary of the Borrower may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation and (y) any
wholly owned subsidiary of the Borrower may merge into or consolidate with any
other wholly owned subsidiary of the Borrower in a transaction in which the
surviving entity is a wholly owned subsidiary of the Borrower and no person
other than the Borrower or a wholly owned subsidiary of the Borrower receives
any consideration, (iii) the Acquisition may be consummated, (iv) the Borrower
and the Subsidiaries may make Permitted Acquisitions, (v) any Inactive
Subsidiary may be liquidated, (vi) any Loan Party (other than the Borrower) may
sell, transfer, lease or otherwise dispose of (in one transaction or a series
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of transactions) all or substantially all of the assets of such Loan Party to
another Loan Party and (vii) the Borrower or any Subsidiary may sell Program
Receivables to Finsub, and Finsub may sell Program Receivables pursuant to the
Receivables Program Documentation.
(b) Engage in any Asset Sale otherwise permitted under paragraph (a)
above unless (i) such Asset Sale is for consideration at least 75% of which is
cash, (ii) except with respect to Asset Sales of Designated Properties or
Consent Decree Assets, such consideration is at least equal to the fair market
value (as determined in good faith by the board of directors of the Borrower) of
the assets being sold, transferred, leased or disposed of and (iii) except with
respect to Asset Sales of Designated Properties or Consent Decree Assets, the
fair market value of all assets sold, transferred, leased or disposed of
pursuant to this paragraph (b) shall not exceed (i) $50,000,000 in any fiscal
year or (ii) $150,000,000 in the aggregate.
(c) Engage in any Asset Swap otherwise permitted by Section 6.05(a)
unless all of the following conditions are met: (i) such exchange complies with
the definition of Asset Swap, (ii) if the fair market value of the assets
transferred exceeds $25,000,000, the board of directors of the Borrower approves
such exchange and the Borrower secures an appraisal given by an unaffiliated
third party in form and substance reasonably satisfactory to the Administrative
Agent, (iii) the fair market value of all assets of the Borrower and the
Subsidiaries transferred pursuant to Asset Swaps shall not exceed $100,000,000
in the aggregate and (iv) the fair market value of any property or assets
received is at least equal to the fair market value of the property or assets so
transferred.
SECTION 6.06. Dividends and Distributions; Restrictive Agreements. (a)
Declare or pay, directly or indirectly, any dividend or make any other
distribution (by reduction of capital or otherwise), whether in cash, property,
securities or a combination thereof, with respect to any shares of its capital
stock or directly or indirectly redeem, purchase, retire or otherwise acquire
for value (or permit any Subsidiary to purchase or acquire) any shares of any
class of its capital stock or set aside any amount for any such purpose (a
"Restricted Payment"); provided, however, that (i) any Subsidiary may declare
and pay dividends or make other distributions ratably to its shareholders, (ii)
so long as no Event of Default or Default shall have occurred and be continuing
or would result therefrom, the Borrower may repurchase shares of its capital
stock owned by employees of the Borrower or the Subsidiaries or make payments to
employees of the Borrower or the Subsidiaries in connection with the exercise of
stock options, stock appreciation rights or similar equity incentives or equity
based incentives upon termination of employment or in connection with the death
or disability of such employees, in an aggregate amount not to exceed $5,000,000
in any fiscal year, (iii) so long as no Event of Default or Default shall have
occurred and be continuing or would result therefrom, the Borrower may
repurchase shares of its capital stock for contribution to employee benefit
plans maintained by the Borrower and the Subsidiaries, in an aggregate amount
not to exceed $5,000,000 in any fiscal year and (iv) so long as the Borrower has
obtained and maintains Investment Grade Ratings, and so long as no Event of
Default or Default shall have occurred and be continuing or would result
therefrom, the Borrower may make
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Restricted Payments in an amount not to exceed in the aggregate 50% of the
Consolidated Net Income accrued during the period (treated as one accounting
period) from the beginning of the fiscal quarter immediately following the
fiscal quarter during which the Investment Grade Ratings are obtained to the end
of the most recent fiscal quarter for which financial statements have been
delivered to the Lenders pursuant to Section 5.04(a) or (b) prior to the date of
such Restricted Payment.
(b) Enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (i) the
ability of the Borrower or any Subsidiary to create, incur or permit to exist
any Lien upon any of its property or assets to secure the Obligations, or (ii)
the ability of any Subsidiary to pay dividends or other distributions with
respect to any shares of its capital stock or to make or repay loans or advances
to the Borrower or any other Subsidiary or to Guarantee Indebtedness of the
Borrower or any other Subsidiary; provided that (A) the foregoing shall not
apply to restrictions and conditions imposed by law or by any Loan Document or
Subordinated Note Document, (B) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder,
(C) the foregoing shall not apply to restrictions and conditions imposed on
Finsub under the Receivables Program Documentation, (D) the foregoing shall not
apply to restrictions and conditions imposed on any Foreign Subsidiary by the
terms of any Indebtedness of such Foreign Subsidiary permitted to be incurred
hereunder, (E) clause (i) of the foregoing shall not apply to restrictions or
conditions imposed by any agreement relating to secured Indebtedness permitted
by this Agreement if such restrictions or conditions apply only to the property
or assets securing such Indebtedness and (F) clause (i) of the foregoing shall
not apply to customary provisions in leases and other contracts restricting the
assignment thereof.
SECTION 6.07. Transactions with Affiliates. Except for transactions by
or among Loan Parties, sell or transfer any property or assets to, or purchase
or acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except that (a) the Borrower or any
Subsidiary may engage in any of the foregoing transactions in the ordinary
course of business at prices and on terms and conditions not less favorable to
the Borrower or such Subsidiary than could be obtained on an arm's-length basis
from unrelated third parties, (b) reasonable and customary fees may be paid to
members of the Board of Directors, officers, employees and consultants of the
Borrower and the Subsidiaries for services rendered to the Borrower or any such
Subsidiary in the ordinary course of business, together with customary
indemnities in connection therewith and in accordance with applicable law, (c)
dividends and other payments permitted to be made under Section 6.06 will be
permitted, (d) the Borrower, Finsub and the other Subsidiaries may consummate
the transactions contemplated by the Receivables Program Documentation, (e) the
Borrower and the Subsidiaries may enter into intercompany transactions permitted
by Sections 6.04 and (f) the Borrower and the Subsidiaries may consummate the
Transactions.
SECTION 6.08. Business of Borrower and Subsidiaries. Engage at any time
in any business or business activity other than the business currently conducted
by it and
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business activities reasonably incidental thereto, which, in the case of Finsub,
shall be limited solely to performing its obligations under the Receivables
Program Documentation and, in the case of FFBV, shall be limited solely to
performing its obligations under the Subordinated Note Documents and the Loan
Documents.
SECTION 6.09. Other Indebtedness and Agreements. (a) Permit any waiver,
supplement, modification, amendment, termination or release of any indenture,
instrument or agreement pursuant to which any Material Indebtedness of the
Borrower or any of the Subsidiaries is outstanding if the effect of such waiver,
supplement, modification, amendment, termination or release would materially
increase the obligations of the obligor or confer additional material rights on
the holder of such Indebtedness in a manner adverse to the Borrower, any of the
Subsidiaries or the Lenders.
(b)(i) Make any distribution, whether in cash, property, securities or
a combination thereof, other than regular scheduled payments of interest as and
when due (to the extent not prohibited by applicable subordination provisions),
in respect of, or pay, or offer or commit to pay, or directly or indirectly
redeem, repurchase, retire or otherwise acquire for consideration, or set apart
any sum for the aforesaid purposes, any subordinated Indebtedness (including the
Subordinated Notes), or (ii) pay in cash any amount in respect of any
Indebtedness or preferred equity interests that may at the obligor's option be
paid in kind or in other securities.
SECTION 6.10. Capital Expenditures. Until such time as the Borrower
obtains, and during any period in which the Borrower does not maintain,
Investment Grade Ratings, permit the aggregate amount of Capital Expenditures
made by the Borrower and the Subsidiaries (a) from the Closing Date through and
including December 31, 2000, to exceed $40,000,000 in the aggregate and (b) in
any fiscal year thereafter, to exceed $50,000,000 in the aggregate.
The amount of permitted Capital Expenditures set forth above in respect of any
fiscal year commencing with the fiscal year ending on December 31, 2001, shall
be increased (but not reduced) by (i) the amount of unused permitted Capital
Expenditures for the immediately preceding fiscal year less (ii) an amount equal
to unused Capital Expenditures carried forward to such preceding fiscal year.
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SECTION 6.11. Interest Coverage Ratio. Permit the Interest Coverage
Ratio for any period of four consecutive fiscal quarters, in each case taken as
one accounting period, ending during any period set forth below to be less than
the ratio set forth opposite such period below:
Period Ratio
------ -----
From and including September 30, 2000 1.85 to 1.00
through and including September 29, 2001
From and including September 30, 2001 2.00 to 1.00
through and including September 29, 2002
From and including September 30, 2002 2.25 to 1.00
through and including September 29, 2003
From and including September 30, 2003 3.00 to 1.00
through and including September 29, 2004
Thereafter 4.00 to 1.00
SECTION 6.12. Fixed Charge Coverage Ratio. Permit the Fixed Charge
Coverage Ratio for any period of four consecutive fiscal quarters, in each case
taken as one accounting period, ending during any period set forth below to be
the less than the ratio set forth opposite such period below:
Period Ratio
------ -----
From and including September 30, 2000 1.10 to 1.00
through and including September 29, 2003
From and including September 30, 2003 1.15 to 1.00
through and including September 29, 2004
Thereafter 1.20 to 1.00
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SECTION 6.13. Maximum Leverage Ratio. Permit the Leverage Ratio at any
time during a period set forth below to be greater than the ratio set forth
opposite such period below:
Period Ratio
------ -----
From and including September 30, 2000 5.00 to 1.00
through and including June 29, 2001
From and including June 30, 2001 4.75 to 1.00
through and including September 29, 2001
From and including September 30, 2001 4.50 to 1.00
through and including March 30, 2002
From and including March 31, 2002 4.25 to 1.00
through and including June 29, 2002
From and including June 30, 2002 3.75 to 1.00
through and including December 30, 2002
From and including December 31, 2002 3.50 to 1.00
through and including September 29, 2003
From and including September 30, 2003 3.00 to 1.00
through and including September 29, 2004
Thereafter 2.50 to 1.00
SECTION 6.14. Designated Senior Indebtedness. Designate any
Indebtedness as "Designated Senior Indebtedness" for purposes of either the
Dollar Subordinated Note Indenture or the Euro Subordinated Note Indenture.
SECTION 6.15. Fiscal Year. With respect to the Borrower, change its
fiscal year-end to a date other than December 31; provided that the Borrower may
use a 52/53 week fiscal year ending around December 31.
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ARTICLE VII
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document or the borrowings or issuances of Letters of
Credit hereunder, or any representation, warranty, statement or information
contained in any report, certificate, financial statement or other instrument
furnished in connection with or pursuant to any Loan Document, shall prove to
have been false or misleading in any material respect when so made, deemed made
or furnished;
(b) default shall be made in the payment in the applicable currency of
any principal of any Loan or the reimbursement with respect to any L/C
Disbursement (after giving effect to the reimbursement of the applicable Issuing
Bank out of the proceeds of a Revolving Loan or Swingline Loan pursuant to
Section 2.02(f) or Section 2.22(c), respectively) when and as the same shall
become due and payable, whether at the due date thereof or at a date fixed for
prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment in the applicable currency of
any interest on any Loan or any Fee or L/C Disbursement or any other Obligation
(other than an amount referred to in (b) above) due under any Loan Document,
when and as the same shall become due and payable, and such default shall
continue unremedied for a period of three Business Days;
(d) default shall be made in the due observance or performance by the
Borrower or any Subsidiary of any covenant, condition or agreement contained in
Section 5.01(a), 5.05 or 5.08 or in Article VI;
(e) default shall be made in the due observance or performance by the
Borrower or any Subsidiary of any covenant, condition or agreement contained in
any Loan Document (other than those specified in (b), (c) or (d) above) and such
default shall continue unremedied for a period of 15 days after notice thereof
from the Administrative Agent or any Lender to the Borrower;
(f) the Borrower or any Subsidiary shall (i) fail to pay any principal
or interest, regardless of amount, due in respect of any Material Indebtedness
when and as the same shall become due and payable, or (ii) fail to observe or
perform any other term, covenant, condition or agreement contained in any
agreement or instrument evidencing or governing any such Indebtedness if the
effect of any failure referred to in this clause (ii) is to cause, or to permit
the holder or holders of such Indebtedness or a trustee on its or their behalf
to cause, such Indebtedness to become due prior to its stated maturity;
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(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of the Borrower or any Subsidiary (other than any Inactive
Subsidiary), or of a substantial part of the property or assets of the Borrower
or a Subsidiary (other than any Inactive Subsidiary), under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or similar law,
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary (other than
any Inactive Subsidiary) or for a substantial part of the property or assets of
the Borrower or a Subsidiary (other than any Inactive Subsidiary) or (iii) the
winding-up or liquidation of the Borrower or any Subsidiary (other than any
Inactive Subsidiary); and such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the foregoing
shall be entered;
(h) the Borrower or any Subsidiary (other than any Inactive Subsidiary)
shall (i) voluntarily commence any proceeding or file any petition seeking
relief under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other Federal, state or foreign bankruptcy, insolvency,
receivership or similar law, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or the filing of any
petition described in (g) above, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Subsidiary (other than any Inactive Subsidiary) or for a
substantial part of the property or assets of the Borrower or any Subsidiary
(other than any Inactive Subsidiary), (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, (vi) become unable, admit in
writing its inability or fail generally to pay its debts as they become due or
(vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $10,000,000 shall be rendered against the Borrower, any
Subsidiary (other than any Inactive Subsidiary) or any combination thereof and
the same shall remain undischarged for a period of 30 consecutive days during
which execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to levy upon assets or properties of the Borrower
or any Subsidiary (other than any Inactive Subsidiary) to enforce any such
judgment;
(j) an ERISA Event shall have occurred that, in the reasonable opinion
of the Required Lenders, when taken together with all other such ERISA Events,
could reasonably be expected to result in a Material Adverse Effect;
(k) any Guarantee under the Guarantee Agreement for any reason shall
cease to be in full force and effect (other than in accordance with its terms),
or any Guarantor shall deny in writing that it has any further liability under
its Guarantee Agreement (other than as a result of the discharge of such
Guarantor in accordance with the terms of the Loan Documents);
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(l) any security interest purported to be created by any Security
Document shall cease to be, or shall be asserted by the Borrower or any other
Loan Party not to be, a valid, perfected, first priority (except as otherwise
expressly provided in this Agreement or such Security Document) security
interest in the securities, assets or properties covered thereby, except to the
extent that any such loss of perfection or priority results from the failure of
the Collateral Agent to maintain possession of certificates representing
securities pledged under the Pledge Agreement and except to the extent that such
loss is covered by a lender's title insurance policy and the related insurer
promptly after such loss shall have acknowledged in writing that such loss is
covered by such title insurance policy;
(m) any of the Obligations shall cease to constitute "Senior
Indebtedness" under and as defined in either the Dollar Subordinated Note
Indenture or the Euro Subordinated Note Indenture; or
(n) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Borrower, take either or both of
the following actions, at the same or different times: (i) terminate forthwith
the Commitments and (ii) declare the Loans then outstanding to be forthwith due
and payable in whole or in part, whereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and any
unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder
and under any other Loan Document, shall become forthwith due and payable,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by the Borrower, anything contained herein or
in any other Loan Document to the contrary notwithstanding; and in any event
with respect to the Borrower described in paragraph (g) or (h) above, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued Fees
and all other liabilities of the Borrower accrued hereunder and under any other
Loan Document, shall automatically become due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by the Borrower, anything contained herein or in any other Loan
Document to the contrary notwithstanding.
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ARTICLE VIII
The Agents
SECTION 8.01. Appointment. (a) Each Lender hereby irrevocably (subject
to Section 8.03) appoints Bank of America, N.A. to act as Administrative Agent
and Collateral Agent on behalf of the Lenders and the Issuing Banks and Credit
Suisse First Boston to act as Syndication Agent. Each of the Lenders and each
assignee of any such Lender hereby irrevocably authorizes the Agents to take
such actions on behalf of such Lender or assignee or Issuing Bank and to
exercise such powers as are specifically delegated to the Agents by the terms
and provisions hereof and of the other Loan Documents, together with such
actions and powers as are reasonably incidental thereto. The Administrative
Agent is hereby expressly authorized by the Lenders and the Issuing Banks,
without hereby limiting any implied authority, (i) to receive on behalf of the
Lenders and the Issuing Banks all payments of principal of and interest on the
Loans, all payments in respect of L/C Disbursements and all other amounts due to
the Lenders hereunder, and promptly to distribute to each Lender or Issuing Bank
its proper share of each payment so received; (ii) to give notice on behalf of
each of the Lenders to the Borrower of any Event of Default specified in this
Agreement of which the Administrative Agent has actual knowledge acquired in
connection with its agency hereunder; and (iii) to distribute to each Lender
copies of all notices, financial statements and other materials delivered by the
Borrower or any other Loan Party pursuant to this Agreement or the other Loan
Documents as received by the Administrative Agent. Without limiting the
generality of the foregoing, the Agents are hereby expressly authorized to
execute any and all documents (including releases) with respect to the
Collateral and the rights of the Secured Parties with respect thereto, as
contemplated by and in accordance with the provisions of this Agreement and the
Security Documents. Notwithstanding any provision to the contrary contained
elsewhere in this Agreement or in any other Loan Document, no Agent shall have
any duties or responsibilities except those expressly set forth herein, nor
shall any Agent have or be deemed to have any fiduciary relationship with any
Lender or participant, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or any
other Loan Document or otherwise exist against any Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" in this
Agreement with reference to any Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
(b) The Issuing Banks shall act on behalf of the Lenders with respect
to any Letters of Credit issued by them and the documents associated therewith
until such time and except for so long as the Administrative Agent may agree at
the request of the Required Lenders to act for such Issuing Bank with respect
thereto; provided, however, that the Issuing Banks shall have all of the
benefits and immunities (i) provided to the Agents in this Article VIII with
respect to any acts taken or omissions suffered by an Issuing Bank in connection
with Letters of Credit issued by it or proposed to be issued
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by it and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Agent" as used in this Article VIII
included Issuing Banks with respect to such acts or omissions and (ii) as
additionally provided in this Agreement with respect to Issuing Banks.
SECTION 8.02. Liability of Agents. Neither the Agents nor any of their
respective directors, officers, employees or agents shall be liable as such for
any action taken or omitted by any of them except for its or his own gross
negligence or wilful misconduct, or be responsible for any statement, warranty
or representation herein or the contents of any document delivered in connection
herewith, or be required to ascertain or to make any inquiry concerning the
performance or observance by the Borrower or any other Loan Party of any of the
terms, conditions, covenants or agreements contained in any Loan Document. The
Agents shall not be responsible to the Lenders for the due execution,
genuineness, validity, enforceability or effectiveness of this Agreement or any
other Loan Documents, instruments or agreements. The Agents shall in all cases
be fully protected in acting, or refraining from acting, in accordance with
written instructions signed by the Required Lenders and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the
absence of knowledge to the contrary, be entitled to rely on any instrument or
document believed by it in good faith to be genuine and correct and to have been
signed or sent by the proper person or persons. Neither the Agents nor any of
their respective directors, officers, employees or agents shall have any
responsibility to the Borrower or any other Loan Party on account of the failure
of or delay in performance or breach by any Lender or Issuing Bank of any of its
obligations hereunder or to any Lender or Issuing Bank on account of the failure
of or delay in performance or breach by any other Lender or Issuing Bank or the
Borrower or any other Loan Party of any of their respective obligations
hereunder or under any other Loan Document or in connection herewith or
therewith. Each of the Agents may execute any and all duties hereunder by or
through agents or employees and shall be entitled to rely upon the advice of
legal counsel selected by it with respect to all matters arising hereunder and
shall not be liable for any action taken or suffered in good faith by it in
accordance with the advice of such counsel.
SECTION 8.03. Resignation and Replacement. Subject to the appointment
and acceptance of a successor Agent as provided below, any Agent may resign at
any time by notifying the Lenders and the Borrower. Upon any such resignation,
the Required Lenders shall have the right to appoint a successor acceptable to
the Borrower, such consent not to be unreasonably withheld; provided, however,
that the consent of the Borrower shall not be required to any such appointment
during the continuance of any Event of Default. If no successor shall have been
so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation, then
the retiring Agent may, on behalf of the Lenders, appoint a successor Agent
which shall be a bank with an office in the United States, having a combined
capital and surplus of at least $500,000,000 or an Affiliate of any such bank.
Upon the acceptance of any appointment as Agent hereunder by a successor bank,
such successor shall succeed to and become vested with all the rights, powers,
privileges and
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duties of the retiring Agent and the retiring Agent shall be discharged from its
duties and obligations hereunder. After the Agent's resignation hereunder, the
provisions of this Article and Section 9.05 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
SECTION 8.04. Agent in Individual Capacity. With respect to the Loans
made by it hereunder, each Agent in its individual capacity and not as Agent
shall have the same rights and powers as any other Lender and may exercise the
same as though it were not an Agent, and the Agents and their Affiliates may
accept deposits from, lend money to and generally engage in any kind of business
with the Borrower or any Subsidiary or other Affiliate thereof as if it were not
an Agent.
SECTION 8.05. Indemnification of Agents. Each Lender agrees (a) to
reimburse the Agents, on demand, in the amount of its pro rata share (based on
the aggregate amount of its outstanding Term Loans and its Revolving Credit
Commitments hereunder) of any expenses incurred for the benefit of the Lenders
by the Agents, including reasonable counsel fees and disbursements, the
allocated cost of internal legal services, all disbursements of internal counsel
and compensation of agents and employees paid for services rendered on behalf of
the Lenders, that shall not have been reimbursed by the Borrower and (b) to
indemnify and hold harmless each Agent and any of its directors, officers,
employees or agents, on demand, in the amount of such pro rata share, from and
against any and all liabilities, taxes, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by or asserted against it in
its capacity as Agent or any of them in any way relating to or arising out of
this Agreement or any other Loan Document or any action taken or omitted by it
or any of them under this Agreement or any other Loan Document, to the extent
the same shall not have been reimbursed by the Borrower or any other Loan Party,
provided that no Lender shall be liable to an Agent or any such other
indemnified person for any portion of such liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that is determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or wilful
misconduct of such Agent or any of its directors, officers, employees or agents.
Each Revolving Credit Lender agrees to reimburse each Issuing Bank and its
directors, employees and agents, in each case, to the same extent and subject to
the same limitations as provided above for the Agents.
SECTION 8.06. No Reliance. Each Lender acknowledges that it has,
independently and without reliance upon the Agents or any other Lender and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agents or
any other Lender and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement or any other Loan Document,
any related agreement or any document furnished hereunder or thereunder.
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SECTION 8.07. Notice of Default. No Agent shall be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default,
except, in the case of the Administrative Agent, with respect to defaults in the
payment of principal, interest and fees required to be paid to the
Administrative Agent for the account of the Lenders, unless such Agent shall
have received written notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". An Agent will notify the Lenders of its receipt
of any such notice. The Administrative Agent shall take such action with respect
to such Default or Event of Default as may be directed by the Required Lenders;
provided, however, that unless and until the Administrative Agent has received
any such direction, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable or in the best interest
of the Lenders.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 000 X. Xxx Xxxxxxx Xxxxxxxxx,
Xxxxx 0000, Xxxxxx, XX 00000, Attention of Xx. Xxxxx Xxxxxxxxx
(Telecopy No. (000) 000-0000);
(b) if to the Administrative Agent, to Bank of America, N.A.,
Agency Management-Los Angeles, Mail Code CA9-706-11-03, 000 Xxxxx
Xxxxxx Xx., Xxx Xxxxxxx, XX 00000, Attention of Xxxx Xxxxxx (Telecopy
No. (000) 000-0000), with a copy to Bank of America, N.A., CPM-General
Corporate-West, Mail Code CA9-706-11-07, 000 Xxxxx Xxxxxx Xx., Xxx
Xxxxxxx, XX 00000, Attention of Xxxxxxx Xxxxxxxx (Telecopy No. (213)
623-1959);
(c) if to the Syndication Agent, to Credit Suisse First
Boston, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention of Mr.
Xxxxx Xxxxx (Telecopy No. (000) 000-0000); and
(d) if to a Lender, to it at its address (or telecopy number)
set forth on Schedule 2.01 or in the Assignment and Acceptance pursuant
to which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case
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delivered, sent or mailed (properly addressed) to such party as provided in this
Section 9.01 or in accordance with the latest unrevoked direction from such
party given in accordance with this Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and the Issuing Banks and shall survive the
making by the Lenders of the Loans and the issuance of Letters of Credit by the
Issuing Banks, regardless of any investigation made by the Lenders or the
Issuing Banks or on their behalf, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any Fee or any
other amount payable under this Agreement or any other Loan Document is
outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not been terminated. The provisions of Sections 2.14, 2.16,
2.20 and 9.05 shall remain operative and in full force and effect regardless of
the expiration of the term of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Loans, the
expiration of the Commitments, the expiration of any Letter of Credit, the
invalidity or unenforceability of any term or provision of this Agreement or any
other Loan Document, or any investigation made by or on behalf of the
Administrative Agent, the Collateral Agent, any Lender or any Issuing Bank.
SECTION 9.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof
(including as contemplated by Section 9.13 herein) which, when taken together,
bear the signatures of each of the other parties hereto, and thereafter shall be
binding upon and inure to the benefit of the parties hereto and their respective
permitted successors and assigns.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the permitted successors and assigns of such party, which shall include,
in the case of a Lender, any entity resulting from a merger or consolidation;
and all covenants, promises and agreements by or on behalf of the Borrower, the
Administrative Agent, the Issuing Banks or the Lenders that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender or an
Affiliate or Related Fund of a Lender, (x) the Borrower and the Administrative
Agent (and, in the case of any assignment of a Revolving Credit Commitment, the
Issuing Banks and the Swingline Lender) must give their prior written consent to
such assignment (which consent shall not be unreasonably withheld or delayed);
provided, however, that the consent of the Borrower shall not be required to any
such assignment during the continuance of any Event of Default, and
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(y) the amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $2,500,000 (or, if less, the entire remaining amount of such Lender's
Commitment), (ii) the parties to each such assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500; provided, however, that such
processing and recordation fee shall not apply to any Assignment and Acceptances
delivered to the Administrative Agent on or before the second Business Day
following the Closing Date and (iii) the assignee, if it shall not be a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire. Upon
acceptance and recording pursuant to paragraph (e) of this Section 9.04, from
and after the effective date specified in each Assignment and Acceptance, (A)
the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement and (B) the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.14, 2.16, 2.20 and 9.05, as well as to any Fees accrued
for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Term Loan Commitment and Revolving Credit Commitment, and the outstanding
balances of its Term Loans and Revolving Loans, in each case without giving
effect to assignments thereof which have not become effective, are as set forth
in such Assignment and Acceptance, (ii) except as set forth in (i) above, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of the Borrower or any Subsidiary or the
performance or observance by the Borrower or any Subsidiary of any of its
obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements referred
to in Section 3.05(a) or delivered pursuant to Section 5.04 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (v) such
assignee will independently and without reliance upon the Administrative Agent,
the Collateral Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not
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taking action under this Agreement; (vi) such assignee appoints and authorizes
the Administrative Agent and the Collateral Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement as are delegated
to the Administrative Agent and the Collateral Agent, respectively, by the terms
hereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their terms
all the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in Los Angeles a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitment of, and principal
amount of the Loans owing to, each Lender pursuant to the terms hereof from time
to time (the "Register"). The entries in the Register shall be conclusive and
the Borrower, the Administrative Agent, the Issuing Banks, the Collateral Agent
and the Lenders may treat each person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Banks, the Collateral
Agent and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Borrower, the Swingline
Lender, the Issuing Banks and the Administrative Agent to such assignment, the
Administrative Agent shall (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the Lenders, the Issuing Banks and the Swingline Lender. No
assignment shall be effective unless it has been recorded in the Register as
provided in this paragraph (e). Prior to such recordation, all amounts owed with
respect to the applicable Commitment or outstanding Loan shall be owed to the
Lender listed in the Register as the owner thereof, and any request, authority
or consent of any Person who, at the time of making such request or giving such
authority or consent, is listed in the Register as the Lender shall be
conclusive and binding on any subsequent holder, assignee or transferee of the
corresponding Commitments or Loans.
(f) Each Lender may, without the consent of the Borrower, the Swingline
Lender, the Issuing Banks or the Administrative Agent, sell participations to
one or more banks or other entities in all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participating banks or other entities shall be
entitled to the benefit of the cost protection provisions contained in Sections
2.14, 2.16 and 2.20 to the same extent as if they were Lenders provided that the
Borrower shall not be required to reimburse the participating banks or other
entities
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pursuant to Section 2.14, 2.16 or 2.20 in an amount in excess of the amount that
would have been payable thereunder to such Lender had such Lender not sold such
participation, and (iv) the Borrower, the Administrative Agent, the Issuing
Banks and the Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to the Loans or L/C Disbursements and to
approve any amendment, modification or waiver of any provision of this Agreement
(other than amendments, modifications or waivers decreasing any fees payable
hereunder or the amount of principal of or the rate at which interest is payable
on the Loans, extending any scheduled principal payment date or date fixed for
the payment of interest on the Loans, increasing or extending the Commitments or
releasing any Guarantor or all or any substantial part of the Collateral).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.17.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement to secure extensions of credit to such Lender without the
consent of either the Borrower or the Administrative Agent; provided that no
such assignment shall release a Lender from any of its obligations hereunder or
substitute any such assignee for such Lender as a party hereto.
(i) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPC"), identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrower, the option to provide to the
Borrower all or any part of any Loan that such Granting Lender would otherwise
be obligated to make to the Borrower pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to make any Loan and
(ii) if an SPC elects not to exercise such option or otherwise fails to provide
all or any part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPC, it will not institute
against, or join any other
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person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the United
States or any State thereof. In addition, notwithstanding anything to the
contrary contained in this Section 9.04, any SPC may (i) with notice to, but
without the prior written consent of, the Borrower and the Administrative Agent
and without paying any processing fee therefor, assign all or a portion of its
interests in any Loans to the Granting Lender or to any financial institutions
(consented to by the Borrower and Administrative Agent) providing liquidity
and/or credit support to or for the account of such SPC to support the funding
or maintenance of Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer
or provider of any surety, guarantee or credit or liquidity enhancement to such
SPC.
(j) The Borrower shall not assign or delegate any of its rights or
duties hereunder without the prior written consent of the Administrative Agent,
the Issuing Banks and each Lender, and any attempted assignment without such
consent shall be null and void.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower agrees to pay all
out-of-pocket expenses, the allocated cost of internal legal services and
disbursements of internal counsel incurred by the Agents, the Issuing Banks and
the Swingline Lender in connection with the syndication of the credit facilities
provided for herein and the preparation and administration of this Agreement and
the other Loan Documents or in connection with any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
hereby or thereby contemplated shall be consummated) or incurred by the Agents
or any Lender in connection with the enforcement or protection of its rights in
connection with this Agreement and the other Loan Documents or in connection
with the Loans made or Letters of Credit issued hereunder, including the
reasonable fees, charges and disbursements of Cravath, Swaine & Xxxxx, counsel
for the Agents, and O'Melveny and Xxxxx LLP, special counsel for the
Administrative Agent, and, in connection with any such enforcement or
protection, the fees, charges and disbursements of any other counsel (including
the allocated costs of internal counsel) for the Agents or any Lender.
(b) The Borrower agrees to indemnify the Agents, each Lender and each
Issuing Bank, each Affiliate of any of the foregoing persons and each of their
respective directors, officers, employees, agents, trustees and investment
advisors (each such person being called an "Indemnitee") against, and to hold
each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses, including reasonable counsel fees, charges and
disbursements and the allocated cost of internal legal services and
disbursements of internal counsel, incurred by or asserted against any
Indemnitee arising out of, in any way connected with, or as a result of (i) the
execution or delivery of this Agreement or any other Loan Document or any
agreement or instrument contemplated thereby, the performance by the parties
thereto of their respective obligations thereunder or the consummation of the
Transactions and the other transactions contemplated thereby, (ii) the use of
the proceeds of the Loans or issuance of Letters of Credit, (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto, or (iv) any actual or alleged
presence or Release of Hazardous Materials on or from any property currently
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or formerly owned or operated by the Borrower or any of the Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of the
Subsidiaries; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or wilful
misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the expiration
of any Letter of Credit, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document, or any investigation
made by or on behalf of the any Agent, any Lender or any Issuing Bank. All
amounts due under this Section 9.05 shall be payable on written demand therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, except to the extent prohibited by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement and
other Loan Documents held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement or such other Loan
Document and although such obligations may be unmatured. The rights of each
Lender under this Section 9.06 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF
COMMERCE, PUBLICATION NO. 500 (THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT
GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Collateral Agent, any Lender or any Issuing Bank in
exercising any power or right hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power.
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The rights and remedies of the Administrative Agent, the Collateral Agent, the
Issuing Banks and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or any other Loan
Document or consent to any departure by the Borrower or any other Loan Party
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice or demand
on the Borrower in any case shall entitle the Borrower to any other or further
notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders; provided, however, that
no such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan or any date for reimbursement of an L/C Disbursement,
or waive or excuse any such payment or any part thereof, or decrease the rate of
interest on any Loan or L/C Disbursement, without the prior written consent of
each Lender affected thereby, (ii) increase or extend the Commitment or decrease
or extend the date for payment of the Fees due to any Lender without the prior
written consent of such Lender, (iii) amend or modify the pro rata requirements
of Section 2.17, the provisions of Section 9.04(j), the provisions of this
Section, the definition of the term "Required Lenders" or release any Guarantor
or all or any substantial part of the Collateral (except, in each case, any
release expressly permitted by the Loan Documents), without the prior written
consent of each Lender, (iv) change the provisions of any Loan Document in a
manner that by its terms adversely affects the rights in respect of payments due
to Lenders holding Loans of one Class differently from the rights of Lenders
holding Loans of any other Class without the prior written consent of Lenders
holding a majority in interest of the outstanding Loans and unused Commitments
of each adversely affected Class, (v) change the rights of the Lenders holding
Tranche B Term Loans to reject prepayments under Section 2.13(i) without the
prior written consent of the Lenders holding a majority of the aggregate
outstanding principal amount of the Tranche B Term Loans or modify the
protections afforded to an SPC pursuant to the provisions of Section 9.04(i)
without the written consent of such SPC; provided further that no such agreement
shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, the Collateral Agent, the Syndication Agent, any Issuing
Bank or the Swingline Lender hereunder or under any other Loan Document without
the prior written consent of the Administrative Agent, the Collateral Agent, the
Syndication Agent, such Issuing Bank or the Swingline Lender.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement, together with all fees, charges and other
amounts which are treated as interest on such Loan or participation in such L/C
Disbursement under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan or participation in
accordance with applicable law, the rate of interest
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payable in respect of such Loan or participation hereunder, together with all
Charges payable in respect thereof, shall be limited to the Maximum Rate and, to
the extent lawful, the interest and Charges that would have been payable in
respect of such Loan or participation but were not payable as a result of the
operation of this Section 9.09 shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or participations or periods
shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective
Rate to the date of repayment, shall have been received by such Lender.
SECTION 9.10. Entire Agreement. This Agreement, the Administrative
Agent's Fee Letter, the Fee Letter and the other Loan Documents constitute the
entire contract between the parties relative to the subject matter hereof. Any
other previous agreement among the parties with respect to the subject matter
hereof is superseded by this Agreement and the other Loan Documents. Nothing in
this Agreement or in the other Loan Documents, expressed or implied, is intended
to confer upon any party other than the parties hereto and thereto any rights,
remedies, obligations or liabilities under or by reason of this Agreement or the
other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being understood that
the invalidity of a particular provision in a particular jurisdiction shall not
in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract, and
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shall become effective as provided in Section 9.03. Delivery of an executed
signature page to this Agreement by facsimile transmission shall be as effective
as delivery of a manually signed counterpart of this Agreement.
SECTION 9.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any
Agent, any Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or the other Loan Documents against the
Borrower or its properties in the courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan Documents in any
New York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.16. Judgment Currency. (a) The obligations of the Borrower
and the other Loan Parties hereunder and under the other Loan Documents to make
payments in dollars or in any Alternative Currency (the "Obligation Currency")
shall not be discharged or satisfied by any tender or recovery pursuant to any
judgment expressed in or converted into any currency other than the Obligation
Currency, except to the extent that such tender or recovery results in the
effective receipt by the Administrative Agent or a Lender or an Issuing Bank of
the full amount of the Obligation Currency expressed to be payable to the
Administrative Agent or such Lender or Issuing Bank under this Agreement or the
other Loan Documents. If, for the purpose of obtaining or
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enforcing judgment against the Borrower or any other Loan Party or in any court
or in any jurisdiction, it becomes necessary to convert into or from any
currency other than the Obligation Currency (such other currency being
hereinafter referred to as the "Judgment Currency") an amount due in the
Obligation Currency, the conversion shall be made at the Alternative Currency
Equivalent or Dollar Equivalent, in the case of any Alternative Currency or
dollars, and, in the case of other currencies, the rate of exchange (as quoted
by the Administrative Agent or if the Administrative Agent does not quote a rate
of exchange on such currency, by a known dealer in such currency designated by
the Administrative Agent) determined, in each case, as of the date immediately
preceding the day on which the judgment is given (such Business Day being
hereinafter referred to as the "Judgment Currency Conversion Date").
(b) If there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the amount
due, the Borrower covenants and agrees to pay, or cause to be paid, as a
separate obligation and notwithstanding any judgment, such additional amounts,
if any (but in any event not a lesser amount), as may be necessary to ensure
that the amount paid in the Judgment Currency, when converted at the rate of
exchange prevailing on the date of payment, will produce the amount of the
Obligation Currency which could have been purchased with the amount of Judgment
Currency stipulated in the judgment or judicial award at the rate of exchange
prevailing on the Judgment Currency Conversion Date.
(c) For purposes of determining the Alternative Currency Equivalent or
Dollar Equivalent or rate of exchange for this Section, such amounts shall
include any premium and costs payable in connection with the purchase of the
Obligation Currency.
SECTION 9.17. Confidentiality. The Agents, each Issuing Bank and each
of the Lenders agrees to keep confidential (and to use its best efforts to cause
its respective agents and representatives to keep confidential) the Information
(as defined below) and all copies thereof, extracts therefrom and analyses or
other materials based thereon, except that any Agent, any Issuing Bank or any
Lender shall be permitted to disclose Information (a) to such of its respective
officers, directors, employees, agents, affiliates and representatives as need
to know such Information, (b) to a potential assignee or participant of such
Lender or any direct or indirect contractual counterparty in any swap agreement
relating to the Loans or such potential assignee's or participant's or
counterparty's advisors who need to know such Information (provided that any
such potential assignee or participant or counterparty shall, and shall use
commercially reasonable efforts to cause its advisors to, keep confidential all
such Information on the terms set forth in this Section 9.17), (c) to the extent
requested by any regulatory authority or quasi-regulatory authority such as the
National Association of Insurance Commissioners (NAIC), (d) to the extent
otherwise required by applicable laws and regulations or by any subpoena or
similar legal process, (e) in connection with any suit, action or proceeding
relating to the enforcement of its rights hereunder or under the other Loan
Documents or (f) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section 9.17 or (ii) becomes
available to any Agent, any Issuing Bank or any Lender on a nonconfidential
basis from a source other than the Borrower. For the purposes of this Section,
"Information" shall mean all
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financial statements, certificates, reports, agreements and information
(including all analyses, compilations and studies prepared by any Agent, any
Issuing Bank or any Lender based on any of the foregoing) that are received from
the Borrower and related to the Borrower, any shareholder of the Borrower or any
employee, customer or supplier of the Borrower, other than any of the foregoing
that were available to any Agent, any Issuing Bank or any Lender on a
nonconfidential basis prior to its disclosure thereto by the Borrower, and which
are in the case of Information provided after the date hereof, clearly
identified at the time of delivery as confidential. The provisions of this
Section 9.17 shall remain operative and in full force and effect regardless of
the expiration and term of this Agreement.
SECTION 9.18. European Monetary Union. If, as a result of the further
implementation of European monetary union, (a) any Alternative Currency (other
than the euro) ceases to be lawful currency of the nation issuing the same and
is replaced by the euro, then any amount payable hereunder by any party hereto
in such currency shall instead be payable in euro and the amount so payable
shall be determined by translating the amount payable in such currency to euro
at the exchange rate recognized by the European Central Bank for the purpose of
replacing such currency by the euro, or (b) any such Alternative Currency and
the euro are at the same time recognized by the central bank or comparable
authority of the nation issuing such currency as lawful currency of such nation,
then (i) any Alternative Currency Letter of Credit issued at such time that
would otherwise be denominated in such currency shall be denominated in euro and
(ii) any other amount payable by any party hereto in such currency shall be
payable in such currency or in euro (in an amount determined as set forth in
clause (a)), at the election of the obligor.
SECTION 9.19. Release of Collateral. (a) Notwithstanding any other
provision of this Agreement or any Security Document, all Collateral held under
any Security Document shall be released from the Liens created thereunder, in
each case without representation, warranty or recourse of any nature, on a
Business Day specified by the Borrower (the "Release Date"), and the provisions
of Section 5.09 of this Agreement insofar as they relate to Collateral shall
cease to be of any force or effect, upon satisfaction of the following
conditions precedent:
(i) the Borrower shall have given written notice to the Agents
at least 30 days prior to the Release Date, specifying the proposed
Release Date;
(ii) as of the Release Date, the Borrower shall have obtained,
and for a period of not less than 90 consecutive days, maintained
Investment Grade Ratings;
(iii) no Default or Event of Default shall have occurred and
be continuing as of the Release Date; and
(iv) on the Release Date, the Collateral Agent shall have
received a certificate, dated the Release Date and executed on behalf
of the Borrower by the
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President, a Vice President or a Financial Officer of the Borrower,
confirming the satisfaction of the conditions set forth in clauses (ii)
and (iii) above.
(b) Subject to the satisfaction of the conditions set forth in
paragraph (a) above, on or after the Release Date, the Lenders hereby expressly
authorize the Collateral Agent to, and the Collateral Agent hereby agrees to,
deliver the Pledged Securities (as defined in the Pledge Agreement) to the
Borrower and to execute and deliver to the Borrower all such instruments and
documents as the Borrower may reasonably request to effectuate, evidence or
confirm the releases of Collateral provided for in this Section 9.19. Any
execution and delivery of documents pursuant to this Section 9.19 shall be
without recourse to or warranty by the Collateral Agent.
(c) Without limiting the provisions of Section 9.05, the Borrower shall
reimburse the Agents and the Lenders upon demand for all costs and expenses,
including attorneys fees and disbursements and the allocated costs and
disbursements of internal legal counsel, incurred by any of them in connection
with any action contemplated by this Section 9.19.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
FLOWSERVE CORPORATION,
by /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
Title: Assistant Secretary
CREDIT SUISSE FIRST BOSTON,
individually and as Syndication Agent,
by /s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
by /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
BANK OF AMERICA, N.A.,
individually and as Administrative Agent,
Collateral Agent and Swingline Lender
by /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
XXXXXXX XXXXX XXXXXX INC.,
as Co-Documentation Agent,
by /s/ Xxxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Attorney In Fact
111
105
BANK ONE, NA,
by /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
ABN AMRO BANK N.V.,
by /s/ Xxxxxxxxx Xxxxx
------------------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Group Vice President
by /s/ C. Xxxxx Xxxxxx
------------------------------------------
Name: C. Xxxxx Xxxxxx
Title: Assistant Vice President
CITICORP USA, INC.,
by /s/ Xxxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
SUNTRUST BANK,
by /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES,
by /s/ B. Xxxxx Xxxxxxxx
------------------------------------------
Name: B. Xxxxx Xxxxxxxx
Title: Vice President
by /s/ Xxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
112
106
HSBC BANK USA,
by /s/ X. X. Xxxxx
------------------------------------------
Name: X. X. Xxxxx
Title: Senior Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED NEW
YORK BRANCH.,
by /s/ Ryusuke Aya
------------------------------------------
Name: Ryusuke Aya
Title: Senior Vice President, Houston
Office
THE BANK OF TOKYO-MITSUBISHI, LTD.,
by /s/ X. Xxxxxxx
------------------------------------------
Name: X. Xxxxxxx
Title: Vice President
by /s/ X. Xxxxxx
------------------------------------------
Name: X. Xxxxxx
Title: VP & Manager
COMERICA BANK,
by /s/ X. Xxxxxxxx Xxxxxx
------------------------------------------
Name: X. Xxxxxxxx Xxxxxx
Title: Account Officer
CREDIT AGRICOLE INDOSUEZ,
by /s/ Xxxxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: FVP, Managing Director
by /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Senior Relationship Manager
113
107
BANK OF CHINA, LOS ANGELES BRANCH,
by /s/ Xxx, Xxxx Ming
------------------------------------------
Name: Xxx, Xxxx Ming
Title: Branch Manager
LLOYDS TSB BANK PLC,
by /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director and Head of Acquisition
Finance
by /s/ Xxx Xxxxxxx
------------------------------------------
Name: Iam Dimmock
Title: Vice President, Acquisition
Finance D080
THE MITSUBISHI TRUST & BANKING
CORPORATION,
by /s/ Xxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Manager
NATIONAL CITY BANK,
by /s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
ORIX BUSINESS CREDIT, INC.,
by /s/ Xxxxxxx X. Xxx
------------------------------------------
Name: Xxxxxxx X. Xxx
Title: Senior Vice President
114
108
FRANKLIN FLOATING RATE TRUST,
by /s/ Xxxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
KZH STERLING LLC,
by /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Agent
CANADIAN IMPERIAL BANK OF COMMERCE,
by /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
METROPOLITAN PROPERTY AND CASUALTY
INSURANCE COMPANY,
by /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
XXXXXX XXXXXXX XXXX XXXXXX PRIME
INCOME TRUST,
by /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
115
109
NATEXIS BANQUES POPULAIRES,
by /s/ Xxxxxx Xxxxx
------------------------------------------
Name: Xxxxxx Xxxxx
Title: Assistant Vice President
by /s/ Xxxxx X. Xxxxxxx, III
------------------------------------------
Name: Xxxxx X. Xxxxxxx, III
Title: Vice President and Group Manger
XXXXXX FINANCIAL, INC.,
by /s/ K. Xxxxx Xxxxxxxxx
------------------------------------------
Name: K. Xxxxx Xxxxxxxxx
Title: Vice President
SAWGRASS TRADING LLC,
by /s/ Xxx X. Xxxxxx
------------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
THE TRAVELERS INSURANCE COMPANY,
by /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Investment Officer
KZH SOLEIL LLC,
by /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Agent
KZH SOLEIL-2 LLC,
by /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Agent
116
110
HARCH CLO I LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
By: PPM America, Inc., as Attorney-in-fact,
on behalf of Xxxxxxx National Life
Insurance Company,
by /s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
KZH CYPRESSTREE-1 LLC,
by /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Agent
MONY LIFE INSURANCE COMPANY
OF AMERICA,
by /s/ Xxxxx X. Xxxxxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Authorized Agent
PPM SPYGLASS FUNDING TRUST,
by /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Agent
117
111
XXXXX XXX FLOATING RATE LIMITED
LIABILITY COMPANY,
by /s/ Xxxxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
Xxxxx Xxx & Xxxxxxx
Incorporated, as Advisor to the
Xxxxx Xxx Floating Rate Limited
Liability Company
OLYMPIC FUNDING TRUST, SERIES
1999-1
by /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Agent
OSPREY INVESTMENTS PORTFOLIO,
By: Citibank, N.A., as Manager
by /s/ Xxxxxx Xxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
GALAXY CLO 1999-1, LTD.,
By: SAI Investment Adviser, Inc.
its Collateral Manager,
by /s/ Xxxx Xxxxxx
------------------------------------------
Name: Xxxx Xxxxxx
Title: Authorized Agent
KZH CRESCENT-2 LLC,
by /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Agent
118
112
KZH RIVERSIDE LLC,
by /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Agent
MONY LIFE INSURANCE COMPANY,
by /s/ Xxxxx X. Xxxxxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Investment Vice President
THE SUMITOMO TRUST & BANKING
CO., LTD., NEW YORK BRANCH,
by /s/ Xxxxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Vice President
TORONTO DOMINION (NEW YORK),
INC.,
by /s/ Xxxx Xxxxxx
------------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
TRAVELERS CORPORATE LOAN FUND INC.,
By: TRAVELERS ASSET
MANAGEMENT INTERNATIONAL COMPANY LLC,
by /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Investment Officer
119
113
KZH CRESCENT-3 LLC,
by /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Agent
SRF 2000 LLC,
by /s/ Xxx X. Xxxxxx
------------------------------------------
Name: Xxx X. Xxxxxx
Title: Assistant Vice President
KZH CRESCENT LLC,
by /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Agent
UNITED OF OMAHA LIFE INSURANCE
COMPANY,
By: TCW Asset Management Company,
its Investment Advisor,
by /s/ Xxxx X. Gold
------------------------------------------
Name: Xxxx X. Gold
Title: Managing Director
by /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
CONTINENTAL ASSURANCE COMPANY SEPARATE
ACCOUNT (E)
By: TCW Asset Management Company as
Attorney-in-Fact,
by /s/ Xxxx X. Gold
------------------------------------------
Name: Xxxx X. Gold
Title: Managing Director
by /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
120
114
FRANKLIN FLOATING RATE MASTER
SERIES,
by /s/ Xxxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
XXXXXX FLOATING RATE FUND,
by /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
LIBERTY - XXXXX XXX ADVISOR FLOATING
RATE ADVANTAGE FUND
By: Xxxxx Xxx & Xxxxxxx Incorporated, as
Advisor,
by /s/ Xxxxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
NORTH AMERICAN SENIOR FLOATING RATE
FUND,
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager,
by /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Principal
121
115
CYPRESSTREE INVESTMENT FUND, LLC
By: CypressTree Investment Management
Company, Inc. its Managing Member,
by /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Principal
CYPRESSTREE INVESTMENT MANAGEMENT
COMPANY, INC.,
As: Attorney-in-Fact and on behalf of First
Allmerica Financial Life Insurance
Company as Portfolio Manager
by /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Principal
122
SCHEDULE 1.01(d)
Consolidated EBITDA, for any fiscal quarter ending on a date set forth
below, shall be equal to the actual Consolidated EBITDA of the Borrower and IDP
for such fiscal quarter plus the amount representing synergies and cost savings
set forth opposite such fiscal quarter below:
Date Amount
---- ------
September 30, 2000 $ 36,000,000
December 31, 2000 $ 24,000,000
March 31, 2001 $ 12,000,000
