1
Exhibit 10.9
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SHORT TERM CREDIT AGREEMENT
dated as of April 4, 2000
by and among
BLACK BOX CORPORATION OF PENNSYLVANIA,
as Borrower,
THE GUARANTORS PARTIES HERETO FROM TIME TO TIME,
THE LENDERS PARTIES HERETO FROM TIME TO TIME
and
MELLON BANK, N.A.,
as Agent
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
2
Table of Contents
Section Title Page
------- ----- ----
ARTICLE I DEFINITIONS; CONSTRUCTION.......................................................................1
1.01 Certain Definitions.............................................................................1
1.02 Construction...................................................................................17
1.03 Accounting Principles..........................................................................17
ARTICLE II REVOLVING CREDIT...............................................................................19
2.01 Revolving Credit Loans.........................................................................19
2.02 Revolving Credit Commitment Fee................................................................20
2.03 Making of Revolving Credit Loans...............................................................20
2.04 Interest Rates.................................................................................21
2.05 Conversion or Renewal of Interest Rate Options.................................................24
2.06 Prepayments Generally..........................................................................25
2.07 Optional Prepayments...........................................................................25
2.08 Interest Payment Dates.........................................................................25
2.09 Payments Generally; Interest on Overdue Amounts................................................26
2.10 Additional Compensation in Certain Circumstances...............................................27
2.11 Taxes..........................................................................................28
2.12 Funding by Branch, Subsidiary or Affiliate.....................................................30
2.13 Conversion to Term Loan on the Revolving Credit Maturity Date..................................31
ARTICLE III ...............................................................................................31
ARTICLE IV REPRESENTATIONS AND WARRANTIES.................................................................31
4.01 Incorporation by Reference.....................................................................31
ARTICLE V CONDITIONS OF LENDING..........................................................................32
5.01 Conditions to Making Initial Loans.............................................................32
5.02 Conditions to All Loans........................................................................34
ARTICLE VI AFFIRMATIVE COVENANTS..........................................................................35
6.01 Incorporation by Reference.....................................................................35
-i-
3
ARTICLE VII NEGATIVE COVENANTS.............................................................................35
7.01 Incorporation by Reference.....................................................................35
ARTICLE VIII DEFAULTS.......................................................................................35
8.01 Events of Default..............................................................................35
8.02 Consequences of an Event of Default............................................................37
ARTICLE IX THE AGENT......................................................................................38
9.01 Appointment....................................................................................38
9.02 General Nature of Agent's Duties...............................................................38
9.03 Exercise of Powers.............................................................................39
9.04 General Exculpatory Provisions.................................................................39
9.05 Administration by the Agent....................................................................40
9.06 Lender Not Relying on Agent or Other Lenders...................................................41
9.07 Indemnification................................................................................41
9.08 Agent in its Individual Capacity...............................................................42
9.09 Holders of Notes...............................................................................42
9.10 Successor Agent................................................................................42
9.11 Additional Agents..............................................................................43
9.12 Calculations...................................................................................43
9.13 Agent's Fee....................................................................................43
9.14 Funding by Agent...............................................................................43
ARTICLE X MISCELLANEOUS..................................................................................44
10.01 Holidays.......................................................................................44
10.02 Records........................................................................................44
10.03 Amendments and Waivers.........................................................................44
10.04 No Implied Waiver; Cumulative Remedies.........................................................45
10.05 Notices........................................................................................45
10.06 Expenses; Taxes; Indemnity.....................................................................46
10.07 Severability...................................................................................47
10.08 Prior Understandings...........................................................................47
10.09 Duration; Survival.............................................................................47
10.10 Counterparts...................................................................................48
-ii-
4
10.11 Limitation on Payments.........................................................................48
10.12 Set-Off........................................................................................48
10.13 Sharing of Collections.........................................................................48
10.14 Successors and Assigns; Participation Assignments..............................................49
10.16 Termination of Existing Revolving Credit Facilities............................................54
10.17 Confidentiality................................................................................55
Exhibit A - Form of Revolving Credit Note
Exhibit B - [None]
Exhibit C - [None]
Exhibit D - Form of Parent Guaranty
Exhibit E - Form of Subsidiary Guarantees
Exhibit F - Quarterly Compliance Certificate
Exhibit G - [None]
Exhibit H - Subordination Terms
Exhibit I - Transfer Supplement
Exhibit J - Form of Term Note
Schedule 4.01 - Jurisdictions of Incorporation
Schedule 4.11 - Capitalization of Subsidiaries
Schedule 4.12 - Joint Ventures
Schedule 4.13 - Capitalization of Borrower and Guarantor
Schedule 4.14 - Litigation
Schedule 4.21 - Plans and Multiemployer Plans
Schedule 7.05 - Existing Liens
Schedule 7.06 - Existing Indebtedness
Annex A - Pricing Grid
Annex B - Commitment Schedule
Annex C - Domestic Subsidiaries
-iii-
5
SHORT TERM CREDIT AGREEMENT
THIS SHORT TERM CREDIT AGREEMENT (this "Agreement"), dated as
of April 4, 2000, by and among BLACK BOX CORPORATION OF PENNSYLVANIA, a Delaware
corporation (the "Borrower"), BLACK BOX CORPORATION, a Delaware corporation (the
"Parent"), the guarantors parties hereto from time to time (together with the
Parent, the "Guarantors"), the Lenders parties hereto from time to time and
MELLON BANK, N.A., a national banking association, as agent for the Lenders
parties hereunder (in such capacity, together with the successors in such
capacity, the "Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower is proposing to refinance certain
obligations of the Borrower and the Parent, as guarantor, to Mellon Bank, N.A.,
as lender, under the Existing Revolving Credit Facilities (as defined below);
WHEREAS, the Borrower has requested the Lenders to provide a
revolving credit facility (a) to provide the funds necessary to refinance the
Existing Credit Facilities and (b) to provide funds for the working capital
requirements and general corporate purposes of the Borrower; and
WHEREAS, the Lenders have agreed to extend credit to the
Borrower on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
1.01. Certain Definitions. In addition to other words and
terms defined elsewhere in this Agreement, as used herein the following words
and terms shall have the following meanings, respectively, unless the context
hereof otherwise clearly requires:
"Acquisition" of a Person shall mean the acquisition of all or
substantially all of the assets of such Person, whether by acquisition of the
assets of such Person or of the ownership interests of such Person, or
otherwise.
"Administrative Questionnaire" means, with respect to each
Lender, a questionnaire in the form prepared by the Agent and submitted by such
Lender to the Agent (with a copy for the Borrower), duly completed by such
Lender.
"Affected Lender" shall have the meaning set forth in Section
2.04(e) hereof.
-1-
6
"Affiliate" of a Person (the "Specified Person") shall mean
any Person which directly or indirectly controls, or is controlled by, or is
under common control with, the Specified Person. For purposes of the preceding
sentence, "control" of a Person means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Alternative Funds" shall have the meaning set forth in
Section 2.04(f) hereof.
"Applicable Lending Office" shall mean, with respect to any
Lender (a) in the case of the Base Rate Portion of its Loans, its Domestic
Lending Office and (b) in the case of the Euro-Rate Portion of its Loans, its
Euro-Rate Lending Office.
"Applicable Margin" shall have the meaning set forth in
Section 2.04(b) hereof.
"Applicable Tier" shall have the meaning set forth in Annex A
hereof.
"Assured Obligation" shall have the meaning set forth in the
definition of Guaranty Equivalent.
"Base Rate" shall have the meaning set forth in Section
2.04(a)(i) hereof.
"Base Rate Option" shall have the meaning set forth in Section
2.04(a)(i) hereof.
"Base Rate Portion" of any Loan or Loans shall mean at any
time the portion, including the whole, of such Loan or Loans bearing interest at
such time (a) under the Base Rate Option or (b) in accordance with Section
2.09(b)(ii) hereof. If no Loan or Loans is specified, "Base Rate Portion" shall
refer to the Base Rate Portion of all Loans outstanding at such time.
"Business Day" shall mean any day other than a Saturday,
Sunday, public holiday under the laws of the Commonwealth of Pennsylvania or
other day on which banking institutions are authorized or obligated to close in
Pittsburgh, Pennsylvania.
"Capital Expenditures" of any Person shall mean, for any
period, all expenditures (whether paid in cash or accrued as liabilities during
such period) of such Person during such period which would be classified as
capital expenditures in accordance with GAAP (including, without limitation,
expenditures for maintenance and repairs which are capitalized, and Capitalized
Leases to the extent an asset is recorded in connection therewith in accordance
with GAAP).
"Capitalized Lease" shall mean at any time any lease which is,
or is required under GAAP to be, capitalized on the balance sheet of the lessee
at such time, and "Capitalized Lease Obligation" of any Person at any time shall
mean the aggregate amount which is, or is required under GAAP to be, reported as
a liability on the balance sheet of such Person at such time as lessee under a
Capitalized Lease.
-2-
7
"Cash Equivalent Investments" shall mean any of the following,
to the extent acquired for investment and not with a view to achieving trading
profits: (a) obligations fully backed by the full faith and credit of the United
States of America maturing not in excess of nine (9) months from the date of
acquisition, (b) commercial paper maturing not in excess of nine (9) months from
the date of acquisition and rated "P-1" by Xxxxx'x Investors Service or "A-1" by
Standard & Poor's Corporation on the date of acquisition, and (c) the following
obligations of any domestic commercial bank having capital and surplus in excess
of $500,000,000, which has, or the holding company of which has, a commercial
paper rating meeting the requirements specified in clause (b) above: (i) time
deposits, certificates of deposit and acceptances maturing not in excess of nine
(9) months from the date of acquisition; or (ii) repurchase obligations with a
term of not more than seven (7) days for underlying securities of the type
referred to in clause (a) above.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, and any successor statute of similar
import, and regulations thereunder, in each case as in effect from time to time.
"CERCLIS" shall mean the Comprehensive Environmental Response,
Compensation and Liability Information System List, as the same may be amended
from time to time.
"Change of Control" shall mean any Person or group of Persons
(as used in Sections 13 and 14 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations thereunder) shall
have become the beneficial owner (as defined in Rules 13d-3 and 13d-5
promulgated by the Securities and Exchange Commission (the "SEC") under the
Exchange Act) of 50% or more of the combined voting power of all the outstanding
voting securities of the Parent.
"Closing Date" shall mean the date of the making of the first
Loan hereunder.
"Code" means the Internal Revenue Code of 1986, as amended,
and any successor statute of similar import, and regulations thereunder, in each
case as in effect from time to time. References to sections of the Code shall be
construed also to refer to any successor sections.
"Commitment" of a Lender shall mean the Revolving Credit
Commitment of such Lender.
"Commitment Fee" shall have the meaning set forth in Section
2.02 hereof.
"Commitment Fee Rate" shall have the meaning set forth in
Section 2.02.
"Commitment Percentage" of any Lender at any time shall mean
the ratio of such Lender's Revolving Credit Committed Amount set forth next to
its name on the Commitment
-3-
8
Schedule to the aggregate Revolving Credit Committed Amounts of each of the
Lenders subject to transfer to another Lender as provided in Section 10.14
hereof.
"Commitment Schedule" means the Schedule attached to this
Agreement identified as such in Annex B.
"Computer Controlled Equipment and Systems" shall mean all
equipment systems and/or any other devices utilizing software driven technology
and/or microchip technology (including, but not limited to, any equipment,
systems or other devices utilizing microcomputer, minicomputer or programmable
logic controllers), which a Loan Party or Subsidiary thereof utilizes in
connection with the operation of its business.
"Consolidated Fixed Charge Coverage Ratio", as of the last day
of any fiscal quarter, shall mean the ratio of (a) Consolidated EBITDA plus the
aggregate amounts that were paid as rent by the Parent and its consolidated
Subsidiaries minus Capital Expenditures of the Parent and its consolidated
Subsidiaries minus charges against income for foreign, federal, state and local
income Taxes of the Parent and its consolidated Subsidiaries to (b) the current
maturities of long term Indebtedness of the Parent and its Subsidiaries plus
Consolidated Interest Expense plus the aggregate amounts that were paid as rent
by the Parent and its consolidated Subsidiaries, plus, the aggregate amounts of
dividends, distributions and stock repurchases, in each case for the 4 most
recently completed fiscal quarters ending on such day, considered as a single
accounting period provided that any stock repurchase prior to the Closing Date
shall not be included in such determination. If an Acquisition occurs during
such period, each element of the Consolidated Fixed Charge Coverage Ratio shall
be calculated on a pro forma basis as if the Acquisition had been made, and any
Indebtedness or other obligations issued or incurred in connection therewith had
been issued or incurred, as of the first day of such period; provided, however,
that, in making such calculations, the Borrower may ignore those expenses and
distributions of the acquired Person that would not have been incurred had the
Acquisition occurred as of the first day of such period. In making such pro
forma calculation of the Consolidated Interest Expense with respect to
Indebtedness or other obligations issued or incurred in connection with the
Acquisition, interest expense thereon shall be calculated on the basis of an
interest rate per annum not less than the one-month Euro-Rate as of the last day
of such period plus an Applicable Margin determined on the basis of the
Consolidated Leverage Ratio as of the last day of such period.
"Consolidated EBIT" for any period, with respect to the Parent
and its consolidated Subsidiaries, shall mean the sum of (a) Consolidated Net
Income of the Parent and its consolidated Subsidiaries for such period, (b)
Consolidated Interest Expense for such period and (c) charges against income for
foreign, federal, state and local income taxes for such period, all as
determined on a consolidated basis in accordance with GAAP.
"Consolidated EBITDA" for any period, with respect to the
Parent and its consolidated Subsidiaries, shall mean the sum of (a) Consolidated
EBIT for such period, (b) depreciation expense for such period, and (c)
amortization expense for such period, all as determined on a consolidated basis
in accordance with GAAP plus noncash charges to the extent
-4-
9
included in determining Consolidated Net Income for which no future cash
expenditure is reasonably anticipated.
"Consolidated Interest Coverage Ratio", as of the last day of
any fiscal quarter, shall mean the ratio of (a) Consolidated EBIT to (b)
Consolidated Interest Expense for the immediately preceding four (4) quarter
period ending on the date of determination.
"Consolidated Interest Expense" for any period shall mean the
total interest expense of the Loan Parties and their consolidated Subsidiaries
for such period determined on a consolidated basis in accordance with GAAP.
"Consolidated Leverage Ratio", as of the last day of each
fiscal quarter, shall mean the ratio of (a) the aggregate Indebtedness of the
Parent and its consolidated Subsidiaries as of such day to (b) Consolidated
EBITDA of the Parent and its consolidated Subsidiaries for the 4 most recently
completed fiscal quarters ending on such day, considered as a single accounting
period. If an Acquisition occurs during such period, (i) Consolidated EBITDA of
the Parent and its consolidated Subsidiaries shall be calculated on a pro forma
basis as if the Acquisition had been made as of the first day of such period and
(ii) the aggregate Indebtedness of the Parent and its consolidated Subsidiaries
as of the date of determination of the Consolidated Leverage Ratio shall include
Indebtedness incurred in connection with and after giving effect to the
Acquisition (and including, on a pro forma basis, all Indebtedness to be
incurred in connection with the Acquisition, to the extent not incurred on such
date); provided, however, that, in making such calculations, the Borrower may
ignore those expenses and distributions of the acquired Person that would not
have been incurred had the Acquisition occurred as of the first day of such
period.
"Consolidated Net Income" for any period, with respect to the
Parent and its consolidated Subsidiaries shall mean the net earnings (or loss)
after taxes of the Parent and its consolidated Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP; provided, that there
shall be deducted therefrom (a) income or loss accounted for by the Parent on
the equity method because of the income (or deficit) during such period of any
Person (other than a consolidated Subsidiary of the Parent) in which the Parent
or any consolidated Subsidiary of the Parent has an ownership interest, but the
deduction for such equity income shall be reversed to the extent that during
such period an amount not in excess of such income has been actually received by
the Parent or such consolidated Subsidiary of the Parent in the form of cash or
property dividends or similar distributions, (b) the undistributed earnings of
any consolidated Subsidiary of the Parent to the extent that the declaration or
payment of dividends or similar distributions by such consolidated Subsidiary of
the Parent is restricted (whether such restriction arises by operation of Law
(including Law applicable to a foreign Subsidiary), by agreement, by its
articles of incorporation or by-laws (or other constituent documents), or
otherwise), (c) any restoration to income of any contingency reserve, except to
the extent that provision for such reserve was made against income during such
period, and (d) any gain arising from the acquisition of any securities, or the
extinguishment, under GAAP, of any Indebtedness, of the Parent or any
consolidated Subsidiary of the Parent.
-5-
10
"Consolidated Net Worth" at any time, with respect to the
Parent and its consolidated Subsidiaries shall mean the total amount of
stockholders' equity of the Parent and its consolidated Subsidiaries at such
time determined on a consolidated basis in accordance with GAAP (exclusive of
the effects of foreign currency translations on the balance sheet).
"Controlled Group Member" shall mean each trade or business
(whether or not incorporated) which together with any Loan Party is treated as a
single employer under Sections 4001(a)(14) or 4001(b)(1) of ERISA or Sections
414(b), (c), (m) or (o) of the Code.
"Corresponding Source of Funds" shall mean, with respect to
any Funding Segment of the Euro-Rate Portion, the proceeds of hypothetical
receipts by a Notional Euro-Rate Funding Office or by a Lender through a
Notional Euro-Rate Funding Office of one or more Dollar deposits in the
interbank eurodollar market at the beginning of the Euro-Rate Funding Period
corresponding to such Funding Segment having maturities approximately equal to
such Euro-Rate Funding Period and in an aggregate amount approximately equal to
such Lender's Pro Rata share of such Funding Segment.
"Dollar," "Dollars" and the symbol "$" shall mean lawful money
of the United States of America.
"Domestic Funding Office" means, as to each Lender, its office
located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Domestic Funding Office)
or such other office as such Lender may hereafter designate as its Domestic
Funding Office by notice to the Borrower and the Agent.
"Domestic Subsidiaries" shall mean each Subsidiary of the
Parent incorporated under the laws of the District of Columbia or under the laws
of any state or commonwealth of the United States.
"Environmental Affiliate" shall mean, with respect to any
Person, any other Person whose liability (contingent or otherwise) for any
Environmental Claim such Person has retained, assumed or otherwise is liable for
(by Law, agreement or otherwise).
"Environmental Approvals" shall mean any Governmental Action
pursuant to or required under any Environmental Law.
"Environmental Claim" shall mean, with respect to any Person,
any action, suit, proceeding, investigation, notice, claim, complaint, demand,
request for information or other written communication by any other Person
(including but not limited to any Governmental Authority, citizens' group or
present or former employee of such Person) alleging, asserting or claiming any
actual or potential (a) violation of any Environmental Law, (b) liability under
any Environmental Law or (c) liability for investigatory costs, cleanup costs,
governmental response costs, natural resources damages, property damages,
personal injuries, fines or penalties arising out of, based on or resulting from
the presence, or release into the environment, of any
-6-
11
Environmental Concern Materials at any location, whether or not owned by such
Person, in violation of any Environmental Law.
"Environmental Cleanup Site" shall mean any location which is
listed or proposed for listing on the National Priorities List, on CERCLIS or on
any similar state list of sites requiring investigation or cleanup, or which is
the subject of any pending or threatened action, suit, proceeding or
investigation related to or arising from any alleged violation of any
Environmental Law.
"Environmental Concern Materials" shall mean (a) any flammable
substance, explosive, radioactive material, hazardous material, hazardous waste,
toxic substance, solid waste, pollutant, contaminant or any related material,
raw material, substance, product or by-product of any substance specified in or
regulated by any Environmental Law (including but not limited to any "hazardous
substance" as defined in CERCLA or any similar state Law), (b) any toxic
chemical or other substance from or related to industrial, commercial or
institutional activities, and (c) asbestos, gasoline, diesel fuel, motor oil,
waste and used oil, heating oil and other petroleum products or compounds,
polychlorinated biphenyls, radon and urea formaldehyde.
"Environmental Law" shall mean any Law, whether now existing
or subsequently enacted or amended, relating to (a) pollution or protection of
the environment, including natural resources, (b) exposure of Persons, including
but not limited to employees, to Environmental Concern Materials, (c) protection
of the public health or welfare from the effects of products, by-products,
wastes, emissions, discharges or releases of Environmental Concern Materials or
(d) regulation of the manufacture, use or introduction into commerce of
Environmental Concern Materials including their manufacture, formulation,
packaging, labeling, distribution, transportation, handling, storage or
disposal. Without limitation, "Environmental Law" shall also include any
Environmental Approval and the terms and conditions thereof.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended, and any successor statute of similar import, and
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA shall be construed also to refer to any successor sections.
"Euro-Rate" shall have the meaning set forth in Section
2.04(a)(ii) hereof.
"Euro-Rate Funding Period" shall have the meaning set forth in
Section 2.04(c) hereof.
"Euro-Rate Option" shall have the meaning set forth in Section
2.04(a)(ii) hereof.
"Euro-Rate Portion" of any Loan or Loans shall mean at any
time the portion, including the whole, of such Loan or Loans bearing interest at
any time under the Euro-Rate Option or at a rate calculated by reference to the
Euro-Rate under Section 2.09(c)(i) hereof. If no
-7-
12
Loan or Loans is specified, "Euro-Rate Portion" shall refer to the Euro-Rate
Portion of all Loans outstanding at such time.
"Euro-Rate Reserve Percentage" shall have the meaning set
forth in Section 2.04(a)(ii) hereof.
"Event of Default" shall mean any of the Events of Default
described in Section 8.01 hereof.
"Existing Credit Facilities" means (a) the Credit Agreement,
dated as of February 12, 1999, by and among the Borrower, the Parent (as
guarantor) and Mellon (as lender), (b) the Credit Agreement dated as of August
27, 1999 by and among the Borrower, the Parent (as guarantor) and Mellon (as
lender), and (c) the Credit Agreement dated as of January 4, 2000, by and among
the Borrower, the Parent (as guarantor) and Mellon (as lender); in each case as
amended.
"Federal Funds Effective Rate" for any day shall mean the rate
per annum (rounded upward to the nearest 1/100 of 1%) determined by the Agent
(which determination shall be conclusive absent manifest error) to be the rate
per annum announced by the Federal Reserve Bank of New York (or any successor)
on such day as being the weighted average of the rates on overnight Federal
funds transactions arranged by Federal funds brokers on the previous trading
day, as computed and announced by such Federal Reserve Bank (or any successor)
in substantially the same manner as such Federal Reserve Bank computes and
announces the weighted average it refers to as the "Federal Funds Effective
Rate" as of the date of this Agreement; provided, that if such Federal Reserve
Bank (or its successor) does not announce such rate on any day, the "Federal
Funds Effective Rate" for such day shall be the Federal Funds Effective Rate for
the last day on which such rate was announced.
"Funding Breakage Date" shall have the meaning set forth in
Section 2.10(b) hereof.
"Funding Breakage Indemnity" shall have the meaning set forth
in Section 2.10(b) hereof.
"Funding Segment" of the Euro-Rate Portion of the Loans at any
time shall mean the entire principal amount of the Euro-Rate Portion to which at
the time in question there is applicable a particular Euro-Rate Funding Period
beginning on a particular day and ending on a particular day. (By definition,
the Euro-Rate Portion is at all times composed of an integral number of discrete
Funding Segments and the sum of the principal amounts of all Funding Segments of
the Euro-Rate Portion at any time equals the principal amount of the Euro-Rate
Portion at such time.)
"GAAP" shall have the meaning set forth in Section 1.03
hereof.
-8-
13
"Governmental Action" shall have the meaning set forth in
Section 4.04 of the Long Term Credit Agreement hereof.
"Governmental Authority" shall mean any government or
political subdivision or any agency, authority, bureau, central bank,
commission, department or instrumentality of either, or any court, tribunal,
grand jury or arbitrator, in each case whether foreign or domestic.
"Guaranteed Obligations" shall mean all obligations from time
to time of the Borrower to the Lenders under or in connection with any Loan
Document, whether for principal, interest, fees, indemnities, expenses or
otherwise, and all refinancings or refundings thereof, whether such obligations
are direct or indirect, otherwise secured or unsecured, joint or several,
absolute or contingent, due or to become due, whether for payment or
performance, now existing or hereafter arising (specifically including but not
limited to obligations arising or accruing after the commencement of any
bankruptcy, insolvency, reorganization or similar proceeding with respect to the
Borrower or any other Person, or which would have arisen or accrued but for the
commencement of such proceeding, even if the claim for such obligation is not
enforceable or allowable in such proceeding). Without limitation of the
foregoing, such obligations include all obligations arising from any extensions
of credit under or in connection with the Loan Documents from time to time,
regardless of whether any such extensions of credit are in excess of the amount
committed under or contemplated by the Loan Documents or are made in
circumstances in which any condition to extension of credit is not satisfied.
Without limitation of the foregoing, the Lender (or any successive assignee or
transferee) from time to time may assign or otherwise transfer all or any
portion of its rights or obligations under the Loan Documents (including,
without limitation, all or any portion of any commitment to extend credit), or
any other Guaranteed Obligations, to any other Person, and such Guaranteed
Obligations (including, without limitation, any Guaranteed Obligations resulting
from extension of credit by such other Person under or in connection with the
Loan Documents) shall be and remain Guaranteed Obligations entitled to the
benefit of the Agreement.
"Guarantors" shall mean the Parent and the Domestic
Subsidiaries.
"Guaranty Equivalent": A Person (the "Deemed Guarantor") shall
be deemed to be subject to a Guaranty Equivalent in respect of any indebtedness,
obligation or liability (the "Assured Obligation") of another Person (the
"Deemed Obligor") if the Deemed Guarantor directly or indirectly guarantees,
becomes surety for, endorses, assumes, agrees to indemnify the Deemed Obligor
against, or otherwise agrees, becomes or remains liable (contingently or
otherwise) for, such Assured Obligation. Without limitation, a Guaranty
Equivalent shall be deemed to exist if a Deemed Guarantor agrees, becomes or
remains liable (contingently or otherwise), directly or indirectly: (a) to
purchase or assume, or to supply funds for the payment, purchase or satisfaction
of, an Assured Obligation, (b) to make any loan, advance, capital contribution
or other investment in, or to purchase or lease any property or services from, a
Deemed Obligor (i) to maintain the solvency of the Deemed Obligor, (ii) to
enable the Deemed Obligor to meet any other financial condition, (iii) to enable
the Deemed Obligor to satisfy any Assured Obligation or to make any Stock
Payment or any other payment, or (iv) to assure the holder of such Assured
Obligation against loss, (c) to purchase or lease property or services from
-9-
14
the Deemed Obligor regardless of the non-delivery of or failure to furnish of
such property or services, (d) in a transaction having the characteristics of a
take-or-pay or throughput contract or as described in paragraph 6 of FASB
Statement of Financial Accounting Standards No. 47, or (e) in respect of any
other transaction the effect of which is to assure the payment or performance
(or payment of damages or other remedy in the event of nonpayment or
nonperformance) of any Assured Obligation.
"Indebtedness" of a Person shall mean (without duplication)
and in each case except for trade accounts payable in the ordinary course of
business:
(a) All obligations on account of money borrowed by, or credit
extended to or on behalf of, or for or on account of deposits with or
advances to, such Person;
(b) All obligations of such Person evidenced by bonds,
debentures, notes or similar instruments;
(c) All obligations of such Person for the deferred purchase
price of property or services;
(d) All obligations secured by a Lien on property owned by
such Person (whether or not assumed); and all obligations of such
Person under Capitalized Leases (without regard to any limitation of
the rights and remedies of the holder of such Lien or the lessor under
such Capitalized Lease to repossession or sale of such property);
(e) The unreimbursed amount of all drawings under any letter
of credit issued for the account of such Person;
(f) All obligations of such Person in respect of acceptances
or similar obligations issued for the account of such Person;
(g) All obligations of such Person under a product financing
or similar arrangement described in paragraph 8 of FASB Statement of
Accounting Standards No. 49 or any similar requirement of GAAP;
(h) All obligations of such Persons under any Swaps; and
(i) All indebtedness of others as to which such Person is a
Deemed Guarantor under a Guaranty Equivalent.
"Indemnified Parties" shall mean the Lender Parties and their
respective affiliates, and their respective directors, officers, employees,
attorneys and agents.
"Law" shall mean any law (including common law), constitution,
statute, treaty, convention, regulation, rule, ordinance, order, injunction,
writ, decree or award of any Governmental Authority.
-10-
15
"Lender" shall mean any of the Lenders listed on the signature
pages hereof, subject to the provisions of Section 10.14 hereof pertaining to
Persons becoming or ceasing to be Lenders.
"Lender Parties" shall mean the Lenders and the Agent.
"LIBID Rate" as of any Funding Breakage Date shall mean the
rate of interest determined in good faith by a Lender in accordance with its
usual procedures (which determination shall be conclusive) to be the average of
rates per annum for deposits in Dollars bid for by major money center banks in
the euro-dollar interbank market for delivery on the Funding Breakage Date,
which deposits are of an amount comparable to the Funding Segment that is paid,
prepaid or converted to the Base Rate Option and which deposits mature on the
last day of the corresponding Euro-Rate Funding Period (or if no such deposits
mature on such date, the rate determined by standard securities interpolation
methods as applied to deposits maturing as close as possible to, but earlier
than, such date, and to deposits maturing as close as possible to, but later
than, such date).
"Lien" shall mean any mortgage, deed of trust, pledge, lien,
security interest, charge or other encumbrance or security arrangement of any
nature whatsoever, including but not limited to any conditional sale or title
retention arrangement, and any assignment, deposit arrangement or lease intended
as, or having the effect of, security and the filing of or agreement to give any
financing statement under the Uniform Commercial Code of any jurisdiction.
"Loan" shall mean any loan made by a Lender to the Borrower
under this Agreement and "Loans" shall mean all Loans made by the Lenders under
this Agreement.
"Loan Documents" shall mean this Agreement, the Notes, the
Parent Guaranty, the Subsidiary Guarantees, the Transfer Supplement and all
other agreements and instruments extending, renewing, refinancing or refunding
any indebtedness, obligation or liability arising under any of the foregoing, in
each case as the same may be amended, modified or supplemented from time to time
hereafter.
"Loan Party" shall mean the Borrower and the Guarantors.
"London Business Day" shall mean a day for dealing in deposits
in Dollars by and among banks in the London interbank market and which is a
Business Day.
"Long Term Commitments" shall mean the aggregate "Revolving
Credit Commitments" of the "Lenders" (each as defined in the Long Term Credit
Agreement) under the Long Term Credit Agreement.
"Long Term Credit Agreement" shall mean that certain Credit
Agreement dated the date hereof, by and among the Borrower party thereto, the
Lenders named therein, the Issuing
-11-
16
Banks referred to therein, the Guarantors named therein and Mellon Bank, N.A.,
as the Agent, as amended from time to time.
"Long Term Loan Documents" shall mean the Loan Documents as
defined in the Long Term Credit Agreement.
"Material Adverse Effect" shall mean: (a) a material adverse
effect on the business, operations, condition (financial or otherwise) or
prospects of a Loan Party and its Subsidiaries taken as a whole, (b) a material
adverse effect on the ability of any Loan Party to perform or comply with any of
the terms and conditions of any Loan Document, or (c) an adverse effect on the
legality, validity, binding effect, enforceability or admissibility into
evidence of any Loan Document, or the ability of any Lender to enforce any
rights or remedies under or in connection with any Loan Document.
"Mellon" shall mean Mellon Bank, N.A. in its individual
capacity.
"Multiemployer Plan" shall mean any employee benefit plan
which is a "multiemployer plan" within the meaning of Section 4001(a)(3) of
ERISA and to which the Borrower or any Controlled Group Member has or had an
obligation to contribute.
"Net Income" of any Person for any period shall mean the net
earnings (or loss) after taxes of such Person for such period determined in
accordance with GAAP (exclusive of principles of consolidation).
"Note" or "Notes" shall mean the Revolving Credit Notes of the
Borrower executed and delivered under this Agreement, together with all
extensions, renewals, refinancings or refundings of any thereof in whole or in
part.
"Notional Euro-Rate Funding Office" shall have the meaning
given to that term in Section 2.12(a) hereof.
"Obligations" shall mean all indebtedness, obligations and
liabilities of the Borrower to any Lender or the Agent from time to time arising
under or in connection with or related to or evidenced by or secured by or under
color of this Agreement or any other Loan Document, and all extensions, renewals
or refinancings thereof, whether such indebtedness, obligations or liabilities
are direct or indirect, otherwise secured or unsecured, joint or several,
absolute or contingent, due or to become due, whether for payment or
performance, now existing or hereafter arising. Without limitation of the
foregoing, such indebtedness, obligations and liabilities include the principal
amount of the Loans, Reimbursement Obligations, interest, fees, indemnities or
expenses under or in connection with this Agreement or any other Loan Document,
and all extensions, renewals and refinancings thereof, whether or not such Loans
were made or the Letters of Credit were issued in compliance with the terms and
conditions of this Agreement or in excess of the obligation of the Lenders to
lend and to issue Letters of Credit. Obligations shall remain Obligations
notwithstanding any assignment or transfer or any subsequent assignment or
transfer of any of the Obligations or any interest therein.
-12-
17
"Office," when used in connection with the Agent, shall mean
its office located at Three Mellon Bank Center, Xxxxxxxxxx, Xxxxxxxxxxxx 00000,
or at such other office or offices of the Agent or any branch, subsidiary or
affiliate thereof as may be designated in writing from time to time by the Agent
to the Borrower.
"Option" shall mean the Base Rate Option or the Euro-Rate
Option, as the case may be.
"Parent" shall mean Black Box Corporation, a Delaware
corporation.
"Parent Guaranty" shall have the meaning set forth in Section
5.01(o) hereof.
"Participant" shall have the meaning set forth in Section
10.14(b) hereof.
"PBGC" means the Pension Benefit Guaranty Corporation
established under Title IV of ERISA or any other governmental agency, department
or instrumentality succeeding to the functions of said corporation.
"Pension-Related Event" shall mean any of the following events
or conditions:
(a) Any action is taken by any Person (i) to terminate, or
which would result in the termination of, a Plan, either pursuant to
its terms or by operation of law (including, without limitation, any
amendment of a Plan which would result in a termination under Section
4041(e) of ERISA), or (ii) to have a trustee appointed for a Plan
pursuant to Section 4042 of ERISA;
(b) PBGC notifies any Person of its determination that an
event described in Section 4042 of ERISA has occurred with respect to a
Plan, that a Plan should be terminated, or that a trustee should be
appointed for a Plan;
(c) Any Reportable Event occurs with respect to a Plan;
(d) Any action occurs or is taken which could result in any
Loan Party becoming subject to liability for a complete or partial
withdrawal by any Person from a Multiemployer Plan (including, without
limitation, seller liability incurred under Section 4204(a)(2) of
ERISA), or any Loan Party or any Controlled Group Member receives from
any Person a notice or demand for payment on account of any such
alleged or asserted liability; or
(e) (i) There occurs any failure to meet the minimum funding
standard under Section 302 of ERISA or Section 412 of the Code with
respect to a Plan, or any tax return is filed showing any tax payable
under Section 4971(a) of the Code with respect to any such failure, or
any Loan Party or any Controlled Group Member receives a notice of
deficiency from the Internal Revenue Service with respect to any
alleged or asserted such
-13-
18
failure, or (ii) any request is made by any Person for a variance from
the minimum funding standard, or an extension of the period for
amortizing unfunded liabilities, with respect to a Plan.
"Person" shall mean an individual or a corporation, limited
liability company, partnership, trust, unincorporated association, joint
venture, joint-stock company, Governmental Authority or any other entity.
"Plan" means any employee pension benefit plan within the
meaning of Section 3(2) of ERISA (other than a Multiemployer Plan) covered by
Title IV of ERISA by reason of Section 4021 of ERISA, of which any Loan Party or
any Controlled Group Member is or has been within the preceding five (5) years a
"contributing sponsor" within the meaning of Section 4001(a)(13) of ERISA, or
which is or has been within the preceding five (5) years maintained for
employees of any Loan Party or any Controlled Group Member.
"Portion" shall mean the Base Rate Portion or the Euro-Rate
Portion, as the case may be.
"Postretirement Benefits" shall mean any benefits, other than
retirement income, provided by any Loan Party to retired employees, or to their
spouses, dependents or beneficiaries, including, without limitation, group
medical insurance or benefits, or group life insurance or death benefits.
"Potential Default" shall mean any event or condition which
with notice, passage of time or a determination by the Agent or the Lenders, or
any combination of the foregoing, would constitute an Event of Default.
"Pricing Grid" means the table identified as such in Annex A.
"Prime Rate" as used herein, shall mean the interest rate per
annum announced from time to time by Mellon Bank, N.A. as its prime rate, such
rate to change automatically effective as of the effectiveness of each announced
change in such prime rate which rate may be greater or less then other interest
rates charged by Mellon Bank, N.A. to other borrowers and is not solely based or
dependent upon the interest rate which Mellon Bank, N.A. may charge any
particular borrower or class of borrowers.
"Pro Rata" shall mean from or to each Lender in proportion to
such Lender's Commitment Percentage.
"Purchasing Lender" shall have the meaning set forth in
Section 10.14(c).
"Register" shall have the meaning set forth in Section
10.14(d).
"Reportable Event" means (a) a reportable event described in
Section 4043 of ERISA and regulations thereunder, (b) a withdrawal by a
substantial employer from a Plan to
-14-
19
which more than one employer contributes, as referred to in Section 4063(b) of
ERISA, (c) a cessation of operations at a facility causing more than twenty
percent (20%) of Plan participants to be separated from employment, as referred
to in Section 4068(f) of ERISA, or (d) a failure to make a required installment
or other payment with respect to a Plan when due in accordance with Section 412
of the Code or Section 302 of ERISA which causes the total unpaid balance of
missed installments and payments (including unpaid interest) to exceed $750,000.
"Required Lenders" shall mean, as of any date, Lenders which
have Commitments constituting, in the aggregate, at least a majority of the
total Commitments of all the Lenders or, if the Commitments have terminated,
Lenders holding in the aggregate at least a majority of the Revolving Credit
Exposures.
"Responsible Officer" with respect to any Loan Party shall
mean the Chief Executive Officer, President, any Vice President, Treasurer,
Chief Financial Officer or Controller of such Loan Party.
"Revolving Credit Commitment" shall have the meaning set forth
in Section 2.01(a) hereof.
"Revolving Credit Committed Amount" shall have the meaning set
forth in Section 2.01(a) hereof.
"Revolving Credit Exposure" of any Lender at any time shall
mean the sum at such time of the outstanding principal amount of such Lender's
Revolving Credit Loans.
"Revolving Credit Extensions of Credit" shall mean, at any
particular time, aggregate unpaid principal amount of Revolving Credit Loans
then outstanding.
"Revolving Credit Loans" shall have the meaning set forth in
Section 2.01(a) hereof.
"Revolving Credit Maturity Date" shall mean April 4, 2001.
"Revolving Credit Notes" shall mean the promissory notes of
the Borrower executed and delivered under Section 2.01(c) hereof, any promissory
note issued in substitution therefor pursuant to Section 10.14(c) and Section
2.12(b), together with all extensions, renewals, refinancings or refundings
thereof in whole or part.
"Solvent" means, with respect to any Person at any time, that
at such time (a) the sum of the debts and liabilities (including, without
limitation, contingent liabilities) of such Person is not greater than all of
the assets of such Person at a fair valuation, (b) the present fair salable
value of the assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as they
become absolute and matured, (c) such Person has not incurred, will not incur,
does not intend to incur, and does not believe that it will incur, debts or
liabilities (including, without limitation, contingent liabilities) beyond such
-15-
20
person's ability to pay as such debts and liabilities mature and (d) such Person
is not engaged in, and is not about to engage in, a business or a transaction
for which such person's property constitutes or would constitute unreasonably
small capital. In computing the amount of contingent liabilities at any time, it
is intended that such liabilities will be computed at the amount which, in light
of all the facts and circumstances existing at such time, represents the amount
the can reasonably be expected to become an actual or matured liability.
"Standard Notice" shall mean an irrevocable notice provided to
the Agent on a Business Day which is:
(a) The same day in the case of selection of, conversion to or
renewal of the Base Rate Option or prepayment of any Base Rate Portion;
and
(b) At least three (3) London Business Days in advance in the
case of selection of the Euro-Rate Option or prepayment of any
Euro-Rate Portion.
Standard Notice must be provided no later than 12:00 Noon, Pittsburgh time, on
the last day permitted for such notice.
"Stock Payment" by any Person shall mean any dividend,
distribution or payment of any nature (whether in cash, securities, or other
property) on account of or in respect of any shares of the capital stock (or
warrants, options or rights therefor) of such Person, including but not limited
to any payment on account of the purchase, redemption, retirement, defeasance or
acquisition of any shares of the capital stock (or warrants, options or rights
therefor) of such Person, in each case regardless of whether required by the
terms of such capital stock (or warrants, options or rights) or any other
agreement or instrument.
"Subsidiary" of a Person at any time shall mean any
corporation of which a majority (by number of shares or number of votes) of any
class of outstanding capital stock normally entitled to vote for the election of
one or more directors (regardless of any contingency which does or may suspend
or dilute the voting rights of such class) is at such time owned directly or
indirectly, beneficially or of record, by such Person or one or more
Subsidiaries of such Person, and any trust of which a majority of the beneficial
interest is at such time owned directly or indirectly, beneficially or of
record, by such Person or one or more Subsidiaries of such Person.
"Subsidiary Guarantees" shall have the meaning set forth in
Section 5.01(n) hereof.
"Swaps" shall mean, with respect to any Person, payment
obligations with respect to interest rate swaps, currency swaps and similar
obligations obligating such Person to make payments, whether periodically or
upon the happening of a contingency. For the purposes of this Agreement, the
amount of the obligation under any Swap shall be the amount determined in
respect thereof as of the end of the then most recently ended fiscal quarter of
such Person, based on the assumption that such Swap had terminated at the end of
such fiscal quarter, and in making
-16-
21
such determination, if any agreement relating to such Swap provides for the
netting of amounts payable by and to such Person thereunder or if any such
agreement provides for the simultaneous payment of amounts by and to such
Person, then in each such case, the amount of such obligation shall be the net
amount so determined.
"Taxes" shall have the meaning set forth in Section 2.11(a)
hereof.
"Transfer Supplement" shall have the meaning set forth in
Section 10.14(c) hereof.
1.02. Construction. Unless the context of this Agreement
otherwise clearly requires, references to the plural include the singular, the
singular the plural and the part the whole; "or" has the inclusive meaning
represented by the phrase "and/or"; and "property" includes all properties and
assets of any kind or nature, tangible or intangible, real, personal or mixed.
References in this Agreement to "determination" (and similar terms) by the Agent
or any Lender include good faith estimates by the Agent or any Lender (in the
case of quantitative determinations) and good faith beliefs by the Agent or any
Lender (in the case of qualitative determinations). The words "hereof,"
"herein," "hereunder" and similar terms in this Agreement refer to this
Agreement as a whole and not to any particular provision of this Agreement.
References herein to "out-of-pocket expenses" of a Person (and similar terms)
include, but are not limited to, the reasonable fees of in-house counsel and
other in-house professionals of such Person to the extent that such fees are
routinely identified and specifically charged under such Person's normal cost
accounting system. The section and other headings contained in this Agreement
and the Table of Contents preceding this Agreement are for reference purposes
only and shall not control or affect the construction of this Agreement or the
interpretation thereof in any respect. Section, subsection and exhibit
references are to this Agreement unless otherwise specified.
1.03. Accounting Principles.
(a) As used herein, "GAAP" shall mean generally accepted
accounting principles as such principles shall be in effect at the Relevant
Date, subject to the provisions of this Section 1.03. As used herein, "Relevant
Date" shall mean the date a relevant computation or determination is to be made
or the date of relevant financial statements, as the case may be.
(b) Except as otherwise provided in this Agreement, all
computations and determinations as to accounting or financial matters shall be
made, and all financial statements to be delivered pursuant to this Agreement
shall be prepared, in accordance with GAAP (including principles of
consolidation where appropriate), and all accounting or financial terms shall
have the meanings ascribed to such terms by GAAP.
(c) If any change in GAAP after the date of this Agreement is
or shall be required to be applied to transactions then or thereafter in
existence, and a violation of one or more provisions of this Agreement shall
have occurred or in the opinion of the Borrower would
-17-
22
likely occur which would not have occurred or be likely to occur if no change in
accounting principles had taken place,
(i) The Lenders agree that such violation shall not be
considered to constitute an Event of Default or a Potential Default for
a period of ninety (90) days from the date the Borrower notifies the
Agent of the application of this Section 1.03(c);
(ii) The Borrower and the Lenders agree in such event to
negotiate in good faith an amendment of this Agreement which shall
approximate to the extent possible the economic effect of the original
financial covenants after taking into account such change in GAAP; and
(iii) If the Borrower and the Lenders are unable to negotiate
such an amendment within such ninety-day period, the Borrower shall
have the option of (A) prepaying the Revolving Credit Loans and causing
the cancellation of any Letters of Credit (pursuant to applicable
provisions hereof) or (B) submitting the drafting of such an amendment
to a firm of independent certified public accountants of nationally
recognized standing acceptable to the Borrower and the Agent which
shall complete its draft of such amendment within ninety (90) days of
submission; if the Borrower and the Lenders cannot agree, the firm
shall be selected by binding arbitration in the City of Pittsburgh,
Pennsylvania, in accordance with the rules then being used by the
American Arbitration Association. If the Borrower does not exercise
either such option within said period, then as used in this Agreement,
"GAAP" shall mean generally accepted accounting principles in effect at
the Relevant Date. Each Lender agrees that if the Borrower elects the
option in clause (B) above, until such firm has been selected and
completes drafting such amendment, no such violation shall constitute
an Event of Default or a Potential Default.
(d) If any change in GAAP after the date of this Agreement is
required to be applied to transactions or conditions then or thereafter in
existence, and the Lenders shall assert that the effect of such change is or
shall likely be to distort materially the effect of any of the definitions of
financial terms in Article I hereof or any of the covenants of the Borrower in
Article VII of the Long Term Credit Agreement (the "Financial Provisions"), so
that the intended economic effect of any of the Financial Provisions will not in
fact be accomplished,
(i) The Agent shall notify the Borrower of such assertion,
specifying the change in GAAP which is objected to, and until otherwise
determined as provided below, the specified change in GAAP shall not be
made by the Borrower in its financial statements for the purpose of
applying the Financial Provisions; and
(ii) The Borrower and the Lenders shall follow the procedures
set forth in paragraph (ii) and the first sentence of paragraph (iii)
of subsection (c) of this Section. If the Borrower and the Lenders are
unable to agree on an amendment as provided in said paragraph (ii) and
if the Borrower does not exercise either option set forth in the first
sentence of said paragraph (iii) within the specified period, then as
used in this Agreement "GAAP" shall mean generally accepted accounting
principles in effect at the
-18-
23
Relevant Date, except that the specified change in GAAP which is
objected to by the Lenders shall not be made in applying the Financial
Provisions. The Lenders agree that if the Borrower elects the option in
clause (B) of the first sentence of said paragraph (iii), until such
independent firm has been selected and completes drafting such
amendment, the specified change in GAAP shall not be made in applying
the Financial Provisions.
(e) All expenses of compliance with this Section 1.03 shall be
paid for by the Borrower.
ARTICLE II
REVOLVING CREDIT
2.01. Revolving Credit Loans.
(a) Revolving Credit Commitments. Subject to the terms and
conditions and relying upon the representations and warranties herein set forth,
each Lender, severally and not jointly, agrees (such agreement being herein
called such Lender's "Revolving Credit Commitment") to make loans (the
"Revolving Credit Loans") to the Borrower at any time or from time to time on or
after the date hereof and to but not including the Revolving Credit Maturity
Date. A Lender shall have no obligation to make any Revolving Credit Loan to the
extent that the aggregate principal amount of such Lender's Pro Rata share of
the total Revolving Credit Extensions of Credit at any time outstanding would
exceed such Lender's Revolving Credit Committed Amount at such time. Each
Lender's "Revolving Credit Committed Amount" at any time shall be equal to the
amount set forth on the Commitment Schedule across from its name.
(b) Nature of Credit. Within the limits of time and amount set
forth in this Section 2.01, and subject to the provisions of this Agreement, the
Borrower may borrow, repay and reborrow Revolving Credit Loans hereunder.
(c) Revolving Credit Note. The obligation of the Borrower to
repay the unpaid principal amount of the Revolving Credit Loans made to it by
each Lender and to pay interest thereon shall be evidenced in part by a
promissory note of the Borrower, dated the Closing Date, (the "Revolving Credit
Notes") in substantially the form attached hereto as Exhibit A, with the blanks
appropriately filled, payable to the order of such Lender in a face amount equal
to such Lender's Revolving Credit Committed Amount.
(d) Maturity. To the extent not due and payable earlier, the
Revolving Credit Loans shall be due and payable on the Revolving Credit Maturity
Date and, to the extent that the aggregate Revolving Credit Extensions of Credit
at any time outstanding is in excess of the aggregate of all Revolving Credit
Committed Amounts at such time (whether as a result of the reduction of the
Revolving Credit Committed Amounts or otherwise), a portion of the Revolving
Credit Loans in an amount equal to such excess shall be immediately due and
payable.
-19-
24
2.02. Commitment Fee. The Borrower shall pay to the Agent for
the account of each Lender a commitment fee (the "Commitment Fee") calculated at
the Commitment Fee Rate for each day from and including the date hereof to but
not including the Revolving Credit Maturity Date (or such earlier date on which
the Revolving Credit Commitment terminates), on the amount (not less than zero)
equal to (a) such Lender's Revolving Credit Committed Amount minus (b) such
Lender's Revolving Credit Extensions of Credit on such day. Such Commitment Fee
shall be due and payable for the preceding period for which such fee has not
been paid (x) on the first (1st) day of each January, April, July and October
and (y) on the date of each reduction of the Revolving Credit Committed Amounts
on the amount so reduced and (z) on the Revolving Credit Maturity Date. For
purposes hereof, the "Commitment Fee Rate" for each day shall mean the
applicable percentage set forth in Annex A based on the Applicable Tier on such
day times 1/360.
2.03. Making of Loans. Whenever the Borrower desires that the
Lenders make Revolving Credit Loans, the Borrower shall provide Standard Notice
to the Agent setting forth the following information:
(a) The date, which shall be a Business Day, on which such
proposed Loans are to be made;
(b) The aggregate principal amount of such proposed Loans,
which shall be the sum of the principal amounts selected pursuant to clause (c)
of this Section 2.03, and which shall be an integral multiple of $100,000 for
Loans subject to the Base Rate and not less than $250,000 or such amount plus an
integral multiple of $100,000 in excess thereof for the Funding Segment of the
Euro-Rate Portion;
(c) The interest rate Option or Options selected in accordance
with Section 2.04(a) hereof and the principal amounts selected in accordance
with Section 2.04(d) hereof of the Base Rate Portion and each Funding Segment of
the Euro-Rate Portion, as the case may be, of such proposed Loans; and
(d) With respect to each such Funding Segment of such proposed
Loans, the Euro-Rate Funding Period to apply to such Funding Segment, selected
in accordance with Section 2.04(c) hereof.
Standard Notice having been so provided, the Agent shall promptly notify each
Lender of the information contained therein and of the amount of such Lender's
Loan. Unless any applicable condition specified in Article V hereof has not been
satisfied, on the date specified in such Standard Notice, each Lender shall make
the proceeds of its Loan available to the Agent, no later than 2:00 p.m.,
Pittsburgh time, in funds immediately available at the Agent's Office. The Agent
will make the funds so received available to the Borrower in funds immediately
available at the Agent's Office.
-20-
25
2.04. Interest Rates.
(a) Optional Bases of Borrowing. The unpaid principal amount
of the Loans shall bear interest for each day until due on one or more bases
selected by the Borrower from among the interest rate Options set forth below.
Subject to the provisions of this Agreement, the Borrower may select different
Options to apply simultaneously to different Portions of the Loans and may
select different Funding Segments to apply simultaneously to different parts of
the Euro-Rate Portion of the Loans. The aggregate number of Funding Segments
applicable to the Euro-Rate Portion of the Loans at any time shall not exceed
six (6).
(i) Base Rate Option: A rate per annum (computed on the basis
of a year of 360 days and actual days elapsed) for each day equal to
the Base Rate for such day plus the Applicable Margin for such day. The
"Base Rate" for any day shall mean the greater of (A) the Prime Rate
for such day or (B) 0.50% plus the Federal Funds Effective Rate for
such day such interest rate to change automatically from time to time
effective as of the effective date of each change in the Prime Rate or
the Federal Funds Effective Rate.
(ii) Euro-Rate Option: A rate per annum (based on a year of
360 days and actual days elapsed) for each day equal to the Euro-Rate
for such day plus the Applicable Margin for such day. The "Euro-Rate"
for any day shall mean for each Funding Segment of the Euro-Rate
Portion corresponding to a proposed or existing Euro-Rate Funding
Period the rate per annum determined by the Agent by dividing (the
resulting quotient to be rounded upward to the nearest 1/1000 of 1%)
(A) the rate of interest (which shall be the same for each day in such
Euro-Rate Funding Period) determined in good faith by the Agent in
accordance with its usual procedures (which determination shall be
conclusive) to be the average of the rates per annum for deposits in
Dollars offered to major money center banks in the London interbank
market at approximately 11:00 a.m., London time, two (2) London
Business Days prior to the first day of such Euro-Rate Funding Period
for delivery on the first day of such Euro-Rate Funding Period in
amounts comparable to such Funding Segment and having maturities
comparable to such Euro-Rate Funding Period (except that the Euro-Rate
with respect to a two-week Euro-Rate Funding Period shall be determined
on the basis of deposits having a maturity of one month and not two
weeks, with no amount to be due pursuant to Section 2.10(b) as a result
thereof) by (B) a number equal to 1.00 minus the Euro-Rate Reserve
Percentage.
The "Euro-Rate" may also be expressed by the following
formula:
[average of the rates offered to major money ]
[center banks in the London interbank market ]
Euro-Rate = [determined by the Agent per subsection (A) ]
------------------------------------------------}
[1.00 - Euro-Rate Reserve Percentage ]
"Euro-Rate Reserve Percentage" for any day shall mean the
percentage (expressed as a decimal, rounded upward to the nearest
1/1000 of 1%), as determined in good faith by the Agent (which
determination shall be conclusive), which is in effect on such day as
-21-
26
prescribed by the Board of Governors of the Federal Reserve System (or
any successor) representing the maximum reserve requirement (including,
without limitation, supplemental, marginal and emergency reserve
requirements) with respect to eurocurrency funding (currently referred
to as "Eurocurrency liabilities") of a member bank in such System. The
Euro-Rate shall be adjusted automatically as of the effective date of
each change in the Euro-Rate Reserve Percentage. The Euro-Rate Option
shall be calculated in accordance with the foregoing whether or not any
Lender is actually required to hold reserves in connection with its
eurocurrency funding or, if required to hold such reserves, is required
to hold reserves at the "Euro-Rate Reserve Percentage" as herein
defined.
The Agent shall give prompt notice to the Borrower and to the
Lenders of the Euro-Rate determined or adjusted in accordance with the
definition of the Euro-Rate, which determination or adjustment shall be
conclusive if made in good faith.
(b) Applicable Margin. The Applicable Margin for each day
shall mean the applicable percentage set forth in Annex A for each interest rate
option based on the Applicable Tier on such day, provided that, from the Closing
Date through September 30, 2001 the Applicable Tier shall be no lower than Tier
II.
(c) Euro-Rate Funding Periods. At any time when the Borrower
shall select, convert to or renew the Euro-Rate Option to apply to any part of
the Loans, the Borrower shall specify one or more periods during which the
Euro-Rate Option shall apply, such periods being two weeks or one, two, three or
six months ("Euro-Rate Funding Period"); provided, that (i) each Euro-Rate
Funding Period shall begin on a London Business Day, and the term "month", when
used in connection with a Euro-Rate Funding Period, shall be construed in
accordance with prevailing practices in the interbank eurodollar market at the
commencement of such Euro-Rate Funding Period, as determined in good faith by
the Agent (which determination shall be conclusive); (ii) the Borrower may not
select a Euro-Rate Funding Period that would end after the Revolving Credit
Maturity Date; and (iii) the Borrower shall, in selecting any Euro-Rate Funding
Period, allow for scheduled mandatory payments of the Loans. Any Euro-Rate
Funding Period which would otherwise end on a date which is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day
falls in the next calendar month, in which case such Euro-Rate Funding Period
shall end on the immediately preceding Business Day.
(d) Transactional Amounts. Every selection of, conversion
from, conversion to or renewal of an interest rate Option and every payment or
prepayment of any Loans shall be in a principal amount such that after giving
effect thereto the aggregate principal amount of (i) the Base Rate Portion shall
be for not less than the lesser of $100,000 or the maximum amount available for
Loans to which the Basic Rate Option applies and (ii) each Funding Segment of
the Euro-Rate Portion of the Loans shall be $250,000 or an integral multiple of
$100,000 in excess thereof.
-22-
27
(e) Euro-Rate Unascertainable; Impracticability. If
(i) on any date on which a Euro-Rate would otherwise be set
the Agent (in the case of clauses (A) or (B) below) or any Lender (in
the case of clause (C) below) shall have determined in good faith
(which determination shall be conclusive) that:
(A) adequate and reasonable means do not exist for
ascertaining such Euro-Rate,
(B) a contingency has occurred which materially and
adversely affects the interbank eurodollar market, or
(C) the effective cost to such Lender of funding a
proposed Funding Segment of the Euro-Rate Portion from a
Corresponding Source of Funds shall exceed the Euro-Rate
applicable to such Funding Segment, or
(ii) at any time any Lender shall have determined in good
faith (which determination shall be conclusive) that the making,
maintenance or funding of any part of the Euro-Rate Portion has been
made impracticable or unlawful by compliance by such Lender or a
Notional Euro-Rate Funding Office in good faith with any Law or
guideline or interpretation or administration thereof by any
Governmental Authority charged with the interpretation or
administration thereof or with any request or directive of any such
Governmental Authority (whether or not having the force of law);
then, and in any such event, the Agent or such Lender, as the case may be, may
notify the Borrower of such determination (and any Lender giving such notice
shall notify the Agent). Upon such date as shall be specified in such notice
(which shall not be earlier than the date such notice is given), the obligation
of each of the Lenders to allow the Borrower to select, convert to or renew the
Euro-Rate Option shall be suspended until the Agent or such Lender, as the case
may be, shall have later notified the Borrower (and any Lender giving such
notice shall notify the Agent) of the Agent's or such Lender's determination in
good faith (which determination shall be conclusive) that the circumstance
giving rise to such previous determination no longer exist.
If any Lender notifies the Borrower of a determination under
subsection (ii) of this Section 2.04(e), the Euro-Rate Portion of the Loans of
such Lender (the "Affected Lender") shall automatically be converted to the Base
Rate Option as of the date specified in such notice (and accrued interest
thereon shall be due and payable on such date).
If at the time the Agent or a Lender makes a determination
under subsection (i) or (ii) of this Section 2.04(e) the Borrower previously has
notified the Agent that it wishes to select, convert to or renew the Euro-Rate
Option with respect to any proposed Loans but such Loans have not yet been made,
such notification shall be deemed to provide for selection of, conversion to or
renewal of the Base Rate Option instead of the Euro-Rate Option with respect to
such Loans or, in the case of a determination by a Lender, such Loans of such
Lender.
-23-
28
(f) Availability of Funds. If at any time any Lender cannot
access funds through traditional sources, as determined by such Lender in good
faith (which determination shall be conclusive absent manifest error), and it is
necessary for such Lender to access funding through the Federal Reserve System's
Century Date Change Special Liquidity Facility Program (the "Alternative
Funds"), then the interest rate applicable to such Lender's Pro Rata share of
the Loans made with such Alternative Funds shall be equal to (i) the Federal
Funds Effective Rate then in effect, plus (ii) 1.50%, plus (iii) the Applicable
Margin determined by reference to the Leverage Ratio on such date.
2.05. Conversion or Renewal of Interest Rate Options.
(a) Conversion or Renewal. Subject to the provisions of
Sections 2.09(c) and 2.10(b) hereof, and if no Event of Default or Potential
Default shall have occurred and be continuing or shall exist, the Borrower may
convert any part of the Loans from any interest rate Option or Options to one or
more different interest rate Options and may renew the Euro-Rate Option as to
any Funding Segment of the Euro-Rate Portion:
(i) At any time with respect to conversion from the Base Rate
Option; or
(ii) At the expiration of any Euro-Rate Funding Period with
respect to conversions from or renewals of the Euro-Rate Option, as to
the Funding Segment corresponding to such expiring Euro-Rate Funding
Period.
Whenever the Borrower desires to convert or renew any interest rate Option or
Options, the Borrower shall provide to the Agent Standard Notice setting forth
the following information:
(v) The date, which shall be a Business Day, on which the
proposed conversion or renewal is to be made;
(w) The principal amounts selected in accordance with Section
2.04(d) hereof of the Base Rate Portion and each Funding Segment of the
Euro-Rate Portion to be converted from or renewed;
(x) The interest rate Option or Options selected in accordance
with Section 2.04(a) hereof and the principal amounts selected in
accordance with Section 2.04(d) hereof of the Base Rate Portion and
each Funding Segment of the Euro-Rate Portion to be converted to; and
(y) With respect to each Funding Segment to be converted to or
renewed, the Euro-Rate Funding Period selected in accordance with
Section 2.04(c) hereof to apply to such Funding Segment.
Standard Notice having been so provided, after the date specified in such
Standard Notice, interest shall be calculated upon the principal amount of the
Loans as so converted or renewed.
-24-
29
Interest on the principal amount of any part of the Loans converted or renewed
(automatically or otherwise) shall be due and payable on the conversion or
renewal date.
(b) Failure to Convert or Renew. Absent due notice from the
Borrower of conversion or renewal in the circumstances described in Section
2.05(a)(ii) hereof, any part of the Euro-Rate Portion for which such notice is
not received shall be converted automatically to the Base Rate Option on the
last day of the expiring Euro-Rate Funding Period.
2.06. Prepayments Generally. Whenever the Borrower desires or
is required to prepay any part of the Loans, it shall provide Standard Notice to
the Agent setting forth the following information:
(a) The date, which shall be a Business Day, on which the
proposed prepayment is to be made;
(b) The total principal amount of such prepayment, which shall
be the sum of the principal amounts selected pursuant to clause (c) of this
Section 2.06; and
(c) The principal amounts selected in accordance with Section
2.04(d) hereof of the Base Rate Portion and each part of each Funding Segment of
the Euro-Rate Portion to be prepaid.
Standard Notice having been so provided, on the date specified in such Standard
Notice, the principal amounts of the Base Rate Portion and each part of the
Euro-Rate Portion specified in such notice, together with interest on each such
principal amount to such date, shall be due and payable.
2.07. Optional Prepayments. The Borrower shall have the right
at its option from time to time to prepay the Loans in whole or part without
premium or penalty (subject, however, to Section 2.10(b) hereof):
(a) At any time with respect to any part of the Base Rate
Portion; or
(b) At the expiration of any Euro-Rate Funding Period with
respect to prepayment of the Euro-Rate Portion with respect to any part of the
Funding Segment corresponding to such expiring Euro-Rate Funding Period.
Any such prepayment shall be made in accordance with Section 2.06 hereof.
2.08. Interest Payment Dates. Interest on the Base Rate
Portion shall be due and payable on the first (1st) Business Day of each
calendar month. Interest on each Funding Segment of the Euro-Rate Portion shall
be due and payable on the last day of the corresponding Euro-Rate Funding Period
and, if such Euro-Rate Funding Period is longer than three months, also on the
last day of the third month of such Euro-Rate Funding Period (subject to the
rules of
-25-
30
Section 2.04(c) and Section 10.01). After maturity of any part of the Loans (by
acceleration or otherwise), interest on such part of the Loans shall be due and
payable on demand.
2.09. Pro Rata Treatment; Payments Generally; Interest on
Overdue Amounts.
(a) Pro Rata Treatment. Each borrowing and conversion and
renewal of interest rate Options hereunder shall be made, and all payments made
in respect of principal, interest and Commitment Fees due from the Borrower
hereunder or under the Notes shall be applied, Pro Rata from and to each Lender,
except for payments of interest involving an Affected Lender as provided in
Section 2.04(e) hereof, payments to a Lender under Sections 2.10 or 2.11 hereof.
The failure of any Lender to make a Loan shall not relieve any other Lender of
its obligation to lend hereunder, but neither the Agent nor any Lender shall be
responsible for the failure of any other Lender to make a Loan.
(b) Payments Generally. All payments and prepayments to be
made by the Borrower in respect of principal, interest, fees, indemnity,
expenses or other amounts due from the Borrower hereunder or under any Loan
Document shall be payable in Dollars by 12:00 o'clock Noon, Pittsburgh time, on
the day when due without presentment, demand, protest or notice of any kind, all
of which are hereby expressly waived, and an action therefor shall immediately
accrue, without setoff, counterclaim, withholding or other deduction of any kind
or nature. Such payments shall be made to the Agent at its Office in Dollars in
funds immediately available at such Office. Any payment or prepayment received
by the Agent after 12:00 o'clock Noon, Pittsburgh time, on any day shall be
deemed to have been received on the next succeeding Business Day. The Agent
shall distribute to the Lenders all such payments received by it from the
Borrower as promptly as practicable after receipt by the Agent.
(c) Default Interest. To the extent permitted by law, from and
after the date on which an Event of Default shall have occurred hereunder, and
so long as such Event of Default continues to exist, principal, interest, fees,
indemnity, expenses or any other amounts due from the Borrower hereunder or
under any other Loan Document, such amounts shall bear interest for each day
(before and after judgment), payable on demand, at a rate per annum (in each
case based on a year of 360 days and actual days elapsed) which for each day
shall be equal to the following:
(i) In the case of any part of the Euro-Rate Portion, (A)
until the end of the applicable then-current Euro-Rate Funding Period
at a rate per annum two percent (2%) above the rate otherwise
applicable to such part, and (B) thereafter in accordance with the
following clause (ii); and
(ii) In the case of any other amount due from the Borrower
hereunder or under any Loan Document, two percent (2%) above the
then-current Base Rate Option.
To the extent permitted by law, interest accrued on any amount which has become
due hereunder or under any Loan Document shall compound on a day-by-day basis,
and hence shall be added daily to the overdue amount to which such interest
relates.
-26-
31
2.10. Additional Compensation in Certain Circumstances.
(a) Increased Costs or Reduced Return Resulting From Taxes,
Reserves, Capital Adequacy Requirements, Expenses, Etc. If any Law or guideline
or interpretation or application thereof by any Governmental Authority charged
with the interpretation or administration thereof or compliance with any request
or directive of any Governmental Authority (whether or not having the force of
law) now existing or hereafter adopted:
(i) subjects any Lender or any Notional Euro-Rate Funding
Office to any tax or changes the basis of taxation with respect to this
Agreement, the Notes, the Loans, the Letters of Credit or payments by
the Borrower of principal, interest, commitment fee or other amounts
due from the Borrower hereunder or under the Notes (except for taxes on
the overall net income or overall gross receipts of such Lender or such
Notional Euro-Rate Funding Office imposed by the jurisdictions
(federal, state and local) in which such Lender's principal office or
Notional Euro-Rate Funding Office is located),
(ii) imposes, modifies or deems applicable any reserve,
special deposit or similar requirement against credits or commitments
to extend credit extended by, assets (funded or contingent) of,
deposits with or for the account of, other acquisitions of funds by,
such Lender or any Notional Euro-Rate Funding Office (other than
requirements expressly included herein in the determination of the
Euro-Rate hereunder),
(iii) imposes, modifies or deems applicable any capital
adequacy or similar requirement (A) against assets (funded or
contingent) of, or credits or commitments to extend credit extended by,
any Lender or any Notional Euro-Rate Funding Office, or (B) otherwise
applicable to the obligations of any Lender or any Notional Euro-Rate
Funding Office under this Agreement, or
(iv) imposes upon any Lender or any Notional Euro-Rate Funding
Office any other condition or expense with respect to this Agreement,
the Notes or its making, maintenance or funding of any Loan, or any
security therefor,
and the result of any of the foregoing is to increase the cost to, reduce the
income receivable by, or impose any expense (including loss of margin) upon any
Lender, any Notional Euro-Rate Funding Office or, in the case of clause (iii)
hereof, any Person controlling a Lender, with respect to this Agreement, the
Notes or the making, maintenance or funding of any Loan (or, in the case of any
capital adequacy or similar requirement, to have the effect of reducing the rate
of return on such Lender's or controlling Person's capital, taking into
consideration such Lender's or controlling Person's policies with respect to
capital adequacy) by an amount which such Lender deems to be material (such
Lender being deemed for this purpose to have made, maintained or funded each
Funding Segment of the Euro-Rate Portion from a Corresponding Source of Funds),
such Lender may from time to time notify the Borrower of the amount determined
in good faith (using any averaging and attribution methods) by such Lender
(which determination shall be conclusive) to be necessary to compensate such
Lender or such Notional Euro-Rate Funding
-27-
32
Office for such increase, reduction or imposition. Such amount shall be due and
payable by the Borrower to such Lender five (5) Business Days after such notice
is given. A certificate by such Lender as to the amount due and payable under
this Section 2.10(a) from time to time and the method of calculating such amount
shall be conclusive. Each Lender agrees that it will use good faith efforts to
notify the Borrower of the occurrence of any event that would give rise to a
payment under this Section 2.10(a); provided, however, that any failure of any
Lender to give any such notice shall have no effect on the Borrower's
obligations hereunder.
(b) Funding Breakage. In addition to all other amounts payable
hereunder, if and to the extent for any reason any part of any Funding Segment
of any Euro-Rate Portion of the Loans becomes due (by acceleration or
otherwise), or is paid, prepaid or converted to the Base Rate Option (whether or
not such payment, prepayment or conversion is mandatory or automatic and whether
or not such payment or prepayment is then due), on a day other than the last day
of the corresponding Euro-Rate Funding Period (the date such amount so becomes
due, or is so paid, prepaid or converted, being referred to as the "Funding
Breakage Date"), the Borrower shall pay each Lender an amount ("Funding Breakage
Indemnity") determined by such Lender by calculating the following amount: (A)
the principal amount of such Funding Segment of the Loans owing to such Lender
which so became due, or which was so paid, prepaid or converted, times (B) the
greater of (x) zero or (y) the rate of interest applicable to such principal
amount on the Funding Breakage Date minus the market LIBID Rate as of the
Funding Breakage Date, times (C) the number of days from and including the
Funding Breakage Date to but not including the last day of such Funding Period,
times (D) 1/360. Such Funding Breakage Indemnity shall be due and payable on
demand and each Lender shall, upon making such demand, notify the Agent of the
amount so demanded. The amount payable to the Lender under this Section 2.10(b)
shall be determined in good faith by such Lender, and such determination shall
be conclusive absent manifest error.
2.11. Taxes.
(a) Payments Net of Taxes. All payments made by the Borrower
under this Agreement or any other Loan Document shall be made free and clear of,
and without reduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, and all liabilities with respect
thereto, excluding
(i) in the case of the Agent and each Lender, income or
franchise taxes imposed on the Agent or such Lender by the jurisdiction
under the laws of which the Agent or such Lender is organized or any
political subdivision or taxing authority thereof or therein or as a
result of a connection between the Agent or such Lender and any
jurisdiction other than a connection resulting solely from this
Agreement and the transactions contemplated hereby, and
-28-
33
(ii) in the case of each Lender, income or franchise taxes
imposed by any jurisdiction in which such Lender's lending offices
which make or book Loans are located or any political subdivision or
taxing authority thereof or therein
(all such non-excluded taxes, levies, imposts, deductions, charges or
withholdings being hereinafter called "Taxes"). If any Taxes are required to be
withheld or deducted from any amounts payable to the Agent or any Lender under
this Agreement or any other Loan Document, the Borrower shall pay the relevant
amount of such Taxes and the amounts so payable to the Agent or such Lender
shall be increased to the extent necessary to yield to the Agent or such Lender
(after payment of all Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement and the
other Loan Documents. Whenever any Taxes are paid by the Borrower with respect
to payments made in connection with this Agreement or any other Loan Document,
as promptly as possible thereafter, the Borrower shall send to the Agent for its
own account or for the account of such Lender, as the case may be, a certified
copy of an original official receipt received by the Borrower showing payment
thereof.
(b) Indemnity. The Borrower hereby indemnifies the Agent and
each of the Lenders for the full amount of all Taxes attributable to payments by
or on behalf of the Borrower hereunder or under any of the other Loan Documents,
any Taxes paid by the Agent or such Lender, any present or future claims,
liabilities or losses with respect to or resulting from any omission to pay or
delay in paying any Taxes (including any incremental Taxes, interest or
penalties that may become payable by the Agent or such Lender as a result of any
failure to pay such Taxes), whether or not such Taxes were correctly or legally
asserted. Such indemnification shall be made within thirty (30) days from the
date such Lender or the Agent, as the case may be, makes written demand
therefor.
(c) Withholding and Backup Withholding. Each Lender that is
incorporated or organized under the laws of any jurisdiction other than the
United States or any state thereof agrees that, on or prior to the date any
payment is due to be made to it hereunder or under any other Loan Document, it
will furnish to the Borrower and the Agent
(i) two valid, duly completed copies of United States
Internal Revenue Service Form 4224 or United States Internal
Revenue Form 1001 or successor applicable form, as the case
may be, certifying in each case that such Lender is entitled
to receive payments under this Agreement and the other Loan
Documents without deduction or withholding of any United
States federal income taxes and
(ii) a valid, duly completed Internal Revenue Service
Form W-8 or W-9 or successor applicable form, as the case may
be, to establish an exemption from United States backup
withholding tax.
Each Lender which so delivers to the Borrower and the Agent a Form 1001 or 4224
and Form W-8 or W-9, or successor applicable forms agrees to deliver to the
Borrower and the Agent two further copies of the said Form 1001 or 4224 and Form
W-8 or W-9, or successor applicable
-29-
34
forms, or other manner of certification, as the case may be, on or before the
date that any such form expires or becomes obsolete or otherwise is required to
be resubmitted as a condition to obtaining an exemption from withholding tax, or
after the occurrence of any event requiring a change in the most recent form
previously delivered by it, and such extensions or renewals thereof as may
reasonably be requested by the Borrower and the Agent, certifying in the case of
a Form 1001 or Form 4224 that such Lender is entitled to receive payments under
this Agreement or any other Loan Document without deduction or withholding of
any United States federal income taxes, unless in any such cases an event
(including any changes in Law) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
letter or form with respect to it and such Lender advises the Borrower and the
Agent that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax, and in the case of a Form W-8
or W-9, establishing an exemption from United States backup withholding tax.
2.12. Funding by Branch, Subsidiary or Affiliate.
(a) Notional Funding. Each Lender shall have the right from
time to time, prospectively or retrospectively, without notice to the Borrower,
to deem any branch, subsidiary or affiliate of such Lender to have made,
maintained or funded any part of the Euro-Rate Portion at any time. Any branch,
subsidiary or affiliate so deemed shall be known as a "Notional Euro-Rate
Funding Office." Such Lender shall deem any part of the Euro-Rate Portion of the
Loans or the funding therefor to have been transferred to a different Notional
Euro-Rate Funding Office if such transfer would avoid or cure an event or
condition described in Section 2.04(e)(ii) hereof or would lessen compensation
payable by the Borrower under Section 2.10(a) hereof, and if such Lender
determines in its sole discretion that such transfer would be practicable and
would not have a Material Adverse Effect on such part of the Loans, such Lender
or any Notional Euro-Rate Funding Office (it being assumed for purposes of such
determination that each part of the Euro-Rate Portion is actually made or
maintained by or funded through the corresponding Notional Euro-Rate Funding
Office). Notional Euro-Rate Funding Offices may be selected by such Lender
without regard to such Lender's actual methods of making, maintaining or funding
Loans or any sources of funding actually used by or available to such Lender.
(b) Actual Funding. Each Lender shall have the right from time
to time to make or maintain any part of the Euro-Rate Portion by arranging for a
branch, subsidiary or affiliate of such Lender to make or maintain such part of
the Euro-Rate Portion. Such Lender shall have the right to (i) hold any
applicable Note payable to its order for the benefit and account of such branch,
subsidiary or affiliate or (ii) request the Borrower to issue one or more
substitute promissory notes in the principal amount of such Euro-Rate Portion,
in substantially the form attached hereto as Exhibit A, with the blanks
appropriately filled, payable to such branch, subsidiary or affiliate and with
appropriate changes reflecting that the holder thereof is not obligated to make
any additional Revolving Credit Loans to the Borrower. The Borrower agrees to
comply promptly with any request under subsection (ii) of this Section 2.12(b).
If any Lender causes a branch, subsidiary or affiliate to make or maintain any
part of the Euro-Rate Portion hereunder, all terms and conditions of this
Agreement shall, except where the context clearly
-30-
35
requires otherwise, be applicable to such part of the Euro-Rate Portion and to
any note payable to the order of such branch, subsidiary or affiliate to the
same extent as if such part of the Euro-Rate Portion were made or maintained and
such note were the Revolving Credit Note payable to such Lender's order.
2.13. Conversion to Term Loan on the Revolving Credit Maturity
Date.
(a) Term Loan Commitment. Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, the
Lenders agree (such agreement being herein called the "Term Loan Commitment") to
make a term loan (the "Term Loan") to the Borrower on the Revolving Credit
Maturity Date in such principal amount as may be requested by the Borrower but
not exceeding the outstanding principal amount of Revolving Credit Loans on such
date.
(b) Nature of Credit. The Borrower may not reborrow amounts
repaid with respect to Term Loans.
(c) Term Loan Note. The obligation of the Borrower to repay
the unpaid principal amount of the Term Loan made to it by the Lenders and to
pay interest thereon in accordance with this Section 2.13 shall be evidenced in
part by a promissory note of the Borrower to each Lender, dated the Revolving
Credit Maturity Date, in substantially the form of Exhibit J hereto, with the
blanks appropriately filled, payable to the order of such Lender in a face
amount equal to the principal amount of the Term Loan made under subsection (a)
hereof (the "Term Loan Note").
(d) Amortization and Maturity. The principal of the Term Loan
made on the Revolving Credit Maturity Date shall be due and payable in eight (8)
equal quarterly installments each in an amount equal to one-eighth (1/8) of the
original amount of the Term Loan, commencing on the last Business Day of the
fiscal quarter next following the Revolving Credit Maturity Date and continuing
on the last Business Day of each fiscal quarter thereafter, with the final
installment of the then unpaid principal amount of the Term Loan due and payable
on the day which is the second anniversary of the Revolving Credit Maturity
Date.
ARTICLE III
[INTENTIONALLY OMITTED]
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Incorporation by Reference. The representations and
warranties contained in the Long Term Credit Agreement and the defined terms
used therein are incorporated herein by referenced as if set forth in full. The
Loan Parties hereby represent and warrant to the Agent
-31-
36
and each Lender that such representations and warranties of the Loan Parties
contained therein are true and correct.
ARTICLE V
CONDITIONS OF LENDING
5.01. Conditions to Making Initial Loans. The obligation of
each Lender to make Loans on the Closing Date are subject to the satisfaction,
immediately prior to or concurrently with the making of such Loan, of the
following conditions precedent, in addition to the conditions precedent set
forth in Section 5.02 hereof:
(a) Agreement; Notes. The Agent shall have received an
executed counterpart of this Agreement for each Lender, duly executed by each
Loan Party, and an executed Revolving Credit Note for each Lender, conforming to
the requirements hereof, duly executed on behalf of the Borrower.
(b) Corporate Proceedings. The Agent shall have received, with
a counterpart for each Lender, certificates by the Secretary or Assistant
Secretary of each Loan Party dated as of the Closing Date as to (i) true copies
of the certificates of incorporation and by-laws of each Loan Party in effect on
such date, (ii) true copies of all corporate action taken by each Loan Party
relative to this Agreement and the other Loan Documents and (iii) the incumbency
and signature of the respective officers of each Loan Party executing this
Agreement and the other Loan Documents to which such Loan Party is a party,
together with satisfactory evidence of the incumbency of such Secretary or
Assistant Secretary. The Agent shall have received, with a photocopy for each
Lender, certificates from the appropriate Secretaries of State or other
applicable Governmental Authorities dated not more than thirty (30) days before
the Closing Date showing the good standing of each Loan Party in its state of
incorporation.
(c) Legal Opinion of Counsel to the Loan Parties. The Agent
shall have received an opinion addressed to the Agent and each Lender, dated the
Closing Date, of counsel to each of the Loan Parties as to such matters as may
be requested by the Agent and in form and substance satisfactory to the Agent.
(d) Fees, Expenses, etc. The Borrower shall have paid all
out-of-pocket costs and expenses incurred by the Agent or the Lenders in
connection with the preparation, execution and delivery of this Agreement and
the other Loan Documents and in connection with the transactions contemplated
hereby and thereby, including without limitation attorney's fees and costs, lien
search fees, filing fees and appraisal costs.
(e) No Default. On the Closing Date, no Potential Default or
Event of Default shall have occurred or be continuing.
(f) Representations and Warranties. On the Closing Date, all
representations and warranties of the Borrower contained herein or otherwise
made in writing in connection
-32-
37
herewith shall be true and correct with the same force and effect as though such
representations and warranties had been made on and as of such time.
(g) Financial Statements. The Agent shall have received, with
a counterpart for each Lender, copies of the consolidated financial statements
referred to in Section 4.06 of the Long Term Credit Agreement.
(h) Financial Forecast. The Agent shall have received the
three-year financial forecast of the Parent, including balance sheets, income
statements and cash flow statements, and shall have determined, in its absolute
discretion, that the three-year forecast is satisfactory.
(i) Market Conditions. No change in the financial or capital
market conditions generally shall have occurred that, in the judgment of the
Agent, would materially impair the Agent's ability to syndicate the Loans to
other Lenders.
(j) Material Adverse Change. No material adverse change in the
business, condition (financial or otherwise), operations or prospects of the
Parent and its consolidated Subsidiaries considered as a whole has occurred
since March 31, 1999.
(k) No Litigation. No actions, suits, arbitration proceedings
or other proceedings pending or, to the knowledge of the Borrower, threatened
against or affecting the Borrower, or any properties or rights of the Borrower
which, if determined adversely to the Borrower, would have a Material Adverse
Effect, or which seeks to challenge or prevent or declare illegal the
transactions contemplated by this Agreement or any of the Loan Documents.
(l) Additional Matters. The Agent shall have received such
other certificates, opinions, documents and instruments as may be requested by
any Lender. All corporate and other proceedings, and all documents, instruments
and other matters in connection with the transactions contemplated by this
Agreement and the other Loan Documents shall be satisfactory in form and
substance to the Agent, each Lender and their counsel. The Agent, each Lender
and their counsel shall have received all such counterpart originals or
certified or other copies of such documents as the Agent or such counsel shall
reasonably request.
(m) Existing Credit Agreements. The Existing Credit Agreements
shall have been terminated and shall be of no further force and effect, and all
amounts outstanding thereunder shall have been paid in full.
(n) Guarantees. The Agent shall have received a Guaranty and
Suretyship Agreement in substantially the form of Exhibit D hereto (the "Parent
Guaranty"), duly executed by the Parent and (ii) a Guaranty and Suretyship
Agreement in substantially the form of Exhibit E hereto (the "Subsidiary
Guarantees"), duly executed by each Domestic Subsidiary.
(o) Dividends and Distributions. There shall be no limitation
on the ability of any Loan Party to (i) declare or pay Stock Payments to the
Borrower, or any Subsidiary of the Borrower or the Parent, (ii) pay any
indebtedness, obligations or liabilities owed to the Borrower
-33-
38
or any Subsidiary of the Borrower or the Parent, (iii) make or suffer to exist
or remain outstanding any loan or advance to the Borrower or (iv) otherwise
upstream cash in any manner to the Borrower except:
(a) Restrictions pursuant to the Loan Documents and
the Long Term Loan Documents;
(b) Legal restrictions of general applicability under
the corporation law under which such Loan Party is incorporated, and fraudulent
conveyance or similar laws or general applicability for the benefit of creditors
of such Loan Party generally;
(c) Nonassignment provisions of any executory
contract or of any lease by the Borrower or such Loan Party as lessee;
(d) Restrictions generally found within performance
contracts; and
(e) Restrictions generally found within performance
bonds.
5.02. Conditions to All Loans. The obligation of each Lender
to make any Loan (including the initial Loans) is subject to performance by each
of the Loan Parties of their respective obligations to be performed hereunder or
under the other Loan Documents on or before the date of such Loan, satisfaction
of the conditions precedent set forth herein and in the other Loan Documents and
to satisfaction of the following further conditions precedent:
(a) Notice. Appropriate notice of such Loan shall have been
given by the Borrower as provided in Article II hereof.
(b) Representations and Warranties. Each of the
representations and warranties made by each Loan Party herein and in each other
Loan Document shall be true and correct in all material respects on and as of
such date as if made on and as of such date (except with respect to
representations and warranties which specifically refer to an earlier date,
which shall be true and correct in all material respects as of such earlier
date), both before and after giving effect to the Loans requested to be made.
(c) No Defaults. No Event of Default or Potential Default
shall have occurred and be continuing on such date or after giving effect to the
Loans requested to be made.
(d) No Violations of Law, etc. Neither the making nor use of
the Loans shall cause any Lender to violate or conflict with any Law.
(e) No Material Adverse Change. There shall not have occurred
a material adverse change in the business, operations, assets or condition
(financial or otherwise) or prospects of any Loan Party since the Closing Date.
-34-
39
Each request by the Borrower for any Loan (including the initial Loans) shall
constitute a representation and warranty by the Loan Parties that the conditions
set forth in this Section 5.02 have been satisfied as of the date of such
request. Failure of the Agent to receive notice from any Loan Party to the
contrary before such Loan is made shall constitute a further representation and
warranty by the Loan Parties that the conditions referred to in this Section
5.02 have been satisfied as of the date such Loan is made.
ARTICLE VI
AFFIRMATIVE COVENANTS
6.01. Incorporation by Reference. Each of the affirmative
covenants set forth in Article VI of the Long Term Credit Agreement and the
defined terms used therein are hereby incorporated by reference as if set forth
in full.
ARTICLE VII
NEGATIVE COVENANTS
7.01. Incorporation by Reference. Each of the negative
covenants set forth in Article VII of the Long Term Credit Agreement and the
defined terms used therein are hereby incorporated by reference as if set forth
in full.
ARTICLE VIII
DEFAULTS
8.01. Events of Default. An Event of Default shall mean the
occurrence or existence of one or more of the following events or conditions
(for any reason, whether voluntary, involuntary or effected or required by Law):
(a) Any Loan Party shall fail to pay (i) when due principal on
any Loan, (ii) within three (3) days after the date when due, interest on any
Loan, or (iii) within ten (10) days after the date when due, any fees, indemnity
or expenses, or any other amount due hereunder or under any other Loan Document.
(b) Any representation or warranty made or deemed made by any
Loan Party or any Subsidiary of any Loan Party in or pursuant to or in
connection with any Loan Document, or any statement made by any Loan Party or
any Subsidiary of any Loan Party in any financial statement, certificate,
report, exhibit or document furnished by any Loan Party or any Subsidiary of any
Loan Party to the Agent or any Lender pursuant to or in connection with any Loan
Document, shall prove to have been false or misleading in any material respect
as of the time
-35-
40
when made or deemed made (including by omission of material information
necessary to make such representation, warranty or statement not misleading).
(c) Any Loan Party shall default in the performance or
observance of Section 7.01 through 7.04, inclusive or Section 7.12 of the Long
Term Credit Agreement, which have been incorporated herein by reference; or any
Loan Party shall default in the performance or observation of any other covenant
contained in Article VII of the Long Term Credit Agreement, which has been
incorporated herein by reference or the covenant contained in Section 6.01(i) of
the Long Term Credit Agreement, which has been incorporated herein by reference
and such defaults shall have continued for a period of ten (10) days.
(d) Any Loan Party shall default in the performance or
observance of any other material covenant, agreement or duty under this
Agreement or any other Loan Document and such default shall have continued for a
period of thirty (30) Business Days.
(e) Any Loan Party or any Subsidiary of any Loan Party shall
default beyond any applicable cure period in the payment of principal or
interest on any obligation for borrowed money in excess of $2,000,000 or in the
performance of any provision contained in any instrument under which any such
obligation for borrowed money is created or secured (including the breach of any
covenant thereunder) if an effect of such default is to cause, or permit any
Person to cause such obligation to become due prior to its stated maturity,
unless, solely with respect to a non-payment default (i) such Loan Party or such
Subsidiary is actively and diligently contesting the existence of such default
and (ii) the obligee has not taken any action to accelerate the maturity of such
obligation or to exercise any other remedy available to it under such
instrument.
(f) One or more judgments for the payment of money shall have
been entered against any Loan Party or any Subsidiary of any Loan Party, which
judgment or judgments exceed $2,000,000 in the aggregate, and such judgment or
judgments shall have remained undischarged and unstayed for a period of thirty
(30) consecutive days.
(g) Any one or more Pension-Related Events referred to in
subsection (a)(ii), (b) or (e) of the definition of "Pension-Related Event"
shall have occurred; or any one or more other Pension-Related Events shall have
occurred and the Lender shall determine in good faith (which determination shall
be conclusive) absent manifest error that such other Pension-Related Events,
individually or in the aggregate, could have a Material Adverse Effect.
(h) There shall have occurred a material adverse change in the
business, condition (financial or otherwise), results of operations or prospects
of any Loan Party.
(i) A proceeding shall have been instituted in respect of any
Loan Party or any Subsidiary of any Loan Party
(i) seeking to have an order for relief entered in respect of
such Person, or seeking a declaration or entailing a finding that such
Person is insolvent or a similar
-36-
41
declaration or finding, or seeking dissolution, winding-up, charter
revocation or forfeiture, liquidation, reorganization, arrangement,
adjustment, composition or other similar relief with respect to such
Person, its assets or its debts under any Law relating to bankruptcy,
insolvency, relief of debtors or protection of creditors, termination
of legal entities or any other similar Law now or hereafter in effect,
and such proceeding shall remain undismissed and unstayed for a period
of thirty (30) consecutive days; or
(ii) seeking appointment of a receiver, trustee, liquidator,
assignee, sequestrator or other custodian for such Person or for all or
any substantial part of its property and such proceeding shall result
in the entry, making or grant of any such order for relief,
declaration, finding, relief or appointment, or such proceeding shall
remain undismissed and unstayed for a period of thirty (30) consecutive
days.
(j) Any Loan Party or any Subsidiary of any Loan Party shall
become insolvent; shall fail to pay, become unable to pay, or state that it is
or will be unable to pay, its debts as they become due; shall voluntarily
suspend transaction of its or his business; shall make a general assignment for
the benefit of creditors; shall institute (or fail to controvert in a timely and
appropriate manner) a proceeding described in Section 8.01(i)(i) hereof, or
(whether or not any such proceeding has been instituted) shall consent to or
acquiesce in any such order for relief, declaration, finding or relief described
therein; shall institute (or fail to controvert in a timely and appropriate
manner) a proceeding described in Section 8.01(i)(ii) hereof, or (whether or not
any such proceeding has been instituted) shall consent to or acquiesce in any
such appointment or to the taking of possession by any such custodian of all or
any substantial part of its or his property; shall dissolve, wind-up, revoke or
forfeit its charter (or other constituent documents) or liquidate itself or any
substantial part of its property other than proceedings for the voluntary
liquidation and dissolution of a Subsidiary of the Parent permitted by Section
6.04 of the Long Term Credit Agreement, or shall take any action in furtherance
of any of the foregoing.
(k) This Agreement or any Loan Document or term or provision
hereof or thereof shall cease to be in full force and effect, or the Borrower
shall, or shall purport to, terminate (other than termination in accordance with
the terms of this Agreement), repudiate, declare voidable or void or otherwise
contest, this Agreement or any Loan Document or term or provision hereof or
thereof or any obligation or liability of the Borrower hereunder or thereunder.
(l) The Parent shall cease to own, directly or indirectly, one
hundred percent (100%) of the outstanding capital stock of the Borrower.
(m) A Change of Control shall occur.
8.02. Consequences of an Event of Default.
(a) If an Event of Default specified in subsections (a)
through (m) of Section 8.01 hereof shall occur and be continuing or shall exist,
then, in addition to all other rights and remedies which the Agent or any Lender
may have hereunder or under any other Loan Document, at law, in equity or
otherwise, the Lenders shall be under no further obligation to
-37-
42
make Loans hereunder, and the Agent may upon the written request of the Required
Lenders shall, by notice to the Borrower, from time to time do any or all of the
following:
(i) Declare the Revolving Credit Commitment terminated,
whereupon the Commitments will terminate and any fees hereunder shall
be immediately due and payable without presentment, demand, protest or
further notice of any kind, all of which are hereby waived, and an
action therefor shall immediately accrue.
(ii) Declare the unpaid principal amount of the Loans,
interest accrued thereon and all other Obligations to be immediately
due and payable without presentment, demand, protest or further notice
of any kind, all of which are hereby waived, and an action therefor
shall immediately accrue.
(b) If an Event of Default specified in subsection (i) or (j)
of Section 8.01 hereof shall occur or exist, then, in addition to all other
rights and remedies which the Agent or any Lender may have hereunder or under
any other Loan Document, at law, in equity or otherwise, the Commitments shall
automatically terminate and the Lenders shall be under no further obligation to
make Loans, and the unpaid principal amount of the Loans, interest accrued
thereon and all other Obligations shall become immediately due and payable
without presentment, demand, protest or notice of any kind, all of which are
hereby waived, and an action therefor shall immediately accrue.
ARTICLE IX
THE AGENT
9.01. Appointment. Each Lender hereby irrevocably appoints
Mellon to act as Agent for such Lender under this Agreement and the other Loan
Documents. Each Lender hereby irrevocably authorizes the Agent to take such
action on behalf of such Lender under the provisions of this Agreement and the
other Loan Documents, and to exercise such powers and to perform such duties, as
are expressly delegated to or required of the Agent by the terms hereof or
thereof, together with such powers as are reasonably incidental thereto. Mellon
hereby agrees to act as Agent on behalf of the Lenders on the terms and
conditions set forth in this Agreement and the other Loan Documents, subject to
its right to resign as provided in Section 9.10 hereof. Each Lender hereby
irrevocably authorizes the Agent to execute and deliver each of the Loan
Documents and to accept delivery of such of the other Loan Documents as may not
require execution by the Agent. Each Lender agrees that the rights and remedies
granted to the Agent under the Loan Documents shall be exercised exclusively by
the Agent, and that no Lender shall have any right individually to exercise any
such right or remedy, except to the extent expressly provided herein or therein.
9.02. General Nature of Agent's Duties. Notwithstanding
anything to the contrary elsewhere in this Agreement or in any other Loan
Document:
-38-
43
(a) The Agent shall have no duties or responsibilities except
those expressly set forth in this Agreement and the other Loan Documents, and no
implied duties or responsibilities on the part of the Agent shall be read into
this Agreement or any Loan Document or shall otherwise exist; provided, however,
that nothing contained in this Article IX shall affect the express duties and
responsibilities of the Agent to the Borrower under this Agreement and the other
Loan Documents.
(b) The duties and responsibilities of the Agent under this
Agreement and the other Loan Documents shall be mechanical and administrative in
nature, and the Agent shall not have a fiduciary relationship in respect of any
Lender.
(c) The Agent is and shall be solely the agent of the Lenders.
The Agent does not assume, and shall not at any time be deemed to have, any
relationship of agency or trust with or for, or any other duty or responsibility
to, the Borrower or any other Person (except only for its relationship as agent
for the Lenders, and its express duties and responsibilities to the Lenders and
the Borrower, as provided in this Agreement and the other Loan Documents).
(d) The Agent shall be under no obligation to take any action
hereunder or under any other Loan Document if the Agent believes in good faith
that taking such action may conflict with any Law or any provision of this
Agreement or any other Loan Document, or may require the Agent to qualify to do
business in any jurisdiction where it is not then so qualified.
9.03. Exercise of Powers. The Agent shall take any action of
the type specified in this Agreement or any other Loan Document as being within
the Agent's rights, powers or discretion in accordance with directions from the
Required Lenders (or, to the extent this Agreement or such Loan Document
expressly requires the direction or consent of some other Person or set of
Persons, then instead in accordance with the directions of such other Person or
set of Persons). In the absence of such directions, the Agent shall have the
authority (but under no circumstances shall be obligated), in its sole
discretion, to take any such action, except to the extent this Agreement or such
Loan Document expressly requires the direction or consent of the Required
Lenders (or some other Person or set of Persons), in which case the Agent shall
not take such action absent such direction or consent. Any action or inaction
pursuant to such direction, discretion or consent shall be binding on all the
Lenders. Subject to Section 9.04(a) hereof, the Agent shall not have any
liability to any Person as a result of (x) the Agent acting or refraining from
acting in accordance with the directions of the Required Lenders (or other
applicable Person or set of Persons), (y) the Agent refraining from acting in
the absence of instructions to act from the Required Lenders (or other
applicable Person or set of Persons), whether or not the Agent has discretionary
power to take such action, or (z) the Agent taking discretionary action it is
authorized to take under this Section.
9.04. General Exculpatory Provisions. Notwithstanding anything
to the contrary elsewhere in this Agreement or any other Loan Document:
-39-
44
(a) The Agent shall not be liable for any action taken or
omitted to be taken by it under or in connection with this Agreement or any
other Loan Document, unless caused by its own gross negligence or willful
misconduct.
(b) The Agent shall not be responsible for (i) the execution,
delivery, effectiveness, enforceability, genuineness, validity or adequacy of
this Agreement or any other Loan Document, (ii) any recital, representation,
warranty, document, certificate, report or statement in, provided for in, or
received under or in connection with, this Agreement or any other Loan Document,
or (iii) any failure of any Lender to perform any of its obligations under this
Agreement or any other Loan Document.
(c) The Agent shall not be under any obligation to ascertain,
inquire or give any notice relating to (i) the performance or observance of any
of the terms or conditions of this Agreement or any other Loan Document on the
part of the Borrower or their respective Subsidiaries, (ii) the business,
operations, condition (financial or otherwise) or prospects of the Borrower or
its Subsidiaries, or any other Person, or (iii) except to the extent set forth
in Section 9.05(f) hereof, the existence of any Event of Default or Potential
Default.
(d) The Agent shall not be under any obligation, either
initially or on a continuing basis, to provide any Lender with any notices,
reports or information of any nature, whether in its possession presently or
hereafter, except for such notices, reports and other information expressly
required by this Agreement or any other Loan Document to be furnished by the
Agent to such Lender.
9.05. Administration by the Agent.
(a) The Agent may rely upon any notice or other communication
of any nature (written or oral, including but not limited to telephone
conversations, whether or not such notice or other communication is made in a
manner permitted or required by this Agreement or any Loan Document) purportedly
made by or on behalf of the proper party or parties, and the Agent shall not
have any duty to verify the identity or authority of any Person giving such
notice or other communication.
(b) The Agent may consult with legal counsel (including,
without limitation, in-house counsel for the Agent or in-house or other counsel
for any Borrower), independent public accountants and any other experts selected
by it from time to time, and the Agent shall not be liable for any action taken
or omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts.
(c) The Agent may conclusively rely upon the truth of the
statements and the correctness of the opinions expressed in any certificates or
opinions furnished to the Agent in accordance with the requirements of this
Agreement or any other Loan Document. Whenever the Agent shall deem it necessary
or desirable that a matter be proved or established with respect to any Borrower
or any Lender, such matter may be established by a certificate of the applicable
Borrower or such Lender, as the case may be, and the Agent may conclusively rely
upon such
-40-
45
certificate (unless other evidence with respect to such matter is specifically
prescribed in this Agreement or another Loan Document).
(d) The Agent may fail or refuse to take any action unless it
shall be indemnified to its satisfaction from time to time against any and all
amounts, liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature which
may be imposed on, incurred by or asserted against the Agent by reason of taking
or continuing to take any such action.
(e) The Agent may perform any of its duties under this
Agreement or any other Loan Document by or through agents or attorneys-in-fact.
The Agent shall not be responsible for the negligence or misconduct of any
agents or attorneys-in fact selected and supervised by it with reasonable care.
(f) The Agent shall not be deemed to have any knowledge or
notice of the occurrence of any Event of Default or Potential Default unless the
Agent has received notice from a Lender or any Borrower referring to this
Agreement, describing such Event of Default or Potential Default. If the Agent
receives such a notice, the Agent shall give prompt notice thereof to each
Lender.
9.06. Lender Not Relying on Agent or Other Lenders. Each
Lender acknowledges as follows: (a) Neither the Agent nor any other Lender has
made any representations or warranties to it, and no act taken hereafter by the
Agent or any other Lender shall be deemed to constitute any representation or
warranty by the Agent or such other Lender to it. (b) It has, independently and
without reliance upon the Agent or any other Lender, and based upon such
documents and information as it has deemed appropriate, made its own credit and
legal analysis and decision to enter into this Agreement and the other Loan
Documents. (c) It will, independently and without reliance upon the Agent or any
other Lender, and based upon such documents and information as it shall deem
appropriate at the time, make its own decisions to take or not take action under
or in connection with this Agreement and the other Loan Documents.
9.07. Indemnification. Each Lender agrees to reimburse and
indemnify the Agent and its directors, officers, employees and agents (to the
extent not reimbursed by the Borrower and without limitation of the obligations
of the Borrower to do so), Pro Rata, from and against any and all amounts,
losses, liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements of any kind or nature (including,
without limitation, the fees and disbursements of counsel for the Agent or such
other Person in connection with any investigative, administrative or judicial
proceeding commenced or threatened, whether or not the Agent or such other
Person shall be designated a party thereto) that may at any time be imposed on,
incurred by or asserted against the Agent or such other Person as a result of,
or arising out of, or in any way related to or by reason of, this Agreement, any
other Loan Document, any transaction from time to time contemplated hereby or
thereby, or any transaction financed in whole or in part or directly or
indirectly with the proceeds of any Loan, provided that no Lender shall be
liable for any portion of such amounts, losses, liabilities, claims,
-41-
46
damages, expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements resulting solely from the gross negligence or willful misconduct
of the Agent or such other Person, as finally determined by a court of competent
jurisdiction. Payments under this Section 9.07 shall be due and payable on
demand, and to the extent that any Lender fails to pay any such amount on
demand, such amount shall bear interest for each day from the date of demand
until paid (before and after judgment) at a rate per annum (calculated on the
basis of a year of 365 or 366 days, as the case may be, and actual days elapsed)
which for each day shall be equal to the Prime Rate.
9.08. Agent in its Individual Capacity. With respect to its
Revolving Credit Commitments and the Obligations owing to it, the Agent shall
have the same rights and powers under this Agreement and each other Loan
Document as any other Lender and may exercise the same as though it were not the
Agent, and the terms "Lenders," "holders of Notes" and like terms shall include
the Agent in its individual capacity as such. The Agent and its affiliates may,
without liability to account, make loans to, accept deposits from, acquire debt
or equity interests in, act as trustee under indentures of, and engage in any
other business with, the Borrower and any stockholder, subsidiary or affiliate
of the Borrower, as though the Agent were not the Agent hereunder.
9.09. Holders of Notes. The Agent may deem and treat the
Lender which is payee of a Note as the owner and holder of such Note for all
purposes hereof unless and until a Transfer Supplement with respect to the
assignment or transfer thereof shall have been filed with the Agent in
accordance with Section 10.14 hereof. Any authority, direction or consent of any
Person who at the time of giving such authority, direction or consent is shown
in the Register as being a Lender shall be conclusive and binding on each
present and subsequent holder, transferee or assignee of any Note or Notes
payable to such Lender or of any Note or Notes issued in exchange therefor.
9.10. Successor Agent. The Agent may resign at any time by
giving 10 days' prior written notice thereof to the Lenders and the Borrower.
The Agent may be removed by the Required Lenders at any time by giving 10 days'
prior written notice thereof to the Agent, the other Lenders and the Borrower.
Upon any such resignation or removal, the Required Lenders shall have the right
to appoint a successor Agent. If no successor Agent shall have been so appointed
and consented to, and shall have accepted such appointment, within 30 days after
such notice of resignation or removal, then the retiring Agent may, on behalf of
the Lenders, appoint a successor Agent. Each successor Agent shall be a
commercial bank or trust company organized or licensed under the laws of the
United States of America or any State thereof and having a combined capital and
surplus of at least $1,000,000,000. Upon the acceptance by a successor Agent of
its appointment as Agent hereunder, such successor Agent shall thereupon succeed
to and become vested with all the properties, rights, powers, privileges and
duties of the former Agent, without further act, deed or conveyance. Upon the
effective date of resignation or removal of a retiring Agent, such Agent shall
be discharged from its duties under this Agreement and the other Loan Documents,
but the provisions of this Agreement shall inure to its benefit as to any
actions taken or omitted by it while it was Agent under this Agreement. If and
so long as no successor Agent shall have been appointed, then any notice or
other communication required
-42-
47
or permitted to be given by the Agent shall be sufficiently given if given by
the Required Lenders, all notices or other communications required or permitted
to be given to the Agent shall be given to each Lender, and all payments to be
made to the Agent shall be made directly to the Borrower or Lender for whose
account such payment is made.
9.11. Additional Agents. If the Agent shall from time to time
deem it necessary or advisable, for its own protection in the performance of its
duties hereunder or in the interest of the Lenders and if the Borrower and the
Required Lenders shall consent (which consent shall not be unreasonably
withheld), the Agent and the Borrower shall execute and deliver a supplemental
agreement and all other instruments and agreements necessary or advisable, in
the opinion of the Agent, to constitute another commercial bank or trust
company, or one or more other Persons approved by the Agent, to act as co-Agent,
with such powers of the Agent as may be provided in such supplemental agreement,
and to vest in such bank, trust company or Person as such co-Agent or separate
agent, as the case may be, any properties, rights, powers, privileges and duties
of the Agent under this Agreement or any other Loan Document.
9.12. Calculations. The Agent shall not be liable for any
calculation, apportionment or distribution of payments made by it in good faith.
If such calculation, apportionment or distribution is subsequently determined to
have been made in error, the sole recourse of any Lender to whom payment was due
but not made shall be to recover from the other Lenders any payment in excess of
the amount to which they are determined to be entitled.
9.13. Agent's Fee. The Borrower agrees to pay to the Agent,
for its individual account, Agent's fees in the amounts set forth in the Agent's
fee letter.
9.14. Funding by Agent. Unless the Agent shall have been
notified in writing by any Lender not later than the close of business on the
day before the day on which Loans are requested by the Borrower to be made that
such Lender will not make its Pro Rata share of such Loans, the Agent may assume
that such Lender will make its Pro Rata share of the Loans, and in reliance upon
such assumption the Agent may (but in no circumstances shall be required to)
make available to the Borrower a corresponding amount. If and to the extent that
any Lender fails to make such payment to the Agent on such date, such Lender
shall pay such amount on demand (or, if such Lender fails to pay such amount on
demand, the Borrower shall pay such amount on demand), together with interest,
for the Agent's own account, for each day from and including the date of the
Agent's payment to and including the date of repayment to the Agent (before and
after judgment) at the rate per annum applicable to such Loans. All payments to
the Agent under this Section shall be made to the Agent at its Office in Dollars
in funds immediately available at such Office, without set-off, withholding,
counterclaim or other deduction of any nature.
-43-
48
ARTICLE X
MISCELLANEOUS
10.01. Holidays. Whenever any payment or action to be made or
taken hereunder or under any other Loan Document shall be stated to be due on a
day which is not a Business Day, such payment or action shall be made or taken
on the next following Business Day (except as provided in Section 2.04(c) with
respect to Euro-Rate Funding Periods) and such extension of time shall be
included in computing interest or fees, if any, in connection with such payment
or action.
10.02. Records. The unpaid principal amount of the Loans owing
to each Lender, the unpaid interest accrued thereon, the interest rate or rates
applicable to such unpaid principal amount, the duration of such applicability,
each Lender's Revolving Credit Committed Amount and the accrued and unpaid
Commitment Fees shall at all times be ascertained from the records of the Agent,
which shall be conclusive absent manifest error.
10.03. Amendments and Waivers. Neither this Agreement nor any
Loan Document may be amended, modified or supplemented except in accordance with
the provisions of this Section. The Required Lenders and the Borrower may from
time to time amend, modify or supplement the provisions of this Agreement or any
other Loan Document for the purpose of amending, adding to, or waiving any
provisions or changing in any manner the rights and duties of the Borrower, the
Agent or any Lender. Any such amendment, modification or supplement made in
accordance with the provisions of this Section shall be binding upon the
Borrower, each Lender and the Agent. The Agent shall enter into such amendments,
modifications or supplements from time to time as directed by the Required
Lenders, and only as so directed, provided, that no such amendment, modification
or supplement may be made which will:
(a) Increase the Revolving Credit Committed Amount of any
Lender over the amount thereof then in effect, or extend the Revolving Credit
Maturity Date, without the written consent of each Lender affected thereby;
(b) Reduce the principal amount of or extend the time for any
payment of any Loan, or reduce the amount of or rate of interest or extend the
time for payment of interest borne by any Loan or extend the time for payment of
or reduce the amount of any Commitment Fee or reduce or postpone the date for
payment of any other fees, expenses, indemnities or amounts payable under any
Loan Document, without the written consent of each Lender affected thereby;
(c) Change the definition of "Required Lenders" or amend this
Section 10.03, without the written consent of all the Lenders;
(d) Release all or substantially all of the Guarantors or
reduce the Guaranteed Obligations of all or substantially all of the Guarantors
under any of the Subsidiary Guarantees in connection with the sale or other
disposition of all of the capital stock of and other equity interests in such
Guarantor to a Person or Persons other than a Loan Party, other than in
-44-
49
connection with a sale or other disposition which is in compliance with this
Agreement and the Loan Documents (a "Permitted Sale"), without the written
consent of all Lenders;
(e) Release any "Guarantor" or reduce any Guaranteed
Obligations of any Guarantor under the Parent Guaranty, other than in connection
with a Permitted Sale or the liquidation, dissolution or merger of a Guarantor
permitted hereby, without the written consent of all Lenders;
(f) Amend or waive any of the provisions of Article IX hereof,
or impose additional duties upon the Agent or otherwise adversely affect the
rights, interests or obligations of the Agent, without the written consent of
the Agent;
(g) change any voting percentages without the written consent
of all the Lenders;
and provided further, that Transfer Supplements may be entered into in the
manner provided in Section 10.14 hereof. Any such amendment, modification or
supplement must be in writing and shall be effective only to the extent set
forth in such writing. Any Event of Default or Potential Default waived or
consented to in any such amendment, modification or supplement shall be deemed
to be cured and not continuing to the extent and for the period set forth in
such waiver or consent, but no such waiver or consent shall extend to any other
or subsequent Event of Default or Potential Default or impair any right
consequent thereto.
10.04. No Implied Waiver; Cumulative Remedies. No course of
dealing and no delay or failure of the Agent or any Lender in exercising any
right, power or privilege under this Agreement or any other Loan Document shall
affect any other or future exercise thereof or exercise of any other right,
power or privilege; nor shall any single or partial exercise of any such right,
power or privilege or any abandonment or discontinuance of steps to enforce such
a right, power or privilege preclude any further exercise thereof or of any
other right, power or privilege. The rights and remedies of the Agent and the
Lenders under this Agreement and any other Loan Document are cumulative and not
exclusive of any rights or remedies which either the Agent or any Lender would
otherwise have hereunder or thereunder, at law, in equity or otherwise.
10.05. Notices.
(a) Except to the extent otherwise expressly permitted
hereunder or thereunder, all notices, requests, demands, directions and other
communications (collectively "notices") under this Agreement or any other Loan
Document shall be in writing (including telecopied communication) and shall be
sent by first-class mail, or by nationally-recognized overnight courier, or by
telecopier (with confirmation in writing mailed first-class or sent by such an
overnight courier), or by personal delivery. All notices shall be sent to the
applicable party at the address stated on the signature pages hereof or in
accordance with the last unrevoked written direction from such party to the
other parties hereto, in all cases with postage or other charges prepaid. Any
such properly given notice shall be effective on the earliest to occur of
receipt, telephone confirmation of receipt of telex or telecopy communication,
one (1) Business Day after
-45-
50
delivery to a nationally-recognized overnight courier, or three (3) Business
Days after deposit in the mail, except Standard Notice, which shall be effective
when received by the Agent.
(b) Any Lender giving any notice to the Borrower shall
simultaneously send a copy thereof to the Agent, and the Agent shall promptly
notify the other Lenders of the receipt by it of any such notice.
(c) The Agent and each Lender may rely on any notice (whether
or not such notice is made in a manner permitted or required by this Agreement
or any Loan Document) purportedly made by or on behalf of the Borrower or any
other Loan Party, and neither the Agent nor any Lender shall have any duty to
verify the identity or authority of any Person giving such notice.
10.06. Expenses; Taxes; Indemnity.
(a) The Borrower agrees to pay or cause to be paid and to save
the Agent and each of the Lenders harmless against liability for the payment of
all reasonable out-of-pocket costs and expenses (including but not limited to
reasonable fees and expenses of counsel, including local counsel, auditors,
consulting engineers, appraisers, and all other professional, accounting,
evaluation and consulting costs to the Agent and, with respect to costs incurred
by the Agent, or any Lender pursuant to clause (iii) below, such counsel and
local counsel) incurred by the Agent, or in the case of clause (iii) below any
Lender from time to time arising from or relating to (i) the negotiation,
preparation, execution, delivery, administration and performance of this
Agreement and the other Loan Documents, (ii) any requested amendments,
modifications, supplements, waivers or consents (whether or not ultimately
entered into or granted) to this Agreement or any Loan Document, and (iii) the
enforcement or preservation of rights under this Agreement or any Loan Document
(including but not limited to any such costs or expenses arising from or
relating to (A) collection or enforcement of an outstanding Loan, Reimbursement
Obligation or any other amount owing hereunder or thereunder by the Agent or any
Lender and (B) any litigation, proceeding, dispute, work-out, restructuring or
rescheduling related in any way to this Agreement or the Loan Documents).
(b) The Borrower hereby agrees to pay all stamp, document,
transfer, recording, filing, registration, search, sales and excise fees and
taxes and all similar impositions now or hereafter determined by the Agent or
any Lender to be payable in connection with this Agreement or any other Loan
Document or any other documents, instruments or transactions pursuant to or in
connection herewith or therewith, and the Borrower agrees to save the Agent and
each Lender harmless from and against any and all present or future claims,
liabilities or losses with respect to or resulting from any omission to pay or
delay in paying any such fees, taxes or impositions.
(c) The Borrower hereby agrees to reimburse and indemnify each
of the Indemnified Parties from and against any and all losses, liabilities,
claims, damages, expenses, obligations, penalties, actions, judgments, suits,
costs or disbursements of any kind or nature whatsoever (including, without
limitation, the reasonable fees and disbursements of counsel for
-46-
51
such Indemnified Party in connection with any investigative, administrative or
judicial proceeding commenced or threatened, whether or not such Indemnified
Party shall be designated a party thereto) that may at any time be imposed on,
asserted against or incurred by such Indemnified Party as a result of, or
arising out of, or in any way related to or by reason of, this Agreement or any
other Loan Document, any transaction from time to time contemplated hereby or
thereby, or any transaction financed in whole or in part or directly or
indirectly with the proceeds of any Loan (and without in any way limiting the
generality of the foregoing, including any violation or breach of any
Environmental Law or any other Law by any Loan Party or any Subsidiary of any
Loan Party or any Environmental Affiliate of any of them; any Environmental
Claim arising out of the management, use, control, ownership or operation of
property by any of such Persons, including all on-site and off-site activities
involving Environmental Concern Materials; or any exercise by the either the
Agent or any Lender of any of its rights or remedies under this Agreement or any
other Loan Document); but excluding any such losses, liabilities, claims,
damages, expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements resulting solely from the gross negligence or willful misconduct
of such Indemnified Party, as finally determined by a court of competent
jurisdiction. If and to the extent that the foregoing obligations of the
Borrower under this subsection (c), or any other indemnification obligation of
the Borrower hereunder or under any other Loan Document, are unenforceable for
any reason, the Borrower hereby agrees to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under
applicable Law.
10.07. Severability. The provisions of this Agreement are
intended to be severable. If any provision of this Agreement shall be held
invalid or unenforceable in whole or in part in any jurisdiction such provision
shall, as to such jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
10.08. Prior Understandings. This Agreement and the other Loan
Documents supersede all prior and contemporaneous understandings and agreements,
whether written or oral, among the parties hereto relating to the transactions
provided for herein and therein.
10.09. Duration; Survival. All representations and warranties
of each Loan Party contained herein or in any other Loan Document or made in
connection herewith or therewith shall survive the making of, and shall not be
waived by the execution and delivery, of this Agreement or any other Loan
Document, any investigation by or knowledge of the Agent or any Lender, the
making of any Loan, or any other event or condition whatever. All covenants and
agreements of each Loan Party contained herein or in any other Loan Document
shall continue in full force and effect from and after the date hereof so long
as the Borrower may borrow hereunder and until payment in full of all
Obligations. Without limitation, all obligations of the Borrower hereunder or
under any other Loan Document to make payments to or indemnify the Agent or any
Lender shall survive the payment in full of all other Obligations, termination
of the Borrower's right to borrow, and all other events and conditions whatever.
In addition, all obligations of each Lender to make payment to or indemnify the
Agent shall survive the payment
-47-
52
in full by the Borrower of all Obligations, termination of the Borrower's rights
to borrow hereunder, and all other events or conditions whatsoever.
10.10. Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument.
10.11. Limitation on Payments. The parties hereto intend to
conform to all applicable Laws in effect from time to time limiting the maximum
rate of interest that may be charged or collected. Accordingly, notwithstanding
any other provision hereof or of any other Loan Document, the Borrower shall not
be required to make any payment to or for the account of any Lender, and any
Lender shall refund any payment made by the Borrower, to the extent that such
requirement or such failure to refund would violate or conflict with nonwaivable
provisions of applicable Laws limiting the maximum amount of interest which may
be charged or collected by such Lender.
10.12. Set-Off. Each Loan Party hereby agrees that, to the
fullest extent permitted by law, if an Event of Default shall occur and be
continuing, and if any Obligation of such Loan Party shall be due and payable
(by acceleration or otherwise), each Lender shall have the right, without notice
to such Loan Party, to set-off against and to appropriate and apply to such
Obligation any indebtedness, liability or obligation of any nature owing to such
Loan Party by such Lender, including but not limited to all deposits (whether
time or demand, general or special, provisionally credited or finally credited,
whether or not evidenced by a certificate of deposit) now or hereafter
maintained by such Loan Party with such Lender. If an Event of Default shall
occur and be continuing, such right shall be absolute and unconditional in all
circumstances and, without limitation, shall exist whether or not such Lender or
any other Person shall have given notice or made any demand to the such Loan
Party or any other Person, whether such indebtedness, obligation or liability
owed to such Loan Party is contingent, absolute, matured or unmatured (it being
agreed that such Lender may deem such indebtedness, obligation or liability to
be then due and payable at the time of such setoff), and regardless of the
existence or adequacy of any collateral, guaranty or any other security, right
or remedy available to any Lender or any other Person. Each Loan Party hereby
agrees that, to the fullest extent permitted by law, any Participant and any
branch, subsidiary or affiliate of any Lender or any Participant shall have the
same rights of set-off as a Lender as provided in this Section (regardless of
whether such Participant, branch, subsidiary or affiliate would otherwise be
deemed in privity with or a direct creditor of such Loan Party). The rights
provided by this Section are in addition to all other rights of set-off and
banker's lien and all other rights and remedies which any Lender (or any such
Participant, branch, subsidiary or affiliate) may otherwise have under this
Agreement, any other Loan Document, at law or in equity, or otherwise, and
nothing in this Agreement or any Loan Document shall be deemed a waiver or
prohibition of or restriction on the rights of set-off or bankers' lien of any
such Person.
10.13. Sharing of Collections. The Lenders hereby agree among
themselves that if any Lender shall receive (by voluntary payment, realization
upon security, set-off or from any
-48-
53
other source) any amount on account of the Loans, interest thereon, or any other
Obligation contemplated by this Agreement or the other Loan Documents to be made
by the Borrower Pro Rata to all Lenders in greater proportion than any such
amount received by any other Lender, then the Lender receiving such
proportionately greater payment shall notify each other Lender and the Agent of
such receipt, and equitable adjustment will be made in the manner stated in this
Section so that, in effect, all such excess amounts will be shared Pro Rata
among all of the Lenders. The Lender receiving such excess amount shall purchase
(which it shall be deemed to have done simultaneously upon the receipt of such
excess amount) for cash from the other Lenders a participation in the applicable
Obligations owed to such other Lenders in such amount as shall result in a Pro
Rata sharing by all Lenders of such excess amount (and to such extent the
receiving Lender shall be a Participant). If all or any portion of such excess
amount is thereafter recovered from the Lender making such purchase, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, together with interest or other amounts, if any, required by Law
to be paid by the Lender making such purchase. The Borrower hereby consents to
and confirms the foregoing arrangements. Each Participant shall be bound by this
Section as fully as if it were a Lender hereunder.
10.14. Successors and Assigns; Participations; Assignments.
(a) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Loan Parties, the Lenders, all future
holders of the Notes, the Agent and their respective successors and assigns,
except that any Loan Party may not assign or transfer any of its rights
hereunder or interests herein without the prior written consent of all the
Lenders and the Agent (which consent shall not be unreasonably withheld or
delayed) and any purported assignment without such consent shall be void.
(b) Participations. Any Lender may, in the ordinary course of
its commercial banking business and in accordance with applicable Law, at any
time sell participations to one or more commercial banks or other Persons (each
a "Participant") in all or a portion of its rights and obligations under this
Agreement and the other Loan Documents (including, without limitation, all or a
portion of the Revolving Credit Commitments and the Loans owing to it and any
Note held by it); provided, that
(i) any such Lender's obligations under this Agreement and the
other Loan Documents shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations,
(iii) the parties hereto shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and each of the other Loan Documents,
and
-49-
54
(iv) such Participant shall be bound by the provisions of
Section 10.13 hereof, and the Lender selling such participation shall
obtain from such Participant a written confirmation of its agreement to
be so bound,
(v) no Participant (unless such Participant is an affiliate of
such Lender, or is itself a Lender) shall be entitled to require such
Lender to take or refrain from taking action under this Agreement or
under any other Loan Document, except that such Lender may agree with
such Participant that such Lender will not, without such Participant's
consent, take action of the type described in subsections (a), (b),
(c), (d), (e) or (f) of Section 10.03 hereof; notwithstanding the
foregoing, in no event shall any participation by any Lender have the
effect of releasing such Lenders from its obligations hereunder, and
(vi) no Participant shall be an Affiliate of any Loan Party
or, in the reasonable judgment of the Agent and the Borrower, of a
competitor of a Loan Party.
Each Loan Party agrees that any such Participant shall be entitled to the
benefits of Sections 2.10 and 10.06 hereof with respect to its participation in
the Revolving Credit Commitment and the Loans outstanding from time to time;
provided, that no such Participant shall be entitled to receive any greater
amount pursuant to such Sections than the transfer Lender would have been
entitled to receive in respect of the amount of the participation transferred to
such Participant had no such transfer occurred.
(c) Assignments. Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable Law, at any time
assign all or a portion of its rights and obligations under this Agreement and
the other Loan Documents (including, without limitation, all or any portion of
its Revolving Credit Commitments and Loans owing to it and any Note held by it)
to any Lender, any affiliate of a Lender or to one or more additional commercial
banks or other Persons (each a "Purchasing Lender"); provided, that
(i) any such assignment to a Purchasing Lender which is not a
Lender or a Federal Reserve Bank shall be made only with the consent of
the Borrower and the Agent, which consent shall not be unreasonably
withheld or delayed,
(ii) if a Lender makes such an assignment of less than all of
its then remaining rights and obligations under this Agreement and the
other Loan Documents, such transferor Lender shall retain, after such
assignment, a minimum principal amount of $5,000,000 of the Revolving
Credit Commitments and Revolving Credit Extensions of Credit then
outstanding, and such assignment shall be in a minimum aggregate
principal amount of $5,000,000 of the Revolving Credit Commitments and
Revolving Credit Extensions of Credit then outstanding,
(iii) each such assignment shall be of a constant, and not a
varying, percentage of each Revolving Credit Commitment of the
transferor Lender and of all of the
-50-
55
transferor Lender's rights and obligations under this Agreement and the
other Loan Documents, and
(iv) each such assignment shall be made pursuant to a Transfer
Supplement in substantially the form of Exhibit I to this Agreement,
duly completed (a "Transfer Supplement").
In order to effect any such assignment, the transferor Lender and the Purchasing
Lender shall execute and deliver to the Agent a duly completed Transfer
Supplement (including the consents required by clause (i) of the preceding
sentence) with respect to such assignment, together with any Note or Notes
subject to such assignment (the "Transferor Lender Notes") and a processing and
recording fee of $3,500; and, upon receipt thereof, the Agent shall accept such
Transfer Supplement. Upon receipt of the Purchase Price Receipt Notice pursuant
to such Transfer Supplement, the Agent shall record such acceptance in the
Register. Upon such execution, delivery, acceptance and recording, from and
after the Transfer Effective Date specified in such Transfer Supplement
(x) the Purchasing Lender shall be a party hereto and, to the
extent provided in such Transfer Supplement, shall have the rights and
obligations of a Lender hereunder, and
(y) the transferor Lender thereunder shall be released from
its obligations under this Agreement to the extent so transferred (and,
in the case of an Transfer Supplement covering all or the remaining
portion of a transferor Lender's rights and obligations under this
Agreement, such transferor Lender shall cease to be a party to this
Agreement) from and after the Transfer Effective Date.
On or prior to the Transfer Effective Date specified in an Transfer Supplement,
the Borrower, at its expense, shall execute and deliver to the Agent (for
delivery to the Purchasing Lender) new Notes evidencing such Purchasing Lender's
assigned Revolving Credit Commitments or Loans and (for delivery to the
transferor Lender) replacement Notes in the principal amount of the Loans or
Revolving Credit Commitments retained by the transferor Lender (such Notes to be
in exchange for, but not in payment of, those Notes then held by such transferor
Lender). Each such Note shall be dated the date and be substantially in the form
of the predecessor Note. The Agent shall xxxx the predecessor Notes "exchanged"
and deliver them to the applicable Borrower. Accrued interest and accrued fees
shall be paid to the Purchasing Lender at the same time or times provided in the
predecessor Notes and this Agreement.
(d) Designation. (i) Notwithstanding anything to the contrary
contained herein, any Lender (a "Designating Lender") may grant to one or more
special purpose funding vehicles (each, an "SPV"), identified as such in writing
from time to time by the Designated Lender to the Agent and the Borrower, the
option to provide to the Borrower all or any part of any Loan that such
Designating Lender would otherwise be obligated to make to the Borrower pursuant
to this Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPV to make any Loan, (ii) if an SPV elects not to exercise
such option or otherwise fails to
-51-
56
provide all or any part of such Loan, the Designating Lender shall be obligated
to make such Loan pursuant to the terms hereof and (iii) the Designating Lender
shall remain liable for any indemnity or other payment obligation with respect
to its Commitment hereunder. The making of a Loan by an SPV hereunder shall
utilize the Commitment of the Designating Lender to the same extent, and as if,
such Loan were made by such Designating Lender.
(ii) As to any Loans or portion thereof made by it, each SPV
shall have all the rights that a Lender making such Loans or portion thereof
would have had under this Agreement; provided, however, that each SPV shall have
granted to its Designating Lender an irrevocable power of attorney, to deliver
and receive all communications and notices under this Agreement (and any Loan
Documents) and to exercise on such SPV's behalf, all of such SPV's voting rights
under this Agreement. No additional Note shall be required to evidence the Loans
or portion thereof made by an SPV; and the related Designating Lender shall be
deemed to hold its Note as agent for such SPV to the extent of the Loans or
portion thereof funded by such SPV. In addition, any payments for the account of
any SPV shall be paid to its Designating Lender as agent for such SPV.
Notwithstanding any term or condition hereof, no SPV, unless it shall have
become a Lender hereunder in accordance with the terms of Section 10.14(c),
shall be a party hereto or have any right to vote or give or withhold its
consent under this Agreement.
(iii) Each party hereto hereby agrees that no SPV shall be
liable for any indemnity or payment under this Agreement for which a Lender
would otherwise be liable. In furtherance of the foregoing, each party hereto
hereby agrees (which agreements shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the later of (a)
payment in full of all outstanding commercial paper or other senior indebtedness
of any SPV, (b) the payment in full of all Loans and (c) the termination of all
Commitments, it will not institute against, or join any other person in
instituting against, such SPV any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any
State thereof.
(iv) In addition, notwithstanding anything to the contrary
contained in this Section 10.14(d) or otherwise in this Agreement (other than
the proviso set forth directly below in the Section 10.14(d)(iv), any SPV may
(i) with notice to, but without the prior written consent of the Borrower or the
Agent, at any time and without paying any processing fee therefor, assign or
participate all or a portion of its interest in any Loans to the Designating
Lender or to any financial institutions providing liquidity and/or credit
support to or for the account of such SPV to support the funding or maintenance
of Loans and (ii) disclose on a confidential basis any non-public information
relating to its Loans to any rating agency, commercial paper dealer or provider
of any surety, guarantee or credit or liquidity enhancements to such SPV;
provided, however, that in no event may any non-public financial information
provided by the Borrower or any other Loan Party under Section 6.01 be provided
by any SPV to any other Person. In no event shall the Borrower be obligated to
pay to any SPV that has made a Loan any greater amount than the Borrower would
have been obligated to pay under this Agreement if the Designating Lender had
made such Loan. This Section 10.14(d) may not be amended without the written
consent of any Designating Lender affected thereby.
-52-
57
(e) Register. The Agent shall maintain at its office a copy of
each Transfer Supplement delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Revolving Credit
Commitment of, and principal amount of the Loans owing to, each Lender from time
to time. The entries in the Register shall be conclusive absent manifest error
and the Borrower, the Agent and the Lenders may treat each person whose name is
recorded in the Register as a Lender hereunder for all purposes of the
Agreement. The Register shall be available for inspection by the Borrowers or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(f) Financial and Other Information. Each Loan Party
authorizes the Agent and each Lender to disclose to any Participant and any
prospective transferee any and all financial and other information in such
Person's possession concerning any Loan Party and their respective Subsidiaries
and affiliates which has been or may be delivered to such Person by or on behalf
of any Loan Party in connection with this Agreement or any other Loan Document
or such Person's credit evaluation of any Loan Party and their respective
Subsidiaries and affiliates, provided, however, that each prospective
Participant and each prospective assignee or transferee of any interest in the
Loan Documents shall be required to agree to the confidentiality provisions of
this Agreement as contained in Section 10.17 hereto, prior to any such
disclosure.
10.15. Governing Law; Submission to Jurisdiction: Waiver of
Jury Trial; Limitation of Liability.
(a) Governing Law. THIS AGREEMENT AND ALL OTHER LOAN DOCUMENTS
(EXCEPT TO THE EXTENT, IF ANY, OTHERWISE EXPRESSLY STATED IN SUCH OTHER LOAN
DOCUMENTS) SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, WITHOUT REGARD TO CHOICE OF LAW
PRINCIPLES.
(b) Certain Waivers. EACH LOAN PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY:
(i) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON
ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT OCCURRING
IN CONNECTION HEREWITH OR THEREWITH (COLLECTIVELY, "RELATED
LITIGATION") MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION SITTING IN ALLEGHENY COUNTY, PENNSYLVANIA, SUBMITS TO THE
JURISDICTION OF SUCH COURTS, AND TO THE FULLEST EXTENT PERMITTED BY LAW
AGREES THAT IT WILL NOT BRING ANY RELATED LITIGATION IN ANY OTHER FORUM
(BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE LENDER TO BRING ANY
ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM);
-53-
58
(ii) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE
LAYING OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT,
WAIVES ANY CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO
ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, THAT SUCH COURT DOES
NOT HAVE JURISDICTION OVER SUCH PERSON;
(iii) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT
OR OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR
CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO THE LOAN PARTY AT THE ADDRESS
FOR NOTICES DESCRIBED IN SECTION 10.05 HEREOF, AND CONSENTS AND AGREES
THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE
SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS
OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW); AND
(iv) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED
LITIGATION.
(c) Limitation of Liability. TO THE FULLEST EXTENT PERMITTED
BY LAW, NO CLAIM MAY BE MADE BY A LOAN PARTY AGAINST THE AGENT OR ANY LENDER OR
ANY AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, ATTORNEY OR AGENT OF THE AGENT OR
LENDER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES
IN RESPECT OF ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT
OCCURRING IN CONNECTION HEREWITH OR THEREWITH (WHETHER FOR BREACH OF CONTRACT,
TORT OR ANY OTHER THEORY OF LIABILITY). EACH LOAN PARTY HEREBY WAIVES, RELEASES
AND AGREES NOT TO XXX UPON ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER SUCH CLAIM
PRESENTLY EXISTS OR ARISES HEREAFTER AND WHETHER OR NOT SUCH CLAIM IS KNOWN OR
SUSPECTED TO EXIST IN ITS FAVOR.
10.16. Termination of Existing Revolving Credit Facilities.
Upon the execution and delivery of this Agreement by each of the parties hereto
and the satisfaction of each of the other conditions set forth in Section 5.01
hereof, the Existing Revolving Credit Facilities and the Security Documents (as
defined therein) and the obligations of Mellon, as lender thereunder to make
Revolving Credit Extensions of Credit thereunder shall be, and hereby are,
terminated and Mellon shall cause any Liens securing the Obligations thereunder
to be terminated or released. Notwithstanding the foregoing, to the extent that
any Revolving Credit Extensions of Credit or any other Obligations remain
outstanding under any of the Existing Revolving Credit Facilities (including
without limitation Letters of Credit), the Loan Parties hereby acknowledge and
agree that such Revolving Credit Extensions of Credit and other Obligations
shall constitute
-54-
59
Obligations of the Loan Parties hereunder and not under any of the Existing
Revolving Credit Facilities.
10.17. Confidentiality. Each party hereto agrees to keep
confidential any information concerning the business and financial activities of
the other party hereto obtained in connection with this Agreement except
information which (a) is lawfully in the public domain, (b) is obtained from a
third party who is not bound by an obligation of confidentiality with respect to
such information, (c) is required to be disclosed to any Governmental Authority
having jurisdiction over such person but only to the extent of such requirement,
or (d) is disclosed by the Agent or any Lender in accordance with Section 10.14
hereof.
[SIGNATURE PAGES BEGIN ON FOLLOWING PAGE]
-55-
60
SIGNATURE PAGE 1 OF 8 TO SHORT TERM CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto, by their officers
thereunto duly authorized, have executed and delivered this Agreement as of the
date first above written.
BORROWER:
BLACK BOX CORPORATION OF
PENNSYLVANIA
By:____________________________________
Title:_________________________________
Address for Notices:
0000 Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx
Telephone: 412/000-0000
Telecopier: 412/873-6784
GUARANTORS:
BLACK BOX CORPORATION and each of the
DOMESTIC SUBSIDIARIES listed on Annex C
attached hereto and made a part hereof
By:____________________________________
Title:_________________________________
of Black Box Corporation and of
each of the Domestic Subsidiaries
listed on Annex C hereto
Address for Notices:
0000 Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx
Telephone: 412/000-0000
Telecopier: 412/873-6784
61
SIGNATURE PAGE 2 OF 8 TO SHORT TERM CREDIT AGREEMENT
AGENT:
MELLON BANK, N.A.
By:____________________________________
Title:_________________________________
Address for Notices:
000 Xxx Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxx
Telephone: 412/000-0000
Telecopier: 412/234-9010
BANKS:
MELLON BANK, N.A.
By:____________________________________
Title:_________________________________
Address for Notices:
000 Xxx Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxx
Telephone: 412/000-0000
Telecopier: 412/234-9010
62
SIGNATURE PAGE 3 OF 8 TO SHORT TERM CREDIT AGREEMENT
FIRST UNION NATIONAL BANK
By:____________________________________
Title:_________________________________
Address for Notices:
000 Xxxxx Xxxxx Xxxxxx
XX 0000
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx, Sales Assistant
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
63
SIGNATURE PAGE 4 OF 8 TO SHORT TERM CREDIT AGREEMENT
FLEET NATIONAL BANK
By:____________________________________
Title:_________________________________
Address for Notices:
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
64
SIGNATURE PAGE 5 OF 8 TO SHORT TERM CREDIT AGREEMENT
NATIONAL CITY BANK OF PENNSYLVANIA
By:____________________________________
Title:_________________________________
Address for Notices:
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
65
SIGNATURE PAGE 6 OF 8 TO SHORT TERM CREDIT AGREEMENT
COMERICA BANK
By:____________________________________
Title:_________________________________
Address for Notices:
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx, XX 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx, Customer Assistant
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
66
SIGNATURE PAGE 7 OF 8 TO SHORT TERM CREDIT AGREEMENT
FIRSTAR BANK, N.A.
By:____________________________________
Title:_________________________________
Address for Notices:
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
67
SIGNATURE PAGE 8 OF 8 TO SHORT TERM CREDIT AGREEMENT
KEYBANK NATIONAL ASSOCIATION
By:____________________________________
Title:_________________________________
Address for Notices:
000 Xxxxxx Xxxxxx
6th Floor - Large Corp.
Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
68
ANNEX A To Credit Agreement
PRICING GRID
----------------------------------------------------------------------------------------------------------------------
Applicable Tier Applicable Margin Commitment Fee Rate
======================================================================================================================
EURO-RATE BASE RATE
OPTION OPTION
======================================================================================================================
Tier I .7500% 0.00% .2000%
----------------------------------------------------------------------------------------------------------------------
Tier II 1.000% 0.00% .2000%
----------------------------------------------------------------------------------------------------------------------
Tier III 1.250% 0.25% .2000%
----------------------------------------------------------------------------------------------------------------------
Tier IV 1.500% 0.50% .3250%
----------------------------------------------------------------------------------------------------------------------
Tier V 1.750% 0.75% .3250%
----------------------------------------------------------------------------------------------------------------------
As used in this Agreement, the term "Applicable Tier" means,
on any date, whichever of Tier I, Tier II, Tier III, Tier IV or Tier V applies
on such date. Subject to the other provisions of this definition, on the Closing
Date through September 30, 2000 the Applicable Tier shall be no lower than Tier
II. Thereafter, subject to the other provisions of this definition, (a)
following the end of each fiscal quarter of the Parent, the Loan Parties shall
prepare and deliver to the Agent in accordance with Section 6.01(d) a Quarterly
Compliance Certificate, duly completed and signed by a Responsible Officer,
computing which of the financial tests in the table set forth below the Loan
Parties satisfy as of the last day of such fiscal quarter and (b) the Applicable
Tier corresponding to such financial test shall take effect on the first day of
the month following the month in which the Agent receives such Quarterly
Compliance Certificate, and such Applicable Tier shall continue in effect until
reset in accordance with this definition. If a Quarterly Compliance Certificate
is not received by the Agent by the last day of the month in which it is
required to be delivered under Section 6.01(d) of the Long Term Credit
Agreement, then, without limiting any other rights and remedies of the Agent or
any Lender, the Applicable Tier shall be deemed to be Tier V for each day from
and including the first day of the month in which such Quarterly Compliance
Certificate was required to be delivered to and including the fifth day after
the date on which such Quarterly Compliance Certificate is received by the
Agent. Notwithstanding anything to the contrary in this definition, the
Applicable Tier shall be deemed to be Tier V in each day on which an Event of
Default has occurred and is continuing.
69
For purposes of the foregoing, the "Applicable Tier" shall be
determined by using the following chart:
--------------------------------------------------------------------------------------------------
Applicable Tier Consolidated Leverage Ratio
==================================================================================================
Tier I Less than or equal to 0.75 to 1
--------------------------------------------------------------------------------------------------
Tier II Less than or equal to 1.25 and greater than 0.75 to
--------------------------------------------------------------------------------------------------
Tier III Less than or equal to 1.75 and greater than 1.25 to 1
--------------------------------------------------------------------------------------------------
Tier IV Less than or equal to 2.25 and greater than 1.75 to 1
--------------------------------------------------------------------------------------------------
Tier V Greater than 2.25
--------------------------------------------------------------------------------------------------
[END OF ANNEX A]
70
ANNEX B To Credit Agreement
COMMITMENT SCHEDULE
--------------------------------------------------------------------------------
BANK COMMITMENT
---- ----------
--------------------------------------------------------------------------------
Mellon Bank, N.A. $12,333,333.33
--------------------------------------------------------------------------------
First Union National Bank $10,000,000.00
--------------------------------------------------------------------------------
Fleet National Bank $10,000,000.00
--------------------------------------------------------------------------------
National City Bank of Pennsylvania $10,000,000.00
--------------------------------------------------------------------------------
Comerica Bank $ 7,666,666.67
--------------------------------------------------------------------------------
Firstar Bank, N.A. $ 5,000,000.00
--------------------------------------------------------------------------------
KeyBank National Association $ 5,000,000.00
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
71
ANNEX C To Credit Agreement
DOMESTIC SUBSIDIARIES
<
