_______________________
$200,000,000
CREDIT AGREEMENT
AMONG
TITANIUM METALS CORPORATION
AND
BANKERS TRUST COMPANY, AS ADMINISTRATIVE AGENT,
CORESTATES BANK, N.A.
AND
SANWA BUSINESS CREDIT CORPORATION, AS CO-AGENTS,
AND
VARIOUS LENDING INSTITUTIONS
DATED AS OF JULY 30, 1997
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS . . . . . . . . . . . . . . . . . . .
1
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . .
1
1.2 Accounting Terms; Financial Statements . . . . . . . . . . . . .
32
1.3 Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . .
32
ARTICLE II
AMOUNT AND TERMS OF CREDIT . . . . . . . . . . . . . . . . . . . . . .
32
2.1 The Commitments . . . . . . . . . . . . . . . . . . . . . . . . .
32
(a) Revolving Loans . . . . . . . . . . . . . . . . . . . . . .
32
(b) Swing Line Loans . . . . . . . . . . . . . . . . . . . . .
33
2.2 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
34
(a) Provisions of the Revolving Notes . . . . . . . . . . . . .
35
(b) Provisions of the Swing Line Note . . . . . . . . . . . . .
35
2.3 Minimum Amount of Each Borrowing; Maximum Number of Borrowings .
36
2.4 Borrowing Options . . . . . . . . . . . . . . . . . . . . . . . .
36
2.5 Notice of Borrowing . . . . . . . . . . . . . . . . . . . . . . .
36
2.6 Conversion or Continuation . . . . . . . . . . . . . . . . . . .
37
2.7 Disbursement of Funds . . . . . . . . . . . . . . . . . . . . . .
38
2.8 Pro Rata Borrowings . . . . . . . . . . . . . . . . . . . . . . .
39
2.9 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . .
39
(a) Letters of Credit Commitments . . . . . . . . . . . . . . .
39
(b) Obligation of Facing Agent to Issue Letters of Credit . . .
39
(c) Letter of Credit Requests; Notices of Issuance . . . . . .
40
(d) Agreement to Repay Letter of Credit Payments . . . . . . .
41
(e) Letter of Credit Participations . . . . . . . . . . . . . .
42
(f) Draws Upon Letter of Credit; Reimbursement Obligations . .
43
(g) Fees for Letters of Credit . . . . . . . . . . . . . . . .
44
(h) Indemnification . . . . . . . . . . . . . . . . . . . . . .
45
(i) Increased Costs . . . . . . . . . . . . . . . . . . . . . .
46
ARTICLE III
INTEREST AND FEES . . . . . . . . . . . . . . . . . . . . . . . . . . .
47
3.1 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . .
47
(a) Base Rate Loans . . . . . . . . . . . . . . . . . . . . . .
47
(b) Eurodollar Loans . . . . . . . . . . . . . . . . . . . . .
47
(c) Payment of Interest . . . . . . . . . . . . . . . . . . . .
47
(d) Notification of Rate . . . . . . . . . . . . . . . . . . .
47
(e) Default Interest. . . . . . . . . . . . . . . . . . . . . .
48
(f) Maximum Interest . . . . . . . . . . . . . . . . . . . . .
48
3.2 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
48
(a) Commitment Fees . . . . . . . . . . . . . . . . . . . . . .
48
(b) Agency Fees . . . . . . . . . . . . . . . . . . . . . . . .
48
3.3 Computation of Interest and Fees . . . . . . . . . . . . . . . .
48
3.4 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . .
49
3.5 Compensation for Funding Losses. . . . . . . . . . . . . . . . .
49
3.6 Increased Costs, Illegality, Etc. . . . . . . . . . . . . . . . .
50
(a) Generally. . . . . . . . . . . . . . . . . . . . . . . . .
50
(b) Eurodollar Loans. . . . . . . . . . . . . . . . . . . . .
52
(c) Capital Requirements. . . . . . . . . . . . . . . . . . . .
52
(d) Change of Lending Office. . . . . . . . . . . . . . . . . .
53
3.7 Replacement of Affected Lenders . . . . . . . . . . . . . . . . .
53
ARTICLE IV
REDUCTION OF COMMITMENTS; PAYMENTS AND PREPAYMENTS . . . . . . . . . .
54
4.1 Voluntary Reduction of Commitments; Repayment. . . . . . . . . .
54
4.2 Mandatory Reductions of Commitments. . . . . . . . . . . . . . .
55
(a) Reduction of Revolving Commitment. . . . . . . . . . . . .
55
(b) Proportionate Reductions. . . . . . . . . . . . . . . . . .
55
4.3 Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . .
55
4.4 Mandatory Prepayments . . . . . . . . . . . . . . . . . . . . . .
56
(a) Prepayment Upon Overadvance . . . . . . . . . . . . . . . .
56
(b) Mandatory Prepayment Upon Asset Disposition . . . . . . . .
56
(c) Mandatory Prepayment Upon Recovery Event . . . . . . . . .
57
4.5 Application of Prepayments . . . . . . . . . . . . . . . . . . .
58
4.6 Method and Place of Payment . . . . . . . . . . . . . . . . . . .
58
4.7 Net Payments . . . . . . . . . . . . . . . . . . . . . . . . . .
60
ARTICLE V
CONDITIONS OF CREDIT . . . . . . . . . . . . . . . . . . . . . . . . .
62
5.1 Conditions to Closing Date . . . . . . . . . . . . . . . . . . .
62
(a) Credit Agreement and Notes . . . . . . . . . . . . . . . .
62
(b) Subsidiary Guaranty. . . . . . . . . . . . . . . . . . . .
63
(c) Security Agreement . . . . . . . . . . . . . . . . . . . .
63
(d) Pledge Agreements . . . . . . . . . . . . . . . . . . . . .
63
(e) Mortgages; Title Insurance . . . . . . . . . . . . . . . .
64
(f) Opinions of Counsel . . . . . . . . . . . . . . . . . . . .
64
(g) Corporate Proceedings . . . . . . . . . . . . . . . . . . .
65
(h) Affiliate Agreements; Tax Sharing Agreements; Debt Agreements
65
(i) Adverse Change . . . . . . . . . . . . . . . . . . . . . .
66
(j) No Disruption of Financial and Capital Markets . . . . . .
66
(k) Approvals . . . . . . . . . . . . . . . . . . . . . . . . .
66
(l) Litigation . . . . . . . . . . . . . . . . . . . . . . . .
66
(m) Fees . . . . . . . . . . . . . . . . . . . . . . . . . . .
67
(n) Environmental Assessments; Insurance . . . . . . . . . . .
67
(o) Appointment of Agent . . . . . . . . . . . . . . . . . . .
67
(p) Financial Information . . . . . . . . . . . . . . . . . . .
67
(q) Termination of Existing Credit Agreement. . . . . . . . . .
68
(r) Existing Indebtedness . . . . . . . . . . . . . . . . . . .
68
(s) Due Diligence Review . . . . . . . . . . . . . . . . . . .
69
(t) Tax and Accounting Aspects of Transactions . . . . . . . .
69
(u) Incumbency . . . . . . . . . . . . . . . . . . . . . . . .
69
(v) Officer's Certificate . . . . . . . . . . . . . . . . . . .
69
(w) Other Matters . . . . . . . . . . . . . . . . . . . . . . .
69
5.2 Conditions Precedent to All Credit Events . . . . . . . . . . . .
70
(a) Representations and Warranties . . . . . . . . . . . . . .
70
(b) No Default . . . . . . . . . . . . . . . . . . . . . . . .
70
(c) Notice of Borrowing; Letter of Credit Request . . . . . . .
70
ARTICLE VI
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . .
71
6.1 Corporate Status . . . . . . . . . . . . . . . . . . . . . . . .
71
6.2 Corporate Power and Authority . . . . . . . . . . . . . . . . . .
71
6.3 No Violation . . . . . . . . . . . . . . . . . . . . . . . . . .
72
6.4 Governmental and Other Approvals . . . . . . . . . . . . . . . .
72
6.5 Financial Statements; Financial Condition; Undisclosed Liabilities
Projections; etc. . . . . . . . . . . . . . . . . . . . . . . .
72
(a) Financial Statements . . . . . . . . . . . . . . . . . . .
72
(b) Solvency . . . . . . . . . . . . . . . . . . . . . . . . .
73
(c) No Undisclosed Liabilities . . . . . . . . . . . . . . . .
73
(d) Indebtedness . . . . . . . . . . . . . . . . . . . . . . .
73
(e) Projections . . . . . . . . . . . . . . . . . . . . . . . .
74
6.6 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . .
74
6.7 True and Complete Disclosure . . . . . . . . . . . . . . . . . .
74
6.8 Use of Proceeds; Margin Regulations . . . . . . . . . . . . . . .
74
(a) Loan Proceeds . . . . . . . . . . . . . . . . . . . . . . .
74
(b) Margin Regulations . . . . . . . . . . . . . . . . . . . .
75
6.9 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
75
(a) Tax Returns and Payments . . . . . . . . . . . . . . . . .
75
(b) Tax Examinations . . . . . . . . . . . . . . . . . . . . .
75
6.10 Compliance With ERISA . . . . . . . . . . . . . . . . . . . . . .
76
6.11 Security Documents . . . . . . . . . . . . . . . . . . . . . . .
76
(a) Security Agreement Collateral . . . . . . . . . . . . . . .
76
(b) Pledged Securities . . . . . . . . . . . . . . . . . . . .
77
(c) Real Estate Collateral . . . . . . . . . . . . . . . . . .
77
(d) U.K. Pledge Agreement . . . . . . . . . . . . . . . . . . .
77
6.12 Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . .
78
6.13 Ownership of Property . . . . . . . . . . . . . . . . . . . . . .
78
6.14 Capitalization of Borrower . . . . . . . . . . . . . . . . . . .
78
6.15 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . .
79
(a) Organization . . . . . . . . . . . . . . . . . . . . . . .
79
(b) Capitalization . . . . . . . . . . . . . . . . . . . . . .
79
(c) Restrictions on or Relating to Subsidiaries . . . . . . . .
79
6.16 Compliance With Law, Etc. . . . . . . . . . . . . . . . . . . . .
79
6.17 Investment Company Act . . . . . . . . . . . . . . . . . . . . .
79
6.18 Public Utility Holding Company Act . . . . . . . . . . . . . . .
80
6.19 Environmental Matters . . . . . . . . . . . . . . . . . . . . . .
80
6.20 Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . .
81
6.21 Intellectual Property, Licenses, Franchises and Formulas . . . .
81
6.22 Performance of Agreements . . . . . . . . . . . . . . . . . . . .
81
6.23 Certain Fees . . . . . . . . . . . . . . . . . . . . . . . . . .
82
6.24 Existing Credit Agreement . . . . . . . . . . . . . . . . . . . .
82
6.25 Regulation H. . . . . . . . . . . . . . . . . . . . . . . . . .
82
ARTICLE VII
AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . .
82
7.1 Financial Statements . . . . . . . . . . . . . . . . . . . . . .
82
(a) Quarterly Financial Statements . . . . . . . . . . . . . .
82
(b) Annual Financial Statements . . . . . . . . . . . . . . . .
83
7.2 Certificates; Other Information . . . . . . . . . . . . . . . . .
83
(a) Accountant's Certificates . . . . . . . . . . . . . . . . .
83
(b) Officer's Certificates . . . . . . . . . . . . . . . . . .
84
(c) Audit Reports and Statements . . . . . . . . . . . . . . .
84
(d) Management Letters . . . . . . . . . . . . . . . . . . . .
84
(e) Budgets; Projections . . . . . . . . . . . . . . . . . . .
84
(f) Public Filings . . . . . . . . . . . . . . . . . . . . . .
84
(g) Other Requested Information . . . . . . . . . . . . . . . .
84
7.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
84
(a) Event of Default or Unmatured Event of Default . . . . . .
85
(b) Litigation and Related Matters . . . . . . . . . . . . . .
85
(c) Environmental Matters . . . . . . . . . . . . . . . . . . .
85
(d) Notice of Change in Control . . . . . . . . . . . . . . . .
85
7.4 Conduct of Business and Maintenance of Existence . . . . . . . .
85
7.5 Payment of Obligations . . . . . . . . . . . . . . . . . . . . .
86
7.6 Inspection of Property, Books and Records . . . . . . . . . . . .
86
7.7 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
86
7.8 Maintenance of Property, Insurance . . . . . . . . . . . . . . .
88
7.9 Environmental Laws . . . . . . . . . . . . . . . . . . . . . . .
89
7.10 Annual Meetings with Lenders . . . . . . . . . . . . . . . . . .
89
7.11 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . .
90
7.12 Additional Security; Further Assurances . . . . . . . . . . . . .
90
(a) Agreement to Grant Additional Security . . . . . . . . . .
90
(b) Additional Subsidiary Guarantors . . . . . . . . . . . . .
90
(c) Pledge of New Subsidiary Stock . . . . . . . . . . . . . .
90
(d) Grant of Security by New Subsidiaries . . . . . . . . . . .
91
(e) Documentation for Additional Security . . . . . . . . . . .
91
(f) Pledge of TIMET FSC, Ltd . . . . . . . . . . . . . . . . .
91
(g) Exclusion of TiPro . . . . . . . . . . . . . . . . . . . .
92
(h) Exclusion of Valtimet, Inc. . . . . . . . . . . . . . . . .
92
7.13 End of Fiscal Years; Fiscal Quarters . . . . . . . . . . . . . .
92
7.14 Surveys . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
92
ARTICLE VIII
NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . .
92
8.1 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
92
8.2 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . .
93
8.3 Consolidation, Merger, Purchase or Sale of Assets, etc. . . . . .
94
8.4 Dividends or Other Distributions . . . . . . . . . . . . . . . .
97
8.5 Limitation on Certain Restrictions on Subsidiaries . . . . . . .
98
8.6 Issuance of Stock . . . . . . . . . . . . . . . . . . . . . . . .
99
8.7 Loans and Investments . . . . . . . . . . . . . . . . . . . . . .
99
8.8 Transactions with Affiliates . . . . . . . . . . . . . . . . .
101
8.9 Sale-Leasebacks . . . . . . . . . . . . . . . . . . . . . . . .
102
8.10 Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . .
102
8.11 Lines of Business . . . . . . . . . . . . . . . . . . . . . . .
102
8.12 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . .
102
8.13 Limitation on Voluntary Payments and Modifications of Indebtedness;
Modifications of Certificate of Incorporation, By-Laws and
Certain Other Agreements; etc. . . . . . . . . . . . . . . . .
102
8.14 Accounting Changes . . . . . . . . . . . . . . . . . . . . . .
103
8.15 Limitation on Creation of Subsidiaries . . . . . . . . . . . .
103
8.16 Interest Rate Agreements and Other Hedging Agreements . . . . .
103
ARTICLE IX
FINANCIAL COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . .
104
9.1 Maintenance of Adjusted Consolidated Net Worth . . . . . . . .
104
9.2 Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . .
104
9.3 Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . .
104
ARTICLE X
EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . .
105
10.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . .
105
(a) Failure to Make Payments When Due . . . . . . . . . . . .
105
(b) Representations and Warranties . . . . . . . . . . . . .
105
(c) Covenants . . . . . . . . . . . . . . . . . . . . . . . .
105
(d) Default Under Other Loan Documents . . . . . . . . . . .
106
(e) Voluntary Insolvency, Etc . . . . . . . . . . . . . . . .
106
(f) Involuntary Insolvency, Etc . . . . . . . . . . . . . . .
106
(g) Default Under Other Agreements . . . . . . . . . . . . .
106
(h) Judgments. . . . . . . . . . . . . . . . . . . . . . . .
107
(i) Security Documents . . . . . . . . . . . . . . . . . . .
107
(j) Guaranties . . . . . . . . . . . . . . . . . . . . . . .
107
(k) ERISA . . . . . . . . . . . . . . . . . . . . . . . . . .
107
(l) Change in Control . . . . . . . . . . . . . . . . . . . .
107
(m) Subordination . . . . . . . . . . . . . . . . . . . . . .
108
10.2 Rights Not Exclusive . . . . . . . . . . . . . . . . . . . . .
109
ARTICLE XI
THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
109
11.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . .
109
11.2 Nature of Duties . . . . . . . . . . . . . . . . . . . . . . .
109
11.3 Exculpation, Rights, Etc. . . . . . . . . . . . . . . . . . . .
110
11.4 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . .
110
11.5 Indemnification . . . . . . . . . . . . . . . . . . . . . . . .
110
11.6 Administrative Agent In Its Individual Capacity. . . . . . . .
111
11.7 Notice of Default . . . . . . . . . . . . . . . . . . . . . . .
111
11.8 Holders of Obligations . . . . . . . . . . . . . . . . . . . .
111
11.9 Resignation by Administrative Agent . . . . . . . . . . . . . .
111
ARTICLE XII
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . .
112
12.1 No Waiver; Modifications in Writing . . . . . . . . . . . . . .
112
12.2 Further Assurances . . . . . . . . . . . . . . . . . . . . . .
113
12.3 Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . .
114
12.4 Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . . .
114
12.5 Confirmations . . . . . . . . . . . . . . . . . . . . . . . . .
116
12.6 Adjustment; Setoff . . . . . . . . . . . . . . . . . . . . . .
117
12.7 Execution in Counterparts . . . . . . . . . . . . . . . . . . .
118
12.8 Binding Effect; Assignment; Addition and Substitution of Lenders 118
12.9 CONSENT TO JURISDICTION; MUTUAL WAIVER OF JURY TRIAL. . . . . .
120
12.10 Release of Collateral . . . . . . . . . . . . . . . . . . . . .
121
12.11 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . .
122
12.12 Severability of Provisions . . . . . . . . . . . . . . . . . .
122
12.13 Transfers of Notes . . . . . . . . . . . . . . . . . . . . . .
122
12.14 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . .
122
12.15 Termination of Agreement . . . . . . . . . . . . . . . . . . .
122
12.16 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . .
123
12.17 Concerning the Collateral and the Loan Documents . . . . . . .
123
(a) Authority . . . . . . . . . . . . . . . . . . . . . . . .
123
(b) Release of Collateral . . . . . . . . . . . . . . . . . .
124
(c) No Obligation . . . . . . . . . . . . . . . . . . . . . .
125
12.18 Effectiveness . . . . . . . . . . . . . . . . . . . . . .
125
INDEX OF EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit 2.1(b) Form of Swing Line Loan Participation Certificate
Exhibit 2.2(a)-1 Form of Revolving Note
Exhibit 2.2(a)-2 Form of Swing Line Note
Exhibit 2.5 Form of Notice of Borrowing
Exhibit 2.6 Form of Notice of Conversion or Continuation
Exhibit 2.9(c)-1 Form of Letter of Credit Request
Exhibit 2.9(c)-2 Form of Letter of Credit Amendment Request
Exhibit 4.7(d) Form of Section 4.7(d)(ii) Certificate
Exhibit 5.1(b) Form of Subsidiary Guaranty
Exhibit 5.1(c) Form of Security Agreement
Exhibit 5.1(d) Form of Domestic Pledge Agreement
Exhibit 5.1(f)-1 Form of Opinion of Borrower's Counsel
Exhibit 5.1(f)-2 Form of Opinion of General Counsel of Borrower
Exhibit 5.1(g) Form of Secretary's Certificate of Each Credit Party
Exhibit 5.1(o) Form of Consent of Appointment of Agent
Exhibit 5.1(v) Form of Officer's Certificate of Borrower
Exhibit 7.2(b) Form of Officer's Certificate Pursuant to Section 7.2(b)
Exhibit 8.7(g) Form of Subordination Provisions
Exhibit 12.8(c) Form of Assignment and Assumption Agreement
SCHEDULES
Schedule 1.1 Commitments
Schedule 6.3 Approvals and Consents
Schedule 6.4 Governmental and Other Approvals
Schedule 6.5(d) Indebtedness
Schedule 6.9(b) Tax Status
Schedule 6.10 ERISA
Schedule 6.11(c) Real Property
Schedule 6.14 Capitalization of Borrower
Schedule 6.15 Subsidiaries
Schedule 8.5 Existing Restrictions on Subsidiaries
Schedule 8.7 Existing Investments
Schedule 8.8 Affiliate Transactions
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is dated as of July 30, 1997 and is made by
and among Titanium Metals Corporation, a Delaware corporation ("Borrower"), the
undersigned financial institutions, including Bankers Trust Company, in their
capacities as lenders hereunder (collectively, the "Lenders," and each
individually, a "Lender"), Corestates Bank, N.A. and Sanwa Business Credit
Corporation, as Co-Agents, and Bankers Trust Company, as administrative agent
("Administrative Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, Borrower has requested that the Lenders provide a revolving
credit facility to Borrower in an aggregate amount not to exceed $200,000,000 at
any time outstanding and maturing on July 30, 2002;
WHEREAS, the proceeds of the revolving credit facility described
above will be used by Borrower to (i) repay borrowings outstanding, if any, on
the Closing Date, under the Existing Credit Agreement and (ii) for general
corporate and working capital purposes of the Borrower and its Subsidiaries,
including acquisitions permitted hereunder; and
WHEREAS, the Lenders are willing to extend commitments to make
revolving credit loans and certain other extensions of credit to Borrower for
the purposes specified above on the terms and subject to the conditions set
forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and, among other things, (i) the assignment of and
the grant of a security interest in the Collateral by Borrower and certain of
its Subsidiaries pursuant to the Security Agreement and the other Security
Documents and (ii) the granting of mortgages by Borrower in the Mortgaged
Property pursuant to the Mortgages, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1 Definitions. As used herein, and unless the context requires
a different meaning, the following terms have the meanings indicated:
"Accounts Receivable" means presently existing and hereafter arising
or acquired accounts receivable, notes, drafts, acceptances, general
intangibles, choses in action and other forms of obligations and receivables
relating in any way to Inventory or arising from the sale of Inventory or the
rendering of services by Borrower or its Subsidiaries, or howsoever otherwise
arising, including the right to payment of any interest or finance charges with
respect thereto and all proceeds of insurance with respect thereto, together
with all of Borrower's or any of its Subsidiaries' rights as an unpaid vendor,
all pledged assets, guaranty claims, liens and security interests held by or
granted to Borrower or any of its Subsidiaries to secure payment of any Accounts
Receivable and all books, customer lists, ledgers, records and files (whether
written or stored electronically) relating to any of the foregoing.
"Acquired Debt" means, with respect to Borrower, Indebtedness of a
Person existing at the time such Person becomes a direct or indirect Subsidiary
of Borrower or assumed in connection with the acquisition by Borrower or any of
its Subsidiaries of assets from such Person, which assets constitute an entire
business, division or product line of such Person.
"Additional Collateral" has the meaning assigned to that term in
Section 7.12(a).
"Additional Pledge Agreements" means all pledge agreements or
similar agreements that may be delivered to Collateral Agent after the Closing
Date as collateral security for any or all of the Obligations, as such pledge
agreements or similar agreements may be amended, supplemented or otherwise
modified from time to time.
"Additional Security Agreements" means all security agreements or
similar agreements that may be delivered to Collateral Agent after the Closing
Date as collateral security for any or all of the Obligations, as such security
agreements or similar agreements may be amended, supplemented or otherwise
modified from time to time.
"Additional Security Documents" means all mortgages, pledge
agreements, security agreements and other security documents entered into
pursuant to Section 7.12, including, without limitation, the Additional Security
Agreements and the Additional Pledge Agreements.
"Adjusted Consolidated Net Worth" of Borrower means, without
duplication, the sum of (i) the total stockholders' equity of Borrower, as
determined from a consolidated balance sheet of Borrower and its consolidated
Subsidiaries prepared in accordance with GAAP plus (ii) the net book value of
the BUCS, as determined from a consolidated balance sheet of Borrower and its
consolidated Subsidiaries prepared in accordance with GAAP (which shall not, in
any event, include accrued interest or dividends on the BUCS) less (iii) the
aggregate amount of all outstanding Investments made by Borrower and each
Domestic Subsidiary and OECD Foreign Subsidiary of Borrower in any entity which
is not a Domestic Subsidiary or an OECD Foreign Subsidiary of Borrower.
"Adjusted Total Revolving Loan Commitment" means at any time the
Total Commitment less the aggregate Revolving Commitments of all Defaulting
Lenders.
"Adjustment Date" means (i) with respect to any Fiscal Quarter, (a)
the third Business Day following receipt by Administrative Agent of both (I) the
financial statements required to be delivered pursuant to Section 7.1(a) or
7.1(b), as the case may be, for the most recently completed fiscal period and
(II) the officer's certificate required pursuant to Section 7.2(b) with respect
to such financial statements or (b) if such officer's certificate and financial
statements have not been delivered in a timely manner, the date upon which such
officer's certificate and financial statements were due; provided, however, that
in the event that the Adjustment Date is determined in accordance with the
provisions of clause (b) of this definition, then the date which is three
Business Days following the date of receipt of the financial statements and
officer's certificate referenced in clause (a) of this definition also shall be
deemed to constitute an Adjustment Date, and (ii) with respect to any
Significant Acquisition, the third Business Day following the later of the
consummation of such Significant Acquisition and the receipt by Administrative
Agent of the financial statements and other information required pursuant to
Section 8.3(i) with respect to such Significant Acquisition.
"Administrative Agent" has the meaning assigned to that term in the
introduction to this Agreement and any successor Administrative Agent in such
capacity.
"Affiliate" means, with respect to any Person, any Person that,
directly or indirectly, controls (including but not limited to all directors and
officers of such Person) or is controlled by or is under common control with
such Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities
or by contract or otherwise. A Person shall be deemed to control a corporation
if such Person possesses, directly or indirectly, the power to vote 10% or more
of the securities having ordinary voting power for the election of directors of
such corporation.
"Agreement" means this Credit Agreement, as the same may at any time
be amended, restated, supplemented, extended or otherwise modified in accordance
with the terms hereof and in effect.
"Annualized Basis" means, with respect to any Fiscal Quarter,
Consolidated EBITDA for such Fiscal Quarter multiplied by four (4).
"Applicable Commitment Fee Percentage" means, at any date, the
applicable percentage set forth in the following table opposite the Level of
Leverage Ratio most recently determined:
Applicable
Level of Leverage Ratio Commitment Fee
Percentage
Level I: Leverage Ratio is less than .250%
1.0 to 1
Level II: Leverage Ratio is equal to
or greater than 1.0 to 1, but less .300%
than 1.5 to 1
Level III: Leverage ratio is equal
to or greater than 1.5 to 1, but less .375%
than 2.0 to 1
Level IV: Leverage Ratio is equal to
or greater than 2.0 to 1 .500%
; provided that (a) the Applicable Commitment Fee Percentage shall be that set
forth above opposite Level I from the Closing Date until the first Adjustment
Date occurring after the Closing Date, (b) the Applicable Commitment Fee
Percentage determined for any Adjustment Date shall remain in effect until a
subsequent Adjustment Date for which the Leverage Ratio falls within a different
Level, and (c) if the financial statements and related officer's certificate for
any fiscal period are not delivered by the date due pursuant to Sections 7.1(a)
and 7.1(b) or if the financial statements and other required information with
respect to a Significant Acquisition are not delivered in accordance with
Section 8.3(i), the Applicable Commitment Fee Percentage shall be that set forth
above opposite Level IV, in either case, until the next subsequent Adjustment
Date.
"Applicable Eurodollar Margin" means, at any date, the applicable
percentage set forth below opposite the Level of Leverage Ratio as of such date:
LEVEL OF LEVERAGE RATIO APPLICABLE
EURODOLLAR
MARGIN
Level I: Leverage Ratio is less than .500%
1.0 to 1
Level II: Leverage Ratio is equal to
or greater than 1.0 to 1 but less .750%
than 1.5 to 1
Level III: Leverage Ratio is equal
to or greater than 1.5 to 1 but less 1.000%
than 2.0 to 1
Level IV: Leverage Ratio is equal to
or greater than 2.0 to 1 1.500%
; provided that (a) the Applicable Eurodollar Margin shall be that set forth
above opposite Level I from the Closing Date until the first Adjustment Date
occurring after the Closing Date, (b) the Applicable Eurodollar Margin
determined for any Adjustment Date shall remain in effect until a subsequent
Adjustment Date for which the Leverage Ratio falls within a different Level, and
(c) if the financial statements and related officer's certificate for any fiscal
period are not delivered by the date due pursuant to Sections 7.1(a) and 7.1(b)
or if the financial statements and other required information with respect to a
Significant Acquisition are not delivered in accordance with Section 8.3(i), the
Applicable Eurodollar Margin shall be that set forth above opposite Level IV, in
either case, until the next subsequent Adjustment Date.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) of
all or any part of an interest in shares of Capital Stock of a Subsidiary of
Borrower (other than directors' qualifying shares and similar arrangements
required by applicable law with respect to any Foreign Subsidiary), property or
other assets (each referred to for the purposes of this definition as a
"disposition") by Borrower or any of its Subsidiaries, provided that a
disposition permitted by Section 8.3 (other than Section 8.3(a)) shall not
constitute an Asset Disposition.
"Assignee" has the meaning assigned to that term in Section 12.8(c).
"Assignment and Assumption Agreement" means an Assignment and
Assumption Agreement substantially in the form of Exhibit 12.8(c) annexed hereto
and made a part hereof made by any applicable Lender, as assignor, and such
Lender's assignee in accordance with Section 12.8.
"Attorney Costs" means all reasonable fees and disbursements of any
law firm or other external counsel.
"Attributable Value" means as of the date of determination thereof
in connection with a Sale and Leaseback Transaction, the net present value
(discounted according to GAAP at the cost of debt implied in the lease) of the
obligations of the lessee for rental payments during the then remaining term of
any applicable lease.
"Available Revolving Commitment" means, as to any Lender at any time
an amount equal to the excess, if any, of (a) such Lender's Revolving Commitment
over (b) the sum of (i) the aggregate principal amount then outstanding of
Revolving Loans made by such Lender and (ii) such Lender's Pro Rata Share of the
LC Obligations and Swing Line Loans then outstanding.
"Bankruptcy Code" means Title I of the Bankruptcy Reform Act of
1978, as amended, as set forth in Title 11 of the United States Code, as
hereafter amended.
"Base Rate" means the greater of (i) the rate most recently
announced by BT at its principal office as its "prime rate", which is not
necessarily the lowest rate made available by BT or (ii) the Federal Funds Rate
plus 1/2 of 1% per annum. The "prime rate" announced by BT is evidenced by the
recording thereof after its announcement in such internal publication or
publications as BT may designate. Any change in the interest rate resulting
from a change in such "prime rate" announced by BT shall become effective
without prior notice to Borrower as of 12:01 A.M. (New York City time) on the
Business Day on which each change in such "prime rate" is announced by BT. BT
may make commercial or other loans to others at rates of interest at, above or
below its "prime rate". Any change in the interest rate resulting from a change
in the Federal Funds Rate shall become effective without prior notice to the
Borrower on the effective date of such change in the Federal Funds Rate.
"Base Rate Loan" means any Loan which bears interest at a rate
determined with reference to the Base Rate.
"Benefitted Lender" has the meaning assigned to that term in Section
12.6(a).
"Board" means the Board of Governors of the Federal Reserve System.
"Borrower" has the meaning assigned to that term in the introduction
to this Agreement.
"Borrowing" means a group of Loans of a single Type made by the
Lenders or the Swing Line Lender, as appropriate, on a single date and in the
case of Eurodollar Loans, as to which a single Interest Period is in effect.
"BT" means Bankers Trust Company, a New York banking corporation,
and its successors.
"BUCS" means the 6-5/8 % Convertible Preferred Securities, Beneficial
Unsecured Convertible Securities (BUCS)SM issued and sold on November 26, 1996
and December 4, 1996 by TIMET Capital Trust I, a statutory business trust formed
under the Laws of the State of Delaware, and the 6 % Convertible Junior
Subordinated Debentures due 2026 issued by Borrower in connection therewith, in
each case as in effect on the date hereof.
"BUCS Transaction Documents" means (i) the BUCS, (ii) the Indenture for
the 6-5/8 % Convertible Junior Subordinated Debentures, dated as of November 20,
1996, between Borrower and The Chase Manhattan Bank, as trustee, (iii) the
Convertible Preferred Securities Guarantee, dated as of November 20, 1996,
between Borrower, as guarantor, and The Chase Manhattan Bank, as guarantee
trustee, (iv) the Certificate of Trust of TIMET Capital Trust I, dated November
13, 1996, (v) the Amended and Restated Declaration of Trust of TIMET Capital
Trust I, dated as of November 20, 1996, among Borrower, as sponsor, The Chase
Manhattan Bank, as property trustee, Chase Manhattan Bank (Delaware), as
Delaware trustee and Xxxxxx X. Xxxxxxxxxxx, Xxxxxx X. Xxxxxxxxx and Xxxx X.
Xxxxxxx, as regular trustees, and (vi) all other agreements, instruments and
documents evidencing the obligations of Borrower or any of its Subsidiaries
under the BUCS, in each case as in effect on the date hereof.
"Business Day" means (i) for all purposes other than as covered by
clause (ii) below, any day excluding Saturday, Sunday and any other day which
shall be in the City of New York a legal holiday or a day on which banking
institutions are authorized or required by law or other governmental actions to
close and (ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans, any day which
is a Business Day described in clause (i) and which is also a day for trading by
and between banks in Dollar deposits in the interbank Eurodollar market.
"Calculation Period" means the period of four consecutive Fiscal
Quarters most recently ended before the date of the respective event which
requires calculations to be made on a Pro Forma Basis.
"Capitalized Lease" means, as applied to any Person, any lease of
any property (whether real, personal or mixed) by that Person as lessee which
would, in conformity with GAAP, be required to be accounted for as a capital
lease on the balance sheet of such Person.
"Capitalized Lease Obligation" means, at the time any determination
thereof is to be made, the amount in respect of the obligations of any Person as
lessee under a Capitalized Lease which would at such time be required to be
capitalized on the balance sheet of such Person in accordance with GAAP.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations, rights in or other equivalents (however
designated) of such Person's capital stock, partnership interests, membership
interests or other equivalent interests and any rights (other than debt
securities convertible into or exchangeable for capital stock), warrants or
options exchangeable for or convertible into such capital stock or other
interests.
"Cash" means money, currency or the available credit balance in
Dollars in a Deposit Account.
"Cash Equivalents" means (i) any evidence of indebtedness, maturing
not more than 180 days after the date of issue, issued by the United States of
America or any instrumentality or agency thereof, the principal, interest and
premium, if any, of which is guaranteed fully by, or backed by the full faith
and credit of, the United States of America, (ii) Dollar denominated (or foreign
currency fully hedged) time deposits, certificates of deposit and bankers
acceptances maturing not more than 180 days after the date of purchase, issued
by (x) any Lender or (y) a national or state commercial banking institution
having, or which is the principal banking subsidiary of a bank holding company
having, combined capital and surplus and undivided profits of not less than
$200,000,000 and a commercial paper rating of "P-1" (or higher) according to
Xxxxx'x, "A-1" (or higher) according to S&P or the equivalent rating by any
other nationally recognized rating agency (any such bank, an "Approved Bank"),
or (z) a non-United States commercial banking institution which is either
currently ranked among the 100 largest banks in the world (by assets, according
to the American Banker), has combined capital and surplus and undivided profits
of not less than $500,000,000 or whose commercial paper (or the commercial paper
of such bank's holding company) has a rating of "P-1" (or higher) according to
Xxxxx'x, "A-1" (or higher) according to S&P or the equivalent rating by any
other nationally recognized rating agency, (iii) commercial paper, maturing not
more than 180 days after the date of purchase, issued or guaranteed by a
corporation (other than Borrower or any Subsidiary of Borrower or any of their
respective Affiliates) organized and existing under the laws of any state within
the United States of America with a rating, at the time as of which any
determination thereof is to be made, of "P-1" (or higher) according to Xxxxx'x,
or "A-1" (or higher) according to S&P, (iv) demand deposits with any national or
state bank or trust company maintained in the ordinary course of business, (v)
repurchase or reverse repurchase agreements covering obligations of the type
specified in clause (i) with a term of not more than seven days with any
Approved Bank and (vi) shares of any money market mutual fund rated at least AAA
or the equivalent thereof by S&P or at least Aaa or the equivalent thereof by
Xxxxx'x, including, without limitation, any such mutual fund managed or advised
by any Lender or Administrative Agent.
"Change of Control" means (i) the sale, lease or transfer of all or
substantially all of Borrower's assets to any person or group (as such terms are
used in Section 13(d)(3) of the Exchange Act and the rules and regulations
promulgated thereunder, in each case as of the date hereof), (ii) the
liquidation or dissolution of Borrower, (iii) any person or group (within the
meaning of the Exchange Act and the rules and regulations promulgated
thereunder, in each case as of the date hereof) shall have acquired, after the
date hereof, beneficial ownership (within the meaning of Rules 13d-3 and 13d-5
under the Exchange Act as in effect on the date hereof, except that a Person
shall be deemed to have "beneficial ownership" of all securities that such
Person has the right to acquire, whether such right is exercisable immediately
or only after the passage of time) of 30% or more of the issued and outstanding
shares of Borrower's Voting Securities and such person or group shall
beneficially own more of the total voting power of Borrower's Voting Securities
than is beneficially owned directly or indirectly, in the aggregate, by any one
or more of Xxxxxxx, the Xxxxxxx Trust and the Xxxxxxx Trust Beneficiaries and
Trustees or any Person controlled, in the aggregate, by any one or more of
Xxxxxxx, the Xxxxxxx Trusts and the Xxxxxxx Trust Beneficiaries and Trustees; or
(iv) during any period of twelve consecutive calendar months, individuals who at
the beginning of such period constituted Borrower's board of directors (together
with any new directors whose election by Borrower's board of directors or whose
nomination for election by Borrower's stockholders was approved by a vote of at
least two-thirds of the directors then still in office who either were directors
at the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason other than death or disability to
constitute a majority of the directors then in office.
"Chief Financial Officer" means the principal financial or
accounting officer of Borrower.
"Closing Date" means the date on which all of the conditions
precedent set forth in Section 5.1 shall have been satisfied or waived and this
Agreement becomes effective.
"Code" means the Internal Revenue Code of 1986, as from time to time
amended, including the regulations proposed or promulgated thereunder, or any
successor statute and the regulations proposed or promulgated thereunder.
"Collateral" means, collectively, "Collateral" as defined in any
Security Document or any other collateral pledged by any Credit Party to secure
the Obligations.
"Collateral Account" has the meaning assigned to that term in
Section 4.4(a).
"Commercial Letter of Credit" has the meaning assigned to that term
in Section 2.9(a).
"Commitment" means, with respect to each Lender, the aggregate of
the Revolving Commitment and the Swing Line Commitment (if any) of such Lender
and "Commitments" means such commitments of all of the Lenders collectively.
"Commitment Fee" has the meaning assigned to that term in Section
3.2(a).
"Commitment Period" means the period from and including the date
hereof to but not including the Revolver Termination Date.
"Common Stock" means the common stock of Borrower, $.01 par value
per share.
"Consolidated Debt" means, at any time, the Indebtedness of Borrower
and its Subsidiaries to the extent reflected on a consolidated balance sheet of
Borrower prepared in accordance with GAAP.
"Consolidated EBITDA" means, for any applicable period, the
Consolidated Net Income or Consolidated Net Loss of Borrower and its
Subsidiaries for such period, plus (to the extent included therein) the sum of
the amounts for such period of (i) Consolidated Interest Expense, (ii) the
provision for taxes based on income and foreign withholding taxes, (iii)
depreciation expense and (iv) amortization expense, minus (or plus) any non-cash
non-operating income (loss) for such period to the extent included in
Consolidated Net Income or Consolidated Net Loss and undistributed earnings of
unconsolidated affiliates.
"Consolidated Interest Expense" means, for any period, the sum of
(without duplication) (x) total interest expense of Borrower and its
Subsidiaries to the extent reflected in the consolidated financial statements of
Borrower, determined on a consolidated basis in accordance with GAAP, (y) total
cash dividends paid on any preferred stock of Borrower and its Subsidiaries to a
Person other than Borrower or any of its Subsidiaries and (z) accrued interest
or dividend payments with respect to the BUCS. As used in this definition, the
term "interest" shall include, without limitation, all interest and fees payable
with respect to the Obligations under this Agreement (other than fees which may
be capitalized as transaction costs in accordance with GAAP), all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing, any discount in respect of sales of accounts
receivable and/or related contract rights and the interest portion of
Capitalized Lease Obligations during such period, all as determined on a
consolidated basis for Borrower and its consolidated Subsidiaries in accordance
with GAAP.
"Consolidated Net Income" and "Consolidated Net Loss" mean, for any
Person for any period for which such amount is being determined, the net income
(loss) of such Person and its consolidated Subsidiaries during such period
determined on a consolidated basis for such period taken as a single accounting
period in accordance with GAAP, provided that there shall be excluded therefrom
(i) income (or loss) of any Person (other than a consolidated Subsidiary of
such Person) in which any other Person (other than such Person or any of its
consolidated Subsidiaries) has a joint interest, except to the extent of the
amount of dividends or other distributions actually paid to such Person or any
of its consolidated Subsidiaries by such other Person during such period, (ii)
the income (or loss) of any Person accrued prior to the date it becomes a
consolidated Subsidiary of such Person or of any Person (other than a
consolidated Subsidiary of such Person) accrued prior to the date that it is
merged into or consolidated with such Person or any of its consolidated
Subsidiaries or the Person's assets are acquired by such Person or any of its
consolidated Subsidiaries, (iii) the income of any consolidated Subsidiary of
such Person to the extent that the declaration or payment of dividends or
similar distributions by that consolidated Subsidiary of the income is not at
the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that consolidated Subsidiary and (iv) the net income (loss) of any
Person acquired in a pooling of interests transaction for any period prior to
the date of such acquisition. In addition, there shall be excluded in computing
Consolidated Net Income the excess (but not the deficit), if any, of (i) any
gain which must be treated as an extraordinary item under GAAP or any gain
realized upon the sale or other disposition of any real property or equipment
that is not sold in the ordinary course of business or of any Capital Stock of
the Person or a Subsidiary of the Person over (ii) any loss which must be
treated as an extraordinary item under GAAP or any loss realized upon the sale
or other disposition of any real property or equipment that is not sold in the
ordinary course of business or of any Capital Stock of the Person or a
Subsidiary of the Person.
"Contaminant" means any material with respect to which any
Environmental Law imposes a duty, obligation or standard of conduct, including
without limitation any pollutant, contaminant (as those terms are defined in 42
U.S.C. section 9601(33)), toxic pollutant (as that term is defined in 33 U.S.C.
section 1362(13)), hazardous substance (as that term is defined in 42 U.S.C.
section 9601(14)), hazardous chemical (as that term is defined by 29 CFR section
1910.1200(c)), hazardous waste (as that term is defined in 42 U.S.C. section
6903(5)), or any state or local equivalent of such laws and regulations,
including, without limitation, radioactive material, special waste,
polychlorinated biphenyls, asbestos, petroleum, including crude oil or any
petroleum-derived substance (or any fraction thereof), waste, or breakdown or
decomposition product thereof, or any constituent of any such substance or
waste.
"Contractual Obligation" means, as to any Person, any provision of
any Securities issued by such Person or of any indenture or credit agreement or
any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound or to which it may be subject.
"Credit Exposure" has the meaning assigned to that term in Section
12.8(b).
"Credit Event" means the making of any Loan or the issuance of any
Letter of Credit; provided, however, that the following shall not be deemed to
be "Credit Events": (i) making a Refunded Swing Line Loan or (ii) a conversion
or continuation of any Loan pursuant to Section 2.6 or 3.6.
"Credit Party" means Borrower or any Subsidiary thereof which is a
party to any Loan Document.
"Customary Permitted Liens" means:
(i) Liens for taxes not yet due and payable or which are
being contested in good faith by appropriate proceedings diligently pursued,
provided that provision for the payment of all such taxes has been made on the
books of such Person to the extent required by GAAP;
(ii) mechanics', processor's, materialmen's, carriers',
warehousemen's, repairmen's, landlord's and similar Liens arising by operation
of law and arising in the ordinary course of business and securing obligations
of such Person that are not overdue for a period of more than 60 days or are
being contested in good faith by appropriate proceedings diligently pursued,
provided that provision for the payment of such Liens has been made on the books
of such Person to the extent required by GAAP;
(iii) Liens arising in connection with worker's compensation,
unemployment insurance, old age pensions and social security benefits, provided
that provision for the payment of such Liens has been made on the books of such
Person to the extent required by GAAP;
(iv) (A) Liens incurred or deposits made in the ordinary
course of business to secure the performance of bids, tenders, statutory
obligations, fee and expense arrangements with trustees and fiscal agents
(exclusive of obligations incurred in connection with the borrowing of money or
the payment of the deferred purchase price of property which, in either case,
constitutes Indebtedness) and (B) Liens securing surety, indemnity, performance,
appeal and release bonds, provided that full provision for the payment of all
such obligations has been made on the books of such Person to the extent
required by GAAP;
(v) Permitted Real Property Encumbrances;
(vi) attachment, judgment, levy, distraint or other similar
Liens arising in connection with court or arbitration proceedings, provided the
same are discharged, or that execution or enforcement thereof is stayed pending
appeal, within 30 days or, in the case of any stay of execution or enforcement
pending appeal, within such lesser time during which such appeal may be taken;
(vii) leases or subleases granted to others not interfering in
any material respect with the business of Borrower or any of its Subsidiaries
and any interest or title of a lessor under any lease permitted by this
Agreement or the Security Documents; and
(viii) customary rights of set off, revocation, refund or
chargeback under deposit agreements or under the UCC of banks or other financial
institutions where Borrower maintains deposits in the ordinary course of
business permitted by this Agreement and similar rights of sellers under Article
2 of the UCC.
"Debt Agreements" has the meaning assigned to that term in Section
5.1(h).
"Default Rate" means a variable rate per annum which shall be two
percent (2%) per annum plus either (i) the then applicable interest rate
hereunder in respect of the amount on which the Default Rate is being assessed
or (ii) if there is no such applicable interest rate, the Base Rate in respect
of the amount on which the Default Rate is being assessed, but in no event in
excess of that permitted by applicable law.
"Defaulting Lender" means any Lender with respect to which a Lender
Default is in effect.
"Deposit Account" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"Documents" means the Loan Documents and the Existing Credit
Agreement Termination Documents.
"Dollar" and "$" means lawful money of the United States of America.
"Domestic Subsidiary" means any Subsidiary of Borrower that is
organized under the laws of any State of the United States, the District of
Columbia or any territory or possession of the United States.
"Drawing" has the meaning set forth in Section 2.9(d)(ii).
"Eligible Assignee" means (i) a commercial bank organized under the
laws of the United States, or any State thereof, (ii) a commercial bank
organized under the laws of any other country which is a member of the OECD, or
a political subdivision of any such country; provided, however, that such bank
is acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD or the Cayman
Islands, (iii) the central bank of any country which is a member of the OECD,
(iv) a finance company or other financial institution or fund (whether a
corporation, partnership, trust or other entity) that is engaged in making,
purchasing, or otherwise investing in commercial loans in the ordinary course of
its business, (v) an insurance company organized under the laws of the United
States (or any State thereof), (vi) a savings bank or savings and loan
association organized under the laws of the United States, or any State thereof,
(vii) any Lender party to this Agreement, (viii) any Affiliate of any Lender
party to this Agreement, and (ix) any other Person approved by Administrative
Agent and Borrower, such approval not to be unreasonably withheld; provided,
however, that an Affiliate of Borrower shall not qualify as an Eligible
Assignee.
"Employee Benefit Plan" means an "employee benefit plan" as defined
in Section 3(3) of ERISA, which is or has been established or maintained, or to
which contributions are or have been made, by Borrower or any of its ERISA
Affiliates.
"Environmental Claim" means any investigation, notice of violation,
claim, action, suit, demand, injunction, judgment, Environmental Lien, order,
consent decree, penalty or fine by any Governmental Authority or any Person for
any damage, response costs, personal injury (including sickness, disease or
death), tangible or intangible property damage, contribution, indemnity,
indirect or consequential damages, damage to the environment, nuisance,
pollution, contamination or other adverse effects on the environment, human
health, or natural resources, resulting from or based upon (a) the occurrence or
existence of a Release or threatened Release of, or exposure to, any Contaminant
in, into or onto the environment at, in, by, from or related to any real estate
owned, leased or operated by Borrower or any of its Subsidiaries (the
"Premises"), (b) the use, handling, generation, transportation, storage,
treatment or disposal or the arrangement for treatment or disposal of
Contaminants by Borrower or any of its Subsidiaries, or (c) the violation, or
alleged violation, of any Environmental Laws.
"Environmental Laws" means any and all foreign, federal, state or
local laws, statutes, ordinances, codes, rules, regulations, orders, decrees,
judgments, directives and cleanup or action standards, levels or objectives, all
contractual obligations and all common law, in each case imposing liability or
standards of conduct for or relating to the protection of health, safety or the
environment, including, but not limited to, the following statutes as now
written and hereafter amended: the Federal Water Pollution Control Act, as
codified in 33 U.S.C. section 1251 et seq., the Clean Air Act, as codified in 42
U.S.C. section 7401 et seq., the Toxic Substances Control Act, as codified in 15
U.S.C. section 2601 et seq., the Solid Waste Disposal Act, as codified in 42
U.S.C. section 6901 et seq., the Comprehensive Environmental Response,
Compensation and Liability Act, as codified in 42 U.S.C. section 9601 et seq.,
the Emergency Planning and Community Right-to-Know Act of 1986, as codified in
42 U.S.C. section 11001 et seq., and the Safe Drinking Water Act, as codified in
42 U.S.C. section 300f et seq., and any related regulations, as well as all
state and local equivalents.
"Environmental Lien" means a Lien in favor of any Governmental
Authority for (i) any liability under Environmental Laws, or (ii) damages
arising from, or costs incurred by such Governmental Authority in response to, a
Release or threatened Release of a Contaminant into the environment.
"Environmental Permits" means any and all permits, licenses,
certificates, authorizations or approvals of any Governmental Authority required
by Environmental Laws for the business of Borrower or any Subsidiary of
Borrower.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as from time to time amended.
"ERISA Affiliate" means, with respect to any Person, any trade or
business (whether or not incorporated) which, together with such Person, is
under common control as described in Section 414(c) of the Code, is a member of
a "controlled group", as defined in Section 414(b) of the Code, or is a member
of an "affiliated service group", as defined in Section 414(m) of the Code which
includes such Person. Unless otherwise qualified, all references to an "ERISA
Affiliate" in this Agreement shall refer to an ERISA Affiliate of Borrower or
any Subsidiary.
"Eurodollar Loan" means any Loan which bears interest at a rate
determined with reference to the Eurodollar Rate.
"Eurodollar Rate" means the rate per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%) obtained by dividing (i) the offered
quotation, if any, to first-class banks in the interbank Eurodollar market by BT
for Dollar deposits of amounts in immediately available funds comparable to the
principal amount of the Eurodollar Loan to be made by BT with maturities
comparable to such Interest Period, determined as of approximately 10:00 A.M.
(New York City time) on the Interest Rate Determination Date, by (ii) a
percentage equal to 100% minus the stated maximum rate (expressed as a
percentage) as prescribed by the Board of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental, special or other
reserves and all reserves required to be maintained against "Eurocurrency
liabilities" as specified in Regulation D (or any successor regulation))
applicable on the first day of such Interest Period to any member bank of the
Federal Reserve System in respect of Eurodollar funding or liabilities. The
determination of the Eurodollar Rate by Administrative Agent shall be conclusive
and binding on Borrower absent manifest error.
"Event of Default" has the meaning assigned to that term in Section
10.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
and as codified in 15 U.S.C. 78a et seq., and as hereafter amended.
"Exchangeable Stock" means any Capital Stock which is exchangeable
or convertible into another security (other than Capital Stock of Borrower which
is neither Exchangeable Stock nor Redeemable Stock).
"Existing Credit Agreement" means the Amended and Restated Loan and
Security Agreement, dated March 24, 1995, as amended, between the Borrower and
Congress Financial Corporation (Central) and all agreements relating to such
agreement, including, without limitation, all guarantees, pledge agreements and
security agreements entered into in connection therewith.
"Existing Credit Agreement Termination Documents" shall mean the
documents entered into with respect to the termination of the commitments, and
the reimbursement obligations with respect to any letters of credit issued,
under the Existing Credit Agreement (with the exception of letters of credit
outstanding on the Closing Date and being cash collateralized as provided in
Schedule 6.5(d)), the repayment of the loans thereunder, the release of all
guaranties and security with respect thereto and any consents required in
connection therewith.
"Facing Agent" means BT, in its capacity as issuer of the Letters of
Credit or, if BT is not Administrative Agent hereunder, such other Lender which
has agreed to issue Letters of Credit hereunder and which the Borrower and the
Required Lenders shall have approved, in its capacity as issuer of the Letters
of Credit.
"Federal Funds Rate" means on any one day, the rate per annum equal
to the weighted average (rounded upwards, if necessary, to the nearest 1/100th
of 1%) of the rate on overnight federal funds transactions with members of the
Federal Reserve System only arranged by federal funds brokers, as published as
of such day by the Federal Reserve Bank of New York, or, if such rate is not so
published, the average of the quotations for such day on such transactions
received by BT from three federal funds brokers of recognized standing selected
by BT.
"Financial Statements" has the meaning assigned to that term in
Section 5.1(p).
"Fiscal Quarter" has the meaning assigned to that term in Section
7.13.
"Fiscal Year" has the meaning assigned to that term in Section 7.13.
"Foreign Pension Plan" means any plan, fund (including, without
limitation, any super-annuation fund) or other similar program established or
maintained outside of the United States of America by Borrower or any one or
more of its Subsidiaries primarily for the benefit of employees of Borrower or
such Subsidiaries residing outside the United States of America, which plan,
fund, or similar program provides or results in, retirement income, a deferral
of income in contemplation of retirement or payments to be made upon termination
of employment, and which is not subject to ERISA or the Code.
"Foreign Subsidiary" means any Subsidiary of Borrower that (i) is
incorporated under the laws of a jurisdiction other than any State of the United
States, the District of Columbia or any territory or possession of the United
States and (ii) maintains the major portion of its assets outside the United
States.
"GAAP" means generally accepted accounting principles in the United
States as in effect from time to time.
"Government Acts" has the meaning assigned to that term in Section
2.9(h).
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of government.
"Guarantee Obligations" means, as to any Person, without
duplication, any direct or indirect obligation of such Person guaranteeing or
intended to guarantee any Indebtedness, Capital Lease or operating lease,
dividend or other obligation ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent:
(i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor; (ii) to advance or supply funds (a) for the
purchase or payment of any such primary obligation, or (b) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor; (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation; or (iv) otherwise to assure or hold harmless the owner
of such primary obligation against loss in respect thereof; provided, however,
that the term Guarantee Obligation shall not include any endorsements of
instruments for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation at any time shall be deemed to be an amount
equal to the lesser at such time of (y) the stated or determinable amount of the
primary obligation in respect of which such Guarantee Obligation is made or (z)
the maximum amount for which such Person may be liable pursuant to the terms of
the instrument embodying such Guarantee Obligation; or, if not stated or
determinable, the maximum reasonably anticipated liability (assuming full
performance) in respect thereof.
"Indebtedness" means, as applied to any Person (without
duplication):
(i) all indebtedness of such Person for borrowed money;
(ii) the deferred and unpaid balance of the purchase price of
assets or services (other than trade payables and other accrued
liabilities incurred in the ordinary course of business that are not
overdue by more than 120 days unless being contested in good faith) which
purchase price is (a) due more than six months from the date of incurrence
of the obligation in respect thereof or (b) evidenced by a note or a
similar written instrument;
(iii) all Capitalized Lease Obligations;
(iv) all indebtedness secured by any Lien on any property
owned by such Person, whether or not such indebtedness has been assumed by
such Person or is nonrecourse to such Person;
(v) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed
money (other than such notes or drafts for the deferred purchase price of
assets or services which does not constitute Indebtedness pursuant to
clause (ii) above);
(vi) indebtedness or obligations of such Person, in each
case, evidenced by bonds, notes or similar instruments;
(vii) the face amount of all letters of credit and bankers'
acceptances issued for the account of such Person, and without
duplication, all drafts drawn thereunder other than, in each case,
commercial or standby letters of credit or the functional equivalent
thereof issued in connection with performance, bid or advance payment
obligations incurred in the ordinary course of business, including,
without limitation, performance requirements under workers compensation,
environmental or similar laws;
(viii) all obligations of such Person under Interest Rate
Agreements or Other Hedging Agreements; and
(ix) Guarantee Obligations of such Person.
"Indebtedness to Remain Outstanding" has the meaning assigned to
that term in Section 6.5(d).
"Indemnified Party" has the meaning assigned to that term in Section
12.4(a).
"Intercompany Loans" has the meaning assigned to that term in
Section 8.2(e).
"Interest Payment Date" means (a) as to any Base Rate Loan, each
Quarterly Payment Date to occur while such Loan is outstanding, (b) as to any
Eurodollar Loan the last day of the Interest Period applicable thereto and (c)
as to any Eurodollar Loan having an Interest Period longer than three months, at
the end of each three month anniversary of the first day of the Interest Period
applicable thereto; provided, however, that, in addition to the foregoing, each
of (x) the date upon which both the Revolving Commitments have been terminated
and the Loans have been paid in full and (y) the Revolver Termination Date shall
be deemed to be an "Interest Payment Date" with respect to any interest which
is then accrued hereunder.
"Interest Period" has the meaning assigned to that term in Section
3.4.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement, interest rate
futures contract, interest rate option contract or other similar agreement or
arrangement to which Borrower or any Subsidiary is a party, designed to protect
Borrower or any of its Subsidiaries against fluctuations in interest rates.
"Interest Rate Determination Date" means with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Inventory" means, collectively, all goods, merchandise and other
personal property wherever located, now owned or hereafter acquired by Borrower
or any of its Subsidiaries of every kind or description which are held for sale
or lease or are furnished or to be furnished under a contract of service or are
raw materials, work-in-process or materials used or consumed or to be used or
consumed in Borrower's or any of its Subsidiaries' business.
"Investment" means, as applied to any Person, (i) any direct or
indirect purchase or other acquisition by that Person of, or a beneficial
interest in, Securities of any other Person, or a capital contribution by that
Person to any other Person (by means of any transfer of cash or other property
to such other Person or any payment for property or services for the account or
use of such other Person), (ii) any direct or indirect loan or advance to any
other Person (other than prepaid expenses or Accounts Receivable created or
acquired in the ordinary course of business), including all Indebtedness to such
Person arising from a sale of property by such Person other than in the ordinary
course of its business or (iii) any purchase by that Person of all or a
significant part of the assets of a business conducted by another Person
(including by way of merger, consolidation or amalgamation). The amount of any
Investment by any Person on any date of determination shall be the principal
amount or the fair market value, as applicable, of any loan, advance or capital
contribution made by such Person or the acquisition price of the gross assets
acquired by such Person (including the amount of any liability assumed in
connection with the acquisition by such Person to the extent such liability
would be reflected on a balance sheet prepared in accordance with GAAP) plus all
additional capital contributions or purchase price paid in respect thereof,
without any adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment, minus the aggregate
net amount returned to such Person in cash on or with respect to such
Investment, whether through returns on capital or principal payments, dividends
or other distributions in respect of such Investment. Whenever the term
"outstanding" is used in this Agreement with reference to an Investment, it
shall take into account the matters referred to in the preceding sentence.
"IRS" means the United States Internal Revenue Service, or any
successor or analogous organization.
"LC Commission" has the meaning assigned to that term in Section
2.9(g)(ii).
"LC Obligations" means, at any time, an amount equal to the sum of
(a) the aggregate Stated Amount of the then outstanding Letters of Credit and
(b) the aggregate amount of Unpaid Drawings. The LC Obligation of any Lender at
any time shall mean its Pro Rata Share of the aggregate LC Obligations
outstanding at such time.
"LC Participant" has the meaning assigned to that term in Section
2.9(e).
"LC Supportable Indebtedness" means (i) obligations of Borrower or
its Subsidiaries incurred in the ordinary course of business with respect to
insurance obligations and workers' compensation, utility services, surety bonds,
environmental requirements and other similar statutory obligations, and (ii)
such other obligations of Borrower or any of its Subsidiaries as are reasonably
acceptable to Administrative Agent and the respective Facing Agent and otherwise
permitted to exist pursuant to the terms of this Agreement.
"Lender" and "Lenders" have the respective meanings assigned to
those terms in the introduction to this Agreement and shall include any Person
that becomes a "Lender" as contemplated by Section 12.8.
"Lender Default" means (i) the refusal (which has not been
retracted) of a Lender to make available its portion of any Borrowing or to fund
its portion of any unreimbursed payment under Section 2.9(f) or (ii) a Lender
having notified in writing Borrower and/or Administrative Agent that it does not
intend to comply with its obligations under Section 2.1 or 2.9(f), as a result
of any takeover of such Lender by any regulatory authority or agency.
"Letter of Credit" has the meaning assigned to that term in Section
2.9(a).
"Letter of Credit Amendment Request" has the meaning assigned to
that term in Section 2.9(c).
"Letter of Credit Request" has the meaning assigned to that term in
Section 2.9(c).
"Leverage Ratio" means, for any Adjustment Date or other date of
determination, the ratio of (a) Consolidated Debt on the last day of the Fiscal
Quarter most recently ended for which financial statements have been delivered
(or were required to be delivered) pursuant to Section 7.1(a) or 7.1(b) to (b)
Consolidated EBITDA for the four Fiscal Quarters most recently ended for which
financial statements have been delivered (or were required to be delivered)
pursuant to Section 7.1(a) or 7.1(b); provided, however, that for purposes of
this definition, "Consolidated EBITDA" shall be calculated after giving effect
on a Pro Forma Basis to each Significant Acquisition and Significant Disposition
that has occurred since the beginning of the four Fiscal Quarters most recently
ended up to and including the date for which the Leverage Ratio is being
calculated and "Consolidated Debt" shall be calculated after giving effect to
any indebtedness incurred or repaid in connection with each such Significant
Acquisition or Significant Disposition.
"Lien" means, with respect to any asset, (i) any judgment lien or
execution, attachment, levy or distraint and (ii) any mortgage, pledge,
hypothecation, collateral assignment, security interest, encumbrance, lien,
charge or deposit arrangement (other than a deposit to a Deposit Account in the
ordinary course of business and not intended as security) of any kind
(including, without limitation, any conditional sale or other title retention
agreement or lease in the nature thereof), (iii) any filing or agreement to file
a financing statement as debtor under the Uniform Commercial Code or any similar
statute other than to reflect ownership by a third party of property leased to
Borrower or any of its Subsidiaries under a lease which is not in the nature of
a conditional sale or title retention agreement and (iv) any sale of receivables
with recourse (in whole or in part) against Borrower or any Subsidiary of
Borrower.
"Loan" means a Revolving Loan or a Swing Line Loan, as the context
shall require; collectively, the "Loans."
"Loan Documents" means, collectively, this Agreement, the Notes,
each Letter of Credit, each Security Document, each Interest Rate Agreement or
Other Hedging Agreement to which any Lender or any Affiliate of a Lender is a
party, and all other agreements, instruments and documents executed in
connection therewith, in each case as the same may at any time be amended,
supplemented, restated or otherwise modified and in effect.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), assets, liabilities, property or
operations of Borrower and its Subsidiaries taken as a whole, (b) the ability of
Borrower and its Subsidiaries to perform their obligations under the Loan
Documents, or (c) the validity or enforceability of this Agreement or any of the
Security Documents or the rights or remedies of the Collateral Agent,
Administrative Agent and the Lenders hereunder or thereunder.
"Material Subsidiary" means each Credit Party and any other
Subsidiary which (on a consolidated basis with its Subsidiaries) (a) for the
most recent Fiscal Year of Borrower accounted for more than 10% of Borrower's
consolidated revenues or (b) as of the end of such Fiscal Year, was the owner of
more than 10% of Borrower's consolidated assets, in each case as determined in
accordance with GAAP and as shown on the consolidated financial statements of
Borrower for such Fiscal Year.
"Maximum Commitment" means, when used with reference to any Lender,
the aggregate of such Lender's Revolving Commitment in the amount not to exceed
that set forth opposite the name of such Lender on Schedule 1.1 hereto, subject
to reduction from time to time in accordance with the terms of this Agreement.
"Minimum Borrowing Amount" means, with respect to Base Rate Loans,
$5,000,000, and with respect to Eurodollar Loans, $5,000,000, and with respect
to Swing Line Loans, $1,000,000.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to
the rating agency business thereof.
"Mortgage" has the meaning assigned to that term in Section 5.1(e)
and shall also include any mortgages or similar documents executed pursuant to
Section 7.12.
"Mortgage Policies" has the meaning assigned to that term in Section
5.1(e) and shall also include any mortgage policies or similar documents
executed pursuant to Section 7.12.
"Mortgaged Property" has the meaning assigned to that term in
Section 5.1(e) and shall also include any real property subject to a Mortgage
pursuant to Section 7.12.
"Multiemployer Plan" means any plan described in Section 4001(a)(3)
of ERISA to which contributions are or have, within the preceding six years,
been made, or are or were, within the preceding six years, required to be made,
by Borrower or any of its ERISA Affiliates.
"Net Offering Proceeds" means the proceeds received from the
issuance of any Capital Stock (other than Redeemable Stock or Exchangeable
Stock) net of the actual liabilities for reasonably anticipated taxes in
connection with such issuance, if any, any underwriting, brokerage and other
customary selling commissions incurred in connection with such issuance, and
reasonable legal, advisory and other fees and expenses, including title and
recording tax expenses, if any, incurred in connection with such issuance.
"Net Sale Proceeds" means, with respect to any Asset Disposition,
the fair market value of the aggregate proceeds received or constructively
received by Borrower and/or its Subsidiaries, directly or indirectly, from such
Asset Disposition minus the direct costs and expenses incurred in connection
therewith (including in the case of any Asset Disposition, the payment of the
outstanding principal amount of, premium, if any, and interest on any
Indebtedness (other than Indebtedness under this Agreement) which is required to
be repaid as a result of such Asset Disposition (unless and to the extent the
proceeds constitute proceeds from the sale or other disposition of Collateral)),
and any provision for taxes in respect thereof made in accordance with GAAP.
Any proceeds received in a currency other than Dollars shall, for purposes of
the calculation of the amount of Net Sale Proceeds, be in an amount equal to the
Dollar equivalent thereof as of the date of receipt thereof by Borrower or any
Subsidiary of Borrower. The fair market value of any non-cash consideration
received by Borrower or any Subsidiary in connection with an Asset Disposition
shall be determined in good faith by the senior management or the Board of
Directors of Borrower, which, in the case of an Asset Disposition involving non-
cash consideration having a fair market value in excess of $5,000,000, shall be
evidenced by a certificate of a Responsible Officer of Borrower which is
delivered to Administrative Agent on or prior to the date such Asset Disposition
is consummated.
"Non-Defaulting Lender" means each Lender which is not a Defaulting
Lender.
"Non-OECD Foreign Subsidiary" means a Foreign Subsidiary that is not
an OECD Foreign Subsidiary.
"Note" means any of the Revolving Notes or the Swing Line Note, and
"Notes" means all of such Notes collectively.
"Notice Address" has the meaning assigned to that term in Section
2.5.
"Notice of Borrowing" has the meaning assigned to that term in
Section 2.5.
"Notice of Conversion or Continuation" has the meaning assigned to
that term in Section 2.6.
"Notice Office" means the office of Administrative Agent located at
Xxx Xxxxxxx Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other office as
Administrative Agent may designate to Borrower and the Lenders from time to
time.
"Obligations" means all liabilities and obligations of Borrower and
any Subsidiary of Borrower now or hereafter arising under this Agreement and/or
any of the other Loan Documents, whether for principal, interest, fees,
expenses, indemnities or otherwise, and whether primary, secondary, direct,
indirect, contingent, fixed or otherwise (including obligations of performance).
"OECD" means the Organization for Economic Cooperation and
Development.
"OECD Foreign Subsidiary" means a Foreign Subsidiary that is
organized under the laws of any country that is a member of the OECD.
"Organizational Documents" means, with respect to any Person, such
Person's articles or certificate of incorporation, bylaws, partnership
agreement, joint venture agreement or other similar governing documents and any
document setting forth the designation, amount and/or relative rights,
limitations and preferences of any class or series of such Person's Capital
Stock.
"Other Hedging Agreement" means any foreign exchange contract,
currency swap agreement, futures contract, commodity agreement, option contract,
synthetic cap or other similar agreement to which Borrower or any Subsidiary is
a party, designed to protect Borrower or any of its Subsidiaries against
fluctuations in currency values.
"Participants" has the meaning assigned to that term in Section
12.8(b).
"Payment Office" has the meaning assigned to that term in Section
2.7.
"PBGC" means the Pension Benefit Guaranty Corporation created by
Section 4002(a) of ERISA.
"Permitted Acquisition" means the acquisition by Borrower or any of
its Subsidiaries of assets constituting a business, division or product line of
any Person (other than a Subsidiary of Borrower) engaged in a line of business
which is reasonably related to the business engaged in by Borrower and its
Subsidiaries as of the date hereof, or the Capital Stock of any Person engaged
in such line of business (provided that, after giving effect to such
acquisition, such Person is a Subsidiary of Borrower), in each case in
accordance with the requirements of this Agreement.
"Permitted Liens" has the meaning assigned to that term in Section
8.1.
"Permitted Real Property Encumbrances" means (i) those liens,
encumbrances and other matters affecting title to any Mortgaged Property listed
in the Mortgage Policies in respect thereof and as of the date of delivery of
such Mortgage Policies to Administrative Agent in accordance with the terms
hereof, reasonably acceptable to Administrative Agent, (ii) as to any particular
Mortgaged Property at any time, such minor or customary easements,
encroachments, covenants, rights of way, minor defects, irregularities or
encumbrances on title which do not arise out of the incurrence of any
Indebtedness and which do not materially impair the use of such Mortgaged
Property for the purpose for which it is held by the mortgagor thereof, or the
Lien granted to the Collateral Agent, (iii) municipal and zoning ordinances,
provided that no violation exists thereunder that could materially impair the
use of the existing improvements and the present use made by the mortgagor
thereof of the Premises (as defined in the respective Mortgage), (iv) general
real estate taxes and assessments not yet delinquent or which are being
contested in good faith by appropriate proceedings diligently pursued, provided
that provision for the payment of all such taxes and assessments has been made
on the books of Borrower and its Subsidiaries to the extent required by GAAP,
and (v) such other minor or customary liens or encumbrances as Administrative
Agent may consent to.
"Person" means an individual or a corporation, partnership, limited
liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, government (or an agency or political subdivision
thereof) or other entity of any kind.
"Plan" means any plan described in Section 4021(a) of ERISA and not
excluded pursuant to Section 4021(b) thereof, which is or has, within the
preceding six years, been established or maintained, or to which contributions
are or have, within the preceding six years, been made, by Borrower or any of
its ERISA Affiliates, but not including any Multiemployer Plan.
"Plan Administrator" has the meaning assigned to the term
"administrator" in Section 3(16)(A) of ERISA.
"Plan Sponsor" has the meaning assigned to the term "plan sponsor"
in Section 3(16)(B) of ERISA.
"Pledge Agreement" means, once executed and delivered, the pledge
agreement delivered pursuant to Section 5.1(d) (i).
"Pledged Securities" means all of the Pledged Securities as defined
in the Pledge Agreement.
"Premises" has the meaning provided in the definition of the term
"Environmental Claim" in this Section 1.1.
"Pro Forma Basis" means, with respect to the making of a Restricted
Payment or the consummation of a Significant Acquisition or a Significant
Disposition (including, without limitation, the incurrence or repayment of
indebtedness in connection therewith), the calculation of the consolidated
results of the Borrower and its Subsidiaries otherwise determined in accordance
with this Agreement as if the respective Restricted Payment, Significant
Acquisition or Significant Disposition (and all other Restricted Payments made
or Significant Acquisitions or Significant Dispositions effected during the
respective Calculation Period or thereafter and on or prior to the date of
determination) (each such date, a "Determination Date") had been effected on the
first day of the respective Calculation Period; provided that all such
calculations shall take into account the following assumptions:
(i) pro forma effect shall be given to all Restricted
Payments, Significant Acquisitions and Significant Dispositions that
occur during such Calculation Period or thereafter and on or prior
to the Determination Date (including any indebtedness assumed,
incurred or repaid in connection therewith) as if they had occurred
on the first day of such Calculation Period;
(ii) in the case of any Significant Acquisition,
interest expense attributable to interest on any indebtedness
(whether existing or being incurred) bearing a floating interest
rate shall be computed as if the rate in effect on the date of
computation had been the applicable rate for the entire period;
(iii) pro forma calculations performed in connection
with Significant Acquisitions shall not take into consideration cost
savings or revenue increases projected to result from the combined
operations of Borrower or any of its Subsidiaries and the business
or Person being acquired; and
(iv) except as otherwise expressly provided in the
foregoing clauses (i) through (iii), pro forma calculations with
respect to Significant Acquisitions shall be made in accordance with
Article 11 of Regulation S X under the Securities Act of 1933 or any
successor provision.
"Pro Forma Transactions" means the February 15, 1996 acquisition by
Borrower of the IMI Titanium business from IMI Plc and the October 1, 1996
acquisition by Borrower of all of the assets of Xxxx Xxxxxxx Metals, Inc.
("AJM"), including AJM's 50% partnership interest in Titanium Hearth
Technologies.
"Pro Rata Share" means, when used with reference to any Lender and
any described aggregate or total amount, an amount equal to the result obtained
by multiplying such described aggregate or total amount by a fraction the
numerator of which shall be such Lender's Maximum Commitment and the denominator
of which shall be the Total Commitment or, if no Commitments are then
outstanding, such Lender's aggregate Loans to the total Loans and Obligations
hereunder.
"Projections" has the meaning assigned to that term in Section
6.5(e).
"Qualified Domestic Subsidiary" means a Domestic Subsidiary of
Borrower (i) that is a Subsidiary Guarantor, (ii) whose Capital Stock owned by
Borrower and its Subsidiaries is pledged to Collateral Agent for the benefit of
the Secured Creditors and (iii) that has executed such Security Documents as
shall have been requested by Administrative Agent.
"Quarterly Payment Date" means the last Business Day of each Fiscal
Quarter of Borrower.
"Recovery Event" means the receipt by Borrower or any of its
Subsidiaries (or any of their respective Affiliates) of any insurance or
condemnation proceeds payable (i) by reason of any theft, physical destruction
or damage or any other similar event with respect to any properties or assets of
Borrower or any of its Subsidiaries, (ii) by reason of any condemnation, taking,
seizing or similar event with respect to any properties or assets of Borrower or
any of its Subsidiaries and (iii) under any policy of insurance required to be
maintained under Section 7.8.
"Redeemable Stock" means any Capital Stock that by its terms or
otherwise is required to be redeemed on or prior to the first anniversary of the
Revolver Termination Date (as the same may be extended pursuant to the terms
hereof) or is redeemable at the option of the holder thereof at any time on or
prior to the first anniversary of such Revolver Termination Date.
"Refunded Swing Line Loans" has the meaning assigned to that term in
Section 2.1(b)(ii).
"Regulation D" means Regulation D of the Board as from time to time
in effect and any successor to all or a portion thereof establishing reserve
requirements.
"Reinvestment Plan" has the meaning assigned to that term in Section
4.4(c).
"Release" means any release, spill, emission, leaking, pumping,
pouring, emptying, dumping, injection, deposit, disposal, discharge, dispersal,
escape, leaching or migration into the environment (including the abandonment or
discarding of barrels, containers, and other closed receptacles containing
contaminants) or into or out of any property of Borrower or its Subsidiaries,
including any location to which Borrower or any Subsidiary has transported or
arranged for the transportation of any Contaminant, including the movement of
Contaminants through or in the air, soil, surface water, groundwater or property
of Borrower or its Subsidiaries, including any location to which Borrower or any
Subsidiary has transported or arranged for the transportation of any
Contaminant.
"Replaced Lender" has the meaning assigned to that term in Section
3.7.
"Replacement Lender" has the meaning assigned to that term in
Section 3.7.
"Reportable Event" means a "reportable event" described in Section
4043(c) of ERISA or in the regulations thereunder with respect to a Plan, the
filing of a notice of intent to terminate a Plan, the termination of a Plan, any
event requiring disclosure under Section 4063(a) or 4062(e) of ERISA, receipt of
a notice of withdrawal liability with respect to a Multiemployer Plan pursuant
to Section 4202 of ERISA or receipt of a notice of reorganization or insolvency
with respect to a Multiemployer Plan pursuant to Section 4242 or 4245 of ERISA.
"Required Lenders" means Non-Defaulting Lenders the sum of whose
Revolving Commitments (or, if after the Total Commitment has been terminated,
outstanding Revolving Loans and Pro Rata Share of outstanding Swing Line Loans
and LC Obligations) constitute greater than 50% of the sum of the Total
Commitment less the aggregate Revolving Commitments of Defaulting Lenders (or,
if after the Total Commitment has been terminated, the total outstanding
Revolving Loans of Non-Defaulting Lenders and the aggregate Pro Rata Share of
all Non-Defaulting Lenders of the total outstanding Swing Line Loans and LC
Obligations at such time).
"Requirement of Law" means, as to any Person, any law (including
common law), treaty, rule or regulation or judgment, decree, determination or
award of an arbitrator or a court or other Governmental Authority, including
without limitation, any Environmental Law, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any of its
property is subject.
"Response Action" has the meaning set forth in Section 101(25) of
the Comprehensive Environmental Response, Compensation and Liability Act, 42 USC
section 9601(25), and further includes any corrective action that may be
required under the Solid Waste Disposal Act, 42 USC section 6901 et seq. and any
analogous state law.
"Responsible Officer" means any of the Chairman or Vice Chairman of
the Board of Directors, the Chief Executive Officer, the President, the Chief
Financial Officer, any Vice President or the Treasurer of Borrower or its
Subsidiaries, as applicable; unless otherwise expressly stated, a "Responsible
Officer" shall be a Responsible Officer of Borrower.
"Restricted Payment" has the meaning assigned to that term in
Section 8.4.
"Revolver Termination Date" means July 30, 2002 or such earlier date
as the Revolving Commitments shall have been terminated or otherwise reduced to
$0 pursuant to this Agreement.
"Revolving Commitment" means, with respect to any Lender, the
obligation of such Lender to make Revolving Loans and to participate in Letters
of Credit and Swing Line Loans, as such commitment may be reduced from time to
time pursuant to this Agreement, which commitment as of the date hereof is the
amount set forth opposite such lender's name on Schedule 1.1 hereto under the
caption "Amount of Revolving Commitment" as the same may be adjusted from time
to time pursuant to the terms hereof; and "Revolving Commitments" means such
commitments collectively, which commitments equal $200,000,000 in the aggregate
as of the date hereof.
"Revolving Loan" and "Revolving Loans" have the meanings given in
Section 2.1(a).
"Revolving Note" has the meaning assigned to that term in Section
2.2(a).
"Sale and Leaseback Transaction" means any arrangement, directly or
indirectly, whereby a seller or transferor shall sell or otherwise transfer any
real or personal property and then or thereafter lease, or repurchase under an
extended purchase contract, conditional sales or other title retention
agreement, the same or similar property.
"SEC" means the Securities and Exchange Commission or any successor
thereto.
"Secured Creditors" means Administrative Agent, the Facing Agent,
the Lenders and the other secured parties under the Security Documents.
"Securities" means any stock, shares, voting trust certificates,
bonds, debentures, options, warrants, notes, or other evidences of indebtedness,
secured or unsecured, convertible, subordinated or otherwise, or in general any
instruments commonly known as "securities" or any certificates of interest,
shares or participations in temporary or interim certificates for the purchase
or acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" has the meaning assigned to that term in
Section 5.1(c).
"Security Documents" means, collectively the Security Agreement, the
Subsidiary Guaranty, the Pledge Agreement, the U.K. Pledge Agreement, the
Mortgages and all other agreements, assignments, security agreements,
instruments and documents executed in connection therewith or herewith in order
to secure the Obligations, in each case as the same may at any time be amended,
supplemented, restated or otherwise modified and in effect. For purposes of
this Agreement, "Security Documents" shall also include all guaranties, security
agreements, mortgages, pledge agreements, collateral assignments, subordination
agreements and other collateral documents in the nature of any thereof entered
into by Borrower or any Subsidiary of Borrower after the date of this Agreement
in favor of the Collateral Agent, for the benefit of the Secured Creditors, in
order to secure the Obligations in satisfaction of the requirements of this
Agreement, including, without limitation, the Additional Security Documents.
"Significant Acquisition" means any Permitted Acquisition or series
of related Permitted Acquisitions for which the total consideration (including,
without limitation, Acquired Debt) is equal to or greater than $25 million.
"Significant Disposition" means any Asset Disposition or series of
related Asset Dispositions for which the total consideration (including, without
limitation, the assumption of Indebtedness by the transferee) is equal to or
greater than $25 million.
"Xxxxxxx" means Xxxxxx X. Xxxxxxx.
"Xxxxxxx Trust" means any trust established for the benefit of
Xxxxxx X. Xxxxxxx or members of his family or both.
"Xxxxxxx Trust Beneficiaries and Trustees" means trustees, acting in
such capacity, or beneficiaries of a Xxxxxxx Trust to the extent of the
beneficial interest therein and for so long as such Xxxxxxx Trust exists.
"Solvent" means, when used with respect to any Person, that (i) the
fair salable value of its assets is in excess of the total amount of its
liabilities (including for purposes of this definition all liabilities, whether
or not reflected on a balance sheet prepared in accordance with GAAP, and
whether direct or indirect, fixed or contingent, disputed or undisputed); (ii)
it is able to pay its debts or obligations in the ordinary course as they
mature; and (iii) it has capital sufficient to carry on its business and all
business in which it is about to engage.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor to the rating agency business
thereof.
"Standby Letter of Credit" has the meaning set forth in Section
2.9(a).
"Stated Amount" or "Stated Amounts" means the stated or face amount
of a Letter of Credit to the extent available at the time for drawing (subject
to presentment of all requisite documents), as the same may be increased or
decreased from time to time in accordance with the terms of such Letter of
Credit. For purposes of calculating the Stated Amount of any Letter of Credit
at any time:
(i) any increase in the Stated Amount of any Letter of
Credit by reason of any amendment to any Letter of Credit shall be
deemed effective under this Agreement as of the date the Facing
Agent actually issues an amendment purporting to increase the Stated
Amount of such Letter of Credit, whether or not the Facing Agent
receives the consent of the Letter of Credit beneficiary or
beneficiaries to the amendment, except that if Borrower has required
that the increase in Stated Amount be given effect as of an earlier
date and the Facing Agent issues an amendment to that effect, then
such increase in Stated Amount shall be deemed effective under this
Agreement as of such earlier date requested by Borrower; and
(ii) any reduction in the Stated Amount of any Letter
of Credit by reason of any amendment to any Letter of Credit shall
be deemed effective under this Agreement as of the later of (x) the
date the Facing Agent actually issues an amendment purporting to
reduce the Stated Amount of such Letter of Credit, whether or not
the amendment provides that the reduction be given effect as of an
earlier date, and (y) the date the Facing Agent receives the written
consent (including by telex or facsimile transmission) of the Letter
of Credit beneficiary or beneficiaries to such reduction, whether
such written consent must be dated on or after the date of the
amendment issued by the Facing Agent purporting to effect such
reduction.
"Subsidiary" of any Person means any corporation, partnership
(limited or general), limited liability company, trust or other entity of which
a majority of the stock (or equivalent ownership or controlling interest) having
voting power to elect a majority of the board of directors (if a corporation) or
to select the trustee or equivalent controlling interest, shall, at the time
such reference becomes operative, be directly or indirectly owned or controlled
by such Person or one or more of the other subsidiaries of such Person or any
combination thereof. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a direct or
indirect Subsidiary or Subsidiaries of Borrower. Notwithstanding the foregoing,
TiPro shall not be considered a Subsidiary of Borrower for so long as the total
outstanding Investment by Borrower and its Subsidiaries in TiPro is less than
$5,000,000.
"Subsidiary Guaranty" has the meaning assigned to that term in
Section 5.1(b).
"Subsidiary Guarantor" means each of the Domestic Subsidiaries of
Borrower indicated on Schedule 6.15 (other than Valtimet, Inc. and TIMET Capital
Trust I), and each other Subsidiary that becomes a party to a guaranty agreement
as contemplated in Section 7.12(b).
"Swing Line Commitment" of the Swing Line Lender at any date, means
the obligation of the Swing Line Lender to make Swing Line Loans pursuant to
Section 2.1(b) in the amount referred to therein.
"Swing Line Lender" means BT, in its capacity as the maker of Swing
Line Loans.
"Swing Line Loans" has the meaning assigned to that term in Section
2.1(b).
"Swing Line Loan Participation Certificate" means a certificate,
substantially in the form of Exhibit 2.1(b).
"Swing Line Note" has the meaning assigned to that term in Section
2.2(a).
"Taxes" has the meaning assigned to that term in Section 4.7(a).
"TiPro" means a limited liability company, corporation or limited
partnership to be formed after the Closing Date with one or more joint venture
partners for the purpose of developing, manufacturing and marketing titanium
products, and any successor entity.
"Total Available Revolving Commitment" means, at the time any
determination thereof is made, the sum of the respective Available Revolving
Commitments of the Lenders at such time.
"Total Commitment" means, at the time any determination thereof is
made, the sum of the Revolving Commitments at such time.
"Transferee" has the meaning assigned to that term in Section
12.8(d).
"Type" means, as to any Loan, its nature as a Base Rate Loan or a
Eurodollar Loan.
"UCC" means the Uniform Commercial Code as in effect from time to
time in the relevant jurisdiction.
"U.K. Pledge Agreement" has the meaning assigned to that term in
Section 5.1(d)(ii).
"Unmatured Event of Default" means an event, act or occurrence which
with the giving of notice or the lapse of time (or both) would become an Event
of Default.
"Unpaid Drawing" has the meaning set forth in Section 2.9(d).
"Unrestricted Consolidated Cash" means Cash or Cash Equivalents
owned by the Borrower or any of its Subsidiaries free and clear of all Liens and
other encumbrances or restrictions of any kind, including, without limitation,
the encumbrances and restrictions described in Section 6.15(c) (but excluding,
prior to the exercise thereof, customary rights of offset contained in any
deposit agreement with a depository which are not related to Indebtedness).
"Valtimet Shareholders' Agreement" means that certain Shareholders'
Agreement dated March 25, 1997 between Borrower and Valinox Welded S.A.
"Voting Securities" means any class of Capital Stock of a Person
pursuant to which the holders thereof have, at the time of determination, the
general voting power under ordinary circumstances to vote for the election of
directors, managers, trustees or general partners of such Person (irrespective
of whether or not at the time any other class or classes will have or might have
voting power by reason of the happening of any contingency).
"Wholly-Owned Domestic Subsidiary" means a Domestic Subsidiary that
is a Wholly-Owned Subsidiary.
"Wholly-Owned Qualified Domestic Subsidiary" means a Qualified
Domestic Subsidiary that is a Wholly-Owned Subsidiary.
"Wholly-Owned Subsidiary" means, with respect to any Person, a
corporation, partnership or other entity of which (a) 100% of the common capital
stock or other ownership interests of such corporation, partnership or other
entity or (b) more than 95% of the common capital stock or other ownership
interests of such corporation, partnership or other entity where the portion of
the common capital stock or other ownership interests not held by such Person is
held by other Persons to satisfy applicable legal requirements, is owned,
directly or indirectly, by such Person.
"written" or "in writing" means any form of written communication or
a communication by means of telecopier device or authenticated telex, telegraph
or cable.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms. The words "herein," "hereof"
and words of similar import as used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision in this Agreement.
References to "Articles", "Sections", "paragraphs", "Exhibits" and "Schedules"
in this Agreement shall refer to Articles, Sections, paragraphs, Exhibits and
Schedules of this Agreement unless otherwise expressly provided; references to
Persons include their respective permitted successors and assigns or, in the
case of governmental Persons, Persons succeeding to the relevant functions of
such persons; and all references to statutes and related regulations shall
include any amendments of same and any successor statutes and regulations.
1.2 Accounting Terms; Financial Statements. All accounting terms
used herein but not expressly defined in this Agreement shall have respective
meanings given to them in accordance with GAAP in effect on the date hereof in
the United States of America. Except as otherwise expressly provided herein,
all computations and determinations for purposes of determining compliance with
the financial requirements of this Agreement shall be made in accordance with
GAAP in effect in the United States of America on the date hereof and on a basis
consistent with the presentation of the financial statements and projections
delivered pursuant to, or otherwise referred to in, Sections 6.5(a) and 6.5(e).
Notwithstanding the foregoing sentence, the financial statements required to be
delivered pursuant to Section 7.1 shall be prepared in accordance with GAAP in
the United States of America as in effect on the respective dates of their
preparation.
1.3 Schedules. Borrower's inclusion of information on one or more
Schedules is for disclosure purposes only and should not be construed to imply
that any such matters, individually or in the aggregate, could have a Material
Adverse Effect.
ARTICLE II
AMOUNT AND TERMS OF CREDIT
2.1 The Commitments.
(a) Revolving Loans. Each Revolving Lender, severally and for
itself alone, hereby agrees, on the terms and subject to the conditions
hereinafter set forth and in reliance upon the representations and warranties
set forth herein and in the other Loan Documents, to make loans to Borrower on a
revolving basis from time to time during the Commitment Period, in an amount not
to exceed its Pro Rata Share of the Total Available Revolving Commitment (each
such loan by any Lender, a "Revolving Loan" and collectively, the "Revolving
Loans"). All Revolving Loans comprising the same Borrowing hereunder shall be
made by the Lenders simultaneously and in proportion to their respective
Revolving Commitments. Prior to the Revolver Termination Date, Revolving Loans
may be repaid and reborrowed by Borrower in accordance with the provisions
hereof and, except as otherwise specifically provided herein, all Revolving
Loans comprising the same Borrowing shall at all times be of the same Type.
(b) Swing Line Loans.
(i) Swing Line Commitment. Subject to the terms and
conditions hereof, the Swing Line Lender in its individual capacity agrees to
make swing line loans ("Swing Line Loans") to Borrower on any Business Day from
time to time during the Commitment Period in an aggregate principal amount at
any one time outstanding not to exceed $10,000,000; provided, however, that in
no event may the amount of any Borrowing of Swing Line Loans (A) exceed the
Total Available Revolving Commitment immediately prior to such Borrowing (after
giving effect to the use of proceeds thereof) or (B) cause the outstanding
Revolving Loans of any Lender, when added to such Lender's Pro Rata Share of the
then outstanding Swing Line Loans and Pro Rata Share of the aggregate LC
Obligations (exclusive of Unpaid Drawings relating to LC Obligations which are
repaid with the proceeds of, and simultaneously with the incurrence of,
Revolving Loans or Swing Line Loans) to exceed such Lender's Revolving
Commitment. Amounts borrowed by Borrower under this Section 2.1(b)(i) may be
repaid and, prior to but excluding the Revolver Termination Date, reborrowed.
The Swing Line Loans shall be made in Dollars and maintained as Base Rate Loans
and, notwithstanding Section 2.6, shall not be entitled to be converted into any
other Type of Loan.
(ii) Refunding of Swing Line Loans. The Swing Line Lender,
at any time in its sole and absolute discretion, may on behalf of Borrower
(which hereby irrevocably appoints the Swing Line Lender to so act on its
behalf) notify each Lender (including the Swing Line Lender) to make a Revolving
Loan in an amount equal to such Lender's Pro Rata Share of the principal amount
of the Swing Line Loans (the "Refunded Swing Line Loans") outstanding on the
date such notice is given, provided, however, that such notice shall be deemed
to have automatically been given upon the occurrence of an Event of Default
under Sections 10.1(e) or 10.1(f) or upon the occurrence of a Change of Control.
Unless any of the events described in Sections 10.1(e) or 10.1(f) shall have
occurred (in which event the procedures of Section 2.1(b)(iii) shall apply) and
regardless of whether the conditions precedent set forth in this Agreement to
the making of a Revolving Loan are then satisfied, each Lender shall make the
proceeds of its Revolving Loan available to the Swing Line Lender at the Payment
Office prior to 11:00 A.M., New York City time, in funds immediately available
on the Business Day next succeeding the date such notice is given. The proceeds
of such Revolving Loans shall be applied immediately to repay the Refunded Swing
Line Loans.
(iii) Participation in Swing Line Loans. If, prior to
refunding a Swing Line Loan with a Revolving Loan pursuant to Section
2.1(b)(ii), one of the events described in Sections 10.1(e) or 10.1(f) shall
have occurred, or if for any other reason a Revolving Loan cannot be made
pursuant to Section 2.1(b)(ii), then, subject to the provisions of Section
2.1(b)(iv) below, each Lender will, on the date such Revolving Loan was to have
been made, purchase (without recourse or warranty) from the Swing Line Lender an
undivided participation interest in the Swing Line Loan in an amount equal to
its Pro Rata Share of such Swing Line Loan. Upon request, each Lender will
immediately transfer to the Swing Line Lender, in immediately available funds,
the amount of its participation and upon receipt thereof the Swing Line Lender
will deliver to such Lender a Swing Line Loan Participation Certificate dated
the date of receipt of such funds and in such amount.
(iv) Lenders' Obligations Unconditional. Each Lender's
obligation to make Revolving Loans for the purpose of refunding Swing Line Loans
in accordance with Section 2.1(b)(ii) and to purchase participating interests in
Swing Line Loans in accordance with Section 2.1(b)(iii) above shall be absolute
and unconditional and shall not be affected by any circumstance, including,
without limitation, (A) any set-off, counterclaim, recoupment, defense or other
right which such Lender may have against the Swing Line Lender, Borrower or any
other Person for any reason whatsoever; (B) the occurrence or continuance of any
Event of Default or Unmatured Event of Default; (C) any adverse change in the
condition (financial or otherwise) of Borrower or any other Person; (D) any
breach of this Agreement by Borrower or any other Person; (E) any inability of
Borrower to satisfy the conditions precedent to borrowing set forth in this
Agreement on the date upon which such participating interest is to be purchased;
or (F) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing. If any Lender does not make available to the
Swing Line Lender the amount required pursuant to Section 2.1(b)(ii) or (iii)
above, as the case may be, the Swing Line Lender shall be entitled to recover
such amount on demand from such Lender, together with interest thereon for each
day from the date of non-payment until such amount is paid in full at the
Federal Funds Rate for the first two Business Days and at the Base Rate
thereafter. Notwithstanding the foregoing provisions of this Section
2.1(b)(iv), no Lender shall be required to make a Revolving Loan to Borrower for
the purpose of refunding a Swing Line Loan pursuant to Section 2.1(b)(ii) above
or to purchase a participating interest in a Swing Line Loan pursuant to Section
2.1(b)(iii) if an Event of Default or Unmatured Event of Default has occurred
and is continuing and, prior to the making by the Swing Line Lender of such
Swing Line Loan, the Swing Line Lender has received written notice from such
Lender specifying that such Event of Default or Unmatured Event of Default has
occurred and is continuing, describing the nature thereof and stating that, as a
result thereof, such Lender shall cease to make such Refunded Swing Line Loans
and purchase such participating interests, as the case may be; provided,
however, that the obligation of such Lender to make such Refunded Swing Line
Loans and to purchase such participating interests shall be reinstated upon the
earlier to occur of (y) the date upon which such Lender notifies the Swing Line
Lender that its prior notice has been withdrawn and (z) the date upon which the
Event of Default or Unmatured Event of Default specified in such notice no
longer is continuing.
2.2 Notes. Borrower's obligation to pay the principal of and
interest on all the Loans made to it by each Lender shall be evidenced, (x) if
Revolving Loans, by a promissory note (each, a "Revolving Note" and,
collectively, the "Revolving Notes") duly executed and delivered by Borrower
substantially in the form of Exhibit 2.2(a)-1 hereto, with blanks appropriately
completed in conformity herewith and (y) if Swing Line Loans, by a promissory
note (each, a "Swing Line Note" and, collectively, the "Swing Line Notes") duly
executed and delivered by Borrower substantially in the form of Exhibit 2.2(a)-2
hereto, with blanks appropriately completed in conformity herewith.
(a) Provisions of the Revolving Notes. The Revolving Note issued
to each Revolving Lender shall (A) be executed by Borrower, (B) be payable to
the order of such Lender and be dated the Closing Date (except with respect to
Revolving Notes issued after an assignment in accordance with Section 12.8, in
which case such Revolving Notes shall be dated as of the assignment effective
date) , (C) be in a stated principal amount equal to the Revolving Commitment of
such Revolving Lender and be payable in the aggregate principal amount of the
Revolving Loans of such Revolving Lender evidenced thereby, (D) mature, with
respect to each Revolving Loan evidenced thereby, on the Revolver Termination
Date, (E) be subject to mandatory prepayment as provided in Section 4.4, and
voluntary prepayment as provided in Section 4.3 (F) bear interest as provided in
the appropriate clause of Section 3.1 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby and (G) be entitled to
the benefits of this Agreement and the other applicable Loan Documents. Each
Lender is hereby authorized to record the date, Type and amount of each
Revolving Loan made by such Lender, each continuation thereof, each conversion
of all or a portion thereof to another Type, the date and amount of each payment
or prepayment of principal thereof and, in the case of Eurodollar Loans, the
length of each Interest Period with respect thereto, on the schedule annexed to
and constituting a part of its Revolving Note (or otherwise on the records of
such Lender), and any such recordation shall (in the absence of manifest error)
constitute prima facie evidence of the accuracy of the information so recorded;
provided, however, that the failure of a Lender to make any such recordation on
its Revolving Note shall not affect the obligations of Borrower or any
Subsidiary Guarantor thereunder or under this Agreement.
(b) Provisions of the Swing Line Note. The Swing Line Note issued
to the Swing Line Lender shall (A) be executed by Borrower, (B) be payable to
the order of the Swing Line Lender or its registered assigns and be dated the
Closing Date, (C) be in a stated principal amount equal to the Swing Line
Commitment and be payable in the aggregate principal amount of the Swing Line
Loans evidenced thereby, (D) mature, with respect to each Swing Line Loan
evidenced thereby, on the Revolver Termination Date, (E) be subject to mandatory
prepayment as provided in Section 4.4 and voluntary prepayment as provided in
Section 4.3, (F) bear interest as provided in Section 3.1 in respect of the Base
Rate Loan evidenced thereby and (G) be entitled to the benefits of this
Agreement and the other applicable Loan Documents. The Swing Line Lender is
hereby authorized to record the borrowing date, the amount of each Swing Line
Loan, and the date and amount of each payment or prepayment of principal
thereof, on the schedule annexed to and constituting a part of the Swing Line
Note (or otherwise on the records of the Swing Line Lender) and, in the absence
of manifest error, any such recordation shall constitute prima facie evidence of
the accuracy of the information so recorded ; provided, however, that the
failure of the Swing Line Lender to make such recordation (or any error in such
recordation) shall not affect the obligations of Borrower or any Subsidiary
Guarantor hereunder or under the Swing Line Note.
2.3 Minimum Amount of Each Borrowing; Maximum Number of
Borrowings. The aggregate principal amount of each Borrowing by Borrower
hereunder shall be not less than (i) in the case of a Base Rate Loan,
$5,000,000, and, if greater, shall be in integral multiples of $1,000,000 above
such minimum (or, if less, the then Total Available Revolving Commitment) and
(ii) in the case of a Eurodollar Loan, $5,000,000, and, if greater, shall be in
integral multiples of $1,000,000 above such minimum and (iii) in the case of a
Swing Line Loan, $1,000,000 or an integral multiple thereof; provided, however,
that any Borrowing of Revolving Loans to be used solely to pay the aggregate
amount of Swing Line Loans then outstanding may be in the aggregate outstanding
principal amount of such Swing Line Loans. More than one Borrowing may be
incurred on any date; provided that at no time shall there be outstanding more
than 10 Borrowings of Eurodollar Loans.
2.4 Borrowing Options. The Revolving Loans shall, at the option of
Borrower except as otherwise provided in this Agreement, be (i) Base Rate Loans,
(ii) Eurodollar Loans, or (iii) part Base Rate Loans and part Eurodollar Loans.
As to any Eurodollar Loan, any Lender may, if it so elects, fulfill its
commitment by causing a foreign branch or affiliate to make or continue such
Loan; provided that in such event such Lender's Pro Rata Share of the Loan
shall, for the purposes of this Agreement, be considered to have been made by
such Lender and the obligation of Borrower to repay such Lender's Pro Rata Share
of the Loan shall nevertheless be to such Lender and shall be deemed held by
such Lender, for the account of such branch or affiliate; provided further, that
the Borrower shall not be required to increase the amount payable to such Lender
pursuant to Section 4.7(a) in excess of the amount that it would have been
required to pay had such Lender not fulfilled its Commitment by causing such
foreign branch or affiliate to make or continue such Loan. The Swing Line Loans
shall be Base Rate Loans and shall not be entitled to be converted into any
other Type of Loan.
2.5 Notice of Borrowing. Whenever Borrower desires to make a
Borrowing of any Revolving Loan hereunder, it shall give Administrative Agent at
its office located at One Bankers Trust Plaza, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (or such other address as Administrative Agent may hereafter
designate in writing to the parties hereto) (the "Notice Address") at least one
Business Day's prior written notice (or telephonic notice promptly confirmed in
writing), given not later than 11:00 A.M. (New York City time) of each Base Rate
Loan, and at least three Business Days' prior written notice (or telephonic
notice promptly confirmed in writing), given not later than 1:00 P.M. (New York
City time), of each Eurodollar Loan to be made hereunder; provided, however,
that a Notice of Borrowing with respect to Borrowings to be made on the date
hereof may, at the discretion of Administrative Agent, be delivered later than
the time specified above. Whenever Borrower desires that Swing Line Lender make
a Swing Line Loan under Section 2.1(b), it shall deliver to Swing Line Lender
prior to 11:00 A.M. (New York City time) on the date of Borrowing written notice
(or telephonic notice promptly confirmed in writing). Each such notice (each a
"Notice of Borrowing"), which shall be substantially in the form of Exhibit 2.5
hereto, shall be irrevocable, shall be deemed a representation by Borrower that
all conditions precedent to such Borrowing have been satisfied and shall specify
(i) the aggregate principal amount of the Loans to be made pursuant to such
Borrowing, (ii) the date of Borrowing (which shall be a Business Day) and (iii)
whether the Loans being made pursuant to such Borrowing, if Revolving Loans, are
to be Base Rate Loans, Eurodollar Loans or a combination thereof and, with
respect to Eurodollar Loans, the Interest Period to be applicable thereto.
Administrative Agent shall as promptly as practicable give each Lender written
or telephonic notice (promptly confirmed in writing) of each proposed Borrowing
(other than Borrowings of Swing Line Loans), of such Lender's Pro Rata Share
thereof and of the other matters covered by the Notice of Borrowing. Without in
any way limiting Borrower's obligation to confirm in writing any telephonic
notice, Administrative Agent or the Swing Line Lender (in the case of Swing Line
Loans) or the Facing Agent (in the case of Letters of Credit) may act without
liability upon the basis of telephonic notice believed by Administrative Agent
in good faith to be from a Responsible Officer of Borrower prior to receipt of
written confirmation. Administrative Agent's records shall, absent manifest
error, be final, conclusive and binding on Borrower with respect to evidence of
the terms of such telephonic Notice of Borrowing. Borrower hereby agrees not to
dispute Administrative Agent's, the Swing Line Lender's or the Facing Agent's
record of the time of telephonic notice absent manifest error.
2.6 Conversion or Continuation. Borrower may elect (i) at any
time (except as provided below), to convert outstanding Base Rate Loans (or any
portion thereof in an aggregate amount not less than $5,000,000, or that is in
an integral multiple of $1,000,000 in excess thereof) into Eurodollar Loans and
(ii) at the end of any Interest Period with respect thereto, to convert
outstanding Eurodollar Loans (or any portion thereof in an aggregate amount not
less than $5,000,000, or that is in an integral multiple of $1,000,000 in excess
thereof) into Base Rate Loans or to continue such Eurodollar Loans or any
portion thereof for an additional Interest Period. Each conversion or
continuation of Revolving Loans shall be allocated among the Revolving Loans of
the Lenders in accordance with their respective Pro Rata Shares. Each such
election shall be in substantially the form of Exhibit 2.6 hereto (a "Notice of
Conversion or Continuation") and shall be made by giving Administrative Agent at
least three Business Days' prior irrevocable written notice thereof to the
Notice Address specifying (i) the amount and type of conversion or continuation,
(ii) in the case of a conversion to or a continuation of Eurodollar Loans, the
Interest Period therefor, and (iii) in the case of a conversion, the date of
conversion (which date shall be a Business Day and, if a conversion from
Eurodollar Loans, also shall be the last day of the Interest Period therefor).
Notwithstanding the foregoing, no conversion in whole or in part of Base Rate
Loans to Eurodollar Loans, and no continuation in whole or in part of Eurodollar
Loans upon the expiration of any Interest Period therefor, shall be permitted at
any time at which an Unmatured Event of Default or an Event of Default shall
have occurred and be continuing. If, within the time period required under the
terms of this Section 2.6, Administrative Agent does not receive a Notice of
Conversion or Continuation from Borrower containing a permitted election to
continue any Eurodollar Loans for an additional Interest Period or to convert
any such Loans, then, upon the expiration of the Interest Period therefor, such
Loans will be converted automatically to Base Rate Loans. Each Notice of
Conversion or Continuation shall be irrevocable.
2.7 Disbursement of Funds. No later than 12:00 P.M. (New York
City time) on the date specified in each Notice of Borrowing, each Lender will
make available its Pro Rata Share of Revolving Loans of the Borrowing requested
to be made on such date in Dollars and in immediately available funds, at the
office (the "Payment Office") of Administrative Agent located at One Bankers
Trust Plaza, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (for the account of
such non-United States office of Administrative Agent as Administrative Agent
may direct in the case of Eurodollar Loans) and Administrative Agent will make
available to Borrower at its Payment Office the aggregate of the amounts so made
available by the Lenders. Unless Administrative Agent shall have been notified
by any Lender at least one Business Day prior to the date of Borrowing that such
Lender does not intend to make available to Administrative Agent such Lender's
portion of the Borrowing to be made on such date, Administrative Agent may
assume that such Lender has made such amount available to Administrative Agent
on such date of Borrowing and Administrative Agent may, but shall not be
required, in reliance upon such assumption, to make available to Borrower a
corresponding amount. If such corresponding amount is not in fact made
available to Administrative Agent by such Lender on the date of Borrowing,
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender. If such Lender does not pay such corresponding amount
forthwith upon Administrative Agent's demand therefor, Administrative Agent
promptly shall notify Borrower and, if so notified, Borrower shall pay
immediately such corresponding amount to Administrative Agent. Administrative
Agent also shall be entitled to recover from Borrower interest on such
corresponding amount in respect of each day from the date such corresponding
amount was made available by Administrative Agent to Borrower to the date such
corresponding amount is recovered by Administrative Agent, at a rate per annum
equal to the rate for Base Rate Loans or Eurodollar Loans, as the case may be,
applicable during the period in question, provided, however, that any interest
paid to Administrative Agent in respect of such corresponding amount shall be
credited against interest payable by Borrower to such Lender under Section 3.1
in respect of such corresponding amount. Any amount due hereunder to
Administrative Agent from any Lender which is not paid when due shall bear
interest payable by such Lender, from the date due until the date paid, at the
Federal Funds Rate for the first two Business Days after the date such amount is
due and thereafter at the Base Rate, together with Administrative Agent's
standard interbank processing fee. Further, such Lender shall be deemed to have
assigned any and all payments of principal and interest made on its Loans,
amounts due with respect to its Letters of Credit (or its participations
therein) and any other amounts due to it hereunder first to Administrative Agent
to fund any outstanding Loans made available on behalf of such Lender by
Administrative Agent pursuant to this Section 2.7 until such Loans have been
funded (as a result of such assignment or otherwise) and then to fund Loans of
all Lenders other than such Lender until each Lender has outstanding Loans equal
to its Pro Rata Share of all Revolving Loans (as a result of such assignment or
otherwise). Such Lender shall not have recourse against Borrower with respect
to any amounts paid to Administrative Agent or any Lender with respect to the
preceding sentence; provided, that such Lender shall have full recourse against
Borrower to the extent of the amount of such Loans it has so been deemed to have
made. Nothing herein shall be deemed to relieve any Lender from its obligation
to fulfill its Commitment hereunder or to prejudice any rights which Borrower
may have against the Lender as a result of any default by such Lender hereunder.
2.8 Pro Rata Borrowings. All Borrowings of Revolving Loans under
this Agreement shall be loaned by the Lenders pro rata on the basis of their
Revolving Commitments. No Lender shall be responsible for any default by any
other Lender in its obligation to make Loans hereunder and each Lender shall be
obligated to make the Loans provided to be made by it hereunder, regardless of
the failure of any other Lender to fulfill its Commitment hereunder.
2.9 Letters of Credit.
(a) Letters of Credit Commitments. Subject to and upon the terms
and conditions herein set forth, Borrower may request that the Facing Agent
issue, at any time and from time to time on and after the Closing Date, and
prior to the Business Day (or the 30th day in the case of Commercial Letters of
Credit) preceding the Revolver Termination Date, (x) for the account of Borrower
and for the benefit of any holder (or any trustee, agent or other similar
representative for any such holder) of LC Supportable Indebtedness of Borrower
or any of its Subsidiaries, an irrevocable standby letter of credit, in a form
customarily used by the Facing Agent, or in such other form as has been approved
by the Facing Agent (each such standby letter of credit, a "Standby Letter of
Credit") in support of such LC Supportable Indebtedness and (y) for the account
of Borrower and in support of trade obligations of Borrower or any of its
Subsidiaries, an irrevocable sight letter of credit in a form customarily used
by the Facing Agent or in such other form as has been approved by the Facing
Agent (each such letter of credit, a "Commercial Letter of Credit"; and each
such Commercial Letter of Credit and each Standby Letter of Credit, a "Letter of
Credit"), in support of commercial transactions of Borrower and its
Subsidiaries.
(b) Obligation of Facing Agent to Issue Letters of Credit. The
Facing Agent will issue (subject to the terms and conditions contained herein),
at any time and from time to time on or after the Closing Date and prior to the
Business Day (or the 30th day in the case of Commercial Letters of Credit)
preceding the Revolver Termination Date, following its receipt of the respective
Letter of Credit Request, for the account of Borrower one or more Letters of
Credit (x) in the case of Standby Letters of Credit, in support of such LC
Supportable Indebtedness of Borrower or any of its Subsidiaries as is permitted
to remain outstanding without giving rise to an Event of Default or Unmatured
Event of Default hereunder and (y) in the case of Commercial Letters of Credit,
in support of trade obligations as referenced in Section 2.9(a), provided that
the Facing Agent shall be under no obligation to issue any Letter of Credit of
the types described above if at the time of such issuance:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall purport by its terms to enjoin or restrain the
Facing Agent from issuing such Letter of Credit or any Requirement of Law
applicable to the Facing Agent from any Governmental Authority with jurisdiction
over the Facing Agent shall prohibit, or request that the Facing Agent refrain
from, the issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon the Facing Agent with respect to such Letter of
Credit any restriction or reserve or capital requirement (for which the Facing
Agent is not otherwise compensated) not in effect on the date hereof, or any
unreimbursed loss, cost or expense which was not applicable, in effect or known
to the Facing Agent as of the date hereof and which the Facing Agent in good
xxxxx xxxxx material to it: or
(ii) the Facing Agent shall have received notice prior to the
issuance of such Letter of Credit of the type described in Section
2.9(b)(A)(vi).
(A) Notwithstanding the foregoing, (i) no Letter of Credit shall
be issued the Stated Amount of which, when added to the LC Obligations
(exclusive of Unpaid Drawings relating to Letters of Credit which are repaid on
the date of, and prior to the issuance of, the respective Letter of Credit)
outstanding at such time, would exceed either (x) $25,000,000 or (y) when added
to the aggregate principal amount of all Revolving Loans and Swing Line Loans
then outstanding, the Revolving Commitments at such time; (ii) (x) each Standby
Letter of Credit shall have an expiry date occurring not later than one year
after such Standby Letter of Credit's date of issuance, provided, that any
Standby Letter of Credit may be automatically extendable for periods of up to
one year so long as such Standby Letter of Credit provides that the Facing Agent
retains an option, satisfactory to the Facing Agent, to terminate such Standby
Letter of Credit within a specified period of time prior to each scheduled
extension date and (y) each Commercial Letter of Credit shall have an expiry
date occurring not later than 180 days after such Commercial Letter of Credit's
date of issuance; (iii) (x) no Standby Letter of Credit shall have an expiry
date occurring later than the Business Day next preceding the Revolver
Termination Date and (y) no Commercial Letter of Credit shall have an expiry
date occurring later than 30 days prior to the Revolver Termination Date; (iv)
each Letter of Credit shall be denominated in Dollars and be payable on a sight
basis; (v) the Stated Amount of each Letter of Credit shall not be less than
$250,000 or such lesser amount as is acceptable to the Facing Agent; and (vi)
the Facing Agent shall not issue any Letter of Credit after it has received
written notice from Borrower, Administrative Agent or the Required Lenders
stating that an Event of Default or Unmatured Event of Default exists until such
time as the Facing Agent shall have received a written notice of (x) rescission
of such notice from the party or parties originally delivering the same or (y) a
waiver of such Event of Default or Unmatured Event of Default by the Required
Lenders (or all the Lenders to the extent required by Section 12.1).
(B) Notwithstanding the foregoing, in the event a Lender Default
exists, the Facing Agent shall not be required to issue any Letter of Credit
unless the Facing Agent has entered into arrangements satisfactory to it and
Borrower to eliminate the Facing Agent's risk with respect to the participation
in Letters of Credit of the Defaulting Lender or Lenders, including by cash
collateralizing such Defaulting Lender or Lenders' applicable Pro Rata Share of
the applicable LC Obligations.
(c) Letter of Credit Requests; Notices of Issuance. Whenever it
desires that a Letter of Credit be issued, Borrower shall give Administrative
Agent and the Facing Agent written notice thereof prior to 1:00 p.m. (New York
City time) at least three Business Days (or such shorter period as may be
acceptable to the Facing Agent) prior to the proposed date of issuance (which
shall be a Business Day) which written notice shall be substantially in the form
of Exhibit 2.9(c)-1 or as otherwise required by the following two sentences
(each a "Letter of Credit Request"). Each such notice shall specify (i) the
proposed issuance date and expiration date, (ii) the name(s) of each obligor
with respect to such Letter of Credit, (iii) Borrower as the account party, (iv)
the name and address of the beneficiary (which Person shall be reasonably
acceptable to the Facing Agent), (v) the Stated Amount of such proposed Letter
of Credit, (vi) the purpose of such Letter of Credit (which shall be acceptable
to Administrative Agent and the Facing Agent) and (vii) such other information
as the Facing Agent may reasonably request. In addition, each Letter of Credit
Request shall contain a description of the terms and conditions to be included
in such proposed Letter of Credit (all of which terms and conditions shall be
reasonably acceptable to the Facing Agent). No Letter of Credit shall contain
any provision for payment thereunder at any time earlier than 2:00 P.M. (New
York City time) on the Business Day immediately succeeding the presentation of
all drafts, demands for payment and all other documents, if any, required to be
presented pursuant to such Letter of Credit. Unless otherwise specified, all
Letters of Credit will be governed by the Uniform Customs and Practices for
Documentary Credit Operations as in effect on the date of issuance of such
Letter of Credit. From time to time while a Letter of Credit is outstanding and
prior to the Revolver Termination Date, the Facing Agent may, upon the written
request of Borrower received by the Facing Agent (with a copy sent by Borrower
to Administrative Agent) at least three Business Days (or such shorter time as
the Facing Agent may agree in a particular instance in its sole discretion)
prior to the proposed date of amendment, amend any Letter of Credit issued by
it. Each such request for amendment of a Letter of Credit shall be made in
writing, made in substantially the form of Exhibit 2.9(c)-2 (each a "Letter of
Credit Amendment Request") and shall specify in form and detail reasonably
satisfactory to the Facing Agent: (A) the Letter of Credit to be amended; (B)
the proposed date of amendment of the Letter of Credit (which shall be a
Business Day); (C) the nature of the proposed amendment; and (D) such other
matters as the Facing Agent may reasonably require. The Facing Agent shall be
under no obligation to amend any Letter of Credit. Each Letter of Credit
Request or Letter of Credit Amendment Request shall include any other documents
or information as the Facing Agent customarily requires in connection therewith.
The Facing Agent shall, on the date of each issuance of or amendment or
modification to a Letter of Credit by it, give Administrative Agent a copy of
the Letter of Credit or Letters of Credit issued by it and each such amendment
or modification thereto, and the Administrative Agent will notify the Lenders of
the receipt by it of any such Letter of Credit or amendment or modification
thereto.
(d) Agreement to Repay Letter of Credit Payments.
(i) Borrower hereby agrees to reimburse the Facing Agent, by
making payment to Administrative Agent in immediately available funds at the
Payment Office, for any payment or disbursement made by the Facing Agent under
any Letter of Credit (each such amount so paid or disbursed until reimbursed, an
"Unpaid Drawing"), no later than one Business Day after the date of such payment
or disbursement, with interest at the rate set forth in Section 2.9(g)(i)(A) on
the amount so paid or disbursed by the Facing Agent, to the extent not
reimbursed prior to 12:00 Noon (New York City time) on the date of such payment
or disbursement, from and including the date paid or disbursed to but excluding
the date the Facing Agent is reimbursed therefor by Borrower, such interest to
be payable on demand. The Facing Agent shall give Borrower prompt notice of
each Drawing under any Letter of Credit, provided that the failure to give any
such notice shall in no way affect, impair or diminish Borrower's obligations
hereunder.
(ii) The Obligations of Borrower under this Section 2.9(d) to
reimburse the Facing Agent with respect to drawings on Letters of Credit (each,
a "Drawing") (including, in each case, interest thereon) shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which Borrower may have or have had against
the Facing Agent, Administrative Agent or any Lender (including in its capacity
as issuer of the Letter of Credit or as LC Participant), or any nonapplication
or misapplication by the beneficiary of the proceeds of such Drawing, the Facing
Agent's only obligation to Borrower being to confirm that any documents required
to be delivered under such Letter of Credit appear to have been delivered and
that they appear to comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by the Facing Agent under or in
connection with any Letter of Credit if taken or omitted in the absence of gross
negligence or willful misconduct, shall not create for such Facing Agent any
resulting liability to Borrower.
(e) Letter of Credit Participations. Immediately upon the
issuance by the Facing Agent of any Letter of Credit, the Facing Agent shall be
deemed to have sold and transferred to each Lender, other than the Facing Agent
(each such Lender, in its capacity under this Section 2.9(e), an "LC
Participant"), and each such LC Participant shall be deemed irrevocably and
unconditionally to have purchased and received from the Facing Agent, without
recourse or warranty, an undivided interest and participation, to the extent of
such Lender's Pro Rata Share, in such Letter of Credit, each substitute Letter
of Credit, each Drawing made thereunder and the obligations of Borrower under
this Agreement with respect thereto (although Letter of Credit fees shall be
payable directly to Administrative Agent for the account of the Lenders as
provided in Section 2.9(g) and the LC Participants shall have no right to
receive any portion of the facing fees), and any security therefor or guaranty
pertaining thereto. Upon any change in the Revolving Commitments of the Lenders
pursuant to Section 4.1 or 4.2 or as a result of a Lender Default, it is hereby
agreed that, with respect to all outstanding Letters of Credit and Unpaid
Drawings relating to Letters of Credit, there shall be an automatic adjustment
pursuant to this Section 2.9(e) to reflect the new Pro Rata Share of the
assignor and assignee Lender or of all Lenders with Revolving Commitments, as
the case may be. In determining whether to pay under any Letter of Credit, the
Facing Agent shall have no obligation relative to the LC Participants other than
to confirm that any documents required to be delivered under such Letter of
Credit appear to have been delivered and that they appear to comply on their
face with the requirements of such Letter of Credit. Any action taken or
omitted to be taken by the Facing Agent under or in connection with any Letter
of Credit issued by it if taken or omitted in the absence of gross negligence or
willful misconduct, shall not create for the Facing Agent any resulting
liability to Borrower or any Lender.
(f) Draws Upon Letter of Credit; Reimbursement Obligations. In
the event that the Facing Agent makes any payment under any Letter of Credit
issued by it and Borrower shall not have reimbursed such amount in full to the
Facing Agent pursuant to Section 2.9(d), the Facing Agent shall promptly notify
Administrative Agent, and Administrative Agent shall promptly notify each LC
Participant of such failure, and each such LC Participant shall promptly and
unconditionally pay to Administrative Agent for the account of the Facing Agent,
the amount of such LC Participant's applicable Pro Rata Share of such payment in
Dollars and in same day funds; provided, however, that no LC Participant shall
be obligated to pay to Administrative Agent its applicable Pro Rata Share of
such unreimbursed amount for any wrongful payment made by the Facing Agent under
a Letter of Credit issued by it in the event that it is determined by a court of
competent jurisdiction in a final non-appealable judgment that the payment with
respect to such Letter of Credit by the Facing Agent constituted gross
negligence or willful misconduct on the part of the Facing Agent. If
Administrative Agent so notifies any LC Participant required to fund a payment
under a Letter of Credit prior to 11:00 A.M. (New York City time) on any
Business Day, such LC Participant shall make available to Administrative Agent
for the account of the Facing Agent such LC Participant's applicable Pro Rata
Share of the amount of such payment on such Business Day in same day funds. If
and to the extent such LC Participant shall not have so made its applicable Pro
Rata Share of the amount of such payment available to Administrative Agent for
the account of the Facing Agent, such LC Participant agrees to pay to
Administrative Agent for the account of the Facing Agent, forthwith on demand
such amount, together with interest thereon, for each day from such date until
the date such amount is paid to Administrative Agent for the account of the
Facing Agent at the Federal Funds Rate for the first two Business Days and
thereafter at the Base Rate. The failure of any LC Participant to make
available to Administrative Agent for the account of the Facing Agent its
applicable Pro Rata Share of any payment under any Letter of Credit issued by it
shall not relieve any other LC Participant of its obligation hereunder to make
available to Administrative Agent for the account of the Facing Agent its
applicable Pro Rata Share of any payment under any such Letter of Credit on the
day required, as specified above, but no LC Participant shall be responsible for
the failure of any other LC Participant to make available to Administrative
Agent for the account of the Facing Agent such other LC Participant's applicable
Pro Rata Share of any such payment.
(A) Whenever the Facing Agent receives a payment of a
reimbursement obligation as to which Administrative Agent has received for the
account of the Facing Agent any payments from the LC Participants pursuant to
this Section 2.9(f), the Facing Agent shall pay to Administrative Agent and
Administrative Agent shall pay to each LC Participant which has paid its Pro
Rata Share thereof, in Dollars and in same day funds, an amount equal to such LC
Participant's Pro Rata Share of the principal amount of such reimbursement
obligation and interest thereon accruing after the purchase of the respective
participations.
(B) Upon the request of any LC Participant, the Facing Agent
shall furnish to such LC Participant copies of any Letter of Credit issued by
it.
(C) The obligations of Borrower to reimburse the Facing
Agent with respect to Drawings, and the obligations of the LC Participants to
make payments to the Facing Agent with respect to Letters of Credit issued by
it, shall be irrevocable and not subject to any qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of this
Agreement under all circumstances, including, without limitation, any of the
following circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(ii) The existence of any claim, setoff, defense or
other right which Borrower or any of its Subsidiaries may have at any time
against a beneficiary named in a Letter of Credit, any transferee of any Letter
of Credit (or any Person for whom any such transferee may be acting),
Administrative Agent, any LC Participant, or any other Person, whether in
connection with this Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any underlying
transaction between Borrower and the beneficiary named in any such Letter of
Credit);
(iii) any draft, certificate or any other document
presented under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for
the performance or observance of any of the terms of any of the Loan Documents;
or
(v) the occurrence of any Event of Default or
Unmatured Event of Default.
(g) Fees for Letters of Credit.
(i) Facing Agent Fees. Borrower agrees to pay the following
amount to the Facing Agent with respect to the Letters of Credit issued by it
for the account of Borrower:
(A) with respect to drawings made under any Letter of
Credit, interest, payable on demand, on the amount paid by the Facing Agent in
respect of each such drawing from the date of the drawing through the date such
amount is reimbursed by Borrower at a rate which is at all times equal to 2% per
annum in excess of the Base Rate;
(B) with respect to the issuance or amendment of each
Letter of Credit and each drawing made thereunder, documentary and processing
charges in accordance with the Facing Agent's standard schedule for such charges
in effect at the time of such issuance, amendment, transfer or drawing, as the
case may be; and
(C) a facing fee as agreed to between Borrower and the
Facing Agent for the Letter of Credit and unless otherwise agreed, shall be
payable with respect to the maximum Stated Amount under such outstanding Letters
of Credit payable in arrears on the last Business Day of each Fiscal Quarter, on
the Revolver Termination Date and thereafter, on demand together with customary
issuance and drawing charges payable pursuant to clause (B) above; provided,
however, if calculation of the facing fee in the manner set forth above would
result in a facing fee of less than $500 per year per Letter of Credit, Borrower
shall be obligated to pay such additional amount to the Facing Agent so as to
provide for a minimum facing fee of $500 per year per Letter of Credit.
(ii) Participating Lender Fees. Borrower agrees to pay to
Administrative Agent for distribution to each LC Participant in respect of all
Letters of Credit outstanding such Lender's Pro Rata Share of a commission equal
to the Applicable Eurodollar Margin with respect to the maximum Stated Amount
under such outstanding Letters of Credit (the "LC Commission"), payable in
arrears on each Quarterly Payment Date, on the Revolver Termination Date and
thereafter, on demand. The LC Commission shall be computed from the first day
of issuance of each Letter of Credit and on the basis of the actual number of
days elapsed over a year of 360 days.
(iii) Payment. Promptly upon receipt by the Facing Agent or
Administrative Agent of any amount described in clause (i)(A) or (ii) of this
Section 2.9(g), the Facing Agent or Administrative Agent shall distribute to
each Lender that has reimbursed the Facing Agent in accordance with Section
2.9(f) its Pro Rata Share of such amount. Amounts payable under clause (i)(B)
and (C) of this Section 2.9(g) shall be paid directly to the Facing Agent.
(h) Indemnification. In addition to amounts payable as elsewhere
provided in this Agreement, Borrower hereby agrees to protect, indemnify, pay
and save the Facing Agent harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including Attorney
Costs) (other than for Taxes, which are addressed in Section 4.7) which the
Facing Agent may incur or be subject to as a consequence, direct or indirect, of
(i) the issuance of the Letters of Credit, other than as a result of the gross
negligence or willful misconduct of the Facing Agent or (ii) the failure of the
Facing Agent to honor a Drawing under any Letter of Credit as a result of any
act or omissions, whether rightful or wrongful, of any present or future de
jure or de facto government or Governmental Authority (all such acts or
omissions herein called "Government Acts"). As between Borrower and the Facing
Agent, Borrower assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit issued by the Facing Agent by, the respective beneficiaries of
such Letters of Credit. In furtherance and not in limitation of the foregoing,
the Facing Agent shall not be responsible (except to the extent resulting from
the gross negligence or willful misconduct of the Facing Agent): (i) for the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of or any Drawing under such Letters of Credit, even if it should in
fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any such Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason; (iii) for
failure of the beneficiary of any such Letter of Credit to comply fully with
conditions required in order to draw upon such Letter of Credit; (iv) for
errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or not they be
in cipher; (v) for errors in interpretation of technical terms; (vi) for any
loss or delay in the transmission or otherwise of any document required in order
to make a Drawing under any such Letter of Credit or of the proceeds thereof;
(vii) for the misapplication by the beneficiary of any such Letter of Credit of
the proceeds of any Drawing under such Letter of Credit; and (viii) for any
consequences arising from causes beyond the control of the Facing Agent,
including, without limitation, any acts of any Governmental Authority. None of
the above shall affect, impair, or prevent the vesting of any of the Facing
Agent's rights or powers hereunder. In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth, any action taken or
omitted by the Facing Agent under or in connection with the Letters of Credit
issued by it or the related certificates, if taken or omitted in good faith,
shall not put the Facing Agent under any resulting liability to Borrower.
Notwithstanding anything to the contrary contained in this Agreement, Borrower
shall have no obligation to indemnify the Facing Agent in respect of any
liability incurred by the Facing Agent arising solely out of the gross
negligence or willful misconduct of the Facing Agent. The right of
indemnification in this Section 2.9(h) shall not prejudice any rights that
Borrower may otherwise have against the Facing Agent with respect to a Letter of
Credit issued hereunder.
(i) Increased Costs. If at any time after the date hereof the
Facing Agent or any Lender determines that the introduction of or any change in
any applicable law, rule, regulation, order, guideline or request or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof, or compliance by the Facing
Agent or such Lender with any request or directive by any such authority
(whether or not having the force of law) or any change in GAAP, shall either (i)
impose, modify or make applicable any reserve, deposit, capital adequacy or
similar requirement against Letters of Credit issued by the Facing Agent or
participated in by any Lender, or (ii) impose on the Facing Agent or any Lender
any other conditions relating, directly or indirectly, to this Agreement or any
Letter of Credit; and the result of any of the foregoing is to increase the cost
to the Facing Agent or any Lender of issuing, maintaining or participating in
any Letter of Credit, or reduce the amount of any sum received or receivable by
the Facing Agent or any Lender hereunder or reduce the rate of return on its
capital with respect to Letters of Credit, then, upon demand to Borrower by the
Facing Agent or any Lender (a copy of which demand shall be sent by the Facing
Agent or such Lender to Administrative Agent), Borrower shall pay to the Facing
Agent or such Lender such additional amount or amounts as will compensate the
Facing Agent or such Lender for such increased cost or reduction in the amount
receivable or reduction on the rate of return on its capital. The Facing Agent
or any Lender, upon determining that any additional amounts will be payable
pursuant to this Section 2.9(i), will give prompt written notice thereof to
Borrower, which notice shall include a certificate submitted to Borrower by the
Facing Agent or such Lender (a copy of which certificate shall be sent by the
Facing Agent or such Lender to Administrative Agent), setting forth in
reasonable detail the basis for the calculation of such additional amount or
amounts necessary to compensate the Facing Agent or such Lender, although
failure to give any such notice shall not release or diminish Borrower's
obligations to pay additional amounts pursuant to this Section 2.9(i). The
certificate required to be delivered pursuant to this Section 2.9(i) shall be
final, conclusive and binding on Borrower absent manifest error.
ARTICLE III
INTEREST AND FEES
3.1 Interest.
(a) Base Rate Loans. Borrower agrees to pay interest in respect
of the unpaid principal amount of each Base Rate Loan at a rate per annum equal
to the Base Rate from the date the proceeds thereof are made available to
Borrower until the earlier of (i) the maturity (whether by acceleration or
otherwise) of such Base Rate Loan or (ii) the conversion of such Base Rate Loan
to a Eurodollar Loan pursuant to Section 2.6.
(b) Eurodollar Loans. Borrower agrees to pay interest in respect
of the unpaid principal amount of each Eurodollar Loan from the date the
proceeds thereof are made available to Borrower until the earlier of (i) the
maturity (whether by acceleration or otherwise) of such Eurodollar Loan or (ii)
the conversion of such Eurodollar Loan to a Base Rate Loan pursuant to Section
2.6 at a rate per annum equal to the relevant Eurodollar Rate for the Interest
Period in effect for such Borrowing plus the Applicable Eurodollar Margin.
(c) Payment of Interest. Interest on each Loan shall be payable
in arrears on each Interest Payment Date; provided, however, that interest
accruing pursuant to Section 3.1(e) shall be payable from time to time on
demand. Interest also shall be payable on all then outstanding Revolving Loans
on the Revolver Termination Date and on all Loans on the date of repayment
(including prepayment) thereof (except that voluntary prepayments of Revolving
Loans that are Base Rate Loans made pursuant to Section 4.3 on any day other
than a Quarterly Payment Date or the Revolver Termination Date need not be made
with accrued interest from the most recent Quarterly Payment Date, provided such
accrued interest is paid on the next Quarterly Payment Date) and on the date of
maturity (by acceleration or otherwise) of such Loans. During the existence of
any Event of Default, interest on any Loan shall be payable on demand.
(d) Notification of Rate. Administrative Agent, upon determining
the interest rate for any Borrowing of Eurodollar Loans for any Interest Period,
shall promptly notify Borrower and the Lenders thereof. Absent manifest error
and subject to Section 3.6, such determination shall be final, conclusive and
binding upon all parties hereto.
(e) Default Interest. Notwithstanding the rates of interest
specified herein, effective on the date 30 days after the occurrence and
continuance of any Event of Default (other than an Event of Default arising from
Borrower's failure to pay Obligations when due) and for so long thereafter as
any Event of Default shall be continuing, and effective immediately upon and
during the continuance of an Event of Default arising from Borrower's failure to
pay any Obligations or any other amounts due under any of the Loan Documents
when due, whether by acceleration or otherwise, the principal balance of each
Loan then outstanding and, to the extent permitted by applicable law, any
interest payment on each Loan not paid when due or other amounts then due and
payable shall bear interest payable on demand, after as well as before judgment,
at a rate per annum equal to the Default Rate.
(f) Maximum Interest. If any interest payment or other charge or
fee payable hereunder exceeds the maximum amount then permitted by applicable
law, Borrower shall be obligated to pay the maximum amount then permitted by
applicable law and Borrower shall continue to pay the maximum amount from time
to time permitted by applicable law until all such interest payments and other
charges and fees otherwise due hereunder (in the absence of such restraint
imposed by applicable law) have been paid in full.
3.2 Fees.
(a) Commitment Fees. Borrower shall pay to Administrative Agent
for pro rata distribution to each Non-Defaulting Lender having a Revolving
Commitment (based on its Pro Rata Share) a commitment fee (the "Commitment Fee")
for the period commencing on the Closing Date to and including the Revolver
Termination Date or the earlier termination of the Revolving Commitments (and,
in either case, repayment in full of the Revolving Loans and payment in full, or
cash collateralization by the deposit of cash into the Collateral Account in
amounts and pursuant to arrangements reasonably satisfactory to Administrative
Agent, of the LC Obligations), computed at a rate equal to the Applicable
Commitment Fee Percentage per annum on the average daily Total Available
Revolving Commitment. Unless otherwise specified, accrued Commitment Fees shall
be due and payable (i) on each Quarterly Payment Date, (ii) on the Revolver
Termination Date and (iii) upon any reduction or termination in whole or in part
of the Revolving Commitments (but only, in the case of a reduction, on the
portion of the Revolving Commitments then being reduced).
(b) Agency Fees. Borrower shall pay to Administrative Agent for
its own account, agency and other Loan fees in the amount and at the times set
forth in the letter agreement between Borrower and Administrative Agent.
3.3 Computation of Interest and Fees. Interest on all Loans and
fees payable hereunder shall be computed on the basis of the actual number of
days elapsed over a year of 360 days; provided that interest on all Base Rate
Loans shall be computed on the basis of the actual number of days elapsed over a
year of 365 or 366 days, as the case may be. Each determination of an interest
rate by Administrative Agent pursuant to any provision of this Agreement shall
be conclusive and binding on Borrower and the Lenders in the absence of manifest
error. Administrative Agent shall, at any time and from time to time upon
request of Borrower, deliver to Borrower a statement showing the quotations used
by Administrative Agent in determining any interest rate applicable to Revolving
Loans pursuant to this Agreement. Each change in the Applicable Eurodollar
Margin or the Applicable Commitment Fee Percentage as a result of a change in
the Leverage Ratio shall become effective on the applicable Adjustment Date.
3.4 Interest Periods. At the time it gives any Notice of
Borrowing or a Notice of Conversion or Continuation with respect to Eurodollar
Loans, Borrower shall elect, by giving Administrative Agent written notice, the
interest period (each an "Interest Period"), which Interest Period, at the
option of Borrower, shall be one, two, three or six months, provided that:
(i) all Eurodollar Loans comprising a Borrowing at all times
shall have the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan
shall commence on the date of the Borrowing of such Eurodollar Loan (including
the date of any conversion thereto from a Loan of a different Type) and each
Interest Period occurring thereafter in respect of such Eurodollar Loan shall
commence on the last day of the immediately preceding Interest Period;
(iii) if any Interest Period relating to a Eurodollar Loan
begins on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such Interest Period shall
end on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, however, that if any Interest Period for a
Eurodollar Loan would otherwise expire on a day which is not a Business Day but
is a day of the month after which no further Business Day occurs in such month,
such Interest Period shall expire on the next preceding Business Day;
(v) no Interest Period may be selected at any time when an
Unmatured Event of Default or Event of Default is then in existence; and
(vi) no Interest Period may extend beyond the Revolver
Termination Date.
3.5 Compensation for Funding Losses. Borrower shall compensate
each Lender, upon its written request (which request shall set forth the basis
for requesting such amounts), for all losses, expenses and liabilities
(including, without limitation, any interest paid by such Lender to lenders of
funds borrowed by it to make or carry its Eurodollar Loans to the extent not
recovered by the Lender in connection with the liquidation or re-employment of
such funds and including the compensation payable by such Lender to a
Participant but excluding loss of anticipated profit with respect to any Loans)
and any loss sustained by such Lender in connection with the liquidation or re-
employment of such funds (including, without limitation, a return on such
liquidation or re-employment that would result in such Lender receiving less
than it would have received had such Eurodollar Loan remained outstanding until
the last day of the Interest Period applicable to such Eurodollar Loans) which
such Lender may sustain as a result of: (i) for any reason (other than a default
by such Lender or Administrative Agent) a continuation or Borrowing of, or
conversion from or into, Eurodollar Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion or Continuation
(whether or not withdrawn); (ii) any payment, prepayment or conversion or
continuation of any of its Eurodollar Loans occurring for any reason whatsoever
on a date which is not the last day of the Interest Period applicable thereto;
(iii) any repayment of any of its Eurodollar Loans not being made on the date
specified in a notice of payment given by Borrower; or (iv) (A) any other
failure by Borrower to repay its Eurodollar Loans on the date required by the
terms of this Agreement or (B) an election made by Borrower pursuant to Section
3.7. A written notice as to additional amounts owed such Lender under this
Section 3.5 and delivered to Borrower and Administrative Agent by such Lender
shall be final, conclusive and binding for all purposes absent manifest error.
3.6 Increased Costs, Illegality, Etc.
(a) Generally. In the event that any Lender shall have determined
(which determination shall be final conclusive and binding upon all parties
hereto absent manifest error, but, with respect to clause (i) below, may be made
only by Administrative Agent):
(i) on any Interest Rate Determination Date that, by reason
of any changes arising after the date of this Agreement affecting the
interbank Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in the
definition of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased
costs or reduction in the amounts received or receivable hereunder with
respect to any Eurodollar Loan because of (x) any change since the date of
this Agreement in any applicable law or governmental rule, regulation,
order, guideline or request (whether or not having the force of law) or in
the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, order,
guideline or request, such as, for example, but not limited to: (A) a
change in the basis of taxation of payments to such Lender of the
principal of or interest on the Notes or any other amounts payable
hereunder (except for (a) changes in the rate of tax on, or determined by
reference to, the net income or profits of such Lender imposed by the
jurisdiction in which its principal office or applicable lending office is
located and (b) United States withholding taxes, which shall be governed
by the provisions of Section 4.7) or (B) a change in official reserve
requirements (but, in all events, excluding reserves required under
Regulation D to the extent included in the computation of the Eurodollar
Rate) and/or (y) other circumstances since the date of this Agreement
affecting such Lender or the interbank Eurodollar market or the position
of such Lender in such market (excluding, however, differences in such
Lender's cost of funds from those of Administrative Agent which are solely
the result of credit differences between such Lender and Administrative
Agent); or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has been made (x) unlawful by any law or governmental
rule, regulation or order, (y) impossible by compliance by such Lender in
good faith with any governmental request (whether or not having force of
law) or (z) impracticable as a result of a contingency occurring after the
date of this Agreement which materially and adversely affects the
interbank Eurodollar market;
then, and in any such event, such Lender (or Administrative Agent, in the case
of clause (i) above) shall give notice promptly (by telephone confirmed in
writing) to Borrower and, except in the case of clause (i) above, to
Administrative Agent of such determination (which notice Administrative Agent
shall promptly transmit to each of the other Lenders). Thereafter (x) in the
case of clause (i) above, Eurodollar Loans shall no longer be available until
such time as Administrative Agent notifies Borrower and the Lenders that the
circumstances giving rise to such notice by Administrative Agent no longer
exist, and any Notice of Borrowing or Notice of Conversion or Continuation given
by Borrower with respect to Eurodollar Loans (other than with respect to
conversions to Base Rate Loans) which have not yet been incurred (including by
way of conversion) shall be deemed rescinded by Borrower, (y) in the case of
clause (ii) above, Borrower shall pay to such Lender, upon written demand
therefor, such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
sole discretion shall determine) as shall be required to compensate such Lender
for such increased costs or reductions in amounts received or receivable
hereunder (a written notice as to the additional amounts owed to such Lender,
showing the basis for the calculation thereof, submitted to Borrower by such
Lender shall be final, conclusive and binding on all the parties hereto absent
manifest error; however the failure to give any such notice (unless the
respective Lender has intentionally withheld or delayed such notice, in which
case the respective Lender shall not be entitled to receive additional amounts
pursuant to this Section 3.6 (a)(y) for periods occurring prior to the 120th day
before the giving of such notice) shall not release or diminish Borrower's
obligations to pay additional amounts pursuant to this Section 3.6 (a)(y), and
(z) in the case of clause (iii) above, Borrower shall take one of the actions
specified in Section 3.6(b) as promptly as possible and, in any event, within
the time period required by law. In determining such additional amounts
pursuant to clause (y) of the immediately preceding sentence, each Lender shall
act reasonably and in good faith and will, to the extent the increased costs or
reductions in amounts receivable relate to such Lender's loans in general and
are not specifically attributable to a Loan hereunder, use averaging and
attribution methods which are reasonable and which cover all loans similar to
the Loans made by such Lender whether or not the loan documentation for such
other loans permits the Lender to receive increased costs of the type described
in this Section 3.6(a).
(b) Eurodollar Loans. At any time that any Eurodollar Loan is
affected by the circumstances described in Section 3.6(a)(ii) or (iii), Borrower
may (and, in the case of a Eurodollar Loan affected by the circumstances
described in Section 3.6(a)(iii), shall) either (i) if the affected Eurodollar
Loan is then being made initially or pursuant to a conversion, by giving
Administrative Agent telephonic notice (confirmed in writing) on the same date
that Borrower was notified by the affected Lender or Administrative Agent
pursuant to Section 3.6(a)(ii) or (iii), cancel the respective Borrowing, or
(ii) if the affected Eurodollar Loan is then outstanding, upon at least three
Business Days' written notice to Administrative Agent, require the affected
Lender to convert such Eurodollar Loan into a Base Rate Loan, provided, that if
more than one Lender is affected at any time, then all affected Lenders must be
treated the same pursuant to this Section 3.6(b).
(c) Capital Requirements. If any Lender determines that the
introduction of or any change in any applicable law or governmental rule,
regulation, order, guideline or request (whether or not having the force of law)
concerning capital adequacy, or any change in (after the date of this Agreement)
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency, will have the effect of increasing the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender based on the existence of such Lender's Commitment
hereunder, the maintenance of its Eurodollar Loans hereunder or its obligations
hereunder, then Borrower shall pay to such Lender, upon its written demand
therefor, such additional amounts as shall be required to compensate such Lender
or such other corporation for the increased cost to such Lender or such other
corporation or the reduction in the rate of return to such Lender or such other
corporation as a result of such increase in required capital. In determining
such additional amounts, each Lender will act reasonably and in good faith and
will use averaging and attribution methods which are reasonable and which will,
to the extent the increased costs or reduction in the rate of return relates to
such Lender's commitments or obligations in general and are not specifically
attributable to the Commitments and obligations hereunder, cover all commitments
and obligations similar to the Commitments and obligations of such Lender
hereunder whether or not the loan documentation for such other commitments or
obligations permits the Lender to make the determination specified in this
Section 3.6(c), and such Lender's determination of compensation owing under this
Section 3.6(c) shall be final, conclusive and binding on all the parties hereto
absent manifest error. Each Lender, upon determining that any additional
amounts will be payable pursuant to this Section 3.6(c), will give prompt
written notice thereof to Borrower, which notice shall show the basis for
calculation of such additional amounts, although the failure to give any such
notice (unless the respective Lender has intentionally withheld or delayed such
notice, in which case the respective Lender shall not be entitled to receive
additional amounts pursuant to this Section 3.6(c) for periods occurring prior
to the 120th day before the giving of such notice) shall not release or diminish
any of Borrower's obligations to pay additional amounts pursuant to this Section
3.6(c).
(d) Change of Lending Office. Each Lender which is or will be
owed compensation pursuant to Section 3.6(a) or (c) will use reasonable efforts
(subject to overall policy considerations of such Lender), if requested by
Borrower, to cause a different branch or Affiliate to make or continue a Loan or
Letter of Credit if such designation will avoid the need for, or materially
reduce the amount of, such compensation to such Lender and will not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
Each such Lender will provide Borrower, upon request, with an estimate of all
expenses that such Lender would incur in utilizing a different branch or
Affiliate pursuant to this Section 3.6(d). Borrower hereby agrees to pay all
reasonable expenses incurred by any Lender in utilizing a different branch or
Affiliate pursuant to this Section 3.6(d). Nothing in this Section 3.6(d) shall
affect or postpone any of the obligations of Borrower or the right of any Lender
provided for herein.
3.7 Replacement of Affected Lenders. (x) If any Lender becomes a
Defaulting Lender or otherwise defaults in its Obligations to make Loans or fund
Unpaid Drawings, (y) if any Lender (or in the case of Section 2.9(i), the Facing
Agent) is owed increased costs under Section 3.6(a)(ii) or (iii), Section
3.6(c), or Section 2.9(i), or Borrower is required to make any payments under
Section 4.7 to any Lender or (z) as provided in Section 12.1(b) in the case of
certain refusals by a Lender to consent to certain proposed amendments, changes,
supplements, waivers, discharges or terminations with respect to this Agreement
which have been approved by the Required Lenders, Borrower shall have the right,
if no Event of Default or Unmatured Event of Default then exists, to replace
such Lender (the "Replaced Lender") with one or more other Eligible Assignee or
Eligible Assignees, none of whom shall constitute a Defaulting Lender at the
time of such replacement (collectively, the "Replacement Lender"), reasonably
acceptable to Administrative Agent, provided that (i) at the time of any
replacement pursuant to this Section 3.7, the Replacement Lender shall enter
into one or more assignment agreements, in form and substance satisfactory to
Administrative Agent, pursuant to which the Replacement Lender shall acquire all
of the Commitment and outstanding Loans of, and participations in Letters of
Credit and Swing Line Loans by, the Replaced Lender and (ii) all obligations of
Borrower owing to the Replaced Lender as of the effective date of such
assignment (including, without limitation, such increased costs and excluding
those specifically described in clause (i) above in respect of which the
assignment purchase price has been, or is concurrently being paid) shall be paid
in full to such Replaced Lender concurrently with such replacement. Upon the
execution of the respective assignment documentation, the payment of amounts
referred to in clauses (i) and (ii) above and, if so requested by the
Replacement Lender, delivery to the Replacement Lender of the appropriate Note
or Notes executed by Borrower, the Replacement Lender shall become a Lender
hereunder and the Replaced Lender shall cease to constitute a Lender hereunder
with respect to such replaced Loans and Commitment, except with respect to
indemnification provisions under this Agreement, which shall survive as to such
Replaced Lender, and the Replaced Lender shall deliver to Borrower all Notes
that have not been endorsed and delivered to the Replacement Lender.
Notwithstanding anything to the contrary contained above, no Lender that acts as
the Facing Agent may be replaced hereunder at any time during which it has
Letters of Credit outstanding hereunder unless arrangements satisfactory to the
Facing Agent (including the furnishing of a standby letter of credit in form and
substance, and issued by an issuer reasonably satisfactory to the Facing Agent
or the depositing of cash collateral into the Collateral Account in amounts and
pursuant to arrangements reasonably satisfactory to the Facing Agent) have been
made with respect to such outstanding Letters of Credit.
ARTICLE IV
REDUCTION OF COMMITMENTS; PAYMENTS AND PREPAYMENTS
4.1 Voluntary Reduction of Commitments; Repayment. (a) Upon at
least one Business Day's prior written notice (or telephonic notice confirmed in
writing) to Administrative Agent at the Notice Office (which notice
Administrative Agent shall promptly transmit to each Lender), Borrower shall
have the right, without premium or penalty, to terminate the unutilized portion
of the Revolving Commitments or the Swing Line Commitment, as the case may be,
in part or in whole; provided that (x) any such voluntary termination of the
Revolving Commitments shall apply to reduce proportionately and permanently the
Revolving Commitment of each Lender, (y) any partial voluntary reduction
pursuant to this Section 4.1 shall be in the amount of at least $10,000,000 and
integral multiples of $5,000,000 in excess of that amount and (z) any such
voluntary termination of the Revolving Commitments shall occur simultaneously
with a voluntary prepayment, pursuant to Section 4.3, such that the total of the
Revolving Commitments shall not be reduced below the aggregate principal amount
of outstanding Revolving Loans plus the aggregate LC Obligations and the Swing
Line Loan Commitment.
(b) In the event a Lender refuses to consent to certain proposed
changes, waivers, discharges or terminations with respect to this Agreement
which have been approved by the Required Lenders as provided in Section 12.1(b),
Borrower shall have the right (subject to the provisions of Section 12.1(b)),
upon five (5) Business Days' prior written notice to Administrative Agent (which
notice Administrative Agent shall promptly transmit to each of the Lenders), to
terminate the entire Revolving Commitment of such Lender, so long as (i) all
Loans, together with accrued and unpaid interest, fees and all other amounts,
due and owing to such Lender are repaid concurrently with the effectiveness of
such termination at which time Schedule 1.1 shall be deemed modified to reflect
such changed amounts pursuant to Section 4.3(b) and (ii) Borrower cash
collateralizes such Lender's Pro Rata Share of the LC Obligations (in the manner
set forth in Section 4.4(a)) then outstanding. At such time, such Lender shall
no longer constitute a "Lender" for purposes of this Agreement, except with
respect to indemnification provisions under this Agreement which shall survive
as to such repaid Lender.
(c) Borrower shall repay the aggregate outstanding principal
amount of the Revolving Loans on the Revolver Termination Date.
(d) Borrower shall repay the aggregate outstanding principal
amount of the Swing Line Loans upon demand therefor by the Swing Line Lender,
and in any event on the Revolver Termination Date.
4.2 Mandatory Reductions of Commitments.
(a) Reduction of Revolving Commitment. The Revolving Commitments
shall be reduced at the time and in the amounts required to be reduced pursuant
to Section 4.4.
(b) Proportionate Reductions. Each reduction or adjustment to the
Revolving Commitments pursuant to this Section 4.2 shall apply proportionately
to the Revolving Commitment of each Lender.
4.3 Voluntary Prepayments. (a) Borrower shall have the right to
prepay the Loans in whole or in part from time to time on the following terms
and conditions: (i) Borrower shall give Administrative Agent irrevocable written
notice at its Notice Office (or telephonic notice promptly confirmed in writing)
of its intent to prepay the Revolving Loans or Swing Line Loans, the amount of
such prepayment and the specific Borrowings to which such prepayment is to be
applied, which notice shall be given by Borrower to Administrative Agent by
12:00 noon (New York City time) at least three Business Days prior to the date
of such prepayment and which notice shall (except in the case of Swing Line
Loans) promptly be transmitted by Administrative Agent to each of the
applicable Lenders; (ii) each partial prepayment of any Borrowing (other than a
Borrowing of Swing Line Loans) shall be in an aggregate principal amount of at
least $1,000,000 and in integral multiples of $500,000 in excess thereof, and
each partial prepayment of a Swing Line Loan shall be in an aggregate principal
amount of at least $500,000 and in integral multiples of $100,000 in excess
thereof; provided that no partial prepayment of Loans made pursuant to a single
Borrowing shall reduce the aggregate principal amount of the outstanding Loans
made pursuant to such Borrowing to an amount less than the Minimum Borrowing
Amount applicable thereto; (iii) Eurodollar Loans may only be prepaid pursuant
to this Section 4.3 on the last day of an Interest Period applicable thereto or
on any other day subject to Section 3.5; (iv) each prepayment in respect of any
Borrowing shall be applied pro rata among the Loans comprising such Borrowing,
provided, that such prepayment shall not be applied to any Revolving Loans of a
Defaulting Lender at any time when the aggregate amount of Revolving Loans of
any Non-Defaulting Lender exceeds such Non-Defaulting Lender's Pro Rata Share of
all Revolving Loans then outstanding. The notice provisions, the provisions with
respect to the minimum amount of any prepayment, and the provisions requiring
prepayments in integral multiples above such minimum amount of this Section 4.3
are for the benefit of Administrative Agent and may be waived unilaterally by
Administrative Agent.
(b) In the event a Lender refuses to consent to certain proposed
changes, waivers, discharges or terminations with respect to this Agreement
which have been approved by the Required Lenders as provided in Section 12.1(b),
Borrower shall have the right (subject to the provisions of Section 12.1(b)),
upon five (5) Business Days' prior written notice to Administrative Agent (which
notice Administrative Agent shall promptly transmit to each of the Lenders), to
repay all Loans, together with accrued and unpaid interest, fees and all other
amounts due and owing to such Lender in accordance with said Section 12.1(b), so
long as (A) in the case of the repayment of Revolving Loans of any Lender
pursuant to this clause (b), the Revolving Commitment of such Lender is
terminated concurrently with such repayment pursuant to Section 4.1(b) and (B)
in the case of the repayment of Loans of any Lender, the consents required by
Section 12.1(b) in connection with the repayment pursuant to this clause (b)
shall have been obtained.
4.4 Mandatory Prepayments.
(a) Prepayment Upon Overadvance. Borrower shall prepay (i) the
outstanding principal amount of the Revolving Loans or the Swing Line Loans on
any date on which the aggregate outstanding principal amount of such Loans
together with the aggregate LC Obligations (after giving effect to any other
repayments or prepayments on such day) exceeds the Revolving Commitments and
(ii) the outstanding principal amount of Swing Line Loans on any date on which
the aggregate outstanding principal amount of such Loans exceeds the Swing Line
Commitment, in the amount of such excess. If, after giving effect to the
prepayment of all outstanding Revolving Loans, the aggregate LC Obligations
exceeds the Revolving Commitments then in effect, Borrower shall cash
collateralize LC Obligations by depositing, pursuant to a cash collateral
agreement to be entered into in form and substance reasonably satisfactory to
Administrative Agent, cash with Administrative Agent in an amount equal to the
difference between such LC Obligations and the Revolving Commitments then in
effect. Administrative Agent shall establish in its name for the benefit of the
Lenders a cash collateral account (the "Collateral Account") into which it shall
deposit such cash to hold as collateral security for the LC Obligations.
(b) Mandatory Prepayment Upon Asset Disposition. If Borrower or
any of its Subsidiaries receives, directly or indirectly, any Net Sale Proceeds
attributable to an Asset Disposition, then, to the extent such Net Sale
Proceeds, together with the Net Sale Proceeds of all other Asset Dispositions of
Borrower and its Subsidiaries occurring in the previous twelve months exceed
$25,000,000 ("Excess Net Sale Proceeds"), the Revolving Commitments shall be
permanently reduced (on a pro rata basis in proportion to the then outstanding
Total Commitment) by the amount of such Excess Net Sale Proceeds so received by
Borrower and its Subsidiaries. Notwithstanding the foregoing, Borrower and its
Subsidiaries shall not be required to apply Excess Net Sale Proceeds of up to
$50,000,000 received in any twelve-month period as set forth in the preceding
sentence to the extent that (i) no Event of Default or Unmatured Event of
Default exists on the date(s) of receipt of such Excess Net Sale Proceeds, (ii)
Borrower complies with, and causes its Subsidiaries to comply with, the
provisions of Section 7.12 with respect to the assets referred to in clause
(iii) below and (iii) Borrower uses such Excess Net Sale Proceeds to purchase
assets to be used in the business of Borrower and its Subsidiaries within 365
days following the dates of the Asset Disposition(s) which give rise to such
Excess Net Sale Proceeds and Borrower uses any Excess Net Sale Proceeds received
from Asset Dispositions of Collateral to purchase property or assets that will
constitute Collateral on and after the date of purchase; provided, however, that
if all or any portion of such Excess Net Sale Proceeds not so applied to the
prepayment of the Loans (resulting in a corresponding reduction in the Revolving
Commitments) are not so used (or contractually committed to be used) within such
365-day period, such Excess Net Sale Proceeds or portion thereof shall be
applied on the last day of such period to repay Loans and cash collateralize LC
Obligations (in the manner set forth in Section 4.4(a)), and the Revolving
Commitments shall be permanently reduced by an amount equal to such Excess Net
Sale Proceeds or portion thereof. All prepayments pursuant to this Section
4.4(b) shall be applied in the manner set forth in Section 4.5.
(c) Mandatory Prepayment Upon Recovery Event. If Borrower or any
of its Subsidiaries receives, directly or indirectly, proceeds from a Recovery
Event, then, to the extent such proceeds (net of reasonable costs and taxes
incurred in connection with such Recovery Event), together with the proceeds of
all other Recovery Events received by Borrower and its Subsidiaries in the
previous twelve months, exceed $2,000,000 ("Excess Recovery Event Proceeds"),
the Revolving Commitments shall be permanently reduced (on a pro rata basis in
proportion to the then outstanding Total Commitment) by the amount of such
Excess Recovery Event Proceeds. Notwithstanding the foregoing, Borrower and its
Subsidiaries shall not be required to apply Excess Recovery Event Proceeds of up
to $50,000,000 received in any twelve-month period as set forth in the preceding
sentence to the extent that (i) no Event of Default or Unmatured Event of
Default exists on the date(s) of receipt of such Excess Recovery Event Proceeds,
(ii) Borrower complies with, and causes its Subsidiaries to comply with, the
provisions of Section 7.12 with respect to the assets referred to in clause
(iii) below and (iii) Borrower uses such Excess Recovery Event Proceeds to
rebuild or purchase replacement assets to be used in the business of Borrower
and its Subsidiaries within 365 days following such date(s) and Borrower uses
any Excess Recovery Event Proceeds received in respect of Collateral to rebuild
or purchase replacement assets that will constitute Collateral on and after the
date of obtaining such replacement assets; provided, however, that if all or
any portion of such Excess Recovery Event Proceeds not so applied to the
prepayment of the Loans (resulting in a corresponding reduction in the Revolving
Commitments) are not so used (or contractually committed to be used) within such
365-day period, such Excess Recovery Event Proceeds or portion thereof shall be
applied on the last day of such period to repay Loans and cash collateralize LC
Obligations (in the manner set forth in Section 4.4(a)), and the Revolving
Commitments shall be permanently reduced by an amount equal to such Excess
Recovery Event Proceeds or portion thereof. In addition, if Borrower and its
Subsidiaries receive Excess Recovery Event Proceeds in excess of $50,000,000 in
any twelve-month period, such Excess Recovery Event Proceeds shall not be
required to be applied as set forth in the first sentence of this Section 4.4(c)
to the extent that (i) no Event of Default or Unmatured Event of Default exists
on the date(s) of receipt of such Excess Recovery Event Proceeds, (ii) Borrower
promptly submits to Administrative Agent and the Lenders a detailed reinvestment
plan (a "Reinvestment Plan") providing for the reinvestment of such Excess
Recovery Event Proceeds in replacement assets to be used in the business of
Borrower and its Subsidiaries, and such plan is approved by the Required Lenders
(with such conditions and other terms as the Required Lenders require) and (iii)
Borrower complies with, and causes its Subsidiaries to comply with, the
provisions of Section 7.12 with respect to any such assets, complies with the
Reinvestment Plan and complies with any other terms and conditions imposed by
the Required Lenders in connection with their approval of the Reinvestment Plan;
provided, however, that if all or any portion of such Excess Recovery Event
Proceeds not so applied to the prepayment of the Loans (resulting in a
corresponding reduction in the Revolving Commitments) are not used in accordance
with the terms of the Reinvestment Plan within any period specified in the
Reinvestment Plan, such Excess Recovery Event Proceeds or portion thereof shall
be applied on the last day of such period to repay Loans and cash collateralize
LC Obligations (in the manner set forth in Section 4.4(a)), and the Revolving
Commitments shall be permanently reduced by an amount equal to such Excess
Recovery Event Proceeds or portion thereof. All prepayments pursuant to this
Section 4.4(c) shall be applied in the manner set forth in Section 4.5.
4.5 Application of Prepayments. Except as expressly provided in
this Agreement, all prepayments of principal made by Borrower pursuant to
Section 4.4 shall be applied, in each case, in proportional amounts equal to
each Lender's applicable Pro Rata Share of such prepayment, (i) first, to the
payment of the then outstanding balance of the Swing Line Loans, (ii) next, to
the payment of the then outstanding balance of the Revolving Loans constituting
Base Rate Loans, (iii) next, to the payment of the then outstanding balance of
Revolving Loans constituting Eurodollar Loans, in such order as Borrower shall
request (and in the absence of such request, as Administrative Agent shall
determine) and (iv) next, to the cash collateralization of LC Obligations (in
the manner set forth in Section 4.4(a)). If any repayment of Eurodollar Loans
made pursuant to a single Borrowing shall reduce the outstanding Loans made
pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount,
such Borrowing shall immediately be converted into Base Rate Loans. All
prepayments shall include payment of accrued interest on the principal amount so
prepaid, shall be applied to the payment of interest before application to
payment of principal and shall include amounts payable, if any, under Section
3.5; provided, however, that to the extent that any prepayment required by
Section 4.4 would require prepayment of any Eurodollar Loan on a day other than
the last day of the Interest Period with respect thereto and would result in the
incurrence of costs pursuant to Section 3.5 then, unless an Event of Default has
occurred and is continuing, the amount that would be required to be applied to
prepay such Borrowing, at Borrower's option, may be paid on such day to
Administrative Agent and held as cash in a collateral account established by
Administrative Agent, for the benefit of the Lenders, securing such Borrowing
until the last day of the Interest Period with respect to such Borrowing, at
which time such amount shall be applied to prepay such Borrowing (provided that,
in determining which Borrowings are to be repaid hereunder, prepayments required
by Section 4.4 shall be allocated by Borrower in such manner as will minimize
the necessity and duration of any deferral of prepayment pursuant to this
proviso).
4.6 Method and Place of Payment.
(a) Except as otherwise specifically provided herein, all payments
under this Agreement shall be made without set-off or counterclaim and, except
as otherwise expressly provided herein, shall be made to Administrative Agent,
for the ratable account of the Lenders entitled thereto, not later than 12:00
Noon (New York City time) on the date when due and shall be made in immediately
available funds in lawful money of the United States of America and in each case
to the account specified therefor for Administrative Agent or if no account has
been so specified at the Payment Office, it being understood that written, telex
or telecopy notice by Borrower to Administrative Agent to make a payment from
the funds in Borrower's account at the Payment Office shall constitute the
making of such payment to the extent of such funds held in such account.
Administrative Agent will thereafter cause to be distributed on the same day (if
payment was actually received by Administrative Agent prior to 12:00 Noon (New
York City time) on such day) like funds relating to the payment of principal or
interest or fees ratably to the Lenders entitled to receive any such payment in
accordance with the terms of this Agreement. If and to the extent that any such
distribution shall not be so made by Administrative Agent in full on the same
day (if payment was actually received by Administrative Agent prior to 12:00
Noon (New York City time) on such day), Administrative Agent shall pay to each
Lender its ratable amount thereof and each such Lender shall be entitled to
receive from Administrative Agent, upon demand, interest on such amount at the
overnight Federal Funds Rate for each day from the date such amount is paid to
Administrative Agent until the date Administrative Agent pays such amount to
such Lender.
(b) Any payments under this Agreement which are made by Borrower
later than 12:00 Noon (New York City time) shall, for the purpose of calculation
of interest, be deemed to have been made on the next succeeding Business Day.
Whenever any payment to be made hereunder shall be stated to be due on a day
which is not a Business Day, the due date thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal, interest
shall be payable during such extension at the applicable rate in effect
immediately prior to such extension, except that with respect to Eurodollar
Loans, if such next succeeding Business Day is not in the same month as the date
on which such payment would otherwise be due hereunder or under any Note, the
due date with respect thereto shall be the next preceding applicable Business
Day.
(c) Unless Administrative Agent shall have received notice from
Borrower prior to the date on which any payment is due to the Lenders hereunder
that Borrower will not make such payment in full, Administrative Agent may
assume that Borrower has made such payment in full to Administrative Agent as
required hereunder on such date and Administrative Agent may (but shall not be
so required), in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent Borrower shall not have made such payment in full to
Administrative Agent, each Lender shall repay to Administrative Agent on demand
such amount distributed to such Lender together with interest thereon for each
day from the date such amount was distributed to such Lender until the date such
Lender repays such amount to Administrative Agent at the Federal Funds Rate as
in effect for each such day.
4.7 Net Payments.
(a) All payments made by any Credit Party hereunder or under any
Loan Document will be made without setoff, counterclaim or other defense.
Except as provided in Section 4.7(d), all payments hereunder and under any of
the Loan Documents (including, without limitation, payments on account of
principal and interest and fees) shall be made by Borrower and each other Credit
Party free and clear of and without withholding for or on account of any present
or future tax, duty, levy, impost, assessment or other charge of whatever nature
now or hereafter imposed by any Governmental Authority, but excluding therefrom
(i) a tax imposed on the overall net income (including a franchise tax based on
net income) of the lending office of the Lender in respect of which the payment
is made by the jurisdiction in which the Lender is incorporated or the
jurisdiction (or political subdivision or taxing authority thereof) in which its
lending office is located, (ii) in the case of any Lender organized under the
laws of any jurisdiction other than the United States or any State thereof
(including the District of Columbia), any taxes imposed by the United States by
means of withholding at the source unless such withholding results from a change
in applicable law, treaty or regulations or the interpretation or administration
thereof (including, without limitation, any guideline or policy not having the
force of law) by any authority charged with the administration thereof
subsequent to the date such Lender becomes a Lender with respect to the Loan or
portion thereof affected by such change and (iii) any tax imposed on or measured
by the overall net income (including a franchise tax based on net income) of a
Lender or an office or branch thereof by the United States of America or any
political subdivision or taxing authority thereof or therein (such tax or taxes,
other than any excluded tax or taxes, being herein referred to as "Tax" or
"Taxes"). If Borrower is required by law to make any deduction or withholding
of any Taxes from any payment due hereunder or under any of the Loan Documents,
then the amount payable will be increased to such amount which, after deduction
from such increased amount of all such Taxes required to be withheld or deducted
therefrom, will not be less than the amount due and payable hereunder had no
such deduction or withholding been required.
(b) If Borrower makes any payment hereunder or under any of the
Loan Documents in respect of which it is required by law to make any deduction
or withholding of any Taxes, it shall pay the full amount to be deducted or
withheld to the relevant taxation or other authority within the time allowed for
such payment under applicable law and shall deliver to the Lenders within 30
days after it has made such payment to the applicable authority a receipt issued
by such authority evidencing the payment to such authority of all amounts so
required to be deducted or withheld from such payment.
(c) Without prejudice to the provisions of Section 4.7(a), if any
Lender, or Administrative Agent on its behalf, is required by law to make any
payment on account of Taxes on or in relation to any amount received or
receivable hereunder or under any of the other Loan Documents by such Lender, or
Administrative Agent on its behalf, or any liability for Tax in respect of any
such payment is imposed, levied or assessed against any Lender, or
Administrative Agent on its behalf, Borrower will promptly indemnify such person
against such Tax payment or liability, together with any interest, penalties and
expenses (including reasonable counsel fees and expenses) payable or incurred in
connection therewith, including any tax of any Lender arising by virtue of
payments under this Section 4.7(c), computed in a manner consistent with Section
4.7(a). A certificate as to the amount of such payment by such Lender, or
Administrative Agent on its behalf, absent manifest error, shall be final,
conclusive and binding upon all parties hereto for all purposes.
(d) Each Lender that is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) agrees to deliver to Borrower and
Administrative Agent on or prior to the Closing Date, or in the case of a Lender
that is an Assignee of an interest under this Agreement pursuant to Section 3.7
or 12.8 (unless the respective Lender was already a Lender hereunder immediately
prior to such assignment), on or prior to the date of such assignment to such
Lender, (i) two accurate and complete original signed copies of IRS Form 4224 or
1001 (or successor forms) certifying to such Lender's entitlement to a complete
exemption from United States withholding tax with respect to payments to be made
under this Agreement and under any Note or other Loan Document, or (ii) if the
Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code
and cannot deliver either IRS Form 1001 or 4224 pursuant to clause (i) above,
(x) a certificate substantially in the form of Exhibit 4.7(d) (any such
certificate, a "Section 4.7(d)(ii) Certificate") and (y) two accurate and
complete original signed copies of IRS Form W-8 (or successor form) certifying
to such Lender's entitlement to a complete exemption from United States
withholding tax with respect to payments of interest to be made under this
Agreement and under any Note or other Loan Document. In addition, each Lender
agrees that from time to time after the Closing Date, when a lapse in time or
change in circumstances renders the previous certification obsolete or
inaccurate in any material respect, it will deliver to Borrower and
Administrative Agent two new accurate and complete original signed copies of IRS
Form 4224 or 1001, or Form W-8 and a Section 4.7(d)(ii) Certificate, as the case
may be, and such other forms as may be required in order to confirm or establish
the entitlement of such Lender to a continued exemption from or reduction in
United States withholding Tax with respect to payments under this Agreement and
any Note or other Loan Document, or it shall immediately notify Borrower and
Administrative Agent of its inability to deliver any such form or certificate.
Notwithstanding anything to the contrary contained in Section 4.7(a), but
subject to Section 12.8(c) and the immediately succeeding sentence, (x) to the
extent Borrower is required to do so by law, Borrower shall be entitled to
deduct or withhold income or similar Taxes imposed by the United States (or any
political subdivision or taxing authority thereof or therein) from interest,
fees or other amounts payable hereunder for the account of any Lender which is
not a United States person (as such term is defined in Section 7701(a)(30) of
the Code) for United States Federal income tax purposes to the extent that such
Lender has not provided to Borrower IRS Forms that establish a complete
exemption from such deduction or withholding and (y) Borrower shall not be
obligated pursuant to Section 4.7(a) hereof to gross-up payments to be made to a
Lender in respect of income or similar Taxes imposed by the United States unless
such Lender has provided to Borrower the IRS Forms and/or the Section 4.7(d)(ii)
Certificate, as applicable, required to be provided to Borrower pursuant to this
Section 4.7(d) (unless the failure to provide any such form or certificate
results from a change in applicable law, treaty or regulations or the
interpretation or administration thereof (including, without limitation, any
guidance or policy not having the force of law) by any authority charged with
the administration thereof subsequent to the date such Lender becomes a Lender
with respect to the Loan or portion thereof affected by such change).
Notwithstanding anything to the contrary contained in the preceding sentence or
elsewhere in this Section 4.7 and except as set forth in Section 12.8(c),
Borrower agrees to pay additional amounts and to indemnify each Lender in the
manner set forth in Section 4.7(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of any amounts
deducted or withheld by it as described in the immediately preceding sentence as
a result of any changes after the Closing Date in any applicable law, treaty,
governmental rule, regulation, guideline or order, or in the interpretation
thereof, relating to the deducting or withholding of income or similar Taxes.
(e) Each Lender agrees that, as promptly as practicable after it
becomes aware of the occurrence of any event or the existence of any condition
that would cause Borrower to make a payment in respect of any Taxes to such
Lender pursuant to Section 4.7(a) or a payment in indemnification for any Taxes
pursuant to Section 4.7(c), it will use reasonable efforts to make, fund or
maintain the Loan (or portion thereof) of such Lender with respect to which the
aforementioned payment is or would be made through another lending office of
such Lender if as a result thereof the additional amounts which would otherwise
be required to be paid by such Borrower in respect of such Loans (or portions
thereof) or participation in Letters of Credit pursuant to Section 4.7(a) or
Section 4.7(c) would be materially reduced, and if, as determined by such
Lender, in its reasonable discretion, the making, funding or maintaining of such
Loans or participation in Letters of Credit (or portions thereof) through such
other lending office would not otherwise materially adversely affect such Loans
or such Lender. Borrower agrees to pay all reasonable expenses incurred by any
Lender in utilizing another lending office of such Lender pursuant to this
Section 4.7(e). Each such Lender will provide Borrower, upon request, with an
estimate of all expenses that such Lender would incur in utilizing another
lending office pursuant to this Section 4.7(e).
ARTICLE V
CONDITIONS OF CREDIT
5.1 Conditions to Closing Date. This Agreement shall become
effective and the Closing Date shall occur on the date of satisfaction of all of
the following conditions precedent:
(a) Credit Agreement and Notes. Borrower shall have duly executed
and delivered to Administrative Agent, with a signed counterpart for each
Lender, this Agreement (including all schedules, exhibits, certificates,
opinions and financial statements delivered pursuant hereto), the Notes payable
to the order of each applicable Lender in the amount of their respective
Commitments and all other Loan Documents to which Borrower is a party, all of
which shall be in full force and effect;
(b) Subsidiary Guaranty. Each Subsidiary Guarantor shall have
duly executed and delivered to Administrative Agent, with a signed counterpart
for each Lender, a Subsidiary Guaranty in the form of Exhibit 5.1(b) (as
modified, supplemented or amended from time to time, the "Subsidiary Guaranty")
and all other Loan Documents to which it is a party, all of which documents
shall be in full force and effect;
(c) Security Agreement. Borrower and each Subsidiary Guarantor
shall have duly authorized, executed and delivered a Security Agreement
substantially in the form of Exhibit 5.1(c) (as modified, supplemented or
amended from time to time, the "Security Agreement") together with:
(i) proper financing statements (Form UCC-1 or such other
financial statements or similar notices as shall be required by local law)
fully executed for filing under the UCC or other appropriate filing
offices of each jurisdiction as may be necessary or, in the reasonable
opinion of Administrative Agent, desirable to perfect the security
interests purported to be created by the Security Agreement;
(ii) certified copies of Requests for Information or Copies
(Form UCC-1), or equivalent reports, listing all effective financing
statements or similar notices that name Borrower or any Subsidiary
Guarantor (by its actual name or any trade name, fictitious name or
similar name), or any division or other operating unit thereof, as debtor
and that are filed in the jurisdictions referred to in clause (i) above,
together with copies of such other financing statements (none of which
shall cover the Collateral except to the extent evidencing Permitted Liens
or for which Administrative Agent shall have received termination
statements (Form UCC-3 or such other termination statements as shall be
required by local law) fully executed for filing);
(iii) evidence of the completion of all other recordings and
filings of, or with respect to, the Security Agreement and all other
actions as may be necessary or, in the reasonable opinion of
Administrative Agent, desirable to perfect the security interests intended
to be created by the Security Agreement; and
(iv) evidence that all other actions necessary, or in the
reasonable opinion of Administrative Agent, desirable to perfect the
security interests purported to be taken by the Security Agreement have
been taken;
(d) Pledge Agreements. On the Closing Date, (i) Borrower and each
Subsidiary Guarantor holding shares of Capital Stock of any Domestic Subsidiary
(other than the Capital Stock of Valtimet, Inc. And TIMET Capital Trust I) shall
have duly authorized, executed and delivered a Pledge Agreement substantially in
the form of Exhibit 5.1(d) (as modified, supplemented or amended from time to
time, the "Pledge Agreement") and shall have delivered to Collateral Agent, as
Pledgee, all the Pledged Securities referred to therein then owned, if any, by
Borrower or any Subsidiary Guarantor, (x) endorsed in blank in the case of
promissory notes constituting Pledged Securities and (y) together with executed
and undated stock powers, in the case of capital stock constituting Pledged
Securities and (z) the Pledge Agreement and such other documents shall be in
full force and effect; and (ii) Borrower shall have duly authorized, executed
and delivered, or shall have caused to be duly authorized, executed and
delivered, the instruments or documents necessary or desirable to effect the
pledge to Collateral Agent, for the benefit of the Secured Creditors, of 65% of
the outstanding Capital Stock of TIMET U.K. Ltd., and all such instruments and
documents (collectively, the "U.K. Pledge Agreement") shall be in form and
substance reasonably satisfactory to Administrative Agent;
(e) Mortgages; Title Insurance. Administrative Agent shall have
received:
(i) fully executed counterparts of deeds of trusts,
mortgages and similar documents in each case in form and substance
reasonably satisfactory to Administrative Agent (each a "Mortgage" and,
collectively, the "Mortgages"), which Mortgages shall cover such of the
real property owned by Borrower as shall be listed in Schedule 6.11(c)
(each a "Mortgaged Property" and, collectively, the "Mortgaged
Properties"), together with evidence that counterparts of the Mortgages
have been delivered to the title insurance company insuring the Lien of
the Mortgages for recording in all places to the extent necessary or
desirable, in the reasonable judgment of Administrative Agent, to create a
valid and enforceable first priority lien on each Mortgaged Property
(subject only to Permitted Liens) in favor of Collateral Agent (or a
trustee acting on behalf of Collateral Agent required or desired under
local law) for the benefit of the Secured Creditors on the Closing Date;
and
(ii) mortgagee title insurance policies (or binding
commitments to issue such title insurance policies) which shall (A) be
issued to Collateral Agent for the benefit of the Secured Creditors by
title insurance companies satisfactory to Administrative Agent (the
"Mortgage Policies") in amounts reasonably satisfactory to Administrative
Agent insuring that the Mortgages are valid and enforceable first priority
mortgage liens on the respective Mortgaged Properties, free and clear of
all defects, encumbrances and other Liens except Permitted Liens, (B) be
in form and substance reasonably satisfactory to Administrative Agent, (C)
include, as appropriate, an endorsement for future advances under this
Agreement, the Notes and the Mortgages and such other endorsements that
Administrative Agent in its discretion may reasonably request, (D) not
include an exception for mechanics' liens, and (E) provide for affirmative
insurance and such reinsurance (including direct access agreements) as
Administrative Agent in its discretion may reasonably request.
(f) Opinions of Counsel. Administrative Agent shall have
received, with a copy for each Lender, (i) from Xxxxxxx & Xxxxxx L.L.C., special
counsel to Borrower, an opinion addressed to Administrative Agent, Collateral
Agent and each of the Lenders and dated the Closing Date in substantially the
form set forth in Exhibit 5.1(f)-1 and covering such other matters incident to
the transactions contemplated herein as Administrative Agent may reasonably
request, (ii) from Xxxxxx X. Xxxxxxxxx, General Counsel of Borrower, an opinion
addressed to Administrative Agent, Collateral Agent and each of the Lenders and
dated the Closing Date in substantially the form set forth in Exhibit 5.1(f)-2
and covering such other matters incident to the transactions contemplated herein
as Administrative Agent may reasonably request, (iii) from Winston & Xxxxxx,
special counsel to Administrative Agent and Collateral Agent, an opinion in form
and substance satisfactory to Administrative Agent and (iv) opinions of local
counsel to Borrower or Administrative Agent dated the Closing Date, each of
which shall be in form and substance reasonably satisfactory to Administrative
Agent, which opinions shall cover such matters incident to the transactions
contemplated herein and in the other Loans Documents as Administrative Agent may
reasonably request;
(g) Corporate Proceedings.
(i) On the Closing Date, Administrative Agent shall have
received, with a copy for each Lender, (y) a copy of the resolutions, in form
and substance satisfactory to Administrative Agent, of the
Board of Directors of each Credit Party authorizing (A) the
execution, delivery and performance of each Loan Document to
be entered into on the Closing Date to which it is a party,
and (B) the granting by it of the pledge and security
interests, if any, granted by it pursuant to any such Loan
Document and (z) a copy of the Certificate of Incorporation
and By-Laws or other Organizational Documents of each Credit
Party, in each case certified by the Secretary or an Assistant
Secretary of each Credit Party as of the Closing Date in a
certificate substantially in the form of Exhibit 5.1(g)
hereto, and all of the foregoing (including each such
Certificate of Incorporation, By-Laws and other Organizational
Documents) shall be reasonably satisfactory to Administrative
Agent;
(ii) On the Closing Date, all corporate and legal proceedings
and all instruments and agreements in connection with the transactions
contemplated by this Agreement and the other Loan Documents shall be
reasonably satisfactory in form and substance to Administrative Agent, and
Administrative Agent shall have received all information and copies of all
certificates, documents and papers, including good standing certificates,
bring-down certificates and any other records of corporate proceedings and
governmental approvals, if any, which Administrative Agent reasonably may
have requested in connection therewith, such documents and papers, where
appropriate, to be certified by proper corporate or governmental
authorities;
(h) Affiliate Agreements; Tax Sharing Agreements; Debt Agreements.
On or prior to the Closing Date, there shall have been delivered to
Administrative Agent true and correct copies, certified as true and complete by
a Responsible Officer of Borrower, of:
(i) all agreements entered into by Borrower or any
Subsidiary of Borrower with one or more of its or their Affiliates with
respect to the transactions referred to in subsection (3) of the last
sentence of Section 8.8 (collectively, the "Affiliate Agreements");
(ii) all agreements evidencing or relating to Indebtedness to
Remain Outstanding (collectively, the "Debt Agreements"); and
(iii) all tax sharing, disaffiliation tax allocation and other
similar agreements entered into by Borrower or any Subsidiary of Borrower
with any Person other than Borrower or any Subsidiary of Borrower
(collectively, the "Tax Sharing Agreements");
all of which Affiliate Agreements, Debt Agreements and Tax Sharing Agreements
shall be in form and substance satisfactory to Administrative Agent and shall be
in full force and effect on the Closing Date, except such agreements previously
identified to Administrative Agent which will be terminated in connection with
the consummation of this Agreement;
(i) Adverse Change. On or prior to the Closing Date, nothing
shall have occurred (and neither Administrative Agent nor any Lender shall have
become aware of any facts or conditions not previously known) which
Administrative Agent or the Required Lenders shall determine has, or reasonably
could be expected to have, a Material Adverse Effect;
(j) No Disruption of Financial and Capital Markets . Since June
16, 1997, there shall have been no material adverse change in the market for
syndicated bank credit facilities, and there shall not have occurred and be
continuing any material disruption of, or a material adverse change in, the
financial banking or capital markets that would have a material adverse effect
on the syndication of the credit facilities provided herein, in each case as
determined by Administrative Agent in its sole discretion;
(k) Approvals. All necessary governmental (domestic and foreign)
and third party approvals and/or consents necessary in connection with the
transactions contemplated by the Documents and otherwise referred to herein or
therein shall have been obtained and remain in effect, and all applicable
waiting periods shall have expired without any action being taken by any
competent authority which restrains, prevents or imposes materially adverse
conditions upon the consummation of all or any part of such transactions
contemplated by the Documents and otherwise referred to herein or therein.
Additionally, there shall not exist any judgment, order, injunction or other
restraint issued or filed or a hearing seeking injunctive relief or other
restraint pending or notified prohibiting or imposing material adverse
conditions upon all or any part of the transactions contemplated by the
Documents or the making of the Loans or the issuance of Letters of Credit;
(l) Litigation. No action, suit or proceeding (including, without
limitation, any inquiry or investigation) by any entity (private or
governmental) shall be pending or, to the best knowledge of any officer of
Borrower, threatened with respect to this Agreement, any other Loan Document or
any documentation executed in connection herewith or therewith to secure,
evidence or guarantee the Obligations or the transactions contemplated hereby or
thereby, or with respect to any of the Indebtedness to Remain Outstanding or the
obligations being refinanced in connection with the consummation of this
Agreement or which Administrative Agent or the Required Lenders shall determine
could reasonably be expected to have a Material Adverse Effect, and no
injunction or other restraining order shall have been issued or a hearing
therefor be pending or noticed with respect to this Agreement or any other
Document or any documentation executed in connection herewith or therewith to
secure, evidence or guarantee the Obligations or with the transactions
contemplated hereby or thereby;
(m) Fees. Borrower shall have paid to Administrative Agent and
the Lenders all costs, fees and expenses (including, without limitation, legal
fees and expenses) payable to Administrative Agent and the Lenders to the extent
then due;
(n) Environmental Assessments; Insurance. On the Closing Date,
Administrative Agent shall have received:
(i) environmental reports from Environ International
Corporation for Borrower's or one of its Subsidiaries' properties located
at Albany, Oregon; Toronto, Ohio; and Pomona, California, and from Tetra
Tech EM Inc. for Borrower's property located at Henderson, Nevada, the
results of which shall be in form and substance reasonably satisfactory to
Administrative Agent; and
(ii) evidence of insurance complying with the requirements of
Section 7.8 for the business and properties of Borrower and each
Subsidiary of the Borrower, in scope, form and substance satisfactory to
Administrative Agent and naming Administrative Agent as an additional
insured, mortgagee and/or loss payee, as applicable, and stating that such
insurance shall not be canceled or revised without 30 days' prior written
notice by the insurer to Administrative Agent;
(o) Appointment of Agent. Administrative Agent shall have
received a letter from CT Corporation System, presently located at 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, substantially in the form of Exhibit 5.1(o)
hereto, indicating its consent to its appointment by Borrower as its agent to
receive service of process as specified in Section 12.9 of this Agreement;
(p) Financial Information. Administrative Agent and the Lenders
shall have received (i) historical financial statements of Borrower and its
consolidated Subsidiaries for the twelve month periods ended December 31, 1994,
1995 and 1996, and for the quarterly period ended Xxxxx 00, 0000, (xx) pro forma
financial statements of the Borrower and its consolidated Subsidiaries for the
twelve month periods ended December 31, 1995 and 1996, and (iii) detailed
financial forecasts prepared by management (collectively, the "Financial
Statements"), and the Financial Statements shall be in form and substance
acceptable to Administrative Agent and the Required Lenders. The historical
Financial Statements for 1994, 1995 and 1996 shall have been reported on by
Coopers & Xxxxxxx L.L.P. and the results of such report and findings by such
accounting firm shall be in form and substance acceptable to Administrative
Agent;
(q) Termination of Existing Credit Agreement.
(i) On or prior to the Closing Date, the total commitments
under the Existing Credit Agreement shall have been terminated, all loans
thereunder shall have been repaid in full, together with interest thereon,
all letters of credit, if any, issued thereunder shall have been
terminated and all other amounts owing pursuant to the Existing Credit
Agreement shall have been repaid in full and the Existing Credit Agreement
shall have been terminated on terms and conditions reasonably satisfactory
to Administrative Agent and be of no further force or effect. On the
Closing Date, Administrative Agent shall have received (x) true and
correct copies of the Existing Credit Agreement Termination Documents,
which Existing Credit Agreement Termination Documents shall be in form and
substance reasonably satisfactory to Administrative Agent and all terms
and conditions of the termination of the Existing Credit Agreement shall
be reasonably satisfactory to Administrative Agent and all such conditions
shall have been satisfied to the reasonable satisfaction of Administrative
Agent or waived with the consent of Administrative Agent and (y) evidence
in form, scope and substance reasonably satisfactory to Administrative
Agent that the matters set forth in this Section 5.1(q) have been
satisfied on such date;
(ii) The lenders under the Existing Credit Agreement shall
have terminated and released all security interests in and Liens on the
assets owned by Borrower or any of its Subsidiaries or delivered to
Administrative Agent all documentation, in form and substance satisfactory
to Administrative Agent, necessary or reasonably requested by
Administrative Agent to cause such termination and release.
Administrative Agent shall have received such releases of security
interest in and Liens on the assets owned by Borrower or any of its
Subsidiaries as may have been requested by Administrative Agent, which
releases shall be in form and substance reasonably satisfactory to
Administrative Agent. Without limiting the foregoing, there shall have
been delivered (A) proper termination statements (Form UCC-3 or the
appropriate equivalent) for filing under the UCC of each jurisdiction
where a financing statement (Form UCC-1 or the appropriate equivalent) was
filed with respect to Borrower or any Subsidiary of Borrower in connection
with the security interests created with respect to the Existing Credit
Agreement and the documentation related thereto and (B) all collateral
owned by Borrower or any of its Subsidiaries in the possession of any
secured party under the Existing Credit Agreement or any agent, collateral
agent or trustee for the creditors under the Existing Credit Agreement or
any financial institution party to the Existing Credit Agreement or any
related agreement;
(r) Existing Indebtedness. On the Closing Date and after giving
effect to the transactions contemplated hereby, Borrower shall not have any
Indebtedness outstanding except for the Loans and the Indebtedness to Remain
Outstanding listed on Schedule 6.5(d).
(s) Due Diligence Review. The Lenders shall have completed a due
diligence investigation of each Credit Party in scope, and with results,
reasonably satisfactory to the Lenders, and nothing shall have come to the
attention of the Lenders during the course of such due diligence investigation
to lead them to believe (i) that any written information, exhibit or report
(including, without limitation, any financial information) furnished by or on
behalf of any Credit Party to Administrative Agent or any Lender was or has
become misleading, incorrect or incomplete in any material respect or (ii) that
any Credit Party would not have good and marketable title to all of its assets;
without limiting the generality of the foregoing, the Lenders shall have been
given such access to management, records, books of account, contracts and
properties of each Credit Party as they shall have reasonably requested;
(t) Tax and Accounting Aspects of Transactions. Administrative
Agent and the Required Lenders shall be reasonably satisfied with all tax and
accounting matters relating to the Borrower and its Subsidiaries and the
transactions contemplated hereby.
(u) Incumbency. Administrative Agent shall have received, with a
signed counterpart for each Lender, a certificate of the Secretary or an
Assistant Secretary of each Credit Party, in form and substance reasonably
satisfactory to Administrative Agent, dated the date of the Closing Date as to
the incumbency and signature of the officers of such Credit Party executing any
Loan Document to which it is a party and any certificate or other document or
instrument to be delivered pursuant hereto or thereto by or on behalf of such
Credit Party, together with evidence of the incumbency of such Secretary or
Assistant Secretary;
(v) Officer's Certificate. Administrative Agent shall have
received, with a signed counterpart for each Lender, a certificate executed by a
Responsible Officer of Borrower, dated the Closing Date and substantially in the
form of Exhibit 5.1(v) hereto, stating that the representations and warranties
set forth in Article VI hereof and in the other Loan Documents are true and
correct in all material respects (or, with respect to representations and
warranties qualified by materiality, in all respects) as of the date of the
certificate, that no Event of Default or Unmatured Event of Default has occurred
and is continuing, that the conditions of Section 5.1 hereof have been fully
satisfied (except that no opinion need be expressed as to Administrative
Agent's, any Lender's or the Required Lenders' satisfaction with any document,
instrument or other matter) and that no Liens (except for Permitted Liens) have
been placed against the Collateral or the Mortgaged Property since the
respective dates of the searches of financing statements filed under the UCC and
delivered pursuant to Section 5.1(c); and
(w) Other Matters. All corporate and other proceedings taken in
connection with the transactions contemplated by this Agreement at or prior to
the date of this Agreement, and all documents incident thereto, will be
reasonably satisfactory in form and substance to Administrative Agent; and the
Lenders shall have received such other instruments and documents as
Administrative Agent shall reasonably request in connection with the execution
of this Agreement, and all such instruments and documents shall be reasonably
satisfactory in form and substance to Administrative Agent.
5.2 Conditions Precedent to All Credit Events. The agreement of
each Lender to make a Loan and of the Facing Agent to issue a Letter of Credit
(including, without limitation, its initial Loans and Letters of Credit
hereunder, but other than any Revolving Loans the proceeds of which are used
exclusively to repay Refunded Swing Line Loans) is subject to the satisfaction
of all of the following conditions precedent:
(a) Representations and Warranties. The representations and
warranties contained in this Agreement and the other Loan Documents shall each
be true and correct in all material respects at and as of such time, as though
made on and as of such time except to the extent such representations and
warranties are (i) expressly made as of a specified date in which event such
representations and warranties shall be true and correct as of such specified
date or (ii) qualified by materiality, in which event such representations and
warranties shall be true and correct in all respects.
(b) No Default. No Event of Default or Unmatured Event of Default
shall have occurred and shall then be continuing on such date or will occur
after giving effect to such Credit Event.
(c) Notice of Borrowing; Letter of Credit Request.
(i) Prior to the making of each Loan, Administrative Agent
shall have received a Notice of Borrowing meeting the requirements of
Section 2.5.
(ii) Prior to the issuance of each Letter of Credit,
Administrative Agent and the Facing Agent shall have received a Letter of
Credit Request meeting the requirements of Section 2.9(c).
(iii) Prior to the amendment of each Letter of Credit,
Administrative Agent and the Facing Agent shall have received a Letter of
Credit Amendment Request meeting the requirements of Section 2.9(c).
The acceptance of the benefits of each such Credit Event by Borrower
shall be deemed to constitute a representation and warranty by it to the effect
of paragraphs (a) and (b) of this Section 5.2 (except that no opinion need be
expressed as to Administrative Agent's or Required Lenders' satisfaction with
any document, instrument or other matter).
Each Lender hereby agrees that by its execution and delivery of its
signature page hereto, such Lender approves of and consents to each of the
matters set forth in Section 5.1 and Section 5.2 which must be approved by, or
which must be satisfactory to, Administrative Agent, the Required Lenders or the
Lenders, as the case may be; provided that, in the case of any agreement or
document which must be approved by, or which must be satisfactory to, the
Required Lenders or the Lenders, Administrative Agent or Borrower shall have
delivered, upon request by any Lender, a copy of such agreement or document to
such Lender on or prior to the Closing Date.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Agreement and to
make the Loans, and issue (or participate in) the Letters of Credit as provided
herein, Borrower makes the following representations, warranties and agreements
as of the Closing Date and as of the date of each subsequent Credit Event, all
of which shall survive the execution and delivery of this Agreement and the
Notes and the making of the Loans and issuance of the Letters or Credit, with
the occurrence of each Credit Event on or after the Closing Date being deemed to
constitute a representation and warranty that the matters specified in this
Article VI are true and correct on and as of the Closing Date and on and as of
the date of each such Credit Event, provided that any representation or warranty
which by its terms is made as of a specified date shall be required to be true
and correct on the date of each Credit Event but only as of such specified date:
6.1 Corporate Status. Borrower and each of its Subsidiaries (i)
is a duly organized and validly existing corporation, partnership, limited
liability company or other entity in good standing under the laws of the
jurisdiction of its organization (or the equivalent thereof in the case of
Foreign Subsidiaries), (ii) has the corporate, partnership or other requisite
power and authority to own its property and assets and to transact the business
in which it is engaged and presently proposed to engage in and (iii) is duly
qualified and is authorized to do business and is in good standing in each other
jurisdiction where the ownership, leasing or operation of property or the
conduct of its business requires such qualification, except in the case of this
clause (iii) for such failures to be so qualified which, in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
6.2 Corporate Power and Authority. Each Credit Party has the
corporate, partnership or other requisite power and authority to execute,
deliver and perform the terms and provisions of each of the Loan Documents to
which it is a party and has taken all necessary corporate, partnership or other
action to authorize the execution, delivery and performance by it of each of
such Loan Documents. Each Credit Party has duly executed and delivered each of
the Loan Documents to which it is a party, and each of such Loan Documents
constitutes its legal, valid and binding obligation enforceable in accordance
with its terms, except to the extent that the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
6.3 No Violation. Neither the execution, delivery or performance
by any Credit Party of the Loan Documents to which it is a party (including,
without limitation, the granting of Liens pursuant to the Security Documents),
nor compliance by it with the terms and provisions thereof, nor the consummation
of the transactions contemplated therein (i) will contravene any provision of
any Requirement of Law applicable to any Credit Party, (ii) will conflict with
or result in any breach of or constitute a tortious interference with any of the
terms, covenants, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of (or the obligation to create or impose)
any Lien (except pursuant to the Security Documents) upon any of the property or
assets of any Credit Party pursuant to the terms of any Contractual Obligation
to which any Credit Party is a party or by which it or any of its property or
assets is bound or to which it may be subject, except to the extent that any
such conflict, breach, interference or default, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect,
(iii) will violate any provision of any Organizational Document of any Credit
Party or (iv) requires or will require any approval of stockholders or any
approval or consent of any Person (other than a Governmental Authority), except
as set forth on Schedule 6.3.
6.4 Governmental and Other Approvals. Except as set forth on
Schedule 6.4 hereto and except for the recording of the Mortgages, filings with
the United States Patent and Trademark Office to record liens on the Patents (as
defined in the Security Agreement), and the filing of any UCC financing
statements which shall be recorded and filed, respectively, on, or as soon as
practicable after, the date hereof, no order, consent, approval, license,
authorization or validation of, or filing, recording or registration with, or
exemption by, any Governmental Authority, is required to authorize, or is
required in connection with, (i) the execution, delivery and performance of any
Loan Document or (ii) the legality, validity, binding effect or enforceability
of any such Loan Document, in each case, except as have been obtained and are in
full force and effect.
6.5 Financial Statements; Financial Condition; Undisclosed
Liabilities Projections; etc.
(a) Financial Statements. (i) The consolidated balance sheet of
Borrower at December 31, 1994, 1995 and 1996 and at March 31, 1997, and the
related statements of operations, cash flows and shareholders' equity of
Borrower for the Fiscal Year or other period ended on such dates, as the case
may be, certified copies of which have been furnished to the Lenders prior to
the date hereof which, in the case of the December 31, 1994, 1995 and 1996
financial statements have been examined by Coopers & Xxxxxxx L.L.P., independent
certified public accountants, who delivered an unqualified opinion in respect
thereto, are complete and correct in all material respects, were prepared in
accordance with GAAP consistently applied (except as may be indicated in the
notes thereto and subject, in the case of interim statements, to normal year end
adjustments), and present fairly the financial condition and results of
operations of Borrower and its Subsidiaries as of the dates and for the periods
covered thereby and (ii) the pro forma statements of operations of Borrower for
the years ended December 31, 1995 and 1996, which give effect to the Pro Forma
Transactions, present a good faith estimate of the pro forma financial condition
and results of operations of Borrower and its Subsidiaries as of the date and
for the periods covered thereby and were prepared in accordance with GAAP
consistently applied in a manner consistent with the preparation of the
historical financial statements of Borrower. There has been no material adverse
change in the business, operations, assets or financial or other condition of
Borrower and its Subsidiaries, taken as a whole, from that reflected on the
financial statements for the Fiscal Year ended December 31, 1996.
(b) Solvency. On and as of the Closing Date, after giving effect
to all Indebtedness (including the Loans) being incurred, and available to be
incurred (and the use of proceeds thereof), and Liens created, and to be
created, by Borrower in connection with the transactions contemplated hereby,
(i) the sum of the assets, at a fair valuation, of each of Borrower and its
Material Subsidiaries will exceed its debts; (ii) neither Borrower nor any
Material Subsidiary has incurred or intends to, or believes that it will, incur
debts beyond its ability to pay such debts as such debts mature; and (iii) each
of Borrower and its Material Subsidiaries will have sufficient capital with
which to conduct its business. For purposes of this Section 6.5(b) "debt" means
any liability on a claim, and "claim" means (y) any right to payment, whether or
not such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured,
or unsecured (including all obligations, if any, under any Plan or the
equivalent for unfunded past service liability, and any other unfunded medical
and death benefits) or (z) any right to an equitable remedy for breach of
performance if such breach gives rise to a payment, whether or not such right to
an equitable remedy is reduced to judgment, fixed, contingent, matured,
unmatured, disputed, undisputed, secured or unsecured.
(c) No Undisclosed Liabilities. Except as fully reflected in the
financial statements and the notes related thereto delivered pursuant to Section
6.5(a) and on Schedule 6.5(d), there were as of the Closing Date (and after
giving effect to the transactions contemplated hereby) no liabilities or
obligations with respect to Borrower or its Subsidiaries of any nature
whatsoever (whether absolute, accrued, contingent or otherwise and whether or
not due) which, either individually or in aggregate, would be material to
Borrower and its Subsidiaries, taken as a whole.
(d) Indebtedness. Schedule 6.5(d) sets forth a true and complete
list of all Indebtedness (other than the Loans and the Letters of Credit) of
Borrower and its Subsidiaries as of the Closing Date and which is to remain
outstanding after giving effect to the transactions contemplated hereby (the
"Indebtedness to Remain Outstanding"), in each case showing the aggregate
principal amount thereof (and the aggregate amount of any undrawn commitments
with respect thereto) and the name of the respective obligor and any other
entity which directly or indirectly guaranteed such debt. Borrower has
delivered or caused to be delivered to Administrative Agent a true and complete
copy of the form of each instrument evidencing Indebtedness for money borrowed
listed on Schedule 6.5(d) and of each instrument pursuant to which such
Indebtedness for money borrowed was issued.
(e) Projections. The financial projections dated as of June 4,
1997 and delivered to Administrative Agent and the Lenders on or before the
Closing Date, and each of the projections delivered after the Closing Date
pursuant to Section 7.2(e) (collectively, the "Projections") have been prepared
on a basis consistent with the financial statements referred to in Section
6.5(a) and are based on good faith estimates and assumptions believed by
management of Borrower to be reasonable as of the date of such financial
projections. Borrower believes that the Projections delivered to Administrative
Agent and the Lenders are reasonable and attainable, it being understood that
uncertainty is inherent in any forecasts or projections and that no assurance
can be given that the results set forth in the Projections will actually be
obtained.
6.6 Litigation. There are no actions, suits or proceedings
pending or, to the best knowledge of any officer of Borrower, threatened (i)
with respect to this Agreement or any other Loan Document or any of the
transactions contemplated hereby or thereby, (ii) with respect to any
Indebtedness or Capital Stock of Borrower or any of its Subsidiaries or (iii)
which, if adversely determined, could have a Material Adverse Effect.
6.7 True and Complete Disclosure. All factual information (taken
as a whole) heretofore or contemporaneously furnished by or on behalf of
Borrower or any of its Subsidiaries in writing to Administrative Agent or any
Lender (including, without limitation, all information contained in the
Documents) (other than the Projections as to which Section 6.5(e) applies) for
purposes of or in connection with this Agreement or any transaction contemplated
herein is, and all other such factual information (taken as a whole together
with all factual information theretofore or contemporaneously furnished by or on
behalf of Borrower or any of its Subsidiaries in writing to Administrative Agent
or any Lender) hereafter furnished by or on behalf of Borrower or any of its
Subsidiaries in writing to Administrative Agent or any Lender for purposes of or
in connection with this Agreement or any transaction contemplated herein are and
will be true and accurate in all material respects on the date as of which such
information is dated or certified and not incomplete by omitting to state any
fact necessary to make such information (taken as a whole) not misleading in any
material respect at such time in light of the circumstances under which such
information was provided.
6.8 Use of Proceeds; Margin Regulations.
(a) Loan Proceeds. All proceeds of the Loans incurred hereunder
shall be used by Borrower to repay borrowings, if any, outstanding on the
Closing Date, under the Existing Credit Agreement, and for general corporate
purposes and working capital purposes of Borrower and its Subsidiaries
(including acquisitions permitted hereunder).
(b) Margin Regulations. No part of the proceeds of any Loan will
be used to purchase or carry any margin stock (as defined in Regulation G of the
Board), directly or indirectly, or to extend credit for the purpose of
purchasing or carrying any such margin stock, for the purpose of reducing or
retiring any indebtedness which was originally incurred to purchase or carry any
margin security or for any other purpose which might cause any of the Loans or
extensions of credit under this Agreement to be considered a "purpose credit"
within the meaning of Regulation G, T, U or X of the Board.
6.9 Taxes.
(a) Tax Returns and Payments. Each of Borrower and its
Subsidiaries have filed or caused to be filed all tax returns which are
required to be filed, except where failure to file any such returns could not
reasonably be expected to have a Material Adverse Effect, and have paid or
caused to be paid all taxes shown to be due and payable on said returns or on
any assessments made against them or any of their respective material properties
by any Governmental Authority (other than those the amount or validity of which
is contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of Borrower or
its Subsidiaries, as the case may be), except where failure to take any such
action could not reasonably be expected to have a Material Adverse Effect; and
no tax liens have been filed and no claims are being asserted with respect to
any such taxes, fees or other charges (other than such liens or claims, the
amount or validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided) which could reasonably be expected to have a Material
Adverse Effect
(b) Tax Examinations. Except as set forth on Schedule 6.9(b)
hereto, as of the date hereof, the federal income tax returns of each of
Borrower and its consolidated Domestic Subsidiaries have been examined by the
IRS (or closed by applicable statutes) for all tax periods. There are no other
tax examinations in progress with respect to Borrower and its Subsidiaries,
except as set forth on Schedule 6.9(b). All deficiencies which have been
asserted against Borrower and its Subsidiaries as a result of such examinations
have been fully paid or finally settled or are being contested in good faith,
and no issue has been raised in any such examination which, by application or
similar principles, reasonably can be expected to result in assertion of a
deficiency for any other year not so examined that has not been accrued on
Borrower's and its Subsidiaries' audited financial statements for its most
recently ended Fiscal Year that would be required to be so accrued in accordance
with GAAP. Neither Borrower nor any of its Subsidiaries has knowledge of any
material income tax liability with respect to open taxable years in excess of
amounts accrued on such Person's financial statements for its most recently
ended Fiscal Year that would be required to be so accrued in accordance with
GAAP, nor does Borrower or any of its Subsidiaries anticipate any further
material tax liability with respect to such open taxable years taken as a whole
in excess of such accrued amounts.
6.10 Compliance With ERISA. Except as set forth on Schedule 6.10
hereto, each Plan is in substantial compliance with ERISA and the Code; no
Reportable Event which could reasonably be expected to result in the termination
of any Plan has occurred with respect to a Plan; no Multiemployer Plan is
insolvent or in reorganization; the aggregate fair market value of the assets of
each Plan (exclusive of any contributions due to the Plan) equals or exceeds the
present value of the benefit liabilities as of the latest actuarial valuation
date for the Plan (but not prior to 12 months prior to the date hereof)
determined on the basis of a shutdown of the Borrower in accordance with
actuarial assumptions used by the PBGC in single-employer plan terminations and
since its last valuation date there have been no amendments to such Plan that
have materially increased the present value of the accrued benefits under, and
no other material adverse change in the funding status of, such Plan (using the
actuarial funding assumptions then in effect for such Plan); no Plan has an
accumulated or waived funding deficiency, has permitted decreases in its funding
standard account or has applied for an extension of any amortization period
within the meaning of Section 412 of the Code; neither Borrower nor any ERISA
Affiliate has incurred any material liability to or on account of a Plan
pursuant to Section 409, 502(i), 502(d), 515, 4062, 4063, 4064, 4069, 4201 or
4204 of ERISA or Section 4971 or 4975 of the Code or is expected to incur any
material liability under any of the foregoing Sections with respect to any Plan;
no proceedings have been instituted to terminate any Plan; no condition exists
which presents a material risk to Borrower or any ERISA Affiliate of incurring a
material liability to or on account of a Plan pursuant to the foregoing
provisions of ERISA and the Code; using actuarial assumptions and computation
methods consistent with subpart 1 of Subtitle E of Title IV of ERISA, Borrower
and its Subsidiaries and its ERISA Affiliates would not have any material
liability to all Plans which are Multiemployer Plans in the event of a complete
withdrawal therefrom, as of the close of the most recent fiscal year of each
such Plan ending prior to the date of any Credit Event; no Lien imposed under
the Code or ERISA on the assets of Borrower or any of its Subsidiaries or any
ERISA Affiliate exists or is likely to arise on account of any Plan; and
Borrower and its Subsidiaries do not maintain or contribute to any employee
welfare benefit plan (as defined in Section 3(1) of ERISA) which provides
benefits to retired employees (other than as required by Section 601 of ERISA)
or any employee pension benefit plan (as defined in Section 3(2) of ERISA) the
obligations with respect to either of which could reasonably be expected to have
a Material Adverse Effect.
6.11 Security Documents.
(a) Security Agreement Collateral. The provisions of the Security
Agreement and each Additional Security Agreement are effective to create in
favor of Collateral Agent for the benefit of the Secured Creditors a legal,
valid and enforceable security interest in all right, title and interest of
Borrower and the Subsidiary Guarantors in the Collateral described therein, and
the Security Agreement and each Additional Security Agreement, together with the
filings of Form UCC-1 and the recordation in the United States Patent and
Trademark Office, as described in the next succeeding sentence, as well as other
filings that have been made and are in full force and effect, create a fully
perfected first lien on, and security interest in, all right, title and interest
of Borrower and the Subsidiary Guarantors in all of the Collateral described
therein (except as expressly set forth in the Security Agreement or any
Additional Security Agreement), subject to no other Liens other than Permitted
Filings (as defined in the Security Agreement) and Permitted Liens. The
recordation in the United States Patent and Trademark Office of assignments for
security made pursuant to the Security Agreement and each Additional Security
Agreement, together with filings on Form UCC-1 made pursuant to the Security
Agreement and each Additional Security Agreement, will be effective, under
Federal law, to perfect the security interest granted to Collateral Agent in the
patents and patent applications covered by the Security Agreement and each
Additional Security Agreement. The foregoing representations shall not be
deemed to encompass the perfection of the security interests granted in respect
of Collateral for which possession must be taken by a secured party in order to
perfect its security interest under the UCC.
(b) Pledged Securities. The security interests created in favor
of Collateral Agent, as Pledgee for the benefit of the Secured Creditors under
the Pledge Agreement and each Additional Pledge Agreement, constitute first
perfected security interests in the Pledged Securities, if any, subject to no
security interests of any other Person. No filings or recordings are required
in order to perfect the security interests created in the Pledged Securities
under the Pledge Agreement and each Additional Pledge Agreement, except the
filing of UCC financing statements which shall be recorded and filed on, or as
soon as practicable after, the date hereof and thereof, and except as have been
made and are in full force and effect.
(c) Real Estate Collateral. The Mortgages create, as security for
the obligations purported to be secured thereby, a valid and enforceable
perfected security interest in and Lien on all of the Mortgaged Property (and
will create a valid and enforceable perfected security interest in and Lien on
all fixtures and improvements relating to such Mortgaged Property and affixed or
added thereto on or after the Closing Date) in favor of Collateral Agent (or
such other trustee as may be named therein) for the benefit of the Secured
Creditors, superior to and prior to the rights of all third Persons (except that
the security interest created in the Mortgaged Property may be subject to the
Permitted Liens related thereto) and subject to no other Liens (other than
Permitted Liens). Schedule 6.11(c) contains a true and complete list of each
parcel of real property owned or leased by Borrower and the Subsidiary
Guarantors on the date hereof, and the type of interest therein held by Borrower
or the relevant Subsidiary Guarantor. Borrower or the relevant Subsidiary
Guarantor has good and marketable title to all Mortgaged Property free and clear
of all Liens except those described in the first sentence of this Section
6.11(c).
(d) U.K. Pledge Agreement. The security interests created in
favor of Collateral Agent, as trustee on behalf of the Secured Creditors under
the U.K. Pledge Agreement, constitute first perfected security interests in the
pledged securities identified therein, subject to no security interests of any
other Person. No filings or recordings are required in order to perfect the
security interests created in the pledged securities under the U.K. Pledge
Agreement, except as have been made and are in full force and effect.
6.12 Senior Indebtedness. For as long as any BUCS remain
outstanding, all principal and interest in respect of the Loans, Unpaid
Drawings, reimbursement obligations under Letters of Credit and other
obligations to pay fees and other amounts under this Agreement and the other
Loan Documents to which Borrower is a party constitute Senior Indebtedness (as
defined in the BUCS Transaction Documents) benefitting from the subordination
provisions in the BUCS Transaction Documents, and such subordination provisions
are in full force and effect and enforceable in accordance with their terms.
6.13 Ownership of Property. Borrower or one of its Subsidiaries
has good title to, a valid leasehold interest in, or a valid contractual
agreement to use, all items of real and personal property material to its
operations (except as to leasehold interests) free and clear of all Liens,
except Permitted Liens. The items of real and personal property owned by,
leased to or used by Borrower and each Subsidiary constitute all of the assets
material to the conduct of such Person's business as presently conducted, and
neither this Agreement nor any other Loan Document, nor any transaction
contemplated under any such agreement, will affect any right, title or interest
of Borrower or any Subsidiary in and to any of such assets in a manner that
would have or is reasonably likely to have a Material Adverse Effect. To the
knowledge of Borrower, there are no actual, threatened or alleged defaults with
respect to any leases of real property under which Borrower or any Subsidiary is
lessee or lessor, which defaults, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect. Borrower and its
Domestic Subsidiaries have granted mortgages to secure the Obligations on all
parcels of real estate owned by Borrower or any of its Domestic Subsidiaries and
material to the operations of Borrower and its Domestic Subsidiaries.
6.14 Capitalization of Borrower. The capitalization of Borrower
as of the Closing Date is set forth on Schedule 6.14 hereto. All outstanding
shares of common or preferred stock of Borrower have been duly authorized and
validly issued and are fully paid and non-assessable. As of the Closing Date,
except as set forth on Schedule 6.14, no authorized but unissued or treasury
shares of Capital Stock of Borrower are subject to any option, warrant, right to
call or commitment of any kind or character. A complete and correct copy of
each of the certificate of incorporation and by-laws of Borrower in effect on
the Closing Date has been delivered to Administrative Agent. As of the Closing
Date, except for the convertible debentures issued in connection with the BUCS
and as otherwise set forth on Schedule 6.14, Borrower does not have any
outstanding stock or securities convertible into or exchangeable for any shares
of its Capital Stock, or any rights issued to any Person (either preemptive or
other) to subscribe for or to purchase, or any options for the purchase of, or
any agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims or any character relating to any of its Capital
Stock or any stock or securities convertible into or exchangeable for any of its
Capital Stock. As of the Closing Date, neither Borrower nor any of its
Subsidiaries is subject to any obligation (contingent or otherwise) to
repurchase or otherwise acquire or retire any shares of its Capital Stock or any
convertible securities, rights or options of the type described in the preceding
sentence (other than the retirement of the BUCS at their stated maturity).
6.15 Subsidiaries.
(a) Organization. Schedule 6.15 hereto sets forth, as of the
Closing Date, a true, complete and correct list of each Subsidiary of Borrower
and indicates for each such Subsidiary (i) its jurisdiction of incorporation and
(ii) its ownership (by holder and percentage interest). Borrower has no
Subsidiaries except for Subsidiaries created in accordance with Section 8.15 and
those Subsidiaries listed as such on Schedule 6.15 hereto.
(b) Capitalization. As of the Closing Date, except as set forth
on Schedule 6.15, all of the issued and outstanding shares of Capital Stock of
each Subsidiary of Borrower are owned directly or indirectly by Borrower. All
shares of Capital Stock of each Subsidiary of Borrower have been duly authorized
and validly issued, are fully paid and non-assessable and, to the extent owned
by Borrower, are owned, directly or indirectly, by Borrower, free and clear of
all Liens except for Permitted Liens. No authorized but unissued or treasury
shares of Capital Stock of any Subsidiary of Borrower are subject to any option,
warrant, right to call or commitment of any kind or character (other than those
held by Borrower or any Subsidiary of Borrower). A complete and correct copy of
each of the certificate of incorporation and by-laws (or other Organizational
Documents) of each Domestic Subsidiary of Borrower in effect on the Closing Date
have been delivered to Administrative Agent.
(c) Restrictions on or Relating to Subsidiaries. There does not
exist any encumbrance or restriction on the ability of (i) any Subsidiary of
Borrower to pay dividends or make any other distributions on its Capital Stock
or any other interest or participation in its profits owned by Borrower or any
other Subsidiary of Borrower, or to pay any Indebtedness owed to Borrower or a
Subsidiary of Borrower, (ii) any Subsidiary of Borrower to make loans or
advances to Borrower or any of Borrower's other Subsidiaries or (iii) Borrower
or any of its Subsidiaries to transfer any of its properties or assets to
Borrower or any of its other Subsidiaries, except for such encumbrances or
restrictions existing under or by reason of (x) applicable law, (y) this
Agreement or the other Loan Documents or (z) customary provisions restricting
subletting or assignment of any lease governing a leasehold interest of Borrower
or a Subsidiary of Borrower.
6.16 Compliance With Law, Etc. Neither Borrower nor any of its
Subsidiaries is in default under or in violation of any Requirement of Law or
Contractual Obligation or under its Organizational Documents, as the case may
be, in each case the consequences of which default or violation, either in any
one case or in the aggregate, could reasonably be expected to have a Material
Adverse Effect.
6.17 Investment Company Act. Neither Borrower nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
6.18 Public Utility Holding Company Act. Neither Borrower nor any
of its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
6.19 Environmental Matters.
(a) Each of Borrower and each of its Subsidiaries has complied in
all respects with, and on the date of such Credit Event is in compliance in all
respects with, all applicable Environmental Laws and Environmental Permits,
except where any failure to comply, individually and in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
(b) There are no past, pending and, to the best knowledge of
Borrower, threatened Environmental Claims against Borrower or any of its
Subsidiaries or any Premises, which Environmental Claims, individually or in the
aggregate, could have a Material Adverse Effect. To the best knowledge of
Borrower after diligent inquiry, there are no facts, circumstances, conditions
or occurrences on any Premises or, to the best knowledge of Borrower, on any
property adjoining any Premises that could reasonably be expected (i) to form
the basis of an Environmental Claim against Borrower or any of its Subsidiaries
or any such Premises, or (ii) to cause such Premises to be subject to any
restrictions on the ownership, occupancy, use or transferability of such
Premises under any Environmental Law, which Environmental Claims or
restrictions, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
(c) Neither Borrower nor any of its Subsidiaries has treated,
stored, disposed of, arranged for or permitted the disposal of, transported,
handled or Released any Contaminant or owned, leased or operated any Premises so
as to give rise to liabilities of Borrower or its Subsidiaries for response
costs, natural resource damages or attorneys' fees pursuant to Environmental
Laws, which liabilities, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
(d) This Agreement does not impose any obligations on Borrower or
any of its Subsidiaries for site investigation or cleanup, or notification to or
consent of any Governmental Authority or any Person under any Environmental Laws
(including, without limitation, any so-called "transaction-triggered" or
"responsible property transfer" laws and regulations).
(e) Neither Borrower nor any of its Subsidiaries has, either
expressly or by operation of law, assumed or undertaken any liability or
Response Action obligation of any other Person relating to any Environmental
Laws, which, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
(f) Except for those items which, individually and in the
aggregate, could not reasonably be expected to have a Material Adverse Effect,
none of the following exist at any property or facility currently owned, leased
or operated by Borrower or any of its Subsidiaries: (i) underground storage
tanks, (ii) landfills, pits, ponds, lagoons or surface impoundments, (iii)
asbestos containing materials, or (iv) materials or equipment containing
polychlorinated biphenyls.
6.20 Labor Relations. Neither Borrower nor any of its Subsidiaries
is engaged in any unfair labor practice that could reasonably be expected to
have a Material Adverse Effect. There is (i) no significant unfair labor
practice complaint pending against Borrower or any of its Subsidiaries or, to
the knowledge of any officer of Borrower, threatened against any of them before
the National Labor Relations Board, and no significant grievance or significant
arbitration proceeding arising out of or under any collective bargaining
agreement is so pending against Borrower or any of its Subsidiaries or, to the
knowledge of any officer of Borrower, threatened against any of them, (ii) no
significant strike, labor dispute, slowdown or stoppage is pending against
Borrower or any of its Subsidiaries or, to the knowledge of any officer of
Borrower, threatened against Borrower or any of its Subsidiaries and (iii) to
the knowledge of any officer of Borrower, no question concerning union
representation exists with respect to the employees of Borrower or any of its
Subsidiaries, except (with respect to any matter specified in clause (i), (ii)
or (iii) above, either individually or in the aggregate) such as could not
reasonably be expected to have a Material Adverse Effect.
6.21 Intellectual Property, Licenses, Franchises and Formulas.
Each of Borrower and its Subsidiaries owns or holds licenses or other rights to
or under all the patents, patent applications, trademarks, service marks,
trademark and service xxxx registrations and applications therefor, trade names,
copyrights, copyright registrations and applications therefor, trade secrets,
proprietary information, computer programs, data bases, licenses, permits,
franchises and formulas, or rights with respect to the foregoing (collectively,
"Intellectual Property"), and has obtained assignments of all leases and other
rights of whatever nature, necessary for the present conduct of its business,
without any known material conflict with the rights of others, except where the
lack of any of the foregoing, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. Neither Borrower nor
any of its Subsidiaries has knowledge of any existing or threatened claims by
any Person contesting the validity, enforceability, use or ownership of the
Intellectual Property, which claims, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
6.22 Performance of Agreements. Neither Borrower nor any of its
Subsidiaries is in default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any material
Contractual Obligation of Borrower or any of its Subsidiaries, and no officer of
Borrower or any Subsidiary has knowledge of any event or condition which with
notice or the lapse of time or both would constitute such a default, except
where such default or defaults, individually and in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
6.23 Certain Fees. No broker's or finder's fees or commissions or
any similar fees or commissions will be payable by Borrower or any Subsidiary
with respect to the incurrence and maintenance of the Obligations, any other
transaction contemplated by the Loan Documents or any services rendered in
connection with such transactions. Borrower covenants that it will indemnify
Administrative Agent and each Lender against and hold Administrative Agent and
each Lender harmless from any claim, demand or liability for broker's or
finder's fees or similar fees or commissions alleged to have been incurred in
connection with any of the transactions contemplated hereby.
6.24 Existing Credit Agreement. As of the Closing Date, the
Existing Credit Agreement shall have been terminated in accordance with the
Existing Credit Agreement Termination Documents, and all consents and approvals
of, and filings and registrations with (other than the filing of the executed
UCC termination statements and other documents furnished to Administrative Agent
pursuant to Section 5.1(q)), and all other actions in respect of, all
governmental agencies, authorities or instrumentalities and third parties
required in order to consummate the termination of the Existing Credit Agreement
shall have been obtained, given, filed or taken and are or will be in full force
and effect (or effective judicial relief with respect thereto has been
obtained).
6.25 Regulation H. No Mortgage encumbers improved real property
which is located in an area that has been identified by the Secretary of Housing
and Urban Development or the Federal Emergency Management Agency or other
applicable agency as an area having special flood hazards for which Borrower has
not obtained, or caused one of its Subsidiaries to obtain, flood insurance
covering the value of such real property in accordance with the National Flood
Insurance Act of 1968, as amended.
ARTICLE VII
AFFIRMATIVE COVENANTS
Borrower hereby agrees that, so long as any of the Commitments
remain in effect, or any Loan or LC Obligation remains outstanding and unpaid or
any other amount is owing to any Lender or Administrative Agent hereunder,
Borrower shall:
7.1 Financial Statements. Furnish, or cause to be furnished, to
each Lender:
(a) Quarterly Financial Statements. As soon as available, but in
any event not later than 45 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year of Borrower, the unaudited consolidated balance
sheet of Borrower and its consolidated Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of income, retained
earnings and of cash flows of Borrower and its consolidated Subsidiaries for
such quarter and the portion of the Fiscal Year through the end of such quarter,
setting forth in each case comparative figures for the related periods in the
prior Fiscal Year and budgeted figures for such period as set forth in the
respective budget delivered pursuant to Section 7.2(e), all of which shall be
certified by the Chief Financial Officer of Borrower, subject to normal year-end
audit adjustments;
(b) Annual Financial Statements. As soon as available, but in any
event within 90 days after the end of each Fiscal Year of Borrower, a copy of
the consolidated balance sheet of Borrower and its consolidated Subsidiaries as
at the end of such year and the related consolidated statements of income,
retained earnings and of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year. Borrower shall provide a
comparison between the consolidated balance sheets of Borrower and its
Subsidiaries and the related consolidated statements of operations,
shareholders' equity and cash flows referred to above and the budgeted figures
for the relevant period as set forth in the respective budget delivered pursuant
to Section 7.2(e);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in accordance with GAAP applied consistently
throughout the periods reflected therein and with prior periods (except as
approved by the accountants preparing such statements or the Chief Financial
Officer, as the case may be, and disclosed therein) and, in the case of the
consolidated financial statements referred to in Section 7.1(b), accompanied by
a report thereon of independent certified public accountants of recognized
national standing, which report shall contain no qualifications with respect to
the continuance of Borrower and its Subsidiaries as going concerns and shall
state that such financial statements present fairly the financial position of
Borrower and its Subsidiaries as at the dates indicated and the results of their
operations and cash flow for the periods indicated in conformity with GAAP and
that the examination by such accountants in connection with such financial
statements has been made in accordance with GAAP.
7.2 Certificates; Other Information. Furnish to each Lender (or,
if specified below, to Administrative Agent):
(a) Accountant's Certificates. Concurrently with the delivery of
the financial statements referred to in Section 7.1(b), (i) to the extent not
contrary to the then current recommendations of the American Institute of
Certified Public Accountants, a certificate from Coopers & Xxxxxxx L.L.P. or
other independent certified public accountants of nationally recognized
standing, stating that, in the course of their annual audit of the books and
records of Borrower, no Event of Default or Unmatured Event of Default has come
to their attention which was continuing at the end of such Fiscal Year or on the
date of their certificate, or if such an Event of Default or Unmatured Event of
Default has come to their attention, the certificate shall indicate the nature
of such Event of Default or Unmatured Event of Default and (ii) a letter, in
form reasonably satisfactory to Administrative Agent from such accountants with
respect to reliance on such accountants' certificate and report on the annual
consolidated financial statements referred to in this Section 7.2(a);
(b) Officer's Certificates. Concurrently with the delivery of the
financial statements referred to in Sections 7.1(a) and 7.1(b), a certificate of
the Chief Financial Officer of Borrower substantially in the form of Exhibit
7.2(b) stating that, to the best of such officer's knowledge, (i) such financial
statements present fairly, in accordance with GAAP, the financial condition and
results of operations of Borrower and its Subsidiaries for the period referred
to therein (subject, in the case of interim statements, to normal recurring
adjustments) and (ii) no Event of Default or Unmatured Event of Default has
occurred, except as specified in such certificate and, if so specified, the
action which Borrower proposes to take with respect thereto, which certificate
shall set forth detailed computations to the extent necessary to establish
Borrower's compliance with the covenants set forth in Article IX of this
Agreement;
(c) Audit Reports and Statements. Promptly following Borrower's
receipt thereof, copies of all consolidated financial or other consolidated
reports or statements, if any, submitted to Borrower or any of its Subsidiaries
by independent public accountants relating to any annual or interim audit of
the books of Borrower or any of its Subsidiaries;
(d) Management Letters. Promptly after receipt thereof, a copy of
any "management letter" received by Borrower or any of its Subsidiaries from its
certified public accountants;
(e) Budgets; Projections. As soon as available and in any event
within sixty (60) days following the first day of each Fiscal Year of Borrower,
an annual operating plan approved by the Board of Directors of Borrower
(including budgeted statements of operations, income, cash flows, retained
earnings and shareholders' equity and balance sheets) prepared by Borrower for
each Fiscal Quarter of such Fiscal Year, with appropriate presentation and
discussion of the principal assumptions upon which such budgets are based;
(f) Public Filings. Within 10 days after the same become public,
copies of all financial statements, filings, registrations and reports which
Borrower may make to, or file with, the SEC or any successor or analogous
Governmental Authority; and
(g) Other Requested Information. Such other information
respecting the respective properties, business affairs, financial condition
and/or operations of Borrower or any of its Subsidiaries as Administrative Agent
or any Lender may from time to time reasonably request.
7.3 Notices. Promptly and in any event within three Business Days
after an officer of Borrower or of any of its Subsidiaries obtains knowledge
thereof, give written notice to Administrative Agent (which shall promptly
provide a copy of such notice to each Lender) of:
(a) Event of Default or Unmatured Event of Default. The
occurrence of any Event of Default or Unmatured Event of Default, accompanied by
a statement of the Chief Financial Officer setting forth details of the
occurrence referred to therein and stating what action Borrower proposes to
take with respect thereto;
(b) Litigation and Related Matters. The commencement of, or any
material development in, any action, suit, proceeding or investigation pending
or threatened against or affecting Borrower or any of its Subsidiaries or any of
their respective properties before any arbitrator or Governmental Authority (i)
in which the amount involved (in excess of the amount Borrower reasonably
determines will be covered by insurance) is $10,000,000 or more or (ii) which
could reasonably be expected to have a Material Adverse Effect;
(c) Environmental Matters. The occurrence of one or more of the
following environmental matters: (i) any pending or threatened Environmental
Claim against Borrower or any of its Subsidiaries which could have a Material
Adverse Effect; (ii) any condition or occurrence on or arising from any
Premises that (y) results in noncompliance by Borrower or any of its
Subsidiaries with any applicable Environmental Law which could have a Material
Adverse Effect, or (z) could reasonably be expected to form the basis of an
Environmental Claim against Borrower or any of its Subsidiaries which could have
a Material Adverse Effect; (iii) any condition or occurrence on any real
property at any time owned or operated by Borrower or any of its Subsidiaries
that could reasonably be expected to cause such real property to be subject to
an Environmental Lien or any other restrictions on the ownership, occupancy, use
or transferability of such real property under any Environmental Law which could
have a Material Adverse Effect; and (iv) the taking of any Response Action in
response to the actual or alleged presence or Release of any Hazardous Material
on any Premises which could have a Material Adverse Effect, as required by an
Environmental Law or any Governmental Authority. All such notices shall
describe in reasonable detail the nature of the Environmental Claim,
investigation, condition, occurrence or Response Action and Borrower's or such
Subsidiary's response thereto. In addition, Borrower will provide the Lenders
with copies of all written communications with any Governmental Authority or
Person relating to actual or alleged violations of Environmental Laws,
Environmental Claims or Response Actions (in each case, which could have a
Material Adverse Effect), and such detailed reports of any such violations of
Environmental Law, Environmental Claims or Response Actions as may reasonably be
requested by the Lenders; and
(d) Notice of Change in Control. Each occasion that any Change in
Control shall occur, which notice shall set forth in reasonable detail the
particulars of each such occasion.
7.4 Conduct of Business and Maintenance of Existence. (a)
Continue to engage in business of the same general type as now conducted by it;
(b) preserve, renew and keep in full force and effect its and each Subsidiary's
corporate existence and take all reasonable action to maintain all rights,
privileges and franchises material to its and those of each of its Subsidiaries'
business except to the extent that failure to take any such action could not
reasonably be expected to have a Material Adverse Effect and as otherwise
permitted pursuant to Section 8.3; and (c) comply and cause each of its
Subsidiaries to comply with all Contractual Obligations and Requirements of Law
except to the extent that failure to comply therewith could not in the aggregate
reasonably be expected to have a Material Adverse Effect.
7.5 Payment of Obligations. Pay or discharge or otherwise satisfy
at maturity or, to the extent permitted hereby, prior to maturity or before they
become delinquent, as the case may be, and cause each of its Subsidiaries to pay
or discharge or otherwise satisfy at or, to the extent permitted by this
Agreement, prior to maturity or before they become delinquent, as the case may
be:
(a) all taxes, assessments and governmental charges or levies
imposed upon any of them or upon any of their income or profits or any of their
respective properties or assets prior to the date on which penalties attach
thereto; and
(b) all lawful claims prior to the time they become a Lien (other
than Permitted Liens) upon any of their respective properties or assets;
provided, however, that neither Borrower nor any of its Subsidiaries shall be
required to pay or discharge any such tax, assessment, charge, levy or claim
while the same is being contested by it in good faith and by appropriate
proceedings diligently pursued so long as Borrower or such Subsidiary, as the
case may be, shall have set aside on its books adequate reserves in accordance
with GAAP (segregated to the extent required by GAAP) with respect thereto and
title to any properties or assets material to the operations of Borrower and its
Subsidiaries is not jeopardized in any material respect.
7.6 Inspection of Property, Books and Records. (a) Keep, or cause
to be kept, and cause each of its Subsidiaries to keep or cause to be kept,
adequate records and books of account, in which complete entries are to be made
reflecting its and their business and financial transactions, such entries to be
made in accordance with sound accounting principles consistently applied and (b)
permit, and cause each of its Subsidiaries to permit, Administrative Agent and
any Lender or their respective representatives, at any reasonable time, and from
time to time at the reasonable request of Administrative Agent or such Lender
made to Borrower and upon reasonable notice, to visit and inspect its and their
respective properties, to examine and make copies of and take abstracts from its
and their respective records and books of account, and to discuss its and their
respective affairs, finances and accounts with its and their respective
principal officers, directors and independent public accountants (and by this
provision Borrower authorizes such accountants to discuss with Administrative
Agent and the Lenders and such representatives the affairs, finances and
accounts of Borrower and its Subsidiaries).
7.7 ERISA. (i) As soon as practicable and in any event within ten
(10) days after Borrower or an ERISA Affiliate knows or has reason to know that
a Reportable Event has occurred with respect to any Plan (whether or not the
requirement for notice of such Reportable Event has been waived by the PBGC),
deliver, or cause such ERISA Affiliate to deliver, to Administrative Agent a
certificate of a Responsible Officer of Borrower or such ERISA Affiliate, as the
case may be, setting forth the details of such Reportable Event and the action,
if any, which Borrower or such ERISA Affiliate is required or proposes to take,
together with any notices required or proposed to be given; (ii) upon the
request of any Lender made from time to time, deliver, or cause each ERISA
Affiliate to deliver, to each Lender a copy of the most recent actuarial report
and annual report completed with respect to any Plan; (iii) as soon as possible
and in any event within ten (10) days after Borrower or any of its ERISA
Affiliates knows or has reason to know that any of the following have occurred
or is reasonably likely to occur with respect to any Plan: (A) such Plan has
been or may be terminated, reorganized, petitioned or declared insolvent under
Title IV of ERISA, (B) the Plan Sponsor intends to terminate such Plan, (C) the
PBGC has instituted or will institute proceedings under Section 515 of ERISA to
collect a delinquent contribution to such Plan or under Section 4042 of ERISA to
terminate such Plan, (D) that an accumulated funding deficiency has been
incurred or that on application may be or has been made to the Secretary of the
Treasury for a waiver or modification of the minimum funding standard (including
any required installment payments) or on extension of any amortization period
under Section 412 of the Code, (E) that Borrower or any ERISA Affiliate will or
may incur any liability (including, but not limited to, contingent or secondary
liability) to or on account of the termination of or withdrawal from a Plan
under Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409 or
502(1) of ERISA, or (F) Borrower has or may incur any liability under any
employee welfare benefit plan (within the meaning of Section 3(1) of ERISA) that
provides benefits to retired employees (other than as required by Section 601 of
ERISA) or any employee pension benefit plans (as defined in Section 3(2) of
ERISA), deliver, or cause an ERISA Affiliate to deliver, to Administrative Agent
a written notice thereof (to the extent any such matter is not described on
Schedule 6.10); and (iv) as soon as possible and in any event within thirty days
after Borrower or any of its ERISA Affiliates knows or has reason to know that
any of them has caused a complete withdrawal or partial withdrawal (within the
meaning of Sections 4203 and 4205, respectively, of ERISA) from any
Multiemployer Plan, deliver, or cause such ERISA Affiliate to deliver, to
Administrative Agent a written notice thereof. For purposes of this Section
7.7, Borrower shall be deemed to have knowledge of all facts known by the Plan
Administrator of any Plan of which Borrower is the Plan Sponsor, and each ERISA
Affiliate of Borrower shall be deemed to have knowledge of all facts known by
the Plan Administrator of any Plan of which such ERISA Affiliate is a Plan
Sponsor. In addition to its other obligations set forth in this Article VII,
Borrower shall, and shall cause each of its ERISA Affiliates to:
(A) provide Administrative Agent with prompt written notice,
with respect to any Plan, of any failure to satisfy the minimum
funding standard requirements of Section 412 of the Code;
(B) furnish to Administrative Agent, promptly after delivery
of the same to the PBGC, a copy of any delinquency notice pursuant
to Section 412(n)(4) of the Code;
(C) correct any such failure to satisfy funding requirements
or delinquency referred to in the foregoing clauses (A) and (B)
within ninety (90) days after the occurrence thereof, except where
the failure to so satisfy could not reasonably be expected to have a
Material Adverse Effect;
(D) comply in good faith with the requirements set forth in
Section 4980B of the Code and with Sections 601(a) and 606 of ERISA;
(E) at the request of any Lender, deliver to such Lender
(and a copy to Administrative Agent) a complete copy of the annual
report (Form 5500) of each Plan required to be filed with the
Internal Revenue Service; and
(F) at the request of any Lender, deliver to such Lender
(and a copy to Administrative Agent) copies of the annual reports
and notices received by Borrower or any ERISA Affiliate with respect
to any Plan or Foreign Pension Plan no later than ten (10) days
after the date of such request.
7.8 Maintenance of Property, Insurance. (i) Keep, and cause each
of its Subsidiaries to keep, all property (including, but not limited to, real
property and equipment) necessary in its business in good working order and
condition, normal wear and tear and damage by casualty excepted, and subject to
Section 8.3(b); (ii) maintain, and cause each of its Subsidiaries to maintain,
insurance with respect to its properties and business against loss or damage of
the kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts as are customarily carried under
similar circumstances by such other Persons, provided, that such insurance shall
be maintained with financially sound and reputable insurers, except that a
portion of such insurance program (not to exceed that which is customary in the
case of companies engaged in the same or similar business or having similar
properties similarly situated) may be effected through self-insurance, provided
adequate reserves therefor, in accordance with GAAP, are maintained; and (iii)
furnish to each Lender, on the Closing Date and upon request thereafter, true
and complete information as to the insurance carried. All insurance policies or
certificates (or certified copies thereof) with respect to such insurance (A)
shall be endorsed to Administrative Agent's reasonable satisfaction for the
benefit of the Secured Creditors (including, without limitation, by naming
Administrative Agent or Collateral Agent as loss payee or additional insured, as
appropriate); and (B) shall state that such insurance policy shall not be
canceled or revised without thirty days' prior written notice thereof by the
insurer to Administrative Agent.
7.9 Environmental Laws.
(a) Comply with, and cause its Subsidiaries to comply with, and,
in each case take reasonable steps to ensure compliance by all tenants and
subtenants, if any, with, all applicable Environmental Laws and obtain and
comply with and maintain, and take reasonable steps to ensure that all tenants
and subtenants obtain and comply with and maintain, any and all Environmental
Permits required by applicable Environmental Laws, except to the extent that any
failure to comply or ensure compliance with, or any failure to obtain, comply or
maintain, or ensure the same with respect to any tenants or subtenants,
individually or in the aggregate, could not have a Material Adverse Effect; and
(b) Respond to any Release or threatened Release of any
Contaminant which could have a Material Adverse Effect in a manner which
complies in all material respects with applicable Environmental Laws; and
(c) Respond diligently to any matters which could reasonably be
expected to give rise to an Environmental Claim which could have a Material
Adverse Effect, unless and to the extent that such Environmental Claim is being
contested in good faith by Borrower or any of its Subsidiaries and adequate
reserves have been established by Borrower with respect thereto in its financial
statements in accordance with GAAP; and
(d) Defend, indemnify and hold harmless Administrative Agent,
Collateral Agent, and the Lenders, and their respective employees, agents,
officers and directors, from and against any and all claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of whatever kind or
nature known or unknown, contingent or otherwise, arising out of, or in any way
relating to (i) the breach by Borrower or any of its Subsidiaries of the
representations, warranties and covenants contained in Sections 6.19 and 7.9,
and (ii) the violation of, noncompliance with or liability under, any
Environmental Law or Environmental Permit applicable to the Borrower, any of its
Subsidiaries or Premises, or any orders, decrees, requirements or demands of
Governmental Authorities or any Person related thereto, including, without
limitation, reasonable attorneys' and consultants' fees, investigation and
laboratory fees, costs arising from any Response Action, court costs and
litigation expenses, except to the extent that any of the foregoing arise out of
the gross negligence or willful misconduct of the party seeking indemnification
therefor. The agreements in this Section 7.9(d) shall survive repayment of the
Notes and all other Obligations.
7.10 Annual Meetings with Lenders. Within 120 days after the close
of each Fiscal Year, Borrower shall hold a meeting with respect to which all of
the Lenders shall have received notice at least fourteen (14) days in advance,
and to which all the Lenders shall be invited to attend, at which meeting shall
be reviewed the financial results of the previous Fiscal Year and the financial
condition of Borrower and its Subsidiaries and the budgets presented for the
current Fiscal Year of Borrower and its Subsidiaries.
7.11 Use of Proceeds. Use all proceeds of the Loans as represented
in Section 6.8.
7.12 Additional Security; Further Assurances.
(a) Agreement to Grant Additional Security. Promptly, and in any
event within 30 days after the acquisition by Borrower or any Subsidiary
Guarantor of real or personal property of the type that would have constituted
Collateral on the date hereof and investments (including, without limitation,
Capital Stock of Domestic Subsidiaries and Capital Stock of Foreign Subsidiaries
owned directly by Borrower or a Domestic Subsidiary) of the type that would have
constituted Collateral on the date hereof (other than (x) any parcel of real
estate with a fair market value at the date of acquisition thereof of less than
$2,000,000 or (y) other assets with a fair market value of less than $2,000,000
in the aggregate) (the "Additional Collateral"), Borrower will, and will cause
each Subsidiary Guarantor to, take all necessary action, including (i) the
filing of appropriate financing statements under the provisions of the UCC,
applicable domestic or local laws, rules or regulations in each of the offices
where such filing is necessary or appropriate and (ii) with respect to real
estate, the execution of a mortgage, the obtaining of Mortgage Policies, title
surveys and real estate appraisals satisfying all Requirements of Law, to grant
Collateral Agent, for the benefit of the Secured Creditors, a perfected Lien in
such Collateral pursuant to and to the full extent required by the Security
Documents and this Agreement; provided, however, that Borrower shall only be
required to obtain real estate appraisals if and to the extent Administrative
Agent determines, in its sole discretion, that such appraisals are required in
order for Administrative Agent, Collateral Agent or the Lenders to comply with
all Requirements of Law.
(b) Additional Subsidiary Guarantors. Subject to the provisions
of Section 7.12(g), Borrower agrees to cause each Domestic Subsidiary
established, created or acquired in accordance with Section 8.15 to execute and
deliver a guaranty of all Obligations substantially in the form of the
Subsidiary Guaranty, with such changes thereto as Administrative Agent shall
approve.
(c) Pledge of New Subsidiary Stock. Borrower agrees to pledge (or
cause its Domestic Subsidiaries to pledge) all of the Capital Stock owned by
Borrower or a Domestic Subsidiary of each new Subsidiary established, created or
acquired after the Closing Date to Collateral Agent, for the benefit of the
Secured Creditors, pursuant to a pledge agreement in form and substance
satisfactory to Administrative Agent, other than a Foreign Subsidiary with
consolidated total assets of $1,000,000 or less as long as the consolidated
total assets of all Foreign Subsidiaries owned directly by Borrower or its
Domestic Subsidiaries the Capital Stock of which is not pledged hereunder does
not in the aggregate exceed $1,500,000; provided, that the pledge of the Capital
Stock of any new Subsidiary which is a Foreign Subsidiary shall (i) only be
required to the extent owned directly by Borrower or its Domestic Subsidiaries,
(ii) be limited to 65% of the Capital Stock of such Foreign Subsidiary and (iii)
any filings or recordations with respect to Foreign Subsidiaries will be made
(or submitted for recordation) within 10 Business Days of the establishment,
creation or acquisition thereof. No Foreign Subsidiary may be or become a
shareholder of a Domestic Subsidiary.
(d) Grant of Security by New Subsidiaries. Subject to the
provisions of Section 7.12(g), Borrower will cause each Domestic Subsidiary
established, created or acquired after the Closing Date in accordance with
Section 8.15 to grant to Collateral Agent, for the benefit of the Secured
Creditors, a first priority Lien on all of such Subsidiary's real or personal
property of the type that would have constituted Collateral on the date hereof
and investments of the type that would have constituted Collateral on the date
hereof (other than (x) any parcel of real estate with a fair market value at the
time of the establishment, creation or acquisition of such Domestic Subsidiary
of less than $2,000,000 or (y) other assets with a fair market value of less
than $2,000,000 in the aggregate) upon terms similar to those set forth in the
Security Documents as appropriate, and satisfactory in form and substance to
Administrative Agent. Borrower shall cause each Domestic Subsidiary, at its own
expense, to execute, acknowledge and deliver, or cause the execution,
acknowledgment and delivery of, and thereafter register, file or record in any
appropriate governmental office, any document or instrument reasonably deemed by
Administrative Agent to be necessary or desirable for the creation and
perfection of the foregoing Liens. Borrower will cause each of its Subsidiaries
to take all actions requested by Administrative Agent (including, without
limitation, the filing of UCC-1's and the furnishing of appropriate opinions of
counsel) in connection with the granting of such security interests.
(e) Documentation for Additional Security. The security interests
required to be granted pursuant to this Section 7.12 shall be granted pursuant
to such security documentation (which shall be substantially similar to the
Security Documents already executed and delivered by Borrower and its
Subsidiaries as of the date hereof) satisfactory in form and substance to
Administrative Agent and shall constitute valid and enforceable perfected
security interests prior to the rights of all third Persons and subject to no
other Liens except Permitted Liens. The Additional Security Documents and other
instruments related thereto shall be duly recorded or filed in such manner and
in such places and at such times as are required by law to establish, perfect,
preserve and protect the Liens in favor of Collateral Agent, for the benefit of
the Secured Creditors, required to be granted pursuant to the Additional
Security Document and all taxes, fees and other charges payable in connection
therewith shall be paid in full by Borrower. At the time of the execution and
delivery of the Additional Security Documents, Borrower shall cause to be
delivered to Administrative Agent such agreements, opinions of counsel, title
policies, surveys, real estate appraisals (if and to the extent required by
Requirements of Law, as determined by Administrative Agent in its sole
discretion) and other related documents as may be reasonably requested by
Administrative Agent or the Required Lenders to assure themselves that this
Section 7.12 has been complied with.
(f) Pledge of TIMET FSC, Ltd. As promptly as practicable and in
any event within 90 days following the Closing Date, Borrower, at its own
expense, shall (i) pledge 65% of the Capital Stock of TIMET FSC, Ltd. to
Collateral Agent, for the benefit of the Secured Creditors, pursuant to a pledge
agreement in form and substance satisfactory to Administrative Agent and (ii)
cause Administrative Agent to receive, with a counterpart for each Lender, a
legal opinion of Barbados counsel acceptable to Administrative Agent covering
such matters in respect of such pledge agreement as Administrative Agent shall
reasonably request.
(g) Exclusion of TiPro. Notwithstanding the provisions of
Sections 7.12(a), 7.12(b), 7.12(c) and 7.12(d), TiPro shall not be required to
become a Subsidiary Guarantor or grant a security interest in any of its assets
to secure the Obligations, and the Capital Stock of TiPro owned by Borrower and
its Subsidiaries shall not be required to be pledged to Collateral Agent, for
so long as the total outstanding Investment by Borrower and its Subsidiaries in
TiPro is less than $5,000,000.
(h) Exclusion of Valtimet, Inc. In the event the Valtimet
Shareholders' Agreement is terminated or the transactions contemplated therein
are not consummated within one year of the Closing Date, Valtimet, Inc. shall be
treated for purposes of this Section 7.12 as a Domestic Subsidiary established
after the Closing Date in accordance with Section 8.15, and Borrower agrees to
take the actions required by Section 7.12(a) through Section 7.12(c) as if
Valtimet, Inc. were a newly formed Domestic Subsidiary as of the earlier of such
date of termination or one year after the Closing Date.
7.13 End of Fiscal Years; Fiscal Quarters. Cause each of its and
its Subsidiaries' annual accounting periods to end on or about December 31 of
each year (each a "Fiscal Year", with quarterly accounting periods ending on or
about March 31, June 30, September 30 and December 31 of each Fiscal Year (each
a "Fiscal Quarter").
7.14 Surveys. As promptly as practicable and, in any event within
60 days after the Closing Date (or on such later date as Administrative Agent,
in its sole discretion, shall approve), Borrower shall furnish to Administrative
Agent a survey, in form and substance satisfactory to Administrative Agent, of
each Mortgaged Property listed on Schedule 6.11(c), dated a recent date
acceptable to Administrative Agent, certified by a licensed professional
surveyor in a manner satisfactory to Administrative Agent for the benefit of the
Lenders.
ARTICLE VIII
NEGATIVE COVENANTS
Borrower hereby agrees that, so long as any of the Commitments
remain in effect or any Loan or LC Obligation remains outstanding and unpaid or
any other amount is owing to any Lender or Administrative Agent hereunder:
8.1 Liens. Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist or agree to create,
incur, assume or suffer to exist any Lien in, upon or with respect to any of its
properties or assets (including, without limitation, any securities or debt
instruments of any of its Subsidiaries), whether now owned or hereafter
acquired, or assign or otherwise convey any right to receive income to secure
any obligation, except for the following Liens (herein referred to as "Permitted
Liens"):
(a) Liens in favor of the Collateral Agent created pursuant to the
Loan Documents;
(b) Customary Permitted Liens;
(c) Liens existing on the date hereof to secure Indebtedness to
Remain Outstanding listed on Schedule 6.5(d) hereto;
(d) Liens on any property securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the acquisition,
construction, repair or improvement cost of such property, provided that (A) any
such Lien does not extend to any property other than the property being acquired
or the property upon which construction is being performed or which is being
repaired or improved, (B) such Lien either exists on the date hereof or is
created in connection with the acquisition, construction, repair or improvement
of such property as permitted by this Agreement, (C) the indebtedness secured
by any such Lien (or the Capitalized Lease Obligation with respect to any
Capitalized Lease) does not exceed 100% of the fair market value of the property
being acquired or the cost of such construction, repair or improvement, as
applicable, and (D) the Indebtedness secured thereby is permitted to be incurred
pursuant to Section 8.2;
(e) any Lien arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted by clauses (c) or
(d) of this Section 8.1; provided that such Indebtedness is not increased from
that amount outstanding or available at the time of any such refinancing,
extension, renewal or refunding (or, with respect to clause (c), that amount
outstanding or available on the date hereof) and is not secured by any
additional assets (other than assets subject to Liens otherwise permitted under
clauses (c) or (d) of this Section 8.1); and
(f) additional Liens incurred by Borrower and its Subsidiaries
which do not secure Indebtedness for money borrowed so long as the fair market
value of the property subject to such Liens, and the Indebtedness and other
obligations secured thereby, do not exceed $2,000,000.
8.2 Indebtedness. Borrower will not, and will not permit any of
its Subsidiaries to, incur, create, assume directly or indirectly, or suffer to
exist any Indebtedness except:
(a) Indebtedness incurred pursuant to this Agreement and the other
Loan Documents (other than Interest Rate Agreements and Other Hedging
Agreements);
(b) Indebtedness secured by Liens permitted by Section 8.1(f);
(c) Indebtedness under Interest Rate Agreements with any Lender or
any Affiliate of a Lender entered into to protect Borrower or any of its
Subsidiaries against fluctuations in interest rates in respect of the
Obligations;
(d) Indebtedness under Other Hedging Agreements providing
protection against fluctuations in currency values in connection with Borrower's
or any of its Subsidiaries' operations so long as management of Borrower or such
Subsidiary, as the case may be, has determined that entering into such Other
Hedging Agreements constitutes bona fide hedging activities and such Other
Hedging Agreements are in form and substance reasonably satisfactory to
Administrative Agent;
(e) loans, advances and other extensions of credit by and between
Borrower and any Subsidiary or by and between Subsidiaries (collectively,
"Intercompany Loans") to the extent expressly permitted by Section 8.7;
provided, however, that in the event of any subsequent issuance or transfer of
any Capital Stock which results in the holder of any such Intercompany Loan
ceasing to be a Subsidiary or Borrower or any subsequent transfer of such
Intercompany Loan (other than to Borrower or any of its Subsidiaries) such
Intercompany Loan shall be required to be permitted under another clause of this
Section 8.2; provided, further, that in the case of an Intercompany Loan
consisting of a loan, advance or other extension of credit by a Foreign
Subsidiary or a Domestic Subsidiary that is not a Wholly-Owned Qualified
Domestic Subsidiary to Borrower or a Qualified Domestic Subsidiary, each such
loan, advance or other extension of credit shall be subordinated to the
indefeasible payment in full of all of the Obligations as provided in Section
8.7(g);
(f) Indebtedness evidencing or arising from the BUCS; and
(g) Indebtedness in addition to that described in clauses (a)
through (f) of this Section 8.2; provided, however, that the aggregate principal
amount of the Indebtedness permitted under this Section 8.2(g) does not exceed
$65,000,000 at any one time outstanding.
8.3 Consolidation, Merger, Purchase or Sale of Assets, etc.
Borrower will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve any of its affairs or enter into any transaction of merger
or consolidation, or convey, sell, lease or otherwise dispose of all or any part
of its property or assets, or purchase or otherwise acquire (in one or a series
of related transactions) any part of the property, assets or Capital Stock
(other than purchases or other acquisitions of inventory, materials, equipment
and intangible assets in the ordinary course of business) of any Person (or
agree to do any of the foregoing); provided, however, that so long as prior to
or simultaneously with such transactions, Borrower has complied with, and has
caused its Subsidiaries to comply with, the provisions of Section 7.12, if
applicable, and provided further that (except with respect to clause (c) below)
no Collateral is transferred or otherwise disposed of for less than fair market
value (i.e., on an arm's-length basis) to a Person who has not executed a
security agreement in favor of Collateral Agent and a guaranty agreement in
order to secure the Obligations:
(a) each of Borrower and its Subsidiaries may make Asset
Dispositions on an arm's-length basis for valid business purposes, as
determined in good faith by the board of directors of such Person, provided that
Borrower or such Subsidiary complies with Section 4.4(b);
(b) each of Borrower and its Subsidiaries may in the ordinary
course of business, sell, lease or otherwise dispose of any assets which, in the
reasonable judgment of such Person, are obsolete, uneconomic, worn out or
otherwise no longer useful in the conduct of such Person's business;
(c) each of Borrower and its Subsidiaries may make Investments to
the extent permitted by Section 8.7;
(d) each of Borrower and its Subsidiaries may lease (as lessee)
real or personal property in the ordinary course of business (so long as any
such lease does not create a Capitalized Lease Obligation except to the extent
permitted by Section 8.2);
(e) each of Borrower and its Subsidiaries may make sales or other
dispositions of Inventory in the ordinary course of business and consistent
with past practices;
(f) Borrower and its Subsidiaries may sell or discount, in each
case without recourse and in the ordinary course of business, accounts
receivable arising in the ordinary course of business (x) which are overdue or
(y) which Borrower reasonably determines are difficult to collect, but, in each
case, only in connection with the compromise or collection thereof consistent
with customary industry practice (and not as part of any bulk sale or financing
of receivables);
(g) (i) any OECD Foreign Subsidiary may sell or otherwise transfer
assets to, or acquire assets from, or be merged with or into, any other OECD
Foreign Subsidiary; (ii) any Non-OECD Foreign Subsidiary may sell or otherwise
transfer assets to, or acquire assets from, or be merged with or into, any other
Non-OECD Foreign Subsidiary; and (iii) Borrower may sell or otherwise transfer
assets to or acquire assets from, any Subsidiary, and any Subsidiary may sell or
otherwise transfer assets to, or acquire assets from Borrower or any other
Subsidiary; notwithstanding the foregoing clauses (i), (ii) and (iii), (A)
neither Borrower nor any of its Domestic Subsidiaries may sell or otherwise
transfer assets that constitute Collateral to any entity other than Borrower or
any Wholly-Owned Qualified Domestic Subsidiary, (B) any consideration paid by
Borrower or any Domestic Subsidiary to any Foreign Subsidiary or Non-Wholly-
Owned Subsidiary in connection with the acquisition of any such assets shall not
be greater than the fair market value thereof, and (C) no sale or other transfer
of assets may be made by Borrower or any Domestic Subsidiary to any Non-OECD
Foreign Subsidiary or non-Wholly-Owned Subsidiary unless, at the time thereof
and after giving effect thereto, the Leverage Ratio is not greater than 2.0 to 1
and no Event of Default or Unmatured Event of Default exists under this
Agreement;
(h) any Wholly-Owned Qualified Domestic Subsidiary may be merged
into Borrower (as long as Borrower is the surviving corporation of such merger)
or any other Wholly-Owned Qualified Domestic Subsidiary of Borrower;
(i) Borrower and each of its Subsidiaries may make Permitted
Acquisitions so long as, (1) to the extent the applicable business, division or
product line includes assets or real or personal property of the type that would
have constituted Collateral on the date hereof, Borrower or such Subsidiary
shall have taken all of the actions specified in Section 7.12 with respect
thereto, (2) after giving effect to any such Permitted Acquisition, including
any Borrowings to fund all or any portion of the purchase price thereof, the
aggregate Available Revolving Commitment of all Lenders, together with
Borrower's Unrestricted Consolidated Cash, as of such date shall be equal to or
greater than $40,000,000, (3) no Event of Default or Unmatured Event of Default
shall have occurred and be continuing on the date such Permitted Acquisition is
consummated or would result therefrom, (4) in the case of a Significant
Acquisition, at least twenty (20) Business Days prior to the consummation of
such Significant Acquisition, Borrower shall have delivered to Administrative
Agent the historical financial statements for the last completed fiscal year and
any interim period subsequent thereto of the business or Person being acquired
and a certificate of the Chief Financial Officer of Borrower, in form and
substance reasonably satisfactory to Administrative Agent, certifying (x) the
accuracy and completeness of such financial statements in all material respects,
(y) that based on calculations made by Borrower (a copy of which shall be
attached to such officer's certificate), after giving effect to such Significant
Acquisition (including the incurrence or assumption of any indebtedness in
connection therewith), the ratio of (A) Consolidated Debt (excluding, for
purposes hereof, Indebtedness evidenced by the BUCS) to (B) Consolidated EBITDA
(determined on a Pro Forma Basis both for the last four consecutive Fiscal
Quarters for which financial statements were delivered (or were required to be
delivered) pursuant to Section 7.1(a) and 7.1(b) immediately preceding the date
on which such Significant Acquisition is consummated and on an Annualized Basis
based on the most recently completed Fiscal Quarter for which financial
statements were delivered (or required to be delivered) pursuant to Section
7.1(a) and 7.1(b) immediately preceding the date on which such Significant
Acquisition is consummated), is not greater than 2.0 to 1 and (z) after giving
effect to such Significant Acquisition, on a Pro Forma Basis, no Event of
Default or Unmatured Event of Default will exist under this Agreement, (5) in
the case of a Significant Acquisition, Administrative Agent shall have been
satisfied, in its reasonable discretion, that the proposed Significant
Acquisition could not reasonably be expected to result in materially increased
tax, ERISA or environmental liabilities with respect to the Borrower and its
Subsidiaries taken as a whole; and
(j) any OECD Foreign Subsidiary may sell or discount, in the
ordinary course of business, accounts receivable arising in the ordinary course
of business; provided that the terms of any such arrangement are satisfactory in
form and substance to Administrative Agent and any Indebtedness arising from any
such sale is permitted under Section 8.2.
In the event the Required Lenders waive the provisions of this Section 8.3 with
respect to the sale of any Collateral, or any Collateral is sold as permitted by
this Section 8.3, such Collateral shall be sold free and clear of the Liens
created by the Security Documents, and Administrative Agent and Collateral Agent
shall be authorized to take any actions deemed appropriate in order to effect
the foregoing.
8.4 Dividends or Other Distributions. Borrower will not, and will
not permit any of its Subsidiaries to, either: (i) declare or pay any dividend
or make any distribution on or in respect of its Capital Stock or to the direct
or indirect holders of its Capital Stock (except (a) dividends or distributions
payable solely in its Capital Stock (other than Redeemable Stock or Exchangeable
Stock) or in options, warrants or other rights to purchase such Capital Stock
(other than Redeemable Stock or Exchangeable Stock), (b) dividends or
distributions payable to Borrower or a Wholly-Owned Subsidiary of Borrower, and
(c) dividends and distributions payable by a Foreign Subsidiary or a Domestic
Subsidiary that is not a Qualified Domestic Subsidiary pro rata to the holders
of its outstanding Capital Stock); or (ii) purchase, redeem or otherwise acquire
or retire for value any Capital Stock of Borrower; (iii) make any interest,
principal or other payment on or purchase, defease, redeem, prepay, decrease or
otherwise acquire or retire for value, prior to any scheduled final maturity,
any other Indebtedness (including the BUCS) that by its terms is subordinate or
junior in right of payment to the Obligations (any such dividend, distribution,
purchase, redemption, repayment, repurchase, defeasance, other acquisition,
retirement or Investment being hereinafter referred to as a "Restricted
Payment"); provided, however, that, during such time as no Event of Default or
Unmatured Event of Default has occurred and is continuing or would result
therefrom:
(a) Borrower may make any Restricted Payment if, after giving
effect to such Restricted Payment, the ratio of (i) Consolidated Debt
(excluding, for purposes of this calculation, Indebtedness evidenced by the
BUCS) to (ii) Consolidated EBITDA (determined on a Pro Forma Basis both for the
last four consecutive Fiscal Quarters for which financial statements were
required to be delivered pursuant to Section 7.1(a) and 7.1(b) immediately
preceding the date on which such Restricted Payment is made and on an Annualized
Basis based on the most recently completed Fiscal Quarter for which financial
statements were delivered (or were required to be delivered) immediately
preceding the date on which such Restricted Payment is made), shall not exceed
1.0 to 1;
(b) Borrower may make any Restricted Payment which, together with
all other Restricted Payments made pursuant to this Section 8.4(b) since the
date hereof, would not exceed the sum of the aggregate Net Offering Proceeds
received by Borrower from the issue or sale of its Capital Stock (other than
Redeemable Stock or Exchangeable Stock and other than an issuance or sale of
Capital Stock to a Subsidiary or an employee stock ownership or benefit plan)
subsequent to the date hereof;
(c) Borrower may pay dividends within 60 days after the date of
declaration thereof if at such date of declaration such dividend would have
complied with this Section 8.4;
(d) Borrower may make payments with respect to stock option plans
and stock appreciation rights programs of Borrower and repurchase options and
Common Stock upon the termination of employment, death, permanent disability or
retirement of its employees, management or consultants, provided, that the
aggregate amount expended by Borrower pursuant to this clause (d) shall not
exceed $250,000 in any Fiscal Year of Borrower;
(e) Borrower may purchase fractional interests in shares of its
Capital Stock pursuant to the conversion or exchange provisions of such Capital
Stock or the security being converted or exchanged, in an amount not to exceed
$200,000 in any Fiscal Year of Borrower; and
(f) Borrower may exchange any class or series of its Capital Stock
for another class or series of Capital Stock of Borrower (other than Redeemable
Stock or Exchangeable Stock).
(g) on or after December 1, 1999, Borrower may make an offer to
redeem the BUCS in whole or in part; provided that (i) at the time of furnishing
of the notice of redemption pursuant thereto and on the redemption date, in each
case after giving effect to the redemption of the BUCS proposed to be so
redeemed and the incurrence of any Indebtedness incurred or that would be
required to be incurred by Borrower and its Subsidiaries in connection
therewith, the aggregate Available Revolving Commitment of all Lenders shall be
equal to or greater than $50,000,000 and (ii) at the time of furnishing of the
notice of redemption pursuant thereto and on the redemption date, the aggregate
market value of the securities into which the BUCS proposed to be redeemed are
freely convertible is more than 25% higher than the aggregate redemption price
of the BUCS proposed to be redeemed (including, without limitation, any premium
or other amounts payable upon redemption and accrued and unpaid interest or
dividends to the redemption date).
8.5 Limitation on Certain Restrictions on Subsidiaries. Borrower
will not, and will not permit any of its Subsidiaries to, create or otherwise
cause or permit to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary of Borrower to (i) pay dividends or
make any other distributions on its Capital Stock or pay any Indebtedness or
other obligation owed to Borrower or any of Borrower's other Subsidiaries, (ii)
make any loans or advances to Borrower or any of Borrower's other Subsidiaries,
or (iii) transfer any of its property or assets to Borrower or any of Borrower's
other Subsidiaries, except:
(a) any encumbrance or restriction pursuant to an agreement in
effect on the Closing Date and reflected on Schedule 8.5 hereto and any
encumbrance or restriction contained in any instrument or agreement that
constitutes a refinancing or replacement thereof, provided that no such
encumbrance or restriction shall be more restrictive or onerous than those
contained in the agreement being refinanced or replaced;
(b) any encumbrance or restriction with respect to a Subsidiary of
Borrower pursuant to an agreement relating to any Indebtedness issued by such
Subsidiary on or prior to the date on which such Subsidiary became a Subsidiary
of Borrower or was acquired by Borrower (other than Indebtedness issued in
anticipation of such acquisition or Indebtedness issued as consideration in, or
to provide all or any portion of the funds utilized to consummate, the
transaction or series of related transactions pursuant to which such Subsidiary
became a Subsidiary or was acquired by Borrower) and outstanding on such date;
(c) any such encumbrance or restriction consisting of customary
non-assignment provisions in leases governing leasehold interests to the extent
such provisions restrict the transfer of the lease; and
(d) in the case of clause (iii) above, Permitted Liens or other
restrictions contained in security agreements or similar instruments relating to
secured Indebtedness permitted hereby to the extent such restrictions restrict
the transfer of the property subject to such security agreements.
8.6 Issuance of Stock.
(a) Borrower will not, and will not permit any of its Subsidiaries
to, directly or indirectly, issue, sell, assign, pledge or otherwise encumber or
dispose of any shares of Capital Stock of any Subsidiary of Borrower, except (i)
to Borrower, (ii) to another Wholly-Owned Subsidiary of Borrower, (iii) to
qualify directors if required by applicable law, (iv) pursuant to employee stock
ownership or employee or non-employee director benefit plans adopted in the
ordinary course of business or (v) with respect to a Foreign Subsidiary, to
satisfy applicable foreign legal requirements. Notwithstanding the foregoing,
Borrower or its Subsidiaries may sell, transfer or issue the outstanding Capital
Stock of a Subsidiary, subject to compliance with Section 4.4(b) and Section
8.3(a).
(b) Borrower will not issue any Capital Stock, except for such
issuances of Common Stock where after giving effect to such issuance, no Event
of Default will exist under Section 10.1(l).
8.7 Loans and Investments. Borrower will not, and will not permit
any of its Subsidiaries to, directly or indirectly, make any loans or make or
own any Investments except as set forth below (provided, however, that,
notwithstanding the following, Borrower and its Domestic Subsidiaries will not
make capital contributions or other Investments which consist of Collateral to
or in any Person (other than Borrower or a Wholly-Owned Qualified Domestic
Subsidiary) to the extent that the aggregate fair market value of such
Collateral exceeds $20,000,000 in any Fiscal Year of Borrower):
(a) Borrower and its Subsidiaries may acquire and hold Cash and
Cash Equivalents;
(b) Borrower and its Subsidiaries may make and/or hold the
Investments identified on Schedule 8.7 (as such Investments may be adjusted due
to repayment of principal, payment of interest, return of capital and similar
circumstances);
(c) Borrower and its Subsidiaries may make or maintain advances to
their employees in the ordinary course of business for (i) travel expenses and
(ii) other advances in the ordinary course of business in an aggregate principal
amount not exceeding $250,000 at any one time outstanding;
(d) Borrower and its Subsidiaries may acquire and hold Investments
(including debt obligations) received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising in the
ordinary course of business;
(e) Borrower and its Subsidiaries may enter into Interest Rate
Agreements in compliance with Sections 8.2 and 8.16;
(f) Borrower and its Subsidiaries may make deposits in the
ordinary course of business consistent with past practices to secure the
performance by Borrower or any of its Subsidiaries under agreements entered into
in the ordinary course of business that are not otherwise prohibited under this
Agreement;
(g) (i) subject to paragraph (v) below of this clause (g), any
Subsidiary of Borrower may make loans, advances and other extensions of credit
to Borrower;
(ii) subject to paragraph (v) below of this clause (g),
Borrower and any Subsidiary of Borrower may make loans, advances, other
extensions of credit and capital contributions to any Wholly-Owned Qualified
Domestic Subsidiary;
(iii) Borrower and any Subsidiary of Borrower may make loans,
advances, other extensions of credit and capital contributions to any OECD
Foreign Subsidiary that is a Wholly-Owned Subsidiary of Borrower; provided,
that, if any such OECD Foreign Subsidiary is owned directly by Borrower or a
Domestic Subsidiary of Borrower, 65% (or such lesser percentage owned directly
by Borrower and its Domestic Subsidiaries) of the Capital Stock of such OECD
Foreign Subsidiary is pledged to the Collateral Agent, for the benefit of the
Secured Creditors, pursuant to a pledge agreement (or functional equivalent
thereof) in form and substance satisfactory to Administrative Agent;
(iv) Borrower and any Subsidiary of Borrower may make loans,
advances, other extensions of credit and capital contributions to any non-
Wholly-Owned Subsidiary or Non-OECD Foreign Subsidiary; provided, that, based on
calculations made by Borrower (a copy of which shall be furnished to
Administrative Agent), after giving effect to any such loan, advance, other
extension of credit or capital contribution, as the case may be, the Leverage
Ratio is not greater than 2.0 to 1 and no Event of Default or Unmatured Event of
Default exists under this Agreement; and
(v) in the event the aggregate principal amount of all
loans, advances or other extensions of credit (other than trade payables
incurred in the ordinary course of business) made by any Foreign Subsidiary or
any Domestic Subsidiary that is not a Wholly-Owned Qualified Domestic
Subsidiary to Borrower or any Qualified Domestic Subsidiary of Borrower
pursuant to paragraphs (i) or (ii) of this subsection (g) exceeds $2,000,000,
the principal documents evidencing the terms of such loans, advances or
extensions of credit shall contain the subordination provisions substantially in
the form set forth on Exhibit 8.7(g), and any notes evidencing or issued in
connection with such loans, advances or other extensions of credit shall be
legended with a legend, in form and substance satisfactory to Administrative
Agent, evidencing the subordination of the indebtedness evidenced thereby to the
indefeasible payment in full of all of the Obligations;
(h) Any Non-OECD Foreign Subsidiary may make loans, advances,
other extensions of credit and capital contributions to or in any other Non-OECD
Foreign Subsidiary;
(i) Borrower and its Subsidiaries may make transfers of assets in
accordance with Section 8.3;
(j) Borrower and its Subsidiaries may make Permitted Acquisitions
in accordance with Section 8.3(i);
(k) Borrower may make short-term advances to its Subsidiaries, and
each Subsidiary may make short-term advances to Borrower or any other
Subsidiary, provided, in each case, that such advances are made in the ordinary
course of business consistent with the cash management practices employed by
Borrower and its Subsidiaries prior to the Closing Date and the aggregate
principal amount of all advances does not exceed $5,000,000 at any one time
outstanding; and
(l) in addition to Investments permitted by Section 8.7(a) through
(k) above, Borrower and its Subsidiaries may make additional Investments to or
in a Person, so long as the aggregate amount of such Investments (determined
without regard to any write-downs or write-offs thereof) after the date hereof
shall not exceed an amount equal to $25,000,000; provided, that Borrower or any
of its Subsidiaries may not make or own any investment in margin stock (as
defined in Regulation G of the Board).
8.8 Transactions with Affiliates. Borrower will not, and Borrower
will not cause or permit any of its Subsidiaries to, directly or indirectly,
enter into or permit to exist any transaction (including, without limitation,
the purchase, sale, lease or exchange of any property or the rendering of any
service) with or for the benefit of any of Borrower's Affiliates or any
Affiliate of a Subsidiary of Borrower (other than Borrower or any Wholly-Owned
Subsidiary of Borrower) (an "Affiliate Transaction"), other than transactions
that are on terms that are no less favorable to Borrower or to such Subsidiary
than those that would reasonably have been obtained in a comparable transaction
on an arm's-length basis from a Person that is not an Affiliate; provided,
however, that with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving a value or aggregate payments of $1,000,000 or
more, the determination that such Affiliate Transaction or series of related
Affiliate Transactions is or are on terms that are no less favorable to Borrower
or to such Subsidiary than those that would reasonably have been obtained in a
comparable transaction on an arm's-length basis from a Person that is not an
Affiliate will be made, prior to the consummation of any such Affiliate
Transaction or series of related Affiliate Transactions, reasonably and in good
faith by a majority of the disinterested members of the Board of Directors of
Borrower, and evidenced by a resolution adopted by the Board of Directors of
Borrower filed with Administrative Agent. The foregoing restrictions will not
apply to: (1) reasonable and customary directors' fees, indemnification and
similar arrangements and payments thereunder; (2) loans or advances to officers
of Borrower and of its Subsidiaries for business travel expenses incurred in
the ordinary course of business and other loans and advances to such Persons
for bona fide business purposes not to exceed $500,000 in the aggregate at any
one time outstanding for Borrower and its Subsidiaries; or (3) the transactions
listed on Schedule 8.8.
8.9 Sale-Leasebacks. Borrower will not, and will not permit any
Subsidiary to, directly or indirectly, enter into any Sale and Leaseback
Transaction; provided that Borrower and its Subsidiaries may enter into a Sale
and Leaseback Transaction if the Attributable Value related thereto, together
with Attributable Value of all other Sale and Leaseback Transactions entered
into after the Closing Date, does not exceed $1,000,000 in the aggregate.
8.10 Leases. Borrower will not permit the aggregate payments
(including, without limitation, any property taxes paid as additional rent or
lease payments) made by Borrower and its Subsidiaries on a consolidated basis
under agreements to rent or lease any real or personal property (excluding
Capitalized Lease Obligations) to exceed $10,000,000 in any Fiscal Year of
Borrower.
8.11 Lines of Business. Borrower will not, and will not permit any
Subsidiary to, enter into or acquire any line of business which is not
reasonably related to the business engaged in as of the date hereof. TIMET
Capital Trust I, or any successor, shall not engage in any line of business or
transaction other than as set forth in the BUCS Transaction Documents.
8.12 Fiscal Year. Borrower will not (and will not permit any of
its Subsidiaries to) change the Fiscal Year of Borrower or its Subsidiaries.
8.13 Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain
Other Agreements; etc. Borrower will not, and will not permit any of its
Subsidiaries to:
(i) make (or give any notice in respect of) any voluntary
or optional payment or prepayment on or redemption or acquisition for
value of (including, without limitation, by way of depositing with the
trustee with respect thereto or any other Person money or securities
before due for the purpose of paying when due) any obligations in respect
of the BUCS, except as permitted pursuant to Section 8.4.
(ii) amend or modify, or permit the amendment or modification
of, any provision of any BUCS Transaction Document which is in any way
adverse to the interests of the Lenders or Administrative Agent;
(iii) amend, modify or change its Organizational Documents
(including, without limitation, by filing or modification of any
certificate of designation), if any such amendment, modification or change
could reasonably be expected to adversely affect the interests of
Administrative Agent or the Lenders.
8.14 Accounting Changes. Without the consent of Administrative
Agent, Borrower will not, and will not permit any of its Subsidiaries to, make
or permit to be made any change in accounting policies affecting the
presentation of financial statements or reporting practices from those employed
by it on the date hereof, unless (i) such change is required by GAAP and (ii)
such change is disclosed to the Lenders through Administrative Agent or
otherwise. If any changes in GAAP or the application thereof from that used in
the preparation of the financial statements referred to in Section 6.5(a) hereof
occur after the Closing Date and such changes result in, in the sole judgment of
Administrative Agent, a meaningful change in the calculation of any financial
covenants or restrictions set forth in this Agreement, then the parties hereto
agree to enter into and diligently pursue negotiations in order to amend such
financial covenants and restrictions so as to equitably reflect such changes,
with the desired result that the criteria for evaluating the financial condition
and results of operations of Borrower and its Subsidiaries shall be the same
after such changes as if such changes had not been made. In addition, under the
circumstances described in the preceding sentence, Borrower, promptly upon
reasonable request by Administrative Agent, shall cause relevant prior period
financial statements that are affected by such changes to be restated as may be
required or permitted by GAAP to show comparative results.
8.15 Limitation on Creation of Subsidiaries. Borrower will not,
and will not permit any of its Subsidiaries to, establish, create or acquire any
Subsidiary unless, (i) upon the establishment, creation or acquisition of any
such new Subsidiary, such Subsidiary executes the Additional Security Documents
and guaranty required to be executed by it, if any, in accordance with Section
7.12 and (ii) Borrower and its Subsidiaries otherwise comply with Sections 8.3
and 8.7.
8.16 Interest Rate Agreements and Other Hedging Agreements. On and
after the Closing Date, Borrower will not, and will not permit any of its
Subsidiaries to, enter into, or become a direct or indirect party to, or enter
into any extensions or renewals of, any Interest Rate Agreement or Other Hedging
Agreement that is speculative in nature.
ARTICLE IX
FINANCIAL COVENANTS
Borrower hereby agrees that, so long as the Commitments remain in
effect or any Loan or LC Obligation remains outstanding and unpaid or any other
amount is owing to any Lender or Administrative Agent hereunder, Borrower shall
not, directly or indirectly:
9.1 Maintenance of Adjusted Consolidated Net Worth. Permit
Adjusted Consolidated Net Worth of Borrower on the last day of any Fiscal
Quarter to be less than the sum of (i) $425.0 million plus (ii) the amount equal
to 75% of the cumulative Consolidated Net Income of Borrower since March 31,
1997; provided, however, that in the event that Borrower has a Consolidated Net
Loss for any Fiscal Quarter, Consolidated Net Income for purposes only of this
Section 9.1 shall be deemed to be zero for such Fiscal Quarter.
9.2 Interest Coverage Ratio. Borrower will not permit the ratio
of (i) Consolidated EBITDA for any four consecutive Fiscal Quarters ending
during any period set forth below to (ii) the sum of (a) Consolidated Interest
Expense and (b) Restricted Payments made in cash, in each case during any such
four consecutive Fiscal Quarters, to be less than the ratio set forth opposite
such period below:
Period Ratio
The first day of the second Fiscal Quarter
of 1997 through the last day of the second
Fiscal Quarter of 2000 3.0 to 1
The first day of the third Fiscal Quarter of
2000 and thereafter 4.0 to 1
; provided that the ratio set forth above shall be calculated after giving
effect on a Pro Forma Basis to any Significant Acquisition or Significant
Disposition that occurred during any applicable four Fiscal Quarter period.
9.3 Leverage Ratio. Borrower will not permit the ratio of (i)
Consolidated Debt (excluding, for purposes of this covenant, Indebtedness
evidenced by the BUCS) at the end of any Fiscal Quarter ending during any period
set forth below to (ii) Consolidated EBITDA for the four consecutive Fiscal
Quarters then ended, to be greater than the ratio set forth opposite such period
below:
Period Ratio
The first day of the second Fiscal Quarter
of 1997 through the last day of the second
Fiscal Quarter of 2000 3.0 to 1
The first day of the third Fiscal Quarter of
2000 and thereafter 2.0 to 1
; provided that for purposes of this Section 9.3, Consolidated EBITDA shall be
calculated after giving effect on a Pro Forma Basis to any Significant
Acquisition or Significant Disposition that occurred during any applicable four
Fiscal Quarter period.
ARTICLE X
EVENTS OF DEFAULT
10.1 Events of Default. Any of the following events, acts,
occurrences or state of facts shall constitute an "Event of Default" for
purposes of this Agreement:
(a) Failure to Make Payments When Due. Borrower (i) shall default
in the payment of principal on any of the Loans or any reimbursement obligation
with respect to any Letter of Credit; or (ii) shall default in the payment of
interest on any of the Loans when due and such default in payment shall continue
for three (3) Business Days; or (iii) default in the payment of any fee or any
other amount owing hereunder or under any other Loan Document when due and such
default in payment shall continue for three (3) Business Days after written
notice from Administrative Agent, any Lender or any other Person to Borrower; or
(b) Representations and Warranties. Any representation or
warranty made by or on behalf of Borrower or any Credit Party, as the case may
be, contained in any Loan Document or any document, instrument or certificate
delivered pursuant hereto or thereto shall have been incorrect or misleading in
any material respect when made or deemed made; or
(c) Covenants. Borrower shall (i) default in the performance or
observance of any term, covenant, condition or agreement on its part to be
performed or observed under Sections 8.1 through 8.11 or 8.13, Article IX
hereof or Sections 7.3(a), 7.11 or 7.12 or (ii) default in the due performance
or observance by it of any other term, covenant or agreement contained in this
Agreement and such default shall continue unremedied for a period of thirty (30)
days after written or telephone (immediately confirmed in writing) notice
thereof has been given to Borrower by Administrative Agent or any Lender; or
(d) Default Under Other Loan Documents. Any Credit Party shall
default in the performance or observance of any term, covenant, condition or
agreement on its part to be performed or observed under any other Loan Document
(and not constituting an Event of Default under any other clause of this Section
10.1) and such default shall continue unremedied for a period of thirty (30)
days after written or telephonic (immediately confirmed in writing) notice
thereof has been given to Borrower by Administrative Agent or any Lender; or
(e) Voluntary Insolvency, Etc. Borrower or any of its Material
Subsidiaries shall become insolvent or generally fail to pay, or admit in
writing its inability to pay, its debts as they become due, or shall voluntarily
commence any proceeding or file any petition under any bankruptcy, insolvency or
similar law seeking dissolution or reorganization or the appointment of a
receiver, trustee, custodian or liquidator for it or a substantial portion of
its property, assets or business or to effect a plan or other arrangement with
its creditors, or shall file any answer admitting the jurisdiction of the court
and the material allegations of an involuntary petition filed against it in any
bankruptcy, insolvency or similar proceeding, or shall be adjudicated bankrupt,
or shall make a general assignment for the benefit of creditors, or shall
consent to, or acquiesce in the appointment of, a receiver, trustee, custodian
or liquidator for a substantial portion of its property, assets or business,
shall call a meeting of its creditors with a view to arranging a composition or
adjustment of its debts or shall take any corporate action authorizing any of
the foregoing; or
(f) Involuntary Insolvency, Etc. Involuntary proceedings or an
involuntary petition shall be commenced or filed against Borrower or any of its
Material Subsidiaries under any bankruptcy, insolvency or similar law or seeking
the dissolution or reorganization of it or the appointment of a receiver,
trustee, custodian or liquidator for it or of a substantial part of its
property, assets or business, or any writ, judgment, warrant of attachment,
execution or similar process shall be issued or levied against a substantial
part of its property, assets or business, and such proceedings or petition shall
not be dismissed, or such writ, judgment, warrant of attachment, execution or
similar process shall not be released, vacated or fully bonded, within thirty
(30) days after commencement, filing or levy, as the case may be, or any order
for relief shall be entered in any such proceeding; or
(g) Default Under Other Agreements. (i) Borrower or any of its
Subsidiaries shall default in the payment when due, whether at stated maturity
or otherwise, of any Indebtedness (other than Indebtedness owed to the Lenders
under the Loan Documents) in excess of $10,000,000 in the aggregate beyond the
period of grace (not to exceed thirty (30) days), if any, provided in the
instrument or agreement under which such Indebtedness was created, or (ii) a
default in the performance or observance of any agreement or condition to any
such Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause (determined without regard to whether
any notice of acceleration or similar notice is required), any such Indebtedness
to become due or be repaid prior to its stated maturity or (iii) any such
Indebtedness of Borrower or any of its Subsidiaries shall be declared to be due
and payable, or required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof;
(h) Judgments. One or more judgments or decrees shall be entered
against Borrower or any of its Subsidiaries involving, individually or in the
aggregate, a liability (to the extent not paid or covered by a reputable
insurance company which has accepted liability in writing) of $10,000,000 or
more and all such judgments or decrees shall not have been vacated, discharged,
satisfied, stayed or bonded pending appeal within thirty (30) days from the
entry thereof; or
(i) Security Documents. At any time after the execution and
delivery thereof, any of the Security Documents shall cease to be in full force
and effect or shall cease in any material respect to give Collateral Agent for
the benefit of the Secured Creditors the Liens, rights, powers and privileges
purported to be created thereby (including, without limitation, a perfected
security interest in, and Lien on, all of the Collateral (except as otherwise
expressly provided therein)), in favor of Collateral Agent, superior to and
prior to the rights of all third Persons and subject to no other Liens (except
to the extent expressly permitted herein or therein); or
(j) Guaranties. Any Guaranty or any provision thereof shall
(other than as a result of the actions taken by Collateral Agent or the Lenders
to release such Guaranty) cease to be in full force and effect in accordance
with its terms, or any Guarantor shall deny or disaffirm such Guarantor's
obligations under any Guaranty; or
(k) ERISA. Either (i) any Reportable Event which the Required
Lenders determine constitutes reasonable grounds for the termination of any Plan
by the PBGC or of any Multiemployer Plan or for the appointment by the
appropriate United States District Court of a trustee to administer or liquidate
any Plan or Multiemployer Plan shall have occurred, (ii) a trustee shall be
appointed by a United States District Court to administer any Plan or
Multiemployer Plan, or (iii) the PBGC or shall institute proceedings to
terminate any Plan or Multiemployer Plan or to appoint a trustee to administer
any Plan; or (iv) Borrower or any of its Subsidiaries or any of their ERISA
Affiliates shall become liable to the PBGC or any other party under Section
4062, 4063 or 4064 of ERISA with respect to any Plan; or (v) Borrower or any of
its ERISA Affiliates shall become liable to make a current payment with respect
to any Multiemployer Plan under Section 4201 et seq. of ERISA; if as of the date
thereof or any subsequent date, the sum of each of Borrower's and its ERISA
Affiliates' various liabilities (such liabilities to include, without
limitation, any liability to the PBGC or to any other party under Section 4062,
4063 or 4064 of ERISA with respect to any Plan, or to any Multiemployer Plan
under Section 4201 et seq. of ERISA, and to be calculated after giving effect to
the tax consequences thereof) as a result of such events listed in subclauses
(i) through (v) above exceeds $10,000,000; or
(l) Change in Control. A Change of Control shall occur.
(m) Subordination. For as long as any BUCS remain outstanding,
all or any part of the principal or interest in respect of the Loans, Unpaid
Drawings, reimbursement obligations under Letters of Credit or other obligations
to pay fees and other amounts under this Agreement or the other Loan Documents
shall cease, for any reason, to constitute Senior Indebtedness (as defined in
the BUCS Transaction Documents) benefitting from the subordination provisions
contained in the BUCS Transaction Documents, or such subordination provisions
shall cease to be in full force and effect and enforceable in accordance with
their terms.
If any of the foregoing Events of Default shall have occurred and be
continuing, Administrative Agent, at the written direction of the Required
Lenders, shall take one or more of the following actions: (i) by written or oral
or telephonic notice (in the case of oral or telephonic notice confirmed in
writing immediately thereafter) to Borrower declare the Commitments to be
terminated whereupon the Commitments shall forthwith terminate, (ii) by written
or oral or telephonic notice (in the case of oral or telephonic notice confirmed
in writing immediately thereafter) to Borrower declare all sums then owing by
Borrower hereunder and under the Loan Documents to be forthwith due and payable,
whereupon all such sums shall become and be immediately due and payable without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived by Borrower, or (iii) terminate any Letter of Credit in
accordance with its terms, (iv) direct Borrower to pay (and Borrower agrees that
upon receipt of such notice, or upon the occurrence of any Event of Default
specified in Section 10.1(e) or Section 10.1(f) with respect to Borrower it will
pay) to Administrative Agent at the Payment Office such additional amount of
cash, to be held as security by Administrative Agent, as is equal to the
aggregate Stated Amount of all Letters of Credit issued for the account of
Borrower and its Subsidiaries and then outstanding, and (v) enforce, as
Administrative Agent or Collateral Agent, as the case may be, all of the Liens
and security interests created pursuant to the Security Documents. In cases of
any occurrence of any Event of Default described in Section 10.1(e) or Section
10.1(f), the Loans, together with accrued interest thereon, shall become due and
payable forthwith without the requirement of any such acceleration or request,
and without presentment, demand, protest or other notice of any kind, all of
which are expressly waived by Borrower, any provision of this Agreement or any
other Loan Document to the contrary notwithstanding, and other amounts payable
by Borrower hereunder (including, without limitation, contingent obligations
with respect to outstanding Letters of Credit) shall also become immediately due
and payable all without notice of any kind.
Anything in this Section 10.1 to the contrary notwithstanding,
Administrative Agent shall, at the request of the Required Lenders, rescind and
annul any acceleration of the Loans and the other Obligations by written
instrument filed with Borrower; provided that at the time such acceleration is
so rescinded and annulled: (A) all past due interest and principal (other than
principal due solely as a result of such acceleration), if any, on the Loans and
all other sums payable under this Agreement and the other Loan Documents shall
have been duly paid, and (B) no other Event of Default shall have occurred and
be continuing which shall not have been waived in accordance with the provision
of Section 12.1 hereof.
10.2 Rights Not Exclusive. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not exclusive of
any other rights, powers, privileges or remedies provided by law or in equity,
or under any other instrument, document or agreement now existing or hereafter
arising.
ARTICLE XI
THE AGENT
In this Article XI, the Lenders agree among themselves as follows:
11.1 Appointment. The Lenders hereby appoint BT as Administrative
Agent (for purposes of this Article XI, the term "Administrative Agent" shall
include BT in its capacity as Collateral Agent pursuant to the Security
Documents) to act as specified herein and in the other Loan Documents. Each
Lender hereby irrevocably authorizes and each holder of any Note by the
acceptance of such Note shall be deemed to irrevocably authorize Administrative
Agent to take such action on its behalf under the provisions hereof, the other
Loan Documents (including, without limitation, to give notices and take such
actions on behalf of the Required Lenders as are consented to in writing by the
Required Lenders) and any other instruments, documents and agreements referred
to herein or therein and to exercise such powers hereunder and thereunder as are
specifically delegated to Administrative Agent by the terms hereof and thereof
and such other powers as are reasonably incidental thereto. Administrative
Agent may perform any of its duties hereunder and under the other Loan Documents
by or through its officers, directors, agents, employees or affiliates.
11.2 Nature of Duties. Administrative Agent shall have no duties
or responsibilities except those expressly set forth in this Agreement. The
duties of Administrative Agent shall be mechanical and administrative in nature.
EACH LENDER HEREBY ACKNOWLEDGES AND AGREES THAT ADMINISTRATIVE AGENT SHALL NOT
HAVE, BY REASON OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, A FIDUCIARY
RELATIONSHIP TO OR IN RESPECT OF ANY LENDER. Nothing in any of the Loan
Documents, expressed or implied, is intended to or shall be so construed as to
impose upon Administrative Agent any obligations in respect of any of the Loan
Documents except as expressly set forth herein or therein. Each Lender shall
make its own independent investigation of the financial condition and affairs of
Borrower in connection with the making and the continuance of the Loans
hereunder and shall make its own appraisal of the credit worthiness of Borrower,
and Administrative Agent shall have no duty or responsibility, either initially
or on a continuing basis, to provide any Lender with any credit or other
information with respect thereto, whether coming into its possession before
making of the Loans or at any time or times thereafter. Administrative Agent
will promptly notify each Lender at any time that the Required Lenders have
instructed it to act or refrain from acting pursuant to Article X.
11.3 Exculpation, Rights, Etc. Neither Administrative Agent nor
any of its officers, directors, agents employees or affiliates shall be liable
for any action taken or omitted by them hereunder or under any of the other Loan
Documents, or in connection herewith or therewith, unless caused by its or their
gross negligence or willful misconduct. Administrative Agent shall not be
responsible to any Lender for any recitals, statements, representations or
warranties herein or for the execution, effectiveness, genuineness, validity,
enforceability, collectibility, or sufficiency of any of the Loan Documents or
any other document or the financial condition of Borrower. Administrative Agent
shall not be required to make any inquiry concerning either the performance or
observance of any of the terms, provisions or conditions of this Agreement or
any of the Loan Documents or any other Document or the financial condition of
Borrower, or the existence or possible existence of any Unmatured Event of
Default or Event of Default unless requested to do so by the Required Lenders.
Administrative Agent may at any time request instructions from the Lenders with
respect to any actions or approvals (including the failure to act or approve)
which by the terms of any of the Loan Documents, Administrative Agent is
permitted or required to take or to grant, and if such instructions are
requested, Administrative Agent shall be absolutely entitled to refrain from
taking any action or to withhold any approval and shall not be under any
liability whatsoever to any Person for refraining from any action or withholding
any approval under any of the Loan Documents until it shall have received such
instructions from the Required Lenders. Without limiting the foregoing, no
Lender shall have any right of action whatsoever against Administrative Agent as
a result of Administrative Agent's acting, approving or refraining from acting
or approving under any of the Loan Documents in accordance with the instructions
of the Required Lenders or, to the extent required by Section 12.1, all of the
Lenders.
11.4 Reliance. Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any notice, writing, resolution
notice, statement, certificate, order or other document or any telephone, telex,
teletype or telecopier message believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person, and, with respect to all
matters pertaining herein or to any of the other Loan Documents and its duties
hereunder or thereunder, upon advice of counsel selected by Administrative
Agent.
11.5 Indemnification. To the extent Administrative Agent is not
reimbursed and indemnified by Borrower, the Lenders will reimburse and indemnify
Administrative Agent for and against any and all liabilities, obligations,
losses, damages, claims, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against Administrative Agent in any way relating to or
arising out of this Agreement or any of the other Loan Documents or any action
taken or omitted by Administrative Agent under this Agreement or any of the
other Loan Documents, in proportion to each Lender's Pro Rata Share of the Total
Commitment; provided, however, that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, claims, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from Administrative
Agent's gross negligence or willful misconduct. The obligations of the Lenders
under this Section 11.5 shall survive the payment in full of the Notes and the
termination of this Agreement.
11.6 Administrative Agent In Its Individual Capacity. With respect
to its Loans and Commitments (and its Pro Rata Share thereof), Administrative
Agent shall have and may exercise the same rights and powers hereunder and is
subject to the same obligations and liabilities as and to the extent set forth
herein for any other Lender or holder of Obligations. The terms "Lenders",
"holder of Obligations" or "Required Lenders" or any similar terms shall, unless
the context clearly otherwise indicates, include Administrative Agent in its
individual capacity as a Lender, one of the Required Lenders or a holder of
Obligations. Administrative Agent may accept deposits from, lend money to, and
generally engage in any kind of banking, trust or other business with Borrower
or any Subsidiary or Affiliate of Borrower as if it were not acting as
Administrative Agent hereunder or under any other Loan Document, including,
without limitation, the acceptance of fees or other consideration for services
without having to account for the same to any of the Lenders.
11.7 Notice of Default. Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Event of Default or
Unmatured Event of Default hereunder unless Administrative Agent has received
written notice from a Lender or Borrower referring to this Agreement describing
such Event of Default or Unmatured Event of Default and stating that such notice
is a "notice of default". In the event that Administrative Agent receives such
a notice, Administrative Agent shall give prompt notice thereof to the Lenders.
11.8 Holders of Obligations. Administrative Agent may deem and
treat the payee of any Obligation as reflected on the books and records of
Administrative Agent as the owner thereof for all purposes hereof unless and
until a written notice of the assignment or transfer thereof shall have been
filed with Administrative Agent pursuant to Section 12.8(c). Any request,
authority or consent of any Person who, at the time of making such request or
giving such authority or consent, is the holder of any Obligation shall be
conclusive and binding on any subsequent holder, transferee or assignee of such
Obligation or of any Obligation or Obligations granted in exchange therefor.
11.9 Resignation by Administrative Agent.
(a) Administrative Agent may resign from the performance of all
its functions and duties hereunder at any time by giving fifteen (15) Business
Days' prior written notice to Borrower and the Lenders. Such resignation shall
take effect upon the acceptance by a successor Administrative Agent of
appointment pursuant to clauses (b) and (c) below or as otherwise provided
below.
(b) Upon any such notice of resignation, the Required Lenders
shall appoint a successor Administrative Agent who shall be satisfactory to
Borrower and shall be an incorporated bank or trust company.
(c) If a successor Administrative Agent shall not have been so
appointed within said fifteen (15) Business Day period, Administrative Agent,
with the consent of Borrower, shall then appoint a successor Administrative
Agent who shall serve as Administrative Agent until such time, if any, as the
Required Lenders, with the consent of Borrower, appoint a successor
Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed
pursuant to clause (b) or (c) by the twentieth (20th) Business Day after the
date such notice of resignation was given by Administrative Agent,
Administrative Agent's resignation shall become effective and the Required
Lenders shall thereafter perform all the duties of Administrative Agent
hereunder until such time, if any, as the Required Lenders, with the consent of
Borrower, appoint a successor Administrative Agent as provided above.
ARTICLE XII
MISCELLANEOUS
12.1 No Waiver; Modifications in Writing. (a) No failure or delay
on the part of Administrative Agent, Collateral Agent or any Lender in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to Administrative
Agent, Collateral Agent or any Lender at law or in equity or otherwise. Neither
this Agreement nor any terms hereof may be amended, modified, supplemented,
waived, discharged, terminated or otherwise changed unless such amendment,
modification, supplement, waiver, discharge, termination or other change is in
writing signed by the respective Credit Parties party thereto and the Required
Lenders; provided, however, that no such amendment, modification, supplement,
waiver, discharge, termination or other change shall, without the consent of
each Lender (other than a Defaulting Lender) (with Obligations directly affected
thereby in the case of the following clause (i)), (i) extend the final scheduled
maturity of any Loan or Note (or extend the stated maturity of any Letter of
Credit beyond the Revolver Termination Date, or reduce the rate or extend the
scheduled date of payment of interest or fees thereon, or reduce the principal
amount thereof or the amount of fees thereon), (ii) release all or substantially
all of the Collateral under the Security Documents (except as expressly provided
in the Security Documents), (iii) amend, modify or waive any provision of this
Section 12.1, (iv) reduce the percentage specified in the definition of Required
Lenders (it being understood that, with the consent of the Required Lenders,
additional extensions of credit pursuant to this Agreement may be included in
the determination of the Required Lenders on substantially the same basis as the
extensions of Revolving Commitments are included in such determination on the
date hereof) or (v) consent to the assignment or transfer by Borrower of any of
its rights and obligations under this Agreement; provided, further, that no such
amendment, modification, supplement, waiver, discharge, termination or other
change shall (1) increase the Commitment of any Lender over the amount thereof
then in effect without the consent of such Lender (it being understood that
waivers or modifications of conditions precedent, covenants, Events of Default
or Unmatured Events of Default or of a mandatory reduction in the Total
Commitments shall not constitute an increase of the Commitment of any Lender,
and that an increase in the available portion of any Commitment of any Lender
shall not constitute an increase in the Commitment of such Lender), (2) without
the consent of Facing Agent, amend, modify or waive any provision of Section 2.9
or alter its rights or obligations with respect to Letters of Credit, (3)
without the consent of Administrative Agent, amend, modify or waive any
provision of Article XI as same applies to Administrative Agent or any other
provisions as same relates to the rights or obligations of Administrative Agent
or (4) without the consent of Administrative Agent, amend, modify or waive any
provisions relating to the rights or obligations of Administrative Agent under
the other Loan Documents.
(b) If, in connection with any proposed amendment, modification,
supplement, waiver, discharge, termination or other change to or of any of the
provisions of this Agreement as contemplated by clauses (a)(i) through (v),
inclusive, of the first proviso to the third sentence of Section 12.1(a), the
consent of the Required Lenders is obtained but the consent of one or more of
such other Lenders whose consent is required is not obtained, then Borrower
shall have the right, so long as all non-consenting Lenders whose individual
consent is required are treated as described in either clauses (A) or (B) below,
to either (A) replace each such non-consenting Lender or Lenders (or, at the
option of the Borrower if the respective Lender's consent is required with
respect to less than all Loans, to replace only the respective Loans of the
respective non-consenting Lender which gave rise to the need to obtain such
Lender's individual consent) with one or more Replacement Lenders pursuant to
Section 3.7 so long as at the time of such replacement, each such Replacement
Lender consents to the proposed amendment, modification, supplement, waiver,
discharge, termination or other change or (B) terminate such non-consenting
Lender's Revolving Commitment and repay all outstanding Loans of such Lender
which gave rise to the need to obtain such Lender's consent, in accordance with
Section 4.l(b) and/or 4.3; provided that, unless the Revolving Commitment
terminated and Loans repaid pursuant to the preceding clause (B) are immediately
replaced in full at such time through the addition of new Lenders or the
increase of the Commitments and/or outstanding Loans of existing Lenders (who in
each case must specifically consent thereto), then in the case of any action
pursuant to preceding clause (B) the Required Lenders (determined before giving
effect to the proposed action) shall specifically consent thereto, provided,
further, that in any event Borrower shall not have the right to replace a
Lender, terminate its Revolving Commitment or repay its Loans solely as a result
of the exercise of such Lender's rights (and the withholding of any required
consent by such Lender) contemplated by the second proviso to the third sentence
of Section 12.1(a).
12.2 Further Assurances. Borrower agrees to do such further acts
and things and to execute and deliver to Administrative Agent, or cause to be
delivered to Administrative Agent, such additional assignments, agreements,
certificates, powers, instruments and other documents, as Administrative Agent
may reasonably require or deem advisable to carry into effect the purposes of
this Agreement or any of the Loan Documents or to better assure and confirm unto
Administrative Agent its rights, powers and remedies hereunder and thereunder.
12.3 Notices, Etc. Except where telephonic instructions or notices
are authorized herein to be given, all notices, demands, instructions and other
communications required or permitted to be given to or made upon any party
hereto or any other Person shall be in writing and shall be personally delivered
or sent by registered or certified mail, postage prepaid, return receipt
requested, or by a reputable overnight or courier delivery service, or by
prepaid telex or telecopier, and shall be deemed to be given for purposes of
this Agreement on the third day after deposit in registered or certified mail,
postage prepaid, and otherwise on the date that such writing is delivered or
sent to the intended recipient thereof, or in the case of notice delivered by
telecopy, upon completion of transmission with a copy of such notice also being
delivered under any of the methods provided above, all in accordance with the
provisions of this Section 12.3. Unless otherwise specified in a notice sent or
delivered in accordance with the foregoing provisions of this Section 12.3,
notices, demands, instructions and other communications (i) in writing shall be
given to or made upon the respective parties hereto at their respective
addresses (or to their respective telex, TWX or telecopier numbers) indicated,
in the case of Administrative Agent (and including Collateral Agent) and
Borrower, on its respective signature page to this Agreement and, in the case of
any Lender, on Schedule 1.1 hereto and, in the case of any Assignee, on its
signature page to its Assignment and Assumption Agreement and (ii) by telephone
shall be given by calling the telephone number or numbers indicated for such
party on its signature page to this Agreement, on Schedule 1.1 hereto or on its
signature page to its Assignment and Assumption Agreement, as the case may be.
12.4 Costs, Expenses and Taxes. Borrower agrees (without
duplication) to pay all reasonable out-of-pocket costs and expenses of
Administrative Agent in connection with the negotiation, preparation, printing,
typing, reproduction, execution and delivery of this Agreement and the other
Loan Documents and the documents and instruments referred to herein and therein
and any amendment, waiver, consent relating hereto or thereto or other
modifications of (or supplements to) any of the foregoing and any and all other
documents and instruments furnished pursuant hereto or thereto or in connection
herewith or therewith, including without limitation, the reasonable fees and
expenses of Winston & Xxxxxx, special counsel to Administrative Agent, and any
local counsel retained by Administrative Agent relative thereto, other Attorney
Costs, independent public accountants and other outside experts retained by
Administrative Agent in connection with the administration of this Agreement and
the other Loan Documents, and all search fees, appraisal fees and expenses,
title insurance policy fees, out-of-pocket costs and expenses and filing and
recording fees and all costs and expenses (including, without limitation,
Attorney Costs), if any, incurred by Administrative Agent, Collateral Agent and,
if an Event of Default has occurred and is continuing, each Lender in connection
with the enforcement of this Agreement, any of the Loan Documents or any other
agreement furnished pursuant hereto or thereto or in connection herewith or
therewith. In addition, Borrower shall pay any and all present and future
stamp, transfer excise and other similar taxes (but excluding any tax imposed on
the overall net income of a Lender and excluding Taxes as to which Borrower is
not required to make any payment of additional amounts pursuant to Section
4.7(c)) payable or determined to be payable in connection with the execution and
delivery of this Agreement, any Loan Document, or the making of any Loan, and
agrees to save and hold Administrative Agent and each Lender harmless from and
against any and all liabilities with respect to or resulting from any delay by
Borrower in paying, or omission by Borrower to pay, such taxes. Any portion of
the foregoing fees, costs and expenses which remains unpaid more than thirty
(30) days following Administrative Agent's or any Lender's statement and request
for payment thereof shall bear interest from the date of such statement and
request to the date of payment at the Default Rate. Borrower will indemnify and
hold harmless Administrative Agent and each Lender and each director, officer,
employee, agent, attorney and Affiliate of Administrative Agent and each Lender
(each such Person an "Indemnified Party") from and against all losses, claims,
damages, obligations (including removal or remedial actions), out-of-pocket
expenses or liabilities (not including Taxes as to which Borrower is not
required to make any payment of additional amounts pursuant to Section 4.7(c))
to which such Indemnified Party may become subject, insofar as such losses,
claims, damages, penalties, obligations (including removal or remedial actions),
out-of-pocket expenses or liabilities (or actions, suits or proceedings
including any inquiry or investigation or claims in respect thereof (whether or
not Administrative Agent or any Lender is a party thereto)) arise out of, in any
way relate to, or result from, the transactions contemplated by this Agreement
or any of the other Loan Documents and to reimburse each Indemnified Party upon
their demand, for any Attorney Costs or other out-of-pocket expenses incurred in
connection with investigating, preparing to defend or defending any such loss,
claim, damage, liability, action or claim; provided, however, (a) that no
Indemnified Party shall have the right to be so indemnified hereunder for any
loss, claim, damage, penalties, obligations, expense or liability to the extent
it arises or results from the gross negligence or willful misconduct or bad
faith of such Indemnified Party as finally determined by a court of competent
jurisdiction and (b) that nothing contained herein shall affect the obligations
and liabilities of the Lenders to Borrower contained herein. If any action,
suit or proceeding arising from any of the foregoing is brought against
Administrative Agent, any Lender or any other Person indemnified or intended to
be indemnified pursuant to this Section 12.4, Borrower will, if requested by
Administrative Agent, any such Lender or any such indemnified Person, resist and
defend such action, suit or proceeding or cause the same to be resisted and
defended by counsel reasonably satisfactory to the Person or Persons indemnified
or intended to be indemnified. Each Indemnified Party shall, unless
Administrative Agent, a Lender or other Indemnified Party has made the request
described in the preceding sentence and such request has been complied with,
have the right to employ its own counsel (as well as staff counsel) to
investigate and control the defense of any matter covered by such indemnity and
the reasonable fees and expenses of all outside counsel shall be at the expense
of the indemnifying party; provided, however, that, unless an Event of Default
has occurred and is continuing, in any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, Borrower shall not be liable for fees and expenses
of more than one counsel (in addition to any local counsel), which counsel shall
be designated by Administrative Agent; provided, further, however, each
Indemnified Party shall have the right to employ separate counsel in any such
inquiry, action, claim or proceeding and to control the defense thereof, and the
reasonable fees and expenses of all outside counsel shall be at the expense of
the Borrower if (i) Borrower shall have agreed in writing to pay such fees and
expenses or (ii) such Indemnified Party shall have notified Borrower that it has
been advised by counsel that there may be one or more legal defenses available
to such Indemnified Party that are different from or additional to those
available to the other Indemnified Parties and that such common representation
would adversely impact the adequacy of the proposed representation. Excluding
any liability arising out of the gross negligence or willful misconduct of any
Indemnified Party, Borrower further agrees to indemnify and hold each
Indemnified Party harmless from all loss, cost (including Attorney Costs),
liability and damage whatsoever incurred by any Indemnified Party by reason of
any violation of any Environmental Laws or Environmental Permits or for the
Release or threatened Release of any Contaminants into the environment for which
Borrower or any of its Subsidiaries has any liability, or which occurs upon the
Mortgaged Property or which is related to any property currently or formerly
owned, leased or operated by or on behalf of Borrower or any of its
Subsidiaries, or by reason of the imposition of any Environmental Lien or which
occurs by a breach of any of the representations, warranties or covenants
relating to environmental matters contained herein, provided that, with respect
to any liabilities arising from acts or failure to act for which Borrower or any
of its Subsidiaries is strictly liable under any Environmental Law or
Environmental Permit, Borrower's obligation to each Indemnified Party under this
indemnity shall likewise be without regard to fault on the part of Borrower or
any such Subsidiary. If Borrower shall fail to do any act or thing which it has
covenanted to do hereunder or any representation or warranty on the part of
Borrower or any Subsidiary contained herein or in any other Loan Document shall
be breached, Administrative Agent may (but shall not be obligated to) do the
same or cause it to be done or remedy any such breach, and may expend its funds
for such purpose, and will use its best efforts to give prompt written notice to
Borrower that it proposes to take such action. Any and all amounts so expended
by Administrative Agent shall be repaid to it by Borrower promptly upon
Administrative Agent's demand therefor, with interest at the Default Rate in
effect from time to time during the period including the date so expended by
Administrative Agent to the date of repayment. To the extent that the
undertaking to indemnify, pay or hold harmless Administrative Agent or any
Lender as set forth in this Section 12.4 may be unenforceable because it is
violative of any law or public policy, Borrower shall make the maximum
contribution to the payment and satisfaction of each of the indemnified
liabilities which is permissible under applicable law. The obligations of
Borrower under this Section 12.4 shall survive the termination of this Agreement
and the discharge of Borrower's other Obligations hereunder.
12.5 Confirmations. Each of Borrower and each obligor of any
portion of the Obligations agrees from time to time, upon written request
received by it from the other, to confirm to the other in writing (with a copy
of each such confirmation to Administrative Agent) the aggregate unpaid
principal amount of the Loan or Loans then outstanding.
12.6 Adjustment; Setoff.
(a) If any lender (a "Benefitted Lender") shall at any time
receive any payment of all or part of its Loans, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by
setoff, pursuant to events or proceedings of the nature referred to in Section
10.1(e) or Section 10.1(f) hereof, or otherwise) in a greater proportion than
any such payment to and collateral received by any other Lender in respect of
such other Lender's Loans or interest thereon, such Benefitted Lender shall
purchase for cash from the other Lenders such portion of each such other
Lender's Loans, or shall provide such other Lenders with the benefits of any
such collateral, or the proceeds thereof, as shall be necessary to cause such
Benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each Lender; provided, however, that if all or any portion
of such excess payment or benefits is thereafter recovered from such Benefitted
Lender, such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest. Borrower agrees
that each Lender so purchasing a portion of another Lender's Loans may exercise
all rights of payment (including, without limitation, rights of setoff) with
respect to such portion as fully as if such Lender were the direct holder of
such portion.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to Borrower, any
such notice being expressly waived by Borrower, upon the occurrence and during
the continuance of an Event of Default, to set off and apply against any
Obligations, whether matured or unmatured, of Borrower to such Lender, any
amount owing from such Lender to Borrower, at or at any time after, the
happening of any of the above-mentioned events, and the aforesaid right of
setoff may be exercised by such Lender against Borrower or against any trustee
in bankruptcy, debtor in possession, assignee for the benefit of creditors,
receivers, or execution, judgment or attachment creditor of Borrower, or against
anyone else claiming through or against, Borrower or such trustee in bankruptcy,
debtor in possession, assignee for the benefit of creditors, receivers, or
execution, judgment or attachment creditor, notwithstanding the fact that such
right of setoff shall not have been exercised by such Lender prior to the
making, filing or issuance, or service upon such Lender of, or of notice of, any
such petition, assignment for the benefit of creditors, appointment or
application for the appointment of a receiver, or issuance of execution,
subpoena, order or warrant. Each Lender agrees promptly to notify Borrower and
Administrative Agent after any such setoff and application made by such Lender,
provided that the failure to give such notice shall not affect the validity of
such setoff and application.
(c) Borrower expressly agrees that to the extent Borrower makes a
payment or payments and such payment or payments, or any part thereof, are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or are required to be repaid to a trustee, receiver, or any other party under
any bankruptcy act, state or federal law, common law or equitable cause, then to
the extent of such payment or repayment, the Indebtedness to the Lenders or part
thereof intended to be satisfied shall be revived and continued in full force
and effect as if said payment or payments had not been made.
12.7 Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same Agreement.
12.8 Binding Effect; Assignment; Addition and Substitution of
Lenders.
(a) This Agreement shall be binding upon, and inure to the benefit
of, Borrower, Administrative Agent, the Lenders, all future holders of the Notes
and their respective successors and assigns; provided, however, that Borrower
may not assign its rights or obligations hereunder or in connection herewith or
any interest herein (voluntarily, by operation of law or otherwise) without the
prior written consent of Administrative Agent and all of the Lenders.
(b) Each Lender may at any time sell to one or more banks or other
entities ("Participants") participating interests in all or any portion of its
Commitment and Loans or participation in Letters of Credit or any other interest
of such Lender hereunder (in respect of any Lender, its "Credit Exposure"). In
the event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the performance
thereof, and Borrower and Administrative Agent shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Borrower agrees that if amounts outstanding
under this Agreement or any of the Loan Documents are due or unpaid, or shall
have been declared or shall have become due and payable upon the occurrence and
during the continuation of an Event of Default, each Participant shall be deemed
to have the right of setoff in respect of its participating interest in amounts
owing under this Agreement and the Loan Documents to the same extent as if the
amount of its participating interest were owing directly to it as a Lender under
this Agreement or any other Loan Document, provided, however, that such right
of setoff shall be subject to the obligation of such Participant to share with
the Lenders, and the Lenders agree to share with such Participant, as provided
in Section 12.6. Borrower also agrees that each Participant shall be entitled
to the benefits of Section 3.6 and 4.7 with respect to its participation in the
Loans outstanding from time to time, provided that such Participant's benefits
under Section 3.6 and 4.7 shall be limited to the benefits that the primary
Lender would be entitled to thereunder. Each Lender agrees that any agreement
between such Lender and any such Participant in respect of such participating
interest shall not restrict such Lender's right to approve or agree to any
amendment, restatement, supplement or other modification to, waiver of, or
consent under, this Agreement or any of the Loan Documents except to the extent
that any of the forgoing would (i) extend the final scheduled maturity of any
Loan or Note in which such participant is participating or extend the stated
maturity of any Letter of Credit in which such participant is participating
beyond the Revolver Termination Date, or reduce the rate or extend the time of
payment of interest or fees on any such Loan, Note or Letter of Credit (except
in connection with a waiver of applicability of any post-default increase in
interest rates) or reduce the principal amount thereof, or increase the amount
of the participant's participation over the amount thereof then in effect (it
being understood that waivers or modifications of conditions precedent,
covenants, Events of Default or Unmatured Events of Default or of a mandatory
reduction in Commitments shall not constitute a change in the terms of such
participation, and that an increase in any Commitment or Loan shall be permitted
without the consent of any participant if the participant's participation is not
increased as a result thereof), (ii) consent to the assignment or transfer by
Borrower of any of its rights and obligations under this Agreement or (iii)
release all or substantially all of the Collateral under all of the Security
Documents (except as expressly provided in the Loan Documents) supporting the
Loans and/or Letters of Credit hereunder in which such participant is
participating.
(c) Any Lender may at any time assign to one or more Eligible
Assignees, including an Affiliate thereof (each an "Assignee"), all or any part
of its Credit Exposure pursuant to an Assignment and Assumption Agreement,
provided that (i) it assigns its Credit Exposure in an amount not less than
$5,000,000 (or if less the entire amount of Lender's Credit Exposure) and (ii)
any assignment of all or any portion of any Lender's Credit Exposure to an
Assignee other than another Lender shall require the prior written consent of
Administrative Agent and, so long as no Event of Default shall have occurred and
be continuing, Borrower (such consent not to be unreasonably withheld or
delayed), and provided further, that notwithstanding the foregoing limitations,
any Lender may at any time assign all or any part of its Credit Exposure to any
Affiliate of such Lender or to any other Lender. Upon execution of an
Assignment and Assumption Agreement and the payment of a nonrefundable
assignment fee of $3,500 in immediately available funds to Administrative Agent
at its Payment Office in connection with each such assignment, written notice
thereof by such transferor Lender to Administrative Agent and the recording by
Administrative Agent of such assignment and the resulting effect upon the Loans
and Revolving Commitment of the assigning Lender and the Assignee, the Assignee
shall have, to the extent of such assignment, the same rights and benefits as it
would have if it were a Lender hereunder and the holder of the Obligations
(provided that Borrower and Administrative Agent shall be entitled to continue
to deal solely and directly with the assignor Lender in connection with the
interests so assigned to the Assignee until written notice of such assignment,
together with payment instructions, addresses and related information with
respect to the Assignee, shall have been given to Borrower and Administrative
Agent by the assignor Lender and the Assignee) and, if the Assignee has
expressly assumed, for the benefit of Borrower, some or all of the transferor
Lender's obligations hereunder, such transferor Lender shall be relieved of its
obligations hereunder to the extent of such assignment and assumption, and
except as described above, no further consent or action by Borrower, the Lenders
or Administrative Agent shall be required. At the time of each assignment
pursuant to this Section 12.8(c) to a Person which is not already a Lender
hereunder and which is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) United States Federal income tax purposes, the
respective Assignee shall provide to Borrower and Administrative Agent the
appropriate IRS Forms (and, if applicable a Section 4.7(d)(ii) Certificate)
described in Section 4.7(d). Each Assignee shall take such Credit Exposure
subject to the provisions of this Agreement and to any request made, waiver or
consent given or other action taken hereunder, prior to the receipt by
Administrative Agent and Borrower of written notice of such transfer, by each
previous holder of such Credit Exposure. Such Assignment and Assumption
Agreement shall be deemed to amend this Agreement and Schedule 1.1 hereto, to
the extent, and only to the extent, necessary to reflect the addition of such
Assignee as a Lender and the resulting adjustment of all or a portion of the
rights and obligations of such transferor Lender under this Agreement, the
Maximum Commitment, the determination of its Pro Rata Share (rounded to twelve
decimal places), the Loans, any outstanding Letters of Credit and any new Notes
to be issued, at Borrower's expense, to such Assignee, and no further consent
or action by Borrower or the Lenders shall be required to effect such
amendments.
(d) Subject to Section 12.16 , Borrower authorizes each Lender to
disclose to any Participant or Assignee (each, a "Transferee") and any
prospective Transferee any and all financial information in such Lender's
possession concerning Borrower and any Subsidiary of Borrower which has been
delivered to such Lender by Borrower pursuant to this Agreement or which has
been delivered to such Lender by Borrower in connection with such Lender's
credit evaluation of Borrower prior to entering into this Agreement; provided
that such Transferee or prospective Transferee agrees to treat any such
information which is not public as confidential.
(e) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time pledge or assign all or any portion of its
rights under this Agreement and the other Loan Documents (including, without
limitation, the Notes held by it) to any Federal Reserve Bank in accordance with
Regulation A of the Federal Reserve Board without notice to, or the consent of,
Borrower. No such pledge or assignment shall release the transferor Lender from
its obligations hereunder.
12.9 CONSENT TO JURISDICTION; MUTUAL WAIVER OF JURY TRIAL.
(A) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND,
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, BORROWER HEREBY IRREVOCABLY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. BORROWER HEREBY IRREVOCABLY DESIGNATES,
APPOINTS AND EMPOWERS CT CORPORATION SYSTEM WITH OFFICES ON THE DATE HEREOF AT
0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000 AS ITS DESIGNEE, APPOINTEE AND AGENT TO
RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS
PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS
WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF FOR ANY REASON SUCH
DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH,
BORROWER AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK
CITY ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO AGENT
UNDER THIS AGREEMENT. BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO SUCH CREDIT PARTY, AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE
BELOW, SUCH SERVICE TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH MAILING.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF AGENT UNDER THIS AGREEMENT, ANY LENDER
OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST BORROWER IN ANY
OTHER JURISDICTION.
(B) BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (A) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
(C) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY COURT OR JURISDICTION,
INCLUDING WITHOUT LIMITATION THOSE REFERRED TO IN CLAUSE (A) ABOVE, IN RESPECT
TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
12.10 Release of Collateral. The Mortgaged Property, the Collateral
and any other collateral security for the Obligations shall be released from any
security interest or Lien created by the Loan Documents at such time as no
Commitment by any Lender remains outstanding to Borrower hereunder and after
Borrower shall have no Obligations or Loans of any kind then outstanding to
Administrative Agent and the Lenders under this Agreement or any of the Loan
Documents; and Administrative Agent and the Lenders shall then deliver to
Borrower all Collateral held under the Loan Documents and related documents in
the custody or possession of Administrative Agent and, if requested by Borrower,
shall execute and deliver to Borrower for filing in each office in which any
financing statement relative to such Collateral, or any part thereof, shall have
been filed, a termination statement under the Uniform Commercial Code releasing
Administrative Agent's interest therein or a release of mortgage in each office
in which a Mortgage was filed releasing the lien of such Mortgage on the
Mortgaged Property covered thereby, and such other documents and instruments as
Borrower may reasonably request, all without recourse upon, or warranty
whatsoever by, Administrative Agent, and at the cost and expense of Borrower.
12.11 GOVERNING LAW. THIS AGREEMENT AND EACH NOTE SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS
OF SAID STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
12.12 Severability of Provisions. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
12.13 Transfers of Notes. In the event that the holder of any Note
(including any Lender) shall transfer such Note, it shall immediately advise
Administrative Agent and Borrower of such transfer, and Administrative Agent and
Borrower shall be entitled conclusively to assume that no transfer of any Note
has been made by any holder (including any Lender) unless and until
Administrative Agent and Borrower shall have received written notice to the
contrary. Except as otherwise provided in this Agreement or as otherwise
expressly agreed in writing by all of the other parties hereto, no Lender shall,
by reason of the transfer of a Note or otherwise, be relieved of any of its
obligations hereunder. Each transferee of any Note shall take such Note subject
to the provisions of this Agreement and to any request made, waiver or consent
given or other action taken hereunder, prior to the receipt by Administrative
Agent and Borrower of written notice of such transfer, by each previous holder
of such Note, and, except as expressly otherwise provided in such transfer,
Administrative Agent and Borrower shall be entitled conclusively to assume that
the transferee named in such notice shall hereafter be vested with all rights
and powers under this Agreement with respect to the Pro Rata Share of the Loans
of the Lender named as the payee of the Note which is the subject of such
transfer.
12.14 Headings. The Table of Contents and Article and Section
headings used in this Agreement are for convenience of reference only and shall
not affect the construction of this Agreement.
12.15 Termination of Agreement. This Agreement shall terminate when
the Commitment of each Lender has terminated and all outstanding Obligations and
Loans have been paid in full and all Letters of Credit have expired or been
terminated; provided, however, that the rights and remedies of Administrative
Agent and each Lender with respect to any representation and warranty made by
Borrower pursuant to this Agreement or any other Loan Document, and the
indemnification provisions contained in this Agreement and any other Loan
Document, shall be continuing and shall survive any termination of this
Agreement or any other Loan Document.
12.16 Confidentiality. Each of the Lenders severally agrees to keep
confidential all non-public information pertaining to Borrower and its
Subsidiaries which is provided to it by any such parties in accordance with such
Lender's customary procedures for handling confidential information of this
nature and in a prudent fashion, and shall not disclose such information to any
Person except (i) to the extent such information is public when received by such
Lender or becomes public thereafter due to the act or omission of any party
other than a Lender, (ii) to the extent such information is independently
obtained from a source other than Borrower or its Subsidiaries and such
information from such source is not, to such Lender's knowledge, subject to an
obligation of confidentiality or, if such information is subject to an
obligation of confidentiality, that disclosure of such information is permitted,
(iii) to an Affiliate of such Lender, counsel, auditors, examiners of any
regulatory authority having jurisdiction over such Lender, accountants and other
consultants retained by Administrative Agent or any Lender, (iv) in connection
with any litigation or the enforcement of the rights of any Lender or
Administrative Agent under this Agreement or any other Loan Document, (v) to the
extent required by any applicable statute, rule or regulation or court order
(including , without limitation, by way of subpoena) or pursuant to the request
of any Governmental Authority having jurisdiction over any Lender or
Administrative Agent; provided, however, that in such event, if the Lender(s)
are able to do so, the Lender shall provide Borrower with prompt notice of such
requested disclosure so that Borrower may seek a protective order or other
appropriate remedy, and, in any event, the Lenders will endeavor in good faith
to provide only that portion of such information which, in the reasonable
judgment of the Lender(s), is relevant and legally required to be provided, or
(vi) to the extent disclosure to other entities is appropriate in connection
with any proposed or actual assignment or grant of a participation by any of the
Lenders of interests in this Agreement and/or any of the other Loan Documents to
such other financial institutions (who will in turn be required to maintain
confidentiality as if they were Lenders parties to this Agreement). In no event
shall Administrative Agent or any Lender be obligated or required to return any
such information or other materials furnished by Borrower.
12.17 Concerning the Collateral and the Loan Documents.
(a) Authority. Each Lender authorizes and directs Bankers Trust
to act as Collateral Agent and to enter into the Loan Documents relating to the
Collateral for the benefit of the Lenders and the other secured parties. Each
Lender agrees that any action taken by Administrative Agent or the Required
Lenders (or, where required by the express terms, hereof, a different proportion
of the Lenders) in accordance with the provisions hereof or of the other Loan
Documents, and the exercise by Administrative Agent, Collateral Agent or the
Required Lenders (or, where so required, such different proportion) of the
powers set forth herein or therein, together with such other powers as are
reasonably incidental thereto, shall be authorized and binding upon all of the
Lenders. Without limiting the generality of the foregoing, Administrative Agent
or Collateral Agent as the case may be, shall have the sole and exclusive right
and authority to (i) act as the disbursing and collecting agent for the Lenders
and the Facing Agent with respect to all payments and collections arising in
connection herewith and with the Loan Documents relating to the Collateral; (ii)
execute and deliver each Loan Document relating to the Collateral and accept
delivery of each such agreement delivered by Borrower or any of its
Subsidiaries, (iii) act as collateral agent and as Collateral Agent for the
Lenders and the Facing Agent for purposes of the perfection of security
interests and liens created by such agreements and all other purposes stated
therein to the extent such perfection is required under the Loan Documents,
provided, however, the Collateral Agent hereby appoints, authorizes and directs
each Lender and the Facing Agent to act as collateral sub-agent for the
Collateral Agent, Administrative Agent and the Lenders for purposes of the
perfection of all security interests and Liens with respect to Borrower's and
its Subsidiaries' respective deposit accounts maintained with, and cash and Cash
Equivalents held by, such Lender or such Facing Agent; (iv) manage, supervise
and otherwise deal with the Collateral; (v) take such action as is necessary or
desirable to maintain the perfection and priority of the security interests and
liens created or purported to be created by the Loan Documents, and (vi) except
as may be otherwise specifically restricted by the terms hereof or of any other
Loan Document, exercise all remedies given to Administrative Agent, the Lenders
or the Facing Agent with respect to the Collateral under the Loan Documents
relating thereto, applicable law or otherwise.
(b) Release of Collateral.
(i) The Administrative Agent and the Lenders hereby direct
Administrative Agent or Collateral Trustee, as the case may be, to
release, in accordance with the terms hereof, any Lien held by
Administrative Agent or Collateral Agent, as the case may be, under the
Security Documents:
(A) against all of the Collateral, at such time as no
Commitment by any Lender remains outstanding to Borrower
hereunder and after Borrower shall have no Obligations or
Loans of any kind then outstanding to Administrative Agent and
the Lenders;
(B) against any part of the Collateral sold or
disposed of by Borrower or any of its Subsidiaries to the
extent such sale or disposition is permitted hereby (or
permitted pursuant to a waiver or consent of a transaction
otherwise prohibited hereby);
(C) against any Collateral acquired by Borrower or any
of its Subsidiaries after the Closing Date and at least 80% of
the purchase price thereof is financed with Indebtedness
secured by a Lien permitted by Section 8.1(d);
(D) so long as no Event of Default or Unmatured Event
of Default has occurred and is continuing, in the sole
discretion of Administrative Agent upon the request of the
Borrower, against any part of the Collateral with a fair
market value of less than $5,000,000 in the aggregate during
the term of this Agreement as such fair market value may be
certified to Administrative Agent by Borrower in an officer's
certificate acceptable in form and substance to Administrative
Agent; and
(E) against a part of the Collateral which release
does not require the consent of all of the Lenders as set
forth in Section 12.1(a)(ii), if such release is consented to
by the Required Lenders;
provided, however, that (y) Administrative Agent shall not be required to
execute any such document on terms which, in its opinion, would expose it to
liability or create any obligation or entail any consequence other than the
release of such Liens without recourse or warranty, and (z) such release shall
not in any manner discharge, affect or impair the Obligations or any Liens upon
(or obligations of Borrower or any of its Subsidiaries in respect of) all
interests retained by Borrower and/or any of its Subsidiaries, including
(without limitation) the proceeds of any sale, shall continue to constitute part
of the Collateral to the extent provided in the Security Documents.
(ii) Each of the Lenders hereby directs Administrative Agent
to execute and deliver or file such termination and partial release statements
and such other things as are necessary to release Liens to be released pursuant
to this Section 12.17 promptly upon the effectiveness of any such release or
enter into intercreditor agreements contemplated or permitted herein.
(c) No Obligation. Administrative Agent shall not have any
obligation whatsoever to any Lender or to any other Person to assure that the
Collateral exists or is owned by Borrower or any of its Subsidiaries or is cared
for, protected or insured or has been encumbered or that the Liens granted to
Administrative Agent herein or pursuant to the Loan Documents have been properly
or sufficiently or lawfully created, perfected, protected or enforced or are
entitled to any particular priority, or to exercise at all or in any particular
manner or under any duty of care, disclosure or fidelity, or to continue
exercising, any of the rights, authorities and powers granted or available to
Administrative Agent in any of the Loan Documents, it being understood and
agreed that in respect of the Collateral, or any act, omission or event related
thereto, Administrative Agent may act in any manner it may deem appropriate, in
its sole discretion, given Administrative Agent's own interests in the
Collateral as one of the Lenders and that Administrative Agent shall not have
any duty or liability whatsoever to any Lender, provided, that, notwithstanding
the foregoing, Administrative Agent shall be responsible for its grossly
negligent actions or actions constituting intentional misconduct.
12.18 Effectiveness. This Agreement shall become effective on
the date (the "Effective Date") on which Administrative Agent, Borrower and each
of the Lenders shall have signed a counterpart of this Agreement (whether the
same or different counterparts) and shall have delivered the same to
Administrative Agent at the Notice Office (or to Administrative Agent's counsel
as directed by such counsel) or, in the case of the Lenders, shall have given to
Administrative Agent or telephonic (confirmed in writing), written, telex or
facsimile notice (actually received) at such office or the office of
Administrative Agent's counsel that the same has been signed and mailed to it.
Administrative Agent will give Borrower and each Lender prompt written notice of
the occurrence of the Effective Date.
[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized, as of
the date first above written.
TITANIUM METALS CORPORATION
By:
Name: J. Xxxxxx Xxxxxxxxxx, Xx.
Title: Vice President - Finance and
Treasurer
Address:
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Vice President Finance &
Treasurer
Tel. No.: 000-000-0000
Telecopier No.: 000-000-0000
With copies to
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn:Vice President & General Counsel
Tel. No.: 000-000-0000
Telecopier No.: 000-000-0000
And
Xxxxxxx & Xxxxxx
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Tel. No.: 000-000-0000
Telecopier No.: 000-000-0000
BANKERS TRUST COMPANY, as a Lender and
as Administrative Agent
By:
Name:
Title:
Address:
Bankers Trust Company
One Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxx
Tel. No.: (000) 000-0000
Telecopier No.: (000) 000-0000
With copies to
Bankers Trust Company
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Tel. No.: (000) 000-0000
Telecopier No.: (000) 000-0000
and
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Tel. No.: (000) 000-0000
Telecopier No.: (000) 000-0000
LENDERS:
CORESTATES BANK, N.A.,
AS A CO-AGENT
By:_________________________________
Title:________________________________
LENDERS:
SANWA BUSINESS CREDIT CORPORATION,
AS A CO-AGENT
By:_________________________________
Title:________________________________
LENDERS:
BANK OF MONTREAL
By:_________________________________
Title:________________________________
LENDERS:
THE BANK OF NOVA SCOTIA
By:_________________________________
Title:________________________________
LENDERS:
BANQUE NATIONALE DE PARIS
By:_________________________________
Title:________________________________
By:_________________________________
Title:________________________________
LENDERS:
CREDIT LYONNAIS NEW YORK BRANCH
By:_________________________________
Title:________________________________
LENDERS:
THE FIRST NATIONAL BANK OF CHICAGO
By:_________________________________
Title:________________________________
LENDERS:
THE FUJI BANK, LIMITED LOS ANGELES
AGENCY
By:_________________________________
Title:________________________________
LENDERS:
KEYBANK NATIONAL ASSOCIATION
By:_________________________________
Title:________________________________
LENDERS:
MELLON BANK, N.A.
By:_________________________________
Title:________________________________
LENDERS:
PNC BANK, N.A.
By:_________________________________
Title:________________________________
LENDERS:
SOCIETE GENERALE, SOUTH WEST AGENCY
By:_________________________________
Title:________________________________
By:_________________________________
Title:________________________________
LENDERS:
THE SUMITOMO BANK, LIMITED
By:_________________________________
Title:________________________________
