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SHORT TERM CREDIT AGREEMENT
dated as of May 13, 2002
among
XXXXXXX-XXXXXX CORPORATION
and
THE SUBSIDIARY BORROWERS PARTIES HERETO FROM TIME TO TIME,
as Borrowers,
THE LENDERS PARTIES HERETO FROM TIME TO TIME
and
THE BANK OF NOVA SCOTIA,
as Agent
FLEET NATIONAL BANK,
as Syndication Agent
SUNTRUST BANK,
as Documentation Agent
and
THE BANK OF NOVA SCOTIA,
as Lead Arranger.
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS; CONSTRUCTION........................................1
1.01. Certain Definitions..............................................1
1.02. Construction....................................................12
1.03. Accounting Principles...........................................12
ARTICLE II THE CREDITS.....................................................13
2.01. Revolving Credit Loans..........................................13
2.02. Facility Fee; Reduction of the Revolving Credit Committed
Amounts.........................................................14
2.03. Making of Loans.................................................14
2.04. Interest Rates..................................................15
2.05. Conversion or Renewal of Interest Rate Options..................19
2.06. Prepayments Generally...........................................20
2.07. Optional Prepayments............................................20
2.08. Interest Payment Dates..........................................21
2.09. Pro Rata Treatment; Payments Generally..........................21
2.10. Additional Compensation in Certain Circumstances................22
2.11. HLT Classification..............................................24
2.12. Taxes...........................................................24
2.13. Funding by Branch, Subsidiary or Affiliate......................26
2.14. Extension of Expiration Date....................................27
2.15. Special Provisions for Other Currency Revolving Credit Loans....28
2.16. Joint and Several Liability.....................................30
ARTICLE III REPRESENTATIONS AND WARRANTIES..................................30
3.01. Incorporation by Reference......................................30
ARTICLE IV CONDITIONS OF LENDING...........................................30
4.01. Conditions to Making of Initial Loans...........................30
4.02. Conditions to All Loans.........................................32
ARTICLE V COVENANTS.......................................................33
5.01. Incorporation by Reference......................................33
ARTICLE VI EVENTS OF DEFAULT...............................................33
6.01. Events of Default...............................................33
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TABLE OF CONTENTS
(continued)
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6.02. Consequences of an Event of Default.............................35
6.03. Judgment Currency...............................................36
ARTICLE VII THE AGENT.......................................................36
7.01. Appointment.....................................................36
7.02. General Nature of Agent's Duties................................36
7.03. Exercise of Powers..............................................37
7.04. General Exculpatory Provisions..................................37
7.05. Administration by the Agent.....................................38
7.06. Lender Not Relying on Agent or Other Lenders....................39
7.07. Indemnification.................................................39
7.08. Agent in its Individual Capacity................................40
7.09. Holders of Notes................................................40
7.10. Successor Agent.................................................40
7.11. Additional Agents...............................................40
7.12. Calculations....................................................41
7.13. Agent's Fee.....................................................41
7.14. Funding by Agent................................................41
7.15. Syndication Agent and Documentation Agent.......................41
ARTICLE VIII MISCELLANEOUS...................................................41
8.01. Holidays........................................................41
8.02. Records.........................................................41
8.03. Amendments and Waivers..........................................42
8.04. No Implied Waiver; Cumulative Remedies..........................43
8.05. Notices.........................................................43
8.06. Expenses; Taxes; Indemnity......................................43
8.07. Severability....................................................45
8.08. Prior Understandings............................................45
8.09. Duration; Survival..............................................45
8.10. Counterparts....................................................45
8.11. Limitation on Payments..........................................45
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TABLE OF CONTENTS
(continued)
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8.12. Set-Off.........................................................45
8.13. Sharing of Collections..........................................46
8.14. Successors and Assigns; Participations; Assignments.............46
8.15. Governing Law; Submission to Jurisdiction;Limitation of
Liability.......................................................49
8.16. Confidentiality.................................................50
8.17. Headings........................................................51
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Exhibits
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Exhibit A Form of Revolving Credit Note
Exhibit B Form of Opinion of Counsel
Exhibit C Form of Transfer Supplement
Exhibit D Form of Xxxxxxx-Xxxxxx Guaranty
Exhibit E Form of Subsidiary Guaranty
Exhibit F Form of Standard Notice
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SHORT TERM CREDIT AGREEMENT
THIS SHORT TERM CREDIT AGREEMENT (this "Agreement"), dated as of May 13,
2002, by and among XXXXXXX-XXXXXX CORPORATION, a Delaware corporation
("Xxxxxxx-Xxxxxx"), the Subsidiary Borrowers (as defined below) party hereto
from time to time (collectively with Xxxxxxx-Xxxxxx, the "Borrowers", and each
individually a "Borrower"), the lenders party hereto from time to time (the
"Lenders", as defined further below), FLEET NATIONAL BANK, as syndication agent
for the Lenders (in such capacity, the "Syndication Agent"), SUNTRUST BANK, as
documentation agent for the Lenders (in such capacity, the "Documentation
Agent") and THE BANK OF NOVA SCOTIA, as agent for the Lenders (in such capacity,
together with its successors in such capacity, the "Agent").
WHEREAS, the Borrowers have requested the Agent and the Lenders to enter
into this Agreement and extend credit as herein provided;
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:
"Affected Lender" shall have the meaning set forth in Section 2.04(e)
hereof.
"Affiliate" of Xxxxxxx-Xxxxxx or any of its Subsidiaries shall mean any
Person which directly or indirectly controls or is controlled by or is under
common control with Xxxxxxx-Xxxxxx or such Subsidiary, as the case may be. For
purposes of this definition "control" (including, with correlative meanings, the
terms "controlled by" and "under common control with") means the possession,
directly or indirectly, of the power to direct or cause the direction of
management policies, whether through ownership of voting securities or by
contract or otherwise.
"Anniversary Date" shall mean each May 13 during the term of this
Agreement.
"Applicable Funding Rate" shall have the meaning set forth in Section
2.10(b) hereof.
"Applicable Location" shall mean (i) except as provided in clause (ii), the
Federal Reserve Bank of New York, ABA# 000000000 for further credit to The Bank
of Nova Scotia, New York Agency, Account #2835-17, Attention: Xxxxx Xxxxxxx,
Reference: Xxxxxxx-Xxxxxx, and (ii) in the case of payments denominated in an
Other Currency, the appropriate account and location set forth on Schedule I
hereto, or in either case, such other location or account designated from time
to time by notice from the Agent to the Borrowers and the Lenders.
"Applicable Margin" shall have the meaning set forth in Section 2.04(b)
hereof.
"Assured Obligation" shall have the meaning set forth in the definition of
"Guaranty Equivalent" in this Section 1.01.
"Available" means, in respect of any Other Currency and any Lender, that
such Other Currency is, at the relevant time, (a) readily available to such
Lender as deposits in the London or other applicable interbank market in the
relevant amount and for the relevant term, (b) is freely convertible into
Dollars and (c) is freely transferable for the purposes of this Agreement, but
if, notwithstanding that each of the foregoing tests is satisfied:
(a) such Other Currency is, under the then current legislation or
regulations of the country issuing such Other Currency (or under the policy of
the central bank of such country) or of the Bank of England or the F.R.S. Board,
not permitted to be used for the purposes of this Agreement; or
(b) there is no, or only insignificant, investor demand for the making of
advances having an interest period equivalent to that for the LIBO Rate Portion
denominated in an Other Currency which a Borrower has requested be made; or
(c) there are policy or other reasons which make it undesirable or
impractical for a Lender to make a Revolving Credit Loan denominated in such
Other Currency available as determined by such Lender in its reasonable
discretion;
then such Other Currency may be treated by any Lender as not being Available.
"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)
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 (i) under the Base Rate Option or (ii) in accordance with Section
2.09(c)(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.
"Borrower" or "Borrowers" shall have the meaning set forth in the preamble.
"Business Day" shall mean any day other than a Saturday, Sunday, public
holiday under the laws of the State of New York or other day on which banking
institutions are authorized or obligated to close in the city in which the
Agent's Office is located.
"Change of Control" shall mean that any Person or group of Persons (as used
in Sections 13 and 14 of 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 SEC) under the Exchange Act) of either (i) 50% or
more of the combined voting power of all the outstanding voting securities of
Xxxxxxx-Xxxxxx or (ii) the voting power to elect a majority of the board of
directors of Xxxxxxx-Xxxxxx.
"Closing Date" shall mean the date of this Agreement.
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"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 Percentage" of a Lender at any time shall mean the Commitment
Percentage for such Lender set forth below its name on the signature page
hereof, as such percentage may be adjusted pursuant to Section 2.01(e) and
Section 2.14 hereof, and subject to transfer to another Lender as provided in
Section 8.14 hereof.
"Consolidated EBIT" shall mean, with respect to Xxxxxxx-Xxxxxx and its
consolidated Subsidiaries, calculated for each fiscal quarter then ending, and
the immediately preceding three fiscal quarters (determined on a consolidated
basis and in accordance with GAAP), the sum of (a) Consolidated Net Income, plus
(b) Consolidated Interest Expense, plus (c) consolidated foreign, federal and
state income tax expenses for such period, plus (d) extraordinary losses for
such period, minus (e) extraordinary gains for such period.
"Consolidated EBITDA" shall mean, with respect to Xxxxxxx-Xxxxxx and its
consolidated Subsidiaries, calculated for each fiscal quarter then ending, and
the immediately preceding three fiscal quarters (determined on a consolidated
basis and in accordance with GAAP), the sum of (a) Consolidated EBIT, plus (b)
depreciation and amortization of assets for such period (if subtracted from
earnings in calculating the same).
"Consolidated Interest Expense" shall mean, with respect to Xxxxxxx-Xxxxxx
and its consolidated Subsidiaries calculated for each fiscal quarter then
ending, and the immediately preceding three fiscal quarters, interest expense
(whether cash or non-cash) determined in accordance with GAAP for the relevant
period ended on such date, including, in any event, interest expense with
respect to Indebtedness of Xxxxxxx-Xxxxxx and its consolidated Subsidiaries,
interest expense for the relevant period that has been capitalized on the
balance sheet and interest expense with respect to any Deemed Debt.
"Consolidated Net Income" shall mean, for any period, the consolidated net
income (or deficit) of Xxxxxxx-Xxxxxx and its consolidated Subsidiaries for such
period, determined in accordance with GAAP.
"Corresponding Source of Funds" shall mean, in the case of any Funding
Segment of the LIBO Rate Portion, the proceeds of hypothetical receipts by a
Notional LIBO Rate Funding Office or by a Lender through a Notional LIBO Rate
Funding Office of one or more Dollar deposits in the interbank eurodollar market
at the beginning of the LIBO Rate Funding Period corresponding to such Funding
Segment having maturities approximately equal to such LIBO Rate Funding Period
and in an aggregate amount approximately equal to such Lender's Pro Rata share
of such Funding Segment.
"Xxxxxxx-Xxxxxx Guaranty" shall have the meaning set forth in Section
4.01(n) hereof.
"Debt Instrument" shall have the meaning set forth in Section 6.01(e)
hereof.
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"Deemed Debt" shall mean the amount of indebtedness incurred by
Xxxxxxx-Xxxxxx and its consolidated Subsidiaries and any special purpose
corporation or trust which is an Affiliate of Xxxxxxx-Xxxxxx or any of its
Subsidiaries in connection with any accounts receivable or inventory financing
facility whether or not shown on the balance sheet of Xxxxxxx-Xxxxxx or such
Subsidiary in accordance with GAAP to the extent not included in the definition
of Indebtedness. For purposes of determining the amount of Deemed Debt incurred
by any Person in connection with any accounts receivable or inventory financing
transaction, the amount of all contingent obligations of such Person shall be
included as well as non-recourse indebtedness incurred in connection with such
transaction. Deemed Debt shall not include operating leases.
"Deemed Guarantor" shall have the meaning set forth in the definition of
"Guaranty Equivalent" in this Section 1.01.
"Deemed Obligor" shall have the meaning set forth in the definition of
"Guaranty Equivalent" in this Section 1.01.
"Documentation Agent" shall have the meaning set forth in the preamble.
"Dollar," "Dollars" and the symbol "$" shall mean lawful money of the
United States of America.
"Dollar Equivalent Amount" of any Revolving Credit Loan shall mean (a) with
respect to a Revolving Credit Loan denominated in an Other Currency, an amount
equal to the amount of Dollars that the amount of such Other Currency (equal to
the principal amount of such Revolving Credit Loan) could purchase at 12:00
p.m., noon, New York time, on the date of determination, based upon the quoted
spot rates of the Agent, at which its applicable branch or office offers to
exchange Dollars for such currency in the foreign exchange market and (b) with
respect to a Revolving Credit Loan denominated in US Currency, an amount in
Dollars equal to the principal amount of such Revolving Credit Loan.
"Euro" and "Euros" shall mean the lawful currency of the participating
member states of the European Union that adopt a single currency in accordance
with the Treaty establishing the European Communities, as amended by the Treaty
on European Union.
"Event of Default" shall mean any of the Events of Default described in
Section 6.01 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Expiration Date" shall mean May 9, 2003, or such later date to which the
Expiration Date may be extended pursuant to Section 2.14 hereof. Notwithstanding
the foregoing, no Lender's Commitment shall ever have a remaining term of more
than 364 days, and if for any reason the Agent receives the consent of any
Lender to an extension of the Expiration Date pursuant to Section 2.14 hereof
more than 364 days before the requested new Expiration Date, such consent of
such Lender shall be considered absolutely revocable and in no manner binding on
such Lender until such date that is 364 days prior to such requested new
Expiration Date.
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"Existing Lenders" shall have the meaning set forth in the definition of
the Original Credit Agreements.
"Extension Request" shall have the meaning set forth in Section 2.14
hereof.
"Facility Fee" shall have the meaning set forth in Section 2.02(a) hereof.
"Fairfield Property" shall mean the real property located at 000 Xxxxxxxxx
Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000.
"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.
"F.R.S. Board" means the Board of Governors of the Federal Reserve System
or any successor thereto.
"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 Periods" shall have the meaning set forth in Section 2.04(c)
hereof.
"Funding Segment" of the LIBO Rate Portion of the Revolving Credit Loans at
any time shall mean the entire principal amount of such Portion to which at the
time in question there is applicable a particular Funding Period beginning on a
particular day and ending on a particular day. (By definition, each such 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 any such Portion at
any time equals the principal amount of such Portion at such time.)
"GAAP" shall have the meaning set forth in Section 1.03 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.
"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
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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 the Deemed Obligor regardless of the nondelivery of or
failure to furnish of such property or services, or (d) 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.
"HLT Classification" shall have the meaning set forth in Section 2.11
hereof.
"Indebtedness" of a Person, at a particular date, shall mean, without
duplication, the following: (a) all indebtedness of such Person for borrowed
money or for the deferred purchase price of property; (b) the face amount of all
letters of credit (other than standby letters of credit issued for the account
of such Person in connection with bids on proposed contracts by such Person)
issued for the account of such Person and, without duplication, all drafts drawn
under all letters of credit (including standby letters of credit); (c) all
liabilities secured by any Lien (other than Permitted Liens permitted under
clause (h) of the definition thereof) on any property owned by such Person, to
the extent attributable to such Person's interest in such property, even though
it has not assumed or become liable for the payment thereof; (d) all Assured
Obligations of others as to which such Person is the Deemed Guarantor under a
Guaranty Equivalent; and (e) lease obligations of such Person which have been,
or which in accordance with GAAP should be, capitalized.
"Indemnified Parties" shall mean the Agent, the Lenders, their respective
affiliates, and the directors, officers, employees, attorneys and agents of each
of the foregoing.
"Judgment Amount" shall have the meaning set forth in Section 6.03 hereof.
"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.
"Lender" shall mean any of the Lenders listed on the signature pages
hereof, subject to the provisions of Section 8.14 hereof pertaining to Persons
becoming or ceasing to be Lenders.
"Leverage Ratio" shall mean, with respect to Xxxxxxx-Xxxxxx and its
consolidated Subsidiaries for any fiscal period, the ratio of (a) Indebtedness
of Xxxxxxx-Xxxxxx and its consolidated Subsidiaries plus any Deemed Debt plus
any Synthetic Lease Obligations, to (b) Consolidated EBITDA plus, in the event
of any acquisition by Xxxxxxx-Xxxxxx, with respect to
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the acquired company and without duplication, the sum of (i) the net earnings
(or loss), plus (ii) interest expense for such period, plus (iii) consolidated
federal and state income tax expenses for such period, plus (iv) depreciation
and amortization of assets for such period (if subtracted from earnings in
calculating the same), plus (v) extraordinary losses for such period, minus (vi)
extraordinary gains for such period, with all of the foregoing amounts to be
calculated for the fiscal period then ending, and the immediately preceding
three fiscal quarters (determined on a consolidated basis in accordance with
GAAP).
"LIBO Rate" shall have the meaning set forth in Section 2.04(a)(ii) hereof.
"LIBO Rate Option" shall have the meaning set forth in Section 2.04(a)(ii)
hereof.
"LIBO Rate Portion" of any Revolving Credit Loan or Revolving Credit Loans
shall mean at any time the portion, including the whole, of such Revolving
Credit Loan or Revolving Credit Loans bearing interest at any time under the
LIBO Rate Option or at a rate calculated by reference to the LIBO Rate under
Section 2.09(c)(i) hereof. If no Revolving Credit Loan or Revolving Credit Loans
is specified, "LIBO Rate Portion" shall refer to the LIBO Rate Portion of all
Revolving Credit Loans outstanding at such time.
"LIBO Rate Reserve Percentage" shall have the meaning set forth in Section
2.04(a)(iii) hereof.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any agreement to give any of the
foregoing, any additional sale or other title retention agreement, any lease in
the nature thereof, and the filing of or agreement to give any financing
statement under the Uniform Commercial Code of any jurisdiction).
"Loan" shall mean any Revolving Credit Loan by a Lender to any Borrower
under this Agreement, and "Loans" shall mean all Revolving Credit Loans made by
the Lenders under this Agreement.
"Loan Documents" shall mean this Agreement, the Notes, the Xxxxxxx-Xxxxxx
Guaranty, the Subsidiary Guarantees, the Transfer Supplements and the Rate
Protection Agreements, 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.
"London Business Day" shall mean any day in which dealing in deposits in
Dollars is carried on 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 Borrowers party thereto, the Lenders named
therein, the Issuing Banks referred to therein and Scotia Capital, as the Agent,
as amended.
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"Loss" shall have the meaning set forth in Section 6.03 hereof.
"Material Adverse Effect" shall mean (a) a material adverse effect on the
business, assets, operations, condition (financial or otherwise) or prospects of
Xxxxxxx-Xxxxxx and its Subsidiaries taken as a whole or (b) a material adverse
effect on the ability of Xxxxxxx-Xxxxxx and its Subsidiaries taken as a whole to
perform or comply with any of the terms and conditions of any Loan Document.
"Maturity Date" shall mean the date which is one year after the Expiration
Date.
"National Currency Unit" shall have the meaning set forth in Section 2.15
hereof.
"Nonextending Lender" shall have the meaning set forth in Section 2.14
hereof.
"Non-Participant State" shall have the meaning set forth in Section 2.15
hereof.
"Note" or "Notes" shall mean the Revolving Credit Notes of the Borrowers
executed and delivered under this Agreement, together with all modifications,
amendments, extensions, renewals, refinancings or refundings of any thereof in
whole or part.
"Notional LIBO Rate Funding Office" shall have the meaning set forth in
Section 2.13(a) hereof.
"Obligations" shall mean all indebtedness, obligations and liabilities of
any Borrower to any Lender or the Agent from time to time arising under or in
connection with or related to or evidenced by 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 Loans, accrued but unpaid interest,
unpaid 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 in compliance with the terms and
conditions of this Agreement or in excess of the obligation of the Lenders to
lend. The Obligations shall remain Obligations notwithstanding any assignment or
transfer or any subsequent assignment or transfer of any of the Obligations or
any interest therein.
"Office," when used in connection with the Agent, shall mean its office
located at Xxx Xxxxxxx Xxxxx, Xxx Xxxx, XX 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 Borrowers.
"Option" shall mean the Base Rate Option or the LIBO Rate Option, as the
case may be.
"Original Credit Agreements" shall mean (i) that certain Credit Agreement,
dated as of December 20, 1999, among Xxxxxxx-Xxxxxx, each of the financial
institutions party thereto as lenders (the "Existing Lenders"), Mellon Bank,
N.A., as agent, The Bank of Nova Scotia, as syndication agent, and PNC Bank,
N.A., as documentation agent (collectively, the "Existing
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Agents") (as amended, supplemented, amended and restated and otherwise modified
from time to time) and (ii) that certain Short Term Credit Agreement, dated as
of December 20, 1999, among Xxxxxxx-Xxxxxx, the Existing Lenders and the
Existing Agents (as amended by Amendment No. 1 thereto dated as of December 19,
2000, Amendment No. 2 thereto dated as of December 14, 2001, and as amended,
supplemented, amended and restated and otherwise modified from time to time.
"Original Due Date" shall have the meaning set forth in Section 6.03
hereof.
"Other Currency" shall mean Canadian Dollars, British Pounds, Swiss Francs,
Danish Krone, Swedish Krona, Euros and any freely available currency that is
freely transferable and freely convertible into Dollars and requested by any
Borrower and acceptable to all of the Lenders and to the Agent.
"Participants" shall have the meaning set forth in Section 8.14(b) hereof.
"Permitted Liens" shall mean (a) Liens arising from taxes, assessments,
charges, levies or claims that are not yet due or that remain payable without
penalty, (b) deposits or pledges of cash to secure workmen's compensation,
unemployment insurance, old age benefits or other social security obligations,
or in connection with or to secure the performance of bids, tenders, trade
contracts or leases, or to secure statutory obligations, or stay, surety or
appeal bonds, or other pledges or deposits of cash of like nature and all in the
ordinary course of business, (c) Liens permitted by Section 7.02(b) of the Long
Term Credit Agreement, (d) Liens in favor of each of the Agent and the Lenders,
(e) Liens to secure Indebtedness existing on the date hereof, (f) with respect
to the Fairfield Property, impediments to marketability arising by reason of the
New Jersey Industrial Site Recovery Act, (g) easements, rights of way and other
exceptions to title which do not materially affect any Borrower's right of
enjoyment of its properties, (h) Liens in favor of customers for amounts paid to
any Borrower or any Subsidiary of any Borrower as progress payments, (i) Liens
to secure non-recourse Indebtedness, subject to the restrictions set forth in
Section 7.01 and Section 7.03 of the Long Term Credit Agreement, (j) Liens to
secure Deemed Debt; provided, that such Liens are limited to the accounts
receivable and/or inventory financed in connection with the incurring of such
Deemed Debt, and (k) Liens of carriers, warehousemen, mechanics, materialmen and
landlords incurred in the ordinary course of business by Xxxxxxx-Xxxxxx for sums
not overdue or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books.
"Person" shall mean an individual, corporation, limited liability company,
partnership, trust, unincorporated association, joint venture, joint-stock
company, Governmental Authority or any other entity.
"Portion" shall mean the Base Rate Portion or the LIBO Rate Portion, as the
case may be.
"Potential Default" shall mean any event or condition which with notice or
passage of time, or both, would constitute an Event of Default.
"Prime Rate" as used herein, shall mean the interest rate per annum
established from time to time by Scotia Capital as its "base rate" for Dollars
loaned in the United States, which rate
-9-
may be greater or less than other interest rates charged by Scotia Capital to
other borrowers and is not solely based or dependent upon the interest rate
which Scotia Capital may charge any particular borrower or class of borrowers.
"Pro Rata" shall mean from or to each Lender in proportion to its
Commitment Percentage.
"Purchasing Lender" shall have the meaning set forth in Section 8.14(c)
hereof.
"Rate Protection Agreement" means, collectively, any interest rate swap,
cap, collar or similar agreement entered into by any Borrower or any of their
respective Subsidiaries under which the counterparty of such agreement is (or at
the time such agreement was entered into, was) a Lender or an affiliate of a
Lender.
"Register" shall have the meaning set forth in Section 8.14(d) hereof.
"Regular Payment Date" shall mean the last day of each June, September,
December, and March after the date hereof.
"Replacement Lender" shall have the meaning set forth in Section 2.14
hereof.
"Required Lenders" shall mean, as of any date, Lenders which have
Commitments constituting, in the aggregate, at least 51% of the total
Commitments of all the Lenders.
"Responsible Officer" shall mean the Chairman, President, any Vice
President, the Controller or the Treasurer of any Borrower.
"Revolving Credit Commitment" shall have the meaning set forth in Section
2.01(a) hereof.
"Revolving Credit Committed Amount" shall mean, with respect to any Lender,
an amount equal to the amount set forth as such Lender's "Initial Revolving
Credit Committed Amount" below its name on the signature pages hereof, as either
such amount may have been reduced under Section 2.02 hereof at such time,
increased under Section 2.01(e) hereof at such time, and subject to transfer to
another Lender as provided in Section 8.14 hereof.
"Revolving Credit Loans" shall have the meaning set forth in Section
2.01(a) hereof.
"Revolving Credit Notes" shall mean the promissory notes of the Borrowers
executed and delivered under Section 2.01(c) hereof and any promissory note
issued in substitution therefor pursuant to Sections 8.14(c) and 2.14 or any
other provisions hereof, together with all amendments, modifications,
extensions, renewals, refinancings or refundings thereof in whole or part.
"Scotia Capital" means The Bank of Nova Scotia in its individual capacity.
"SEC" means the Securities and Exchange Commission.
-10-
"Significant Subsidiary" shall mean (a) the following Subsidiaries of
Xxxxxxx-Xxxxxx: Xxxxxxx-Xxxxxx Flight Systems, Inc., Xxxxxxx-Xxxxxx Flow Control
Corporation, Metal Improvement Company, Inc., and (b) any other Subsidiary of
Xxxxxxx-Xxxxxx (i) which, together with its Subsidiaries (determined on a
consolidated basis), has assets with a book value greater than or equal to 20%
of the total assets of Xxxxxxx-Xxxxxx and its Subsidiaries (determined on a
consolidated basis) as of the end of the most recently completed fiscal quarter
for which financial information is available, or (ii) which, together with its
Subsidiaries (determined on a consolidated basis), has greater than 20% of the
net revenues of Xxxxxxx-Xxxxxx and its Subsidiaries (determined on a
consolidated basis) for the most recent four fiscal quarters for which financial
information is available, all determined in accordance with GAAP or (iii)
designated as a Significant Subsidiary pursuant to Section 7.13 of the Long Term
Credit Agreement.
"Standard Notice" shall mean notice given substantially in the form of
Exhibit F, which notice shall be an irrevocable notice provided to the Agent on
a Business Day which is
(a) provided at least one Business Day in advance in the case of selection
of, conversion to or renewal of the Base Rate Option or prepayment of any Base
Rate Portion; and
(b) provided at least three London Business Days in advance in the case of
selection of, conversion to or renewal of the LIBO Rate Option or prepayment of
any LIBO Rate Portion.
Standard Notice must be provided no later than 10:00 a.m., New York time,
on the last day permitted for such notice.
"Subsidiary" of a Person means (a) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or (b) any
partnership, limited liability company, limited liability partnership,
association, joint venture or similar business organization more than 50% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
"Subsidiary Borrower" shall mean (a) any of the following Subsidiaries of
Xxxxxxx-Xxxxxx: Xxxxxxx-Xxxxxx Flight Systems, Inc., a Delaware corporation;
Metal Improvement Company, Inc., a Delaware corporation; Xxxxxxx-Xxxxxx Flow
Control Corporation, a New York corporation; Xxxxxxx-Xxxxxx Flow Control Service
Corporation, a Delaware corporation and Xxxxxxx-Xxxxxx Antriebstechnik GmbH, a
Swiss company and (b) any other Subsidiary of Xxxxxxx-Xxxxxx that (i) has
executed and delivered to the Agent (A) a Revolving Credit Note and (B) a
joinder to this Agreement, in form and substance satisfactory to the Agent, and
(ii) is consented to by the Agent (such consent not to be unreasonably
withheld).
"Subsidiary Guaranty" or "Subsidiary Guarantees" shall have the meanings
set forth in Section 4.01(n) hereof.
"Subsidiary Guarantors" shall mean the Subsidiary Borrowers and Significant
Subsidiaries from time to time party to the Subsidiary Guarantees.
"Syndication Agent" shall have the meaning set forth in the preamble.
-11-
"Synthetic Lease Obligations" shall mean the unconditional lease
obligations of a lessee under a lease of the type referred to as a "synthetic
lease" that is or should be characterized as an operating lease by the lessee in
accordance with GAAP. The amount of any lessee's Synthetic Lease Obligations
shall be deemed to be, at the date of determination, the outstanding principal
amount of the notes and equity incurred by the lessor to finance or refinance
the acquisition of the property covered by the synthetic lease.
"Taxes" shall have the meaning set forth in Section 2.12(a) hereof.
"Transfer Effective Date" shall have the meaning set forth in the
applicable Transfer Supplement.
"Transfer Lender Notes" shall have the meaning set forth in Section 8.14(c)
hereof.
"Transfer Supplement" shall have the meaning set forth in Section 8.14(c)
hereof.
"US Currency" shall mean Dollars.
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 by any Lender
include good faith estimates by the Agent or by any Lender (in the case of
quantitative determinations) and good faith beliefs by the Agent or by 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. 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 in the United States, applied on a basis consistent with the
principles used in preparing Xxxxxxx-Xxxxxx'x consolidated financial statements
as of December 31, 2001 and for the fiscal year then ended, as referred to in
Section 4.05 hereof, together with such changes in GAAP as may be adopted from
time to time which, in the good faith judgment of the Agent, do not have a
material adverse effect on Xxxxxxx-Xxxxxx'x compliance with the covenants
contained in this Agreement.
(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.
-12-
(c) If and to the extent that the financial statements generally prepared
by Xxxxxxx-Xxxxxx apply accounting principles other than GAAP, all financial
statements referred to in this Agreement or any other Loan Document shall be
delivered in duplicate, one set based on the accounting principles then
generally applied by Xxxxxxx-Xxxxxx and one set based on GAAP. To the extent
this Agreement or such other Loan Document requires financial statements to be
accompanied by an opinion of independent accountants, each set of financial
statements shall be accompanied by such an opinion.
ARTICLE II
THE CREDITS
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 in either US Currency or
in an Other Currency (the "Revolving Credit Loans") to one or more Borrowers at
any time or from time to time on or after the date hereof and to but not
including the Expiration 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 Loans at any time outstanding would exceed such
Lender's Revolving Credit Committed Amount at such time.
(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
Borrowers may borrow, repay and reborrow Revolving Credit Loans hereunder.
(c) Revolving Credit Notes. The obligations of each Borrower to repay the
unpaid principal amount of the Revolving Credit Loans made to them by each
Lender and to pay interest thereon shall be evidenced in part by promissory
notes of each such Borrower, one to each Lender, 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 "Initial Revolving Credit Committed Amount"
(as set forth below its name on the signature pages hereof).
(d) Maturity. To the extent not due and payable earlier, the Revolving
Credit Loans shall be due and payable on the Maturity Date.
(e) Increase in Revolving Credit Commitments. Upon the written request of
Xxxxxxx-Xxxxxx, the Revolving Credit Commitments may be increased, (i) by an
aggregate amount of $15,000,000 less the amount, if any, by which the Long Term
Commitments may have been increased pursuant to Section 2.01(h) of the Long Term
Credit Agreement, if approved in writing by the Required Lenders (which must
include the Agent), and (ii) by an amount greater than that set forth in
subclause (i) of this clause (e), if approved in writing by all the Lenders;
provided, that no Lender's Revolving Credit Committed Amount shall be increased
without such Lender's approval. The Lenders' Revolving Credit Committed Amounts
shall be increased on a Pro Rata
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basis among the Lenders approving the increase in Commitments. The increase in
Commitments shall be subject to the Agent's receipt, for each Lender, of
substitute Notes, duly executed by each Borrower, reflecting the amount of such
Lender's Revolving Credit Committed Amount after such increase in the
Commitments.
2.02. Facility Fee; Reduction of the Revolving Credit Committed Amounts.
(a) Facility Fee. Xxxxxxx-Xxxxxx shall pay to the Agent for the account of
each Lender a non-refundable facility fee (the "Facility Fee") for each day from
and including the date hereof to but not including the Maturity Date, whether or
not all or any portion of the aggregate Revolving Credit Committed Amounts is
then available, in an amount equal to the product of (i) the amount (not less
than zero) of such Lender's Revolving Credit Committed Amount on such day, or
after the Expiration Date, such Lender's aggregate outstanding principal amount
of Notes, if any, on such date, multiplied by (ii) the facility fee percentage
determined from the chart set forth below based on the Leverage Ratio, as
determined quarterly based upon the financial statements delivered by
Xxxxxxx-Xxxxxx pursuant to Sections 5.01(f) and 6.01 (or if no such financial
statements are timely delivered in accordance with Section 6.01(a) or 6.01(b) of
the Long Term Credit Agreement, the Facility Fee percentage shall be 0.35% until
the delivery of such financial statements) of the Long Term Agreement with such
Facility Fee to be effective as of the first day of the quarter immediately
following the quarter for which such financial statements are delivered:
------------------------------------------------------------
Leverage Ratio Facility Fee Percentage
-------------- -----------------------
------------------------------------------------------------
> 2.5 0.30%
------------------------------------------------------------
> 1.5 and <= 2.5 0.25%
------------------------------------------------------------
<= 1.5 0.15%.
------------------------------------------------------------
Such Facility Fee shall be due and payable for the preceding period for which
such fee has not been paid (x) on each Regular Payment Date, (y) on the date of
each reduction or expiration of the Revolving Credit Committed Amounts (whether
optional or mandatory) on the amount so reduced and (z) on the Maturity Date.
(b) Reduction of the Revolving Credit Committed Amounts. Xxxxxxx-Xxxxxx may
at any time or from time to time reduce Pro Rata the Revolving Credit Committed
Amounts of the Lenders to an aggregate amount (which may be zero) not less than
the Dollar Equivalent Amount of the unpaid principal amount of the Revolving
Credit Loans then outstanding plus the principal amount of all Revolving Credit
Loans not yet made as to which notice has been given by any Borrower under
Section 2.03 hereof. Any reduction of the Revolving Credit Committed Amounts
shall be in an aggregate amount which is a minimum amount of $5,000,000 and
integral multiples of $500,000 thereof. Reduction of the Revolving Credit
Committed Amounts shall be made by providing not less than 30 days' notice
(which notice shall be irrevocable) to such effect to the Agent. After the date
specified in such notice the Facility Fee shall be calculated based upon the
Revolving Credit Committed Amounts as so reduced. Upon reduction of the
Revolving Credit Committed Amounts to zero, payment in full of all Obligations,
this Agreement shall be terminated.
-14-
2.03. Making of Loans. Whenever a Borrower desires that the Lenders make
Revolving Credit Loans, such Borrower shall provide Standard Notice to the Agent
setting forth the following information:
(a) The currency, which shall be either US Currency or an Other Currency,
in which such Revolving Credit Loans are to be made;
(b) The party making the borrowing thereunder;
(c) The date, which shall be a Business Day (in the case of a Base Rate
Portion) or London Business Day (in the case of a LIBO Rate Portion), on which
such proposed Revolving Credit Loans are to be made;
(d) The aggregate principal amount of such proposed Revolving Credit Loans,
which shall be the sum of the principal amounts selected pursuant to clause (e)
of this Section 2.03;
(e) 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 LIBO
Rate Portion, as the case may be, of such proposed Revolving Credit Loans; and
(f) With respect to each such Funding Segment of such proposed Revolving
Credit Loans, the 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
Revolving Credit Loan. Unless any applicable condition specified in Article IV
hereof has not been satisfied, on the date specified in such Standard Notice
each Lender shall make the proceeds of its Revolving Credit Loan available to
the Agent (A) with respect to a Loan denominated in US Currency, at the
Applicable Location no later than 12:00 noon, New York time, in funds
immediately available at the Applicable Location, and (B) with respect to a Loan
denominated in an Other Currency, at the Applicable Location, no later than
12:00 noon, London time, in funds immediately available at the Applicable
Location. The Agent will make the funds so received available to the applicable
Borrower in funds immediately available at the Applicable Location.
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
applicable Borrower from among the interest rate Options set forth below.
Subject to the provisions of this Agreement the Borrowers 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 LIBO Rate Portion of the Loans. The aggregate number of Funding Segments
applicable to the LIBO Rate Portion of the Revolving Credit Loans at any time
shall not exceed ten without the approval of the Agent.
-15-
(i) Base Rate Option: The Base Rate Option shall be a rate per annum
(computed on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed) for each day equal to the Base Rate 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) LIBO Rate Option: The LIBO Rate Option shall be a rate per annum
(based on a year of 360 days and actual days elapsed) for each day equal to
the LIBO Rate for such day plus the Applicable Margin for such day. "LIBO
Rate" for any day, as used herein, shall mean for each Funding Segment of
the LIBO Rate Portion corresponding to a proposed or existing LIBO Rate
Funding Period the rate per annum determined by the Agent by dividing (the
resulting quotient to be rounded upward to the nearest 1/100 of 1%) (A) the
rate of interest (which shall be the same for each day in such LIBO Rate
Funding Period) that is the applicable British Bankers' Association
"Interest Settlement Rate" for deposits in Dollars as it appears on the Dow
Xxxxx Market Service (formerly known as the Dow Xxxxx Telerate Service)
page 3750 (or such other page as may replace page 3750 on that service or
such other service as may be nominated by the British Bankers' Association
for the purpose of displaying the applicable London interbank offered rate)
at approximately 11:00 a.m., London time, two London Business Days prior to
the first day of such LIBO Rate Funding Period for delivery on the first
day of such LIBO Rate Funding Period in amounts comparable to such Funding
Segment and having maturities comparable to such LIBO Rate Funding Period
by (B) a number equal to 1.00 minus the LIBO Rate Reserve Percentage.
(iii) "LIBO Rate Reserve Percentage" for any day shall mean the
percentage (expressed as a decimal, rounded upward to the nearest 1/100 of
1%), as determined in good faith by the Agent (which determination shall be
conclusive absent manifest error), which is in effect on such day as
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 LIBO Rate shall be
adjusted automatically as of the effective date of each change in the LIBO
Rate Reserve Percentage. The LIBO 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
"LIBO Rate Reserve Percentage" as herein defined.
The Agent shall give prompt notice to the applicable Borrower and to the
Lenders of the LIBO Rate determined or adjusted in accordance with the
definition of the LIBO Rate, which determination or adjustment shall be
conclusive absent manifest error.
(b) Applicable Margin. The "Applicable Margin" for the LIBO Rate Option for
any day shall be determined by reference to the Leverage Ratio as determined on
such day and shall mean the applicable percentage set forth below:
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---------------------------------------------------------------------------
Leverage Ratio Applicable Margin
-------------- -----------------
---------------------------------------------------------------------------
> 2.5 1.50%
---------------------------------------------------------------------------
> 2.0 and <= 2.5 1.25%
---------------------------------------------------------------------------
> 1.5 and <= 2.0 1.00%
---------------------------------------------------------------------------
<= 1.5 0.85%
---------------------------------------------------------------------------
plus during any period from and including the Expiration Date (as such date may
have previously been extended) to but excluding the Maturity Date, the
Applicable Margin shall be increased by 0.25% per annum.
The Leverage Ratio used to compute the Applicable Margin shall be the Leverage
Ratio set forth in the quarterly compliance certificate most recently delivered
by Xxxxxxx-Xxxxxx to the Agent. Changes in the Applicable Margin resulting from
a change in the Leverage Ratio shall become effective upon delivery by
Xxxxxxx-Xxxxxx to the Agent of a new quarterly compliance certificate pursuant
to Section 6.01(c) of the Long Term Credit Agreement. If Xxxxxxx-Xxxxxx shall
fail to deliver a quarterly compliance certificate within 60 days after the end
of any of its fiscal quarters (or within 90 days, in the case of the last fiscal
quarter of its fiscal year), the Applicable Margin from and including the 61st
(or 91st, as the case may be) day after the end of such fiscal quarter (or
fiscal year, as the case may be) to but not including the date Xxxxxxx-Xxxxxx
delivers to the Agent a quarterly compliance certificate shall conclusively
equal the highest Applicable Margin set forth above.
(c) Funding Periods. At any time when a Borrower shall select, convert to
or renew the LIBO Rate Option to apply to any part of the Revolving Credit
Loans, the applicable Borrower shall specify one of the following periods (the
"Funding Periods") during which the LIBO Rate Option shall apply: One, two,
three, six months or twelve months if offered by all of the Lenders in their
sole discretion; provided, that:
(i) Each Funding Period shall begin on a London Business Day, and the
term "month", when used in connection with a Funding Period, shall be
construed in accordance with prevailing practices in the interbank
eurodollar market at the commencement of such Funding Period, as determined
in good faith by the Agent (which determination shall be conclusive);
(ii) A Borrower may not select a Funding Period that would end after
the Maturity Date; and
(iii) A Borrower shall, in selecting any Funding Period, allow for
scheduled mandatory payments and foreseeable mandatory prepayments of the
Revolving Credit Loans.
(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 the Base Rate Portion of the Revolving Credit
Loans, or the aggregate principal amount of each Funding Segment of the LIBO
Rate Portion of the Revolving Credit Loans, shall be as set forth below:
-17-
--------------------------------------------------------------------------------------------------------------
Portion or Funding Segment Allowable Aggregate Principal Amounts
-------------------------- -------------------------------------
--------------------------------------------------------------------------------------------------------------
Base Rate Portion an integral multiple of 500,000 of US Currency
(or, in the case of a prepayment and if less, the then
outstanding principal amount of Revolving Credit Loans)
--------------------------------------------------------------------------------------------------------------
Each Funding Segment of the LIBO Rate Portion an integral multiple of 1,000,000 of US Currency or the
Dollar Equivalent Amount of Other Currency denominated by the
applicable Borrower (or, in the case of a prepayment and if
less, the then outstanding principal amount of Revolving
Credit Loans)
--------------------------------------------------------------------------------------------------------------
(e) LIBO Rate Unascertainable; Impracticability. If
(i) on any date on which a LIBO 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 absent manifest error) that:
(A) adequate and reasonable means do not exist for ascertaining
such LIBO Rate,
(B) a contingency has occurred which materially and adversely
affects the secondary market for the interbank eurodollar market, or
(C) the effective cost to such Lender of funding a proposed
Funding Segment of the LIBO Rate Portion from a Corresponding Source
of Funds shall exceed the LIBO Rate applicable to such Funding
Segment, or
(ii) at any time any Lender shall have determined in good faith (which
determination shall be conclusive absent manifest error) that the making,
maintenance or funding of any part of the LIBO Rate Portion has been made
impracticable or unlawful by compliance by such Lender or a Notional LIBO
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 Borrowers 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 Borrowers to select, convert to or renew the
LIBO Rate Option, shall be suspended until the Agent or such Lender, as the case
may be, shall have later notified the Borrowers (and any Lender giving such
notice shall notify the Agent) of the Agent's or such Lender's determination in
good faith (which determination
-18-
shall be conclusive absent manifest error) that the circumstance giving rise to
such previous determination no longer exist.
If any Lender notifies Xxxxxxx-Xxxxxx (either in its capacity as Borrower
or as recipient of notice on behalf of any Subsidiary Borrower pursuant to
Section 8.05) of a determination under subsection (ii) of this Section 2.04(e),
the LIBO Rate Portion of the Revolving Credit 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 any Lender makes a determination under
subsection (i) or (ii) of this Section 2.04(e) any Borrower previously has
notified the Agent that it wishes to select, convert to or renew the LIBO Rate
Option, with respect to any proposed Revolving Credit Loans but such Revolving
Credit 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 LIBO Rate Option with respect to such Revolving Credit Loans or,
in the case of a determination by any Lender, such Revolving Credit Loans of
such Lender.
(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), then the interest rate
applicable to such Lender's Pro Rata share of the Loans shall be equal to (i)
the Federal Funds Effective Rate then in effect, plus (ii) 1.50%, plus (iii) in
the case of a LIBO Rate Portion, 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 2.04(e)
and 2.04(f) hereof, unless an Event of Default shall have occurred and be
continuing, any Borrower may convert any part of its Revolving Credit Loans from
any interest rate Option or Options to one or more different interest rate
Options and may renew the LIBO Rate Option as to any Funding Segment of the LIBO
Rate Portion:
(i) At any time with respect to conversion from the Base Rate Option;
or
(ii) At the expiration of any Funding Period with respect to
conversions from or renewals of the LIBO Rate Option, as to the Funding
Segment corresponding to such expiring Funding Period.
Whenever a Borrower desires to convert or renew any interest rate Option or
Options, such Borrower shall provide to the Agent Standard Notice setting forth
the following information:
(w) The date, which shall be a Business Day, on which the proposed
conversion or renewal is to be made;
(x) The principal amounts selected in accordance with Section 2.04(d)
hereof of the Base Rate Portion and each Funding Segment of the LIBO Rate
Portion to be converted from or renewed;
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(y) 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 LIBO
Rate Portion to be converted; and
(z) With respect to each Funding Segment to be converted to or renewed, the
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
Revolving Credit Loans as so converted or renewed. Interest on the principal
amount of any part of the Revolving Credit 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 any Borrower of
conversion or renewal in the circumstances described in Section 2.05(a)(ii)
hereof, any part of the LIBO 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 Funding Period; provided, however, that if any LIBO Rate Portion is in
an Other Currency, such portion shall be renewed automatically for one month on
the last day of the expiring Funding Period.
2.06. Prepayments Generally. Whenever a Borrower desires or is required to
prepay any part of its Loans, it shall provide Standard Notice to the Agent
setting forth the following information:
(a) In the case of a LIBO Rate Portion, subject to Section 2.09(b), the
currency in which such prepayment is to be made;
(b) The date, which shall be a Business Day, on which the proposed
prepayment is to be made;
(c) The total principal amount of such prepayment, which shall be the sum
of the principal amounts selected pursuant to clause (d) of this Section 2.06;
and
(d) 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
LIBO 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 Funding Segment
of the LIBO 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 Borrowers shall have the right at their
option from time to time to prepay their 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
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(b) At the expiration of any Funding Period with respect to prepayment of
the LIBO Rate Portion with respect to any part of the Funding Segment
corresponding to such expiring 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 in arrears on the last day of each month. Interest on each
Funding Segment of the LIBO Rate Portion shall be due and payable on the last
day of the corresponding LIBO Rate Funding Period and, if such LIBO Rate Funding
Period is longer than three months, on each Regular Payment Date. 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.
(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 Facility Fees due from the Borrowers 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 and payments to a Lender under Sections 2.10 or 2.12 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. The parties agree that (i) all payments and
prepayments of principal, interest and other amounts in connection with Loans
denominated in US Currency and all fees shall be made in US Currency and (ii)
all payments of principal, interest and other amounts (other than fees) in
connection with Revolving Credit Loans denominated in any Other Currency shall
be made in such Other Currency. All payments and prepayments to be made in
respect of principal, interest, fees or other amounts due from the Borrowers in
US Currency shall be payable by 12:00 noon, New York 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. Except
for payments under Sections 2.10 and 8.06, such payments shall be made to the
Agent at the Applicable Location in US Currency in funds immediately available
at the Applicable Location without setoff, counterclaim or other deduction of
any nature. All payments and prepayments to be made in respect of principal,
interest, fees or other amounts due from the Borrowers in any Other Currency
shall be payable by 12:00 noon, London 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. Except for
payments under Sections 2.10 and 8.06, such payments shall be made to the Agent
at the Applicable Location in such Other Currency in funds immediately available
at the Applicable Location without setoff, counterclaim or other deduction of
any nature. Any payment or prepayment received (i) in US Currency by the Agent
or such Lender after 12:00 noon, New York time, on any day shall be deemed to
have been received on the next succeeding Business Day and (ii) in any Other
Currency by the Agent or such Lender after 12:00 noon, London time, on any day
shall be deemed to have been received on the next succeeding London Business
Day.
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The Agent shall distribute to the Lenders all such payments received by it from
the Borrowers 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 Borrowers hereunder or under any
other Loan Document, 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 LIBO Rate Portion of any Revolving
Credit Loans, (A) until the end of the applicable then-current Funding
Period at a rate per annum 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 Borrowers hereunder
or under any Loan Document, 2% above the then-current Base Rate Option.
To the extent permitted by law, interest accrued under this Section 2.09 on any
amount shall compound on a day-by-day basis, and hence shall be added daily to
the overdue amount to which such interest relates.
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 LIBO Rate Funding Office to
any tax or changes the basis of taxation with respect to this Agreement,
the Notes, the Loans or payments by the Borrowers of principal, interest,
commitment fees or other amounts due from the Borrowers hereunder or under
the Notes (except for taxes on the overall net income or overall gross
receipts of such Lender or such Notional LIBO Rate Funding Office imposed
by the jurisdictions (federal, state and local) in which the Lender's
principal office or Notional LIBO 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
LIBO Rate Funding Office (other than requirements expressly included herein
in the determination of the LIBO 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 LIBO Rate Funding Office, or
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(B) otherwise applicable to the obligations of any Lender or any Notional
LIBO Rate Funding Office under this Agreement, or
(iv) imposes upon any Lender or any Notional LIBO 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 LIBO 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 in good faith to be
material (such Lender being deemed for this purpose to have made, maintained or
funded each Funding Segment of the LIBO Rate Portion from a Corresponding Source
of Funds), such Lender may from time to time notify the Borrowers 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 LIBO Rate Funding Office for such increase,
reduction or imposition. Such amount shall be due and payable by the Borrowers
to such Lender five Business Days after such notice is given, together with an
amount equal to interest on such amount from the date two Business Days after
the date demanded until such due date at the Base Rate Option. 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
absent manifest error.
(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 LIBO
Rate Portion of the Loans becomes due (by acceleration or otherwise), or is
paid, prepaid or converted to another interest 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 Funding Period or any Loans not being made as LIBO Rate Loans in
accordance with the Standard Notice (the date such amount so becomes due, or is
so paid, prepaid or converted, or is not made being referred to as the "Funding
Breakage Date"), the Borrowers shall pay each Lender an amount ("Funding
Breakage Indemnity") determined by such Lender as follows:
(i) first, calculate the following amount: (A) the principal amount of
such Funding Segment of the Revolving Credit Loans owing to such Lender
which so became due, or which was so paid, prepaid or converted, or not
made 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
Applicable Funding 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;
(ii) the Funding Breakage Indemnity to be paid by the Borrowers to
such Lender shall be the amount equal to the present value as of the
Funding Breakage Date
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(discounted at the Applicable Funding Rate as of such Funding Breakage
Date, and calculated on the basis of a year of 365 or 366 days, as the case
may be, and actual days elapsed) of the amount described in the preceding
clause (i) (which amount described in the preceding clause (i) is assumed
for purposes of such present value calculation to be payable on the last
day of the corresponding Funding Period).
For purposes of this Section, the term "Applicable Funding Rate" shall mean
(i) in the case of any calculation of a Funding Breakage Indemnity payment with
respect to a particular Funding Segment for which the corresponding Funding
Period was originally one year or longer, the Federal Funds Effective Rate, and
(ii) in the case of any calculation of a Funding Breakage Indemnity payment with
respect to a Funding Segment for which the corresponding Funding Period was
originally less than one year, the LIBO Rate.
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. In addition, the Borrowers shall, on the due date for payment of any
Funding Breakage Indemnity, pay to such Lender an additional amount equal to
interest on such Funding Breakage Indemnity from the Funding Breakage Date to
but not including such due date at the Base Rate Option applicable to the Loans
(calculated on the basis of a year of 360 days and actual days elapsed).
The amount payable to each 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. HLT Classification. In the event that after the date hereof the Loans
hereunder are classified as a "highly leveraged transaction" (an "HLT
Classification") by any Governmental Authority having jurisdiction over any
Lender, such Lender may in its discretion from time to time so notify the Agent,
and upon receiving such notice the Agent shall promptly give notice of such
event to the Borrowers and the Lenders. In such event the parties hereto shall
commence negotiations to agree on revised Facility Fees, interest rates and
Applicable Margins hereunder. If the parties hereto fail to agree on such
matters in their respective absolute discretion within 60 days of the notice
given by the Agent referred to above, then the Required Lenders may at any time
or from time to time thereafter direct the Agent to (a) by ten Business Days'
notice to the Borrowers, terminate any or all of the Commitments, and any such
Commitments shall thereupon terminate, or (b) by ten Business Days' notice to
the Borrowers, declare the Obligations, together with (without duplication)
accrued interest thereon, to be, and the Obligations shall thereupon become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived, and an action therefor shall
immediately accrue. The Lenders acknowledge that an HLT Classification is not an
Event of Default or Potential Default hereunder.
2.12. Taxes.
(a) Payments Net of Taxes. All payments made by the Borrowers under this
Agreement or any other Loan Document shall be made free and clear of, and
without reduction or withholding, unless required by Law, for or on account of,
any present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or
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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 such Lender and any jurisdiction other than a connection
resulting solely from this Agreement and the transactions contemplated
hereby, and
(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 Borrowers 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 Borrowers with respect
to payments made in connection with this Agreement or any other Loan Document,
as promptly as possible thereafter, the Borrowers 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 Borrowers showing
payment thereof.
(b) Indemnity. The Borrowers hereby indemnify the Agent and each of the
Lenders for the full amount of such Taxes and any present or future claims,
liabilities or losses with respect to or resulting from any omission to pay or
delay in paying such 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 but excluding any claims, liabilities or losses with
respect to or arising from omissions to pay or delays in payment attributable to
the act or omission of the Agent or any Lender), whether or not such Taxes were
correctly or legally asserted. Such indemnification shall be made within 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
Borrowers and the Agent
(i) two valid, duly completed copies of United States Internal Revenue
Service Form W-8ECI or United States Internal Revenue Form W-8BEN 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
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(ii) a valid, duly completed Internal Revenue Service Form W-8 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 Borrowers and the Agent a Form W-8BEN and
Form W-8, or successor applicable forms agrees to deliver to the Borrowers and
the Agent two further copies of the said Form W-8ECI or W-8BEN and Form W-8, or
successor applicable 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 Borrowers and the Agent,
certifying in the case of a Form W-8ECI or Form W-8BEN 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 Borrowers 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, establishing an exemption from United States
backup withholding tax.
2.13. 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 Borrowers, to deem any
branch, subsidiary or affiliate of such Lender to have made, maintained or
funded any part of the LIBO Rate Portion at any time. Any branch, subsidiary or
affiliate so deemed shall be known as a "Notional LIBO Rate Funding Office".
Such Lender shall deem any part of the LIBO Rate Portion of the Revolving Credit
Loans or the funding therefor to have been transferred to a different Notional
LIBO 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 Borrowers under Section 2.10(a) hereof, or 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 Revolving Credit
Loans, such Lender or any Notional LIBO Rate Funding Office (it being assumed
for purposes of such determination that each part of the LIBO Rate Portion is
actually made or maintained by or funded through the corresponding Notional LIBO
Rate Funding Office). Notional LIBO Rate Funding Offices may be selected by such
Lender without regard to such Lender's actual methods of making, maintaining or
funding Revolving Credit 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 LIBO Rate Portion by arranging for a branch,
subsidiary or affiliate of such Lender to make or maintain such part of the LIBO
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 Borrowers to issue one or more substitute
promissory notes in the principal amount of such LIBO Rate Portion, in
substantially the form
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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 Loans to the
Borrowers; provided, that if a Lender requests the Borrowers to issue one or
more substitute promissory notes in accordance with clause (ii) above, the
amount of the Note payable to such Lender shall automatically be reduced
accordingly. The Borrowers agree to comply promptly with any request under
subsection (ii) of this Section 2.13(b). If any applicable Lender causes a
branch, subsidiary or affiliate to make or maintain any part of the LIBO Rate
Portion hereunder, all terms and conditions of this Agreement shall, except
where the context clearly requires otherwise, be applicable to such part of the
LIBO 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 LIBO Rate
Portion were made or maintained and such note were a Revolving Credit Note
payable to such Lender's order.
2.14. Extension of Expiration Date. (a) The Revolving Credit Commitment of
each of the Lenders shall expire and shall be automatically reduced to zero on
the Expiration Date. Not later than 45 days and not sooner than 60 days
immediately preceding the Expiration Date then in effect, if Xxxxxxx-Xxxxxx
wishes the Lenders to extend the Expiration Date to the date which is 364 days
after the then effective Expiration Date (or, if such date is not a Business
Day, the next preceding Business Day), Xxxxxxx-Xxxxxx shall so advise the Agent
in writing (an "Extension Request"). The Agent shall thereupon promptly notify
each of the Lenders of such Extension Request of Xxxxxxx-Xxxxxx. Within 20 days
of its receipt of such Extension Request from Xxxxxxx-Xxxxxx, the Agent shall
notify Xxxxxxx-Xxxxxx as to whether the Lenders have agreed so to extend the
Expiration Date and, if so, as to any additional or different terms on which
such extension is conditioned (the decision to consent to or reject an Extension
Request being a new credit determination by each Lender, and the determination
of each Lender as to whether to agree to such extension and upon what terms
being in the sole, absolute and unconditional discretion of each Lender). If
such notice contains any such additional or different terms, Xxxxxxx-Xxxxxx
shall advise the Agent in writing within 5 days next following receipt of such
notice from the Agent as to whether Xxxxxxx-Xxxxxx agrees to such terms. If
Xxxxxxx-Xxxxxx notifies the Agent that it so agrees, or if the Agent's notice
that the Lenders have agreed to extend the Expiration Date contains no such
additional or different terms, the Expiration Date shall automatically be
extended to the date which is 364 days after the then effective Expiration Date
(or, if such date is not a Business Day, the next preceding Business Day). If
the Agent fails to notify Xxxxxxx-Xxxxxx within 20 days of the Agent's receipt
of any Extension Request from Xxxxxxx-Xxxxxx as specified above as to whether
the Lenders have agreed to such Extension Request, the Lenders shall be deemed
not to have agreed to such Extension Request.
(b) If (i) any Lender notifies the Agent in writing that it will not
consent to such Extension Request or (ii) all of the Lenders have not in writing
expressly consented to any such Extension Request as provided in the preceding
paragraph, then the Agent shall so notify Xxxxxxx-Xxxxxx and Xxxxxxx-Xxxxxx, at
its option, may (x) withdraw such Extension Request up to 5 days before the then
current Expiration Date, or (y) replace each Lender which has not agreed to such
Extension Request (a "Nonextending Lender") with another commercial lending
institution reasonably satisfactory to the Agent (a "Replacement Lender") by
giving notice (not later than the date 20 days prior to the then current
Expiration Date) of the name of such Replacement Lender to the Agent; provided,
that unless the Required Lenders (including Replacement Lenders) have agreed to
such Extension Request on or before the 20th day prior to
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such Anniversary Date, such Extension Request shall be automatically withdrawn.
Unless the Agent shall object to the identity of such proposed Replacement
Lender prior to the date 5 days prior to the then current Expiration Date, upon
notice from the Agent, each Nonextending Lender shall promptly (but in no event
later than the then current Expiration Date) assign all of its interests
hereunder to such Replacement Lender in consideration for an amount equal to
such Nonextending Lender's Pro Rata share of the outstanding principal amount of
the Revolving Credit Loans, plus accrued but unpaid fees and all other amounts
owing to such Nonextending Lender under the Loan Documents, all in accordance
with the provisions of Section 8.14(c) hereof. If the Required Lenders agree to
such Extension Request in accordance with this Section 2.14, the then current
Expiration Date shall be extended in accordance with such Extension Request;
provided, however, that with respect to each Nonextending Lender that has not
been replaced by Xxxxxxx-Xxxxxx in accordance with the terms of this Section
2.14, the Commitment of each such Nonextending Lender shall terminate on the
original Expiration Date (as such date may have been previously extended), and
the Borrowers shall pay to the Agent for the account of each such Nonextending
Lender on or before the then current Expiration Date, such Nonextending Lender's
Pro Rata share of the principal of and interest on all outstanding Revolving
Credit Loans, plus accrued but unpaid fees and all other amounts owing to such
Nonextending Lender under the Loan Documents, and the sum of the aggregate
Revolving Credit Committed Amounts shall be irrevocably reduced by an amount
equal to the sum of the aggregate Revolving Credit Committed Amounts of all
Nonextending Lenders. If all Lenders consent to any such Extension Request (or,
if all Nonextending Lenders are replaced in accordance with this Section 2.14),
then as of 5:00 p.m. New York time on the then current Expiration Date, such
Expiration Date shall be deemed to have been extended for the period requested
by Xxxxxxx-Xxxxxx in the related Extension Request.
2.15. Special Provisions for Other Currency Revolving Credit Loans.
(a) Dollar Equivalent Amounts.
(i) Calculation of Dollar Equivalent Amounts. Upon each making and
upon each payment with respect to a Revolving Credit Loan denominated in an
Other Currency, the Agent shall calculate the Dollar Equivalent Amount of
such Revolving Credit Loan, as the case may be, and shall provide written
confirmation to the Lenders.
(ii) Recalculation of Dollar Equivalent Amounts. In determining the
Dollar Equivalent Amount of the aggregate Revolving Credit Loans of the
Lenders, the Agent may use the respective Dollar Equivalent Amounts for the
Revolving Credit Loans pursuant to paragraph (i) of this subsection (a),
unless such Dollar Equivalent Amount so calculated exceeds 90% of the sum
of the aggregate Revolving Credit Committed Amounts, in which case the
Agent shall recalculate the Dollar Equivalent Amount of the Revolving
Credit Loans outstanding no less frequently than once each week. The Agent
may recalculate the Dollar Equivalent Amounts of each of the Revolving
Credit Loans as frequently as it determines to do so in its discretion;
provided, that such recalculation shall be made for all of the Revolving
Credit Loans no less frequently than once each week during any period when
the aggregate Dollar Equivalent Amount of the aggregate Credit Exposure of
the Lenders exceeds 90% of the sum of the aggregate Revolving
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Credit Committed Amounts. The Dollar Equivalent Amount so determined shall
become effective on the first Business Day immediately following the
relevant calculation date.
(b) Unavailability.
(i) General. If, in the reasonable judgment of the Agent, any Other
Currency ceases to be available and freely tradable in the London foreign
exchange market, such Other Currency shall cease to be an Other Currency.
The Agent shall give prompt notice to the Borrowers and the Lenders of such
event. In the event that (A) the Agent has determined that an Other
Currency has ceased to be available and freely tradable in the London
foreign exchange market and (B) the Agent has determined in good faith that
such Other Currency is not otherwise available to the Borrowers, then, on
the date any Revolving Credit Loan denominated in such Other Currency would
become due under the terms of this Agreement (other than as a result of an
optional prepayment under Section 2.07 or of the acceleration of such
Revolving Credit Loans under Section 8.02), the Borrowers shall repay such
Revolving Credit Loans by paying to each Lender an amount in Dollars equal
to the amount determined in good faith by such Lender (which determination
shall be conclusive absent manifest error) necessary to compensate such
Lender for the principal of and accrued interest on such Revolving Credit
Loans and any additional cost, expense or loss incurred by such Lender as a
result of such Revolving Credit Loans being repaid in Dollars (rather than
in the denominated Other Currency).
(c) Notification of Request. If any Borrower requests a Revolving Credit
Loan be made in an Other Currency, or if pursuant to any conversion or renewal
of a LIBO Rate Portion any Borrower elects to continue any LIBO Rate Portion
denominated in an Other Currency, the Agent shall in the notice given to the
Lenders pursuant to Section 2.03, give details of such request or election
including, as the case may be, the aggregate principal amount of the LIBO Rate
Portion in such Other Currency to be made by each Lender pursuant to the terms
of this Agreement or the aggregate principal amount of such LIBO Rate Loans to
be continued by each Lender pursuant to the terms of this Agreement.
(d) Availability. Each Lender shall be treated as having confirmed that the
Other Currency requested, or elected by such Borrower to be continued, is
Available to it unless no later than 12:00 noon (New York City time) two
Business Days prior to the day such Revolving Credit Loans are proposed to be
made, or the proposed continuation, it shall have notified the Agent that such
Other Currency is not Available.
(e) Notification of Availability. In the event the Agent has received
notification from any of the Lenders that the Other Currency requested or
elected by such Borrower to be continued is not Available, then the Agent shall
notify Xxxxxxx-Xxxxxx and the Lenders thereof no later than 2:00 p.m. (New York
City time) two Business Days prior to the day such Revolving Credit Loans are
proposed to be made or of such proposed continuation.
(f) Consequences of Unavailability. If the Agent notifies Xxxxxxx Xxxxxx
pursuant to clause (e) above that any of the Lenders has notified the Agent that
the Other Currency requested or elected by a Borrower to be continued is not
Available, such notification shall (i) in the case of any request to make
Revolving Credit Loans, revoke such request and (ii) in the case of any
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notice of conversion or renewal, result in the LIBO Rate Portion denominated in
such Other Currency being automatically converted into a LIBO Rate Portion
denominated in Dollars for a one month interest period on the last day of the
then-current interest period with respect to such LIBO Rate Portion denominated
in such Other Currency.
(g) Adoption of Euro. If and to the extent that, following the Closing
Date, any state that is not a participating member state of the European Union
that has adopted the Euro as its currency (a "Non-Participant State") adopts the
Euro as its currency, the following provisions shall apply in relation to such
Non-Participant State (and the currency of such Non-Participant State):
(i) All amounts denominated in the currency of such Non-Participant
State prior to its adoption of the Euro (the "National Currency Unit")
shall be redenominated into Euros in accordance with applicable legislation
and paid by the debtor either in Euros or in that National Currency Unit
and all amounts denominated in Euros shall be paid by the debtor in Euros
unless applicable legislation provides otherwise; provided, that if and to
the extent that applicable legislation provides that an amount denominated
either in the Euro or in the National Currency Unit of such Non-Participant
State and payable within such Non-Participant State by crediting an account
of the creditor can be paid by the debtor either in Euros or in that
National Currency Unit, any party to this Agreement shall be entitled to
pay or repay any such amount either in Euros or in such National Currency
Unit.
(ii) If the basis of accrual of interest or fees expressed in this
Agreement with respect to the National Currency Unit of such
Non-Participant State shall be inconsistent with any convention or practice
in the London, England interbank market for the basis of accrual of
interest or fees in respect of the Euro, such convention or practice shall
replace such expressed basis effective as of and from the date on which
such Non-Participant State adopts the Euro as its currency.
(iii) Without prejudice to the respective liabilities of each Borrower
to the Lenders and the Agents under or pursuant to this Agreement, except
as expressly provided in this clause (iii), each provision of this
Agreement shall be subject to such reasonable changes of construction as
the Agent in consultation with Xxxxxxx-Xxxxxx may from time to time specify
to be necessary or appropriate to reflect the introduction of or changeover
to the Euro in such Non-Participant State.
2.16. Joint and Several Liability. All of the Borrowers hereby acknowledge,
covenant and agree that all Obligations, liabilities and covenants made,
incurred and undertaken by them under this Agreement and the other Loan
Documents, including, without limitation, all obligations to pay principal,
interest, fees and expenses, are on a joint and several basis.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01. Incorporation by Reference. The representations and warranties
contained in the Long Term Credit Agreement and the defined terms used therein
are incorporated herein by
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reference as if set forth in full. The Borrowers hereby represent and warrant to
the Agent and each Lender that such representations and warranties of the
Borrowers contained therein are true and correct.
ARTICLE IV
CONDITIONS OF LENDING
4.01. Conditions to Making of Initial Loans. The obligation of each Lender
to make Loans on the Closing Date is 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 4.02 hereof:
(a) Agreement; Notes. The Agent shall have received an executed counterpart
of this Agreement for each Lender, duly executed by each Borrower, and an
executed Revolving Credit Note for each Lender, conforming to the requirements
hereof, duly executed on behalf of each Borrower.
(b) Opinion of Counsel. There shall have been delivered to the Agent an
opinion of counsel of each Borrower, dated the Closing Date in substantially the
form attached hereto as Exhibit B.
(c) No Default. On the Closing Date, no Potential Default or Event of
Default shall have occurred or be continuing.
(d) Representations and Warranties. On the Closing Date, all
representations and warranties of each Borrower contained herein or otherwise
made in writing in connection 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.
(e) Proceedings. The Agent shall have received, with a counterpart for each
Lender, certificates by the Secretary or Assistant Secretary of each Borrower
dated as of the Closing Date as to (i) true copies of the articles of
incorporation and by-laws (or other constituent documents) of each Borrower in
effect on such date, (ii) true copies of all corporate or other action taken by
each Borrower relative to this Agreement and the other Loan Documents and (iii)
the incumbency and signature of the respective officers of each Borrower
executing this Agreement and the other Loan Documents to which each Borrower is
a party, together with satisfactory evidence of the incumbency of such Secretary
or Assistant Secretary. The Agent shall have received, with a copy for each
Lender, certificates from the appropriate Secretaries of State or other
applicable Governmental Authorities dated not more than 30 days before the
Closing Date showing the good standing of each Borrower in its state of
organization (where applicable).
(f) Financial Statements. The Agent shall have received, with a counterpart
for each Lender, copies of the consolidated financial statements referred to in
Section 4.05 of the Long Term Credit Agreement.
(g) Fees, Expenses, etc. All fees and other compensation required to be
paid to the Agent or the Lenders pursuant hereto or pursuant to any other
written agreement on or prior to the Closing Date shall have been paid or
received.
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(h) Financial Forecast. The Agent shall have received the five-year
financial forecast of Xxxxxxx-Xxxxxx, including balance sheets, income
statements and cash flow statements, and shall have determined, in its absolute
discretion, that the five-year forecast is satisfactory.
(i) Environmental Reports. The Agent shall have received appropriate
environmental reports with respect to the properties of Xxxxxxx-Xxxxxx and its
Subsidiaries, in form and substance satisfactory to the Agent, and shall have
determined in its absolute discretion that such reports are satisfactory.
(j) Material Adverse Change. No material adverse change in the assets,
business, condition (financial or otherwise), operations or prospects of
Xxxxxxx-Xxxxxx and its consolidated Subsidiaries considered as a whole has
occurred since December 31, 2001.
(k) No Litigation. There shall be no actions, suits, arbitration
proceedings or other proceedings pending or, to the knowledge of any Borrower,
threatened against or affecting any Borrower, or any properties or rights of any
Borrower which, if determined adversely to any 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) Original Credit Agreements. The Original 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 (i) a Guaranty and Suretyship
Agreement in substantially the form of Exhibit D hereto (the "Xxxxxxx-Xxxxxx
Guaranty"), duly executed by Xxxxxxx-Xxxxxx and (ii) a Guaranty and Suretyship
Agreement in substantially the form of Exhibit E hereto (each a "Subsidiary
Guaranty" and collectively the "Subsidiary Guarantees"), duly executed by each
Subsidiary Borrower and each Significant Subsidiary.
4.02. Conditions to All Loans. The obligation of each Lender to make any
Loan (including the initial Loans) is subject to performance by each Borrower of
its 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 satisfaction of the following
further conditions precedent:
(a) Notice. Appropriate notice of such Loan shall have been given by the
applicable Borrower as provided in Article II hereof.
(b) Representations and Warranties. On the date of the making of such Loan,
all representations and warranties of each Borrower contained herein or
otherwise made in writing
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in connection herewith shall be true and correct (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) with the same force and effect as though such representations and
warranties had been made on and as of such time.
(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 on such date.
(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.
Each request by any Borrower for any Loan (including the initial Loans) shall
constitute a representation and warranty by such Borrower that the conditions
set forth in this Section 4.02 have been satisfied as of the date of such
request. Failure of the Agent to receive notice from the applicable Borrower to
the contrary before such Loan is made shall constitute a further representation
and warranty by such Borrower that the conditions referred to in this Section
4.02 have been satisfied as of the date such Loan is made.
ARTICLE V
COVENANTS
5.01. Incorporation by Reference. Each of the covenants set forth in
Article VI and Article VII of the Long Term Credit Agreement and the defined
terms used therein, each as in effect on the date hereof, are hereby
incorporated by reference as if set forth in full in this Agreement. Any
modifications or amendments to this Article V shall be made in accordance with
Section 8.03 hereof.
ARTICLE VI
EVENTS OF DEFAULT
6.01. 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 Borrower shall fail to pay when due principal of any Loan.
(b) Any Borrower shall fail to pay when due interest on any Loan, or any
fees, indemnity or expenses, or any other amount due hereunder or under any
other Loan Document and such failure shall have continued for a period of five
days.
(c) Any representation or warranty made or deemed made by any Borrower in
or pursuant to any Loan Document or in any certificate delivered thereunder, or
any statement made by any Borrower in any financial statement, certificate,
report, exhibit or document furnished by any Borrower to either 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 when made or
deemed made (including by omission of material information necessary to make
such representation, warranty or statement not misleading).
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(d) An Event of Default shall have occurred and be continuing under the
Long Term Credit Agreement.
(e) (i) Any Borrower shall fail to perform or observe any term, condition
or covenant of any bond, note, debenture, loan agreement, indenture, guaranty,
trust agreement, mortgage or similar instrument (other than a non-recourse
obligation) to which any Borrower is a party or by which it is bound, or to
which any of its properties or assets is subject (a "Debt Instrument"), so that,
as a result of any such failure to perform, the Indebtedness included therein or
secured or covered thereby may at the time be declared due and payable prior to
the date on which such Indebtedness would otherwise become due and payable; or
(ii) any event or condition referred to in any Debt Instrument shall occur or
fail to occur, so that, as a result thereof, the Indebtedness included therein
or secured or covered thereby may at such time be declared due and payable prior
to the date on which such Indebtedness would otherwise become due and payable;
or (iii) any Borrower shall fail to pay any Indebtedness when due, pursuant to
demand under any Debt Instrument or otherwise; provided, however, that each of
clauses (i), (ii) and (iii) above shall be subject to any applicable grace
period provided in the relevant Debt Instrument; and provided, further, that the
provisions of this Section 6.01(e) shall be applicable only if the aggregate
principal amount of such Indebtedness exceeds $5,000,000.
(f) One or more final judgments for the payment of money shall have been
entered against any Borrower, which judgment or judgments exceed $5,000,000 in
the aggregate, and such judgment or judgments shall have remained undischarged,
in effect, and unstayed or unbonded for a period of thirty consecutive days.
(g) One or more writs or warrants of attachment, garnishment, execution,
distraint or similar process exceeding in value the aggregate amount of
$5,000,000 shall have been issued against any Borrower or any of its properties
and shall have remained undischarged, in effect and unstayed or unbonded for a
period of thirty consecutive days.
(h) A Change of Control shall have occurred.
(i) This Agreement or any Loan Document or term or provision hereof or
thereof shall cease to be in full force and effect, or any Borrower shall, or
shall purport to, terminate (other than termination in accordance with the last
sentence of Section 2.02(b) hereof), 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 any Borrower hereunder or
thereunder.
(j) Any one or more Termination Events (as defined in the Long Term Credit
Agreement) shall have occurred.
(k) A proceeding shall have been instituted in respect of any Borrower or
any Subsidiary of any Borrower:
(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 declaration or finding, or seeking dissolution,
winding-up, charter revocation or forfeiture, liquidation, reorganization,
arrangement, adjustment, composition or other
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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, 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, unstayed and unbonded for a period of
sixty consecutive days.
(l) Any Borrower or any Subsidiary of any Borrower 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 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 6.01(k)(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 6.01(k)(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 property; shall dissolve, wind-up, revoke or forfeit its charter (or other
constituent documents) or liquidate itself or any substantial part of its
property; or shall take any action in furtherance of any of the foregoing.
(m) Any consent, approval or other action by any Governmental Authority
that is necessary for the valid execution, delivery or performance by the
Borrowers of this Agreement ceases to be in full force and effect and the
cessation of such consent, approval or other action could reasonably be expected
to have a Material Adverse Effect.
(n) Xxxxxxx-Xxxxxx shall cease to own, beneficially or of record, directly
or indirectly, 100% of the issued and outstanding shares of capital stock of any
Significant Subsidiary or any other Subsidiary Borrower.
6.02. Consequences of an Event of Default.
(a) If an Event of Default specified in subsections (a) through (j), (m) or
(n) of Section 6.01 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 make Loans hereunder and the
Agent, upon the written request of the Required Lenders shall, by notice to the
Borrowers, from time to time do any or all of the following:
(i) Declare the Revolving Credit Commitments terminated, whereupon the
Commitments will terminate and any fees accrued but unpaid hereunder shall
be immediately due and payable without presentment, demand, protest or
further notice of
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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 (k) or (l) of Section
6.01 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 Revolving Credit Commitments
shall automatically terminate and the Lenders shall be under no further
obligation to make Loans and the unpaid principal amount of the Loans and
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.
6.03. Judgment Currency. If any Lender or the Agent obtains a judgment
against any Borrower in an Other Currency, the obligations of such Borrower in
respect of any sum adjudged to be due to such Lender or the Agent hereunder or
under the Revolving Credit Notes (the "Judgment Amount") shall be discharged
only to the extent that, on the Business Day following receipt by such Lender or
the Agent of the Judgment Amount in such Other Currency, such Lender or Agent,
in accordance with normal banking procedures, purchases Dollars with the
Judgment Amount in such Other Currency. If the amount of Dollars so purchased is
less than the amount of Dollars that could have been purchased with the Judgment
Amount on the date or dates the Judgment Amount was originally due and owing to
the Lenders or the Agent hereunder or under the Revolving Credit Notes (the
"Original Due Date") (excluding the portion of the Judgment Amount which has
accrued as a result of the failure of any Borrower to pay the sum originally due
hereunder or under the Revolving Credit Notes when it was originally due
hereunder or under the Revolving Credit Notes) (the "Loss"), the Borrowers agree
to indemnify such Lender or the Agent, as the case may be, against the Loss, and
if the amount of Dollars so purchased exceeds the amount of Dollars that could
have been purchased with the Judgment Amount on the Original Due Date, such
Lender or the Agent agrees to remit such excess to the applicable Borrower.
ARTICLE VII
THE AGENT
7.01. Appointment. Each Lender hereby irrevocably appoints Scotia Capital
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. Scotia
Capital 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 7.10 hereof. Each Lender hereby
irrevocably authorizes the Agent to execute and deliver
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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.
7.02. General Nature of Agent's Duties. Notwithstanding anything to the
contrary elsewhere in this Agreement or in any other Loan Document:
(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 VII shall affect the express duties and
responsibilities of the Agent to the Borrowers 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
Borrowers 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
Borrowers, 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.
7.03. 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 7.04(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
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Agent has discretionary power to take such action, or (z) the Agent taking
discretionary action it is authorized to take under this Section 7.03.
7.04. General Exculpatory Provisions. Notwithstanding anything to the
contrary elsewhere in this Agreement or any other Loan Document:
(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 Borrowers or their respective Subsidiaries, (ii) the business, operations,
condition (financial or otherwise) or prospects of the Borrowers or their
respective Subsidiaries, or any other Person, or (iii) except to the extent set
forth in Section 7.05(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.
7.05. 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
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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 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.
7.06. 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 such Lender, 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) such Lender 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; and (c) such Lender 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.
7.07. Indemnification. Each Lender agrees to reimburse and indemnify the
Agent and its directors, officers, employees and agents (to the extent not
reimbursed by the Borrowers and without limitation of the obligations of the
Borrowers 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
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shall be liable for any portion of such amounts, losses, liabilities, claims,
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 7.07 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.
7.08. Agent in its Individual Capacity. With respect to the Commitments and
the Obligations owing to the Agent, 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,
any Borrower and any stockholder, subsidiary or affiliate of any Borrower, as
though the Agent were not the Agent hereunder.
7.09. 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
8.14 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.
7.10. Successor Agent. The Agent may resign at any time by giving 10 days'
prior written notice thereof to the Lenders and the Borrowers. The Agent may be
removed by the Required Lenders, without cause, at any time by giving 10 days'
prior written notice thereof to the Agent, the other Lenders and the Borrowers.
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 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
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given to the Agent shall be given to each Lender, and all payments to be made to
the Agent shall be made directly to such Borrower or Lender for whose account
such payment is made.
7.11. 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 Borrowers and the
Required Lenders shall consent (which consent shall not be unreasonably
withheld), the Agent and the Borrowers 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.
7.12. 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.
7.13. Agent's Fee. Xxxxxxx-Xxxxxx agrees to pay to the Agent, for its
individual account, the Agent's fees in the amounts set forth in the Short Term
Facility Fee Letter by and between Xxxxxxx-Xxxxxx and Scotia Capital (or one of
its affiliates) dated March 28, 2002.
7.14. 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 any 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 any 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 applicable 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.
7.15. Syndication Agent and Documentation Agent. The titles "Syndication
Agent" and "Documentation Agent" given to certain Lenders named on the cover
page of this Agreement are purely honorific, and no Syndication Agent or
Documentation Agent, as the case may be, in its capacity as such, shall have any
liabilities, duties or responsibilities hereunder.
ARTICLE VIII
MISCELLANEOUS
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8.01. 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 and such extension of time shall be included in
computing interest or fees, if any, in connection with such payment or action.
8.02. 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
Facility Fees shall at all times be ascertained from the records of the Agent,
which shall be conclusive absent manifest error.
8.03. 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 Borrowers 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 Borrowers, 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
Borrowers, 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, extend the Expiration Date, or extend the
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 Facility 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", amend this Section 8.03 or
any other provision in this Agreement which expressly requires the unanimous
written consent of all the Lenders, without the written consent of all the
Lenders;
(d) release any "Guarantor" or reduce any "Guaranteed Obligations" (as such
terms are defined in the Subsidiary Guarantees) of any Guarantor under any
Subsidiary Guaranty 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 any Borrower or any Subsidiary of any Borrower, which sale or
other disposition is in compliance with this Agreement and the Loan Documents (a
"Permitted Sale"), without the written consent of the Required Lenders;
(e) release any "Guarantor" or reduce any "Guaranteed Obligations" (as such
terms are defined in the Xxxxxxx-Xxxxxx Guaranty or Subsidiary Guarantees, as
applicable) of any
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Guarantor under the Xxxxxxx-Xxxxxx Guaranty or any Subsidiary Guaranty, other
than in connection with a Permitted Sale, without the written consent of all
Lenders; or
(f) amend or waive any of the provisions of Article VII 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;
provided, further, that Transfer Supplements may be entered into in the manner
provided in Section 8.14 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.
8.04. 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.
8.05. 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 telexed and telecopied communication) and shall be sent
by first-class mail, or by nationally-recognized overnight courier, or by telex
or 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. All
notices given to Xxxxxxx-Xxxxxx under this Agreement shall be deemed to be given
to each Borrower. 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 Business Day after delivery to a
nationally-recognized overnight courier, or three Business Days after deposit in
the mail.
(b) Any Lender giving any notice to the Borrowers 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
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made by or on behalf of the Borrowers, and neither the Agent nor any Lender
shall have any duty to verify the identity or authority of any Person giving
such notice.
(d) The parties hereto agree that delivery of an executed counterpart of a
signature page to this Agreement and each other Loan Document by facsimile shall
be effective as delivery of an original executed counterpart of this Agreement
or such other Loan Document.
8.06. Expenses; Taxes; Indemnity.
(a) Xxxxxxx-Xxxxxx 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 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 other Loan Document, and (iii)
except as to costs and expenses made necessary by reason of the gross negligence
or willful misconduct of the Agent or any Lender, 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 or any other amount owing
hereunder or thereunder by either the Agent or any Lender, (B) any litigation
brought by the Agent, any Lender or any Borrower and related in any way to this
Agreement or the other Loan Documents (other than the costs and expenses
incurred by the Agent or any Lender, respectively, in connection with any
litigation which results in a final, non-appealable judgment against the Agent
or such Lender) and (C) any proceeding, dispute, work-out, restructuring or
rescheduling related in any way to this Agreement or the Loan Documents).
(b) The Borrowers hereby agree 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 Documents or any
other documents, instruments or transactions pursuant to or in connection
herewith or therewith, and the Borrowers agree 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 other than those resulting from omissions to
pay or delays in payment attributable to the acts or omissions of the Agent or
any Lender.
(c) Xxxxxxx-Xxxxxx 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 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, any act or conduct
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of any Borrower with respect to or in connection with the transactions described
in this Agreement or any other Loan Document, 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 requirement of Law or any other Law by any Borrower
or any Subsidiary of any Borrower); or any exercise by 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
Borrowers under this subsection (c), or any other indemnification obligation of
the Borrowers hereunder or under any other Loan Document, are unenforceable for
any reason, the Borrowers hereby agree to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under
applicable Law.
8.07. 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.
8.08. 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.
8.09. Duration; Survival. All representations and warranties of the
Borrowers contained herein or in any other Loan Document or made in connection
herewith 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
the Agent or any Lender, the making of any Loan, or any other event or condition
whatever. All covenants and agreements of the Borrowers contained herein or in
any other Loan Document shall continue in full force and effect from and after
the date hereof so long as any Borrower may borrow hereunder and until payment
in full of all Obligations. Without limitation, all obligations of the Borrowers
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 Borrowers' rights to borrow hereunder, and all other events
and conditions whatever. In addition, all obligations of each Lender to make
payments to or indemnify the Agent shall survive the payment in full by the
Borrowers of all Obligations, termination of the Borrowers' rights to borrow
hereunder, and all other events or conditions whatever.
8.10. 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.
8.11. 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
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Document, the Borrowers shall not be required to make any payment to or for the
account of any Lender, and each Lender shall refund any payment made by the
Borrowers, 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.
8.12. Set-Off. The Borrowers hereby agree that, to the fullest extent
permitted by law, if any Obligation of any Borrower shall be due and payable (by
acceleration or otherwise), each Lender shall have the right, without notice to
such Borrower, to set-off against and to appropriate and apply to the Obligation
any indebtedness, liability or obligation of any nature owing to such Borrower
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 Borrower with such Lender. 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 such
Borrower or any other Person, whether such indebtedness, obligation or liability
owed to such Borrower is contingent, absolute, matured or unmatured, 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. The
Borrowers hereby agree 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
Borrower). 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.
8.13. 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 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 Borrowers 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 Borrowers hereby consent to and confirm the foregoing arrangements. Each
Participant shall be bound by this Section as fully as if it were a Lender
hereunder.
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8.14. Successors and Assigns; Participations; Assignments.
(a) Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the Borrowers, the Lenders, all future holders of the Notes,
the Agent and their respective successors and assigns, except that the Borrowers
may not assign or transfer any of their respective rights hereunder or interests
herein without the prior written consent of all the Lenders and the Agent, 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 its Revolving Credit Commitments and the Loans owing to such Lender
and any Note held by such Lender); 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,
(iv) such Participant shall be bound by the provisions of Section 8.13
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) or (e) of Section 8.03
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 a Borrower or a Subsidiary or an
Affiliate of any Borrower.
The Borrowers agree that any such Participant shall be entitled to the benefits
of Sections 2.10, 2.12 and 8.06 with respect to its participation in the
Revolving Credit Commitments and the Loans outstanding from time to time but
only to the extent such Participant sustains such losses; provided, that no such
Participant shall be entitled to receive any greater amount pursuant to such
Sections than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred to such Participant had
no such transfer occurred; provided, further, that any such Participant, as a
condition precedent to receiving the benefits of Sections 2.10, 2.12 and 8.06,
shall agree in writing to indemnify the Borrowers and hold them harmless as
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against any and all claims or demands by or liabilities to the transferor Lender
or Lenders or any other Person for an amount which in whole or in part
duplicates, but only to the extent of such duplication, the amount or amounts to
be paid to such Participant under this Section.
(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 such Lender and any Note held by
such Lender) to any Lender, any affiliate of any 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
shall be made only with the consent of Xxxxxxx-Xxxxxx if no Event of
Default has occurred and is continuing (which consent if required shall not
be unreasonably withheld) and the Agent,
(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 Loans then outstanding, and such assignment shall be in a minimum
aggregate principal amount of $5,000,000 of the Revolving Credit
Commitments and Loans 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 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 C 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 $2,500; 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
any 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,
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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 Borrowers, at their 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. Notwithstanding anything to the contrary
set forth above, any Lender may (without requesting the consent of any Borrower
or the Agent) pledge its Loans to a Federal Reserve Bank in support of
borrowings made by such Lender from such Federal Reserve Bank.
(d) 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 Borrowers, 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.
(e) Financial and Other Information. The Borrowers authorize the Agent and
each Lender to disclose to any Participant or Purchasing Lender (each, a
"transferee") and any prospective transferee any and all financial and other
information in such Person's possession concerning the Borrowers and their
respective Subsidiaries and Affiliates which has been or may be delivered to
such Person by or on behalf of such Borrowers in connection with this Agreement
or any other Loan Document or such Person's credit evaluation of such Borrowers
and their respective Subsidiaries and Affiliates; subject, however, to the
provisions of Section 8.16 hereof.
8.15. Governing Law; Submission to Jurisdiction; 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
STATE OF NEW YORK, WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES.
(b) Certain Waivers. EACH BORROWER, THE AGENT AND EACH LENDER HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
-49-
(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 XXX XXXX XXX XXXXXX XX XXX XXXX, XXX XXXX, 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;
(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;
(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, AT THE ADDRESS FOR NOTICES DESCRIBED IN SECTION
8.05 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) Appointment of Xxxxxxx-Xxxxxx as Process Agent. IN ADDITION TO THE
CONSENT TO SERVICE SET FORTH IN CLAUSE (b) HEREOF, ANY SUBSIDIARY THAT IS NOT A
SUBSIDIARY THAT IS ORGANIZED UNDER THE LAWS OF ANY STATE OF THE UNITED STATES OR
THE DISTRICT OF COLUMBIA THAT BECOMES A BORROWER HEREUNDER (INCLUDING
XXXXXXX-XXXXXX ANTRIEBSTECHNIK GMBH) HEREBY IRREVOCABLY AND UNCONDITIONALLY
APPOINTS XXXXXXX-XXXXXX AS ITS AGENT TO RECEIVE, ON BEHALF OF ITSELF AND ON
BEHALF OF ITS PROPERTY, SERVICE OF COPIES OF THE SUMMONS AND COMPLAINT AND ANY
OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING, AND
XXXXXXX-XXXXXX HEREBY IRREVOCABLY AND UNCONDITIONALLY ACCEPTS SUCH APPOINTMENT.
SUCH SERVICE MAY BE MADE BY MAILING OR DELIVERING A COPY OF SUCH PROCESS TO SUCH
SUBSIDIARY IN CARE OF XXXXXXX-XXXXXX AT ITS ADDRESS FOR NOTICES AS SET FORTH IN
SECTION 10.05, AND SUCH SUBSIDIARY HEREBY IRREVOCABLY AUTHORIZES AND DIRECTS
XXXXXXX-XXXXXX TO ACCEPT SUCH SERVICE ON ITS BEHALF.
-50-
8.16. 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 8.14 hereof.
8.17. Headings. The various headings of each Loan Document are inserted for
convenience only and shall not affect the meaning or interpretation of such Loan
Document or any provision thereof.
[Signatures on following pages]
-51-
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.
ATTEST: XXXXXXX-XXXXXX CORPORATION
By By
----------------------------------- --------------------------------------
Title: Xxxx X. Xxxxxxxx
Treasurer
[Corporate Seal]
Address for Notices:
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Treasurer
Telephone: 000-000-0000
Telecopier: 000-000-0000
ATTEST: XXXXXXX-XXXXXX FLIGHT SYSTEMS, INC.
By By
---------------------------------- --------------------------------------
Title: Xxxx X. Xxxxxxxx
Treasurer
[Corporate Seal]
Address for Notices:
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Treasurer
Telephone: 000-000-0000
Telecopier: 000-000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
ATTEST: XXXXXXX-XXXXXX FLOW CONTROL CORPORATION
By By
----------------------------------- --------------------------------------
Title: Xxxx X. Xxxxxxxx
Treasurer
[Corporate Seal]
Address for Notices:
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Treasurer
Telephone: 000-000-0000
Telecopier: 000-000-0000
ATTEST: METAL IMPROVEMENT COMPANY, INC.
By By
----------------------------------- --------------------------------------
Title: Xxxx X. Xxxxxxxx
Treasurer
[Corporate Seal]
Address for Notices:
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Treasurer
Telephone: 000-000-0000
Telecopier: 000-000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
ATTEST: XXXXXXX-XXXXXX FLOW CONTROL SERVICE
CORPORATION
By By
----------------------------------- --------------------------------------
Title: Xxxx X. Xxxxxxxx
Treasurer
[Corporate Seal]
Address for Notices:
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Treasurer
Telephone: 000-000-0000
Telecopier: 000-000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
ATTEST: XXXXXXX-XXXXXX ANTRIEBSTECHNIK GmbH
By By
----------------------------------- --------------------------------------
Title: Xxxx X. Xxxxxxxx
Treasurer
[Corporate Seal]
Address for Notices:
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Treasurer
Telephone: 000-000-0000
Telecopier: 000-000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
THE BANK OF NOVA SCOTIA, as Agent and
Lender
By
--------------------------------------
Initial Revolving Credit
Committed Amount: $13,600,000.00
Commitment Percentage: 15.1111111111%
Address for Notices:
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: _____________________
Telephone:
Telecopier:
[SIGNATURE PAGE TO CREDIT AGREEMENT]
FLEET NATIONAL BANK, as Syndication
Agent and Lender
By
--------------------------------------
Xxxx Xxxxxxx
Senior Vice President
Initial Revolving Credit
Committed Amount: $12,800,000.00
Commitment Percentage: 14.2222222222%
Address for Notices:
000 Xxxxxx Xxx
Xxxxxxxx, XX 00000
MAILSTOP: 46701H
Attn: Xxxx Xxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
SUNTRUST BANK, as Documentation Agent
and Lender
By
--------------------------------------
Xxxxx Xxxxxxxx
Vice President
Initial Revolving Credit
Committed Amount: $12,800,000.00
Commitment Percentage: 14.2222222222%
Address for Notices:
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
PNC BANK, NATIONAL ASSOCIATION, as
Lender
By
--------------------------------------
Xxxx X. Xxxxxxxx
Vice President
Initial Revolving Credit
Committed Amount: $10,000,000.00
Commitment Percentage: 11.1111111111%
Address for Notices:
Xxx Xxxxxx Xxxxxxxx Xx
X Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
THE BANK OF NEW YORK, as Lender
By
--------------------------------------
Xxxxxx X. Xxxxxxx
Vice President
Initial Revolving Credit
Committed Amount: $10,000,000.00
Commitment Percentage: 11.1111111111%
Address for Notices:
000 Xxxxx Xxxx Xx.
X. Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
MELLON BANK, N. A., as Lender
By
--------------------------------------
J. Xxxx Xxxx
Vice President
Initial Revolving Credit
Committed Amount: $10,000,000.00
Commitment Percentage: 11.1111111111%
Address for Notices:
0000 Xxxxxx Xx., 0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attn: J. Xxxx Xxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
JPMORGAN CHASE BANK, as Lender
By
--------------------------------------
Xxxxxxx X. Xxxxx
Vice President
Initial Revolving Credit
Committed Amount: $10,000,000.00
Commitment Percentage: 11.1111111111%
Address for Notices:
000 Xxxxx 00 Xxxx
Xxxxxxxxx XX 00000
Attn: Xxxxxxx X. Xxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
CITIBANK, N.A., as Lender
By
--------------------------------------
Xxxxxxx X. Xxxxxxx
Vice President
Initial Revolving Credit
Committed Amount: $10,800,000.00
Commitment Percentage: 12%
Address for Notices:
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
THE BANK OF NOVA SCOTIA
RECEIPT OF STERLING
DIRECT CHAPS The Bank of Nova Scotia
CHAPS Sort Code: 40-52-72
&/Or HSBC Plc
International Division, 27-32 Poultry, London
Sort Code: 40-05-15
Swift Code: XXXXXX00
For A/C of: The Bank of Nova Scotia
Account No: 00000000
RECEIPT OF CAN.
DOLLARS The Bank Of Nova Scotia
International Banking Division, Toronto, Canada
Swift Code: XXXXXXXX
For A/C of: The Bank of Nova Scotia
Account No: 0000000
RECEIPT OF EURO HSBC Plc
International Division, 27-32 Poultry, London
Swift Code: XXXXXX00
For A/C of: The Bank of Nova Scotia
Account No: 00000000
RECEIPT OF SWISS
FRCS Union Banque Suisse AG
Zurich, Switzerland.
Swift Code: XXXXXXXX00X
For A/C of: The Bank of Nova Scotia, London
Account No: 230.00000.05T
RECEIPT OF DANISH
KNR Unibank A/S
Copenhagen, Denmark
Swift Code: XXXXXXXX
For A/C of: The Bank of Nova Scotia, London
Account No: 0000000000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
RECEIPT OF SWEDISH
KNR Swedbank
Stockholm
Swift Code: XXXXXXXX
For A/C of: The Bank of Nova Scotia, London
Account No: 8901 0000000000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
