1
CREDIT AGREEMENT
AMONG
XXXXXXX AMERICAS CORPORATION,
XXXXXXX EUROPE CONSOLIDATED, INC.,
AND
XXXXXXX ASIA PACIFIC CORPORATION,
AS BORROWERS,
THE OTHER CREDIT PARTIES SIGNATORY HERETO,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
FLEET NATIONAL BANK,
AS ADMINISTRATIVE AGENT,
AND
FIRST UNION NATIONAL BANK,
AS DOCUMENTATION AGENT,
DATED AS OF OCTOBER 31, 2000
FLEET SECURITIES, INC. AND FIRST UNION SECURITIES, INC. AS CO-ARRANGERS
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO PORTIONS OF THE
AGREEMENT INDICATED WITH BRACKETS AND ASTERISKS [***]. A COMPLETE COPY OF THIS
AGREEMENT, INCLUDING THE REDACTED ITEMS, HAS BEEN SEPARATELY FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION.
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS.............................................. 1
1.1 Defined Terms............................................ 1
1.2 Other Definitional Provisions............................ 18
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.......................... 19
2.1 Revolving Credit Commitments............................. 19
2.2 Procedure for Revolving Credit Borrowing................. 19
2.3 Fees..................................................... 21
2.4 Termination or Reduction of Revolving Credit Commitments. 23
2.5 Repayment of Loans; Evidence of Debt..................... 23
2.6 Optional Prepayments..................................... 25
2.7 Mandatory Prepayments.................................... 25
2.8 Conversion and Continuation Options...................... 27
2.9 Maximum Number of Loans.................................. 27
2.10 Interest Rates and Payment Dates......................... 27
2.11 Computation of Interest and Fees......................... 28
2.12 Increased Costs, Illegality, etc......................... 29
2.13 Compensation............................................. 31
2.14 Pro Rata Treatment and Payments.......................... 32
2.15 Requirements of Law...................................... 33
2.16 Taxes.................................................... 34
2.17 Indemnity................................................ 35
2.18 Letters of Credit........................................ 36
2.19 Change of Lending Office................................. 38
2.20 Replacement of Lenders................................... 39
2.21 Authority to Debit Borrower Account...................... 39
SECTION 3. REPRESENTATIONS AND WARRANTIES........................... 39
3.1 Financial Condition...................................... 39
3.2 No Change................................................ 40
3.3 Corporate Existence; Compliance with Law................. 40
3.4 Corporate Power; Authorization; Enforceable Obligations.. 40
3.5 No Legal Bar.............................................. 41
3.6 No Material Litigation................................... 41
3.7 No Default............................................... 41
3.8 Ownership of Property; Liens............................. 41
3.9 Intellectual Property.................................... 42
3.10 No Burdensome Restrictions............................... 42
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3.11 Taxes.................................................... 42
3.12 Federal Regulations...................................... 42
3.13 ERISA.................................................... 43
3.14 Investment Company Act; Other Regulations................ 44
3.15 Subsidiaries............................................. 44
3.16 Purpose of Loans......................................... 44
3.17 Environmental Matters.................................... 44
3.18 Solvency................................................. 45
3.19 Security Documents....................................... 45
3.20 Accuracy of Information.................................. 46
3.21 Status Under Certain Federal Statutes.................... 46
3.22 Capitalization........................................... 47
SECTION 4. CONDITIONS PRECEDENT..................................... 47
4.1 Conditions to Initial Loans.............................. 47
4.2 Conditions to Each Loan.................................. 50
SECTION 5. AFFIRMATIVE COVENANTS .................................. 51
5.1 Financial Statements..................................... 51
5.2 Certificates; Other Information.......................... 52
5.3 Payment of Obligations................................... 53
5.4 Maintenance of Existence................................. 53
5.5 Maintenance of Property; Insurance....................... 54
5.6 Inspection of Property; Books and Records; Discussions... 54
5.7 Notices.................................................. 54
5.8 Environmental Laws....................................... 55
5.9 Additional Subsidiaries.................................. 55
5.10 After-Acquired Property.................................. 56
5.11 Foreign Subsidiary....................................... 56
5.12 ERISA.................................................... 56
SECTION 6. NEGATIVE COVENANTS ...................................... 58
6.1 Financial Condition Covenants............................ 58
6.2 Limitation on Indebtedness............................... 58
6.3 Limitation on Liens...................................... 59
6.4 Limitation on Guarantee Obligations...................... 60
6.5 Limitation on Fundamental Changes........................ 60
6.6 Limitation on Sale of Assets............................. 61
6.7 Limitation on Restricted Payments........................ 61
6.8 Limitation on Capital Expenditures....................... 61
6.9 Limitation on Investments, Loans and Advances............ 61
6.10 Limitation on Optional Payments and Modifications of Debt
Instruments............................................ 62
6.11 Limitation on Transactions with Affiliates............... 62
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6.12 Limitation on Sales and Leasebacks....................... 62
6.13 Limitation on Changes in Fiscal Year..................... 63
6.14 Limitation on Negative Pledge Clauses.................... 63
6.15 Limitations on Lines of Business......................... 63
6.16 Permitted Acquisitions................................... 63
6.17 Prohibition on Change of Control......................... 65
6.18 Tax Sharing.............................................. 65
SECTION 7. EVENTS OF DEFAULT ....................................... 65
SECTION 8. ADMINISTRATIVE AGENT .................................... 67
8.1 Appointment.............................................. 67
8.2 Delegation of Duties..................................... 68
8.3 Exculpatory Provisions................................... 68
8.4 Reliance by Administrative Agent......................... 68
8.5 Notice of Default........................................ 69
8.6 Non-Reliance on Administrative Agent and Other Lenders... 69
8.7 Indemnification.......................................... 70
8.8 Administrative Agent in Its Individual Capacity.......... 70
8.9 Successor Administrative Agent........................... 70
8.10 Documentation Agent...................................... 71
SECTION 9. MISCELLANEOUS............................................ 71
9.1 Amendments and Waivers................................... 71
9.2 Notices.................................................. 72
9.3 No Waiver; Cumulative Remedies........................... 73
9.4 Survival of Representations and Warranties............... 73
9.5 Payment of Expenses and Taxes............................ 73
9.6 Successors and Assigns; Participations and Assignments... 74
9.7 Adjustments; Set-off..................................... 76
9.10 Counterparts............................................. 77
9.11 Severability............................................. 77
9.12 Integration.............................................. 77
9.13 CHOICE OF LAW............................................ 78
9.14 Submission To Jurisdiction; Waivers...................... 78
9.15 Acknowledgements......................................... 78
9.16 WAIVERS OF JURY TRIAL.................................... 79
9.17 Confidentiality.......................................... 79
9.18 Judgment Currency........................................ 80
9.19 Euro..................................................... 80
SECTION 10. GUARANTY................................................ 81
10.1 The Guaranty............................................. 81
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10.2 Guaranty Unconditional................................... 81
10.3 Discharge Only Upon Payment in Full; Reinstatement
in Certain Circumstances................................. 82
10.4 Waiver by the Borrower................................... 82
10.5 Subrogation.............................................. 82
10.6 Stay of Acceleration..................................... 82
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SCHEDULES
Schedule 1-A Alternative Currencies
Schedule 1-B Guarantors
Schedule 1-C Lenders, Commitments and Addresses for Notices
Schedule 3.1 Liabilities
Schedule 3.6 Litigation
Schedule 3.8 Properties
Schedule 3.15 Subsidiaries
Schedule 3.17 Environmental Matters
Schedule 3.22 Capitalization
Schedule 6.2 Indebtedness
Schedule 6.4(a) Guarantee Obligations
Schedule 6.9(e) Investments in Joint Ventures
EXHIBITS
Exhibit A Form of Revolving Credit Note
Exhibit B-1 Form of Parent Guarantee
Exhibit B-2 Form of Subsidiaries Guarantee
Exhibit C-1 Form of Parent Security Agreement
Exhibit C-2 Form of Borrower Security Agreement
Exhibit C-3 Form of Subsidiaries Security Agreement
Exhibit D-1 Form of Parent Stock Pledge Agreement
Exhibit D-2 Form of Borrower Stock Pledge Agreement
Exhibit D-3 Form of Subsidiaries Stock Pledge Agreement
Exhibit E-1 Form of Notice of Dollar Borrowing
Exhibit E-2 Form of Notice of Alternative Currency Borrowing
Exhibit F Form of Borrowing Certificate
Exhibit G Form of Legal Opinion
Exhibit H Form of Solvency Certificate
Exhibit I Form of Assignment and Acceptance
Exhibit J Form of Compliance Certificate
Exhibit K Form of Pledgor's Questionnaire
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CREDIT AGREEMENT, dated as of October 31, 2000, among (i)
XXXXXXX AMERICAS CORPORATION, a Delaware corporation, (ii) XXXXXXX
EUROPE CONSOLIDATED, INC., a Delaware corporation, (iii) XXXXXXX ASIA
PACIFIC CORPORATION, a Delaware corporation, (iv) the other Credit
Parties signatory hereto, (v) each of the financial institutions which
is now, or hereafter becomes, a signatory hereto (individually a
"Lender" and collectively, the "Lenders"), (vi) FLEET NATIONAL BANK, as
Administrative Agent for the Lenders hereunder (in such capacity, as
more fully defined in Section 1.1, the "Administrative Agent"), and
(vii) FIRST UNION NATIONAL BANK, as Documentation Agent.
Background
At the request of the Borrowers, pursuant to this Agreement,
the Administrative Agent has arranged for the Lenders to make available
a revolving credit facility to the Borrowers to (i) refinance Existing
Indebtedness, (ii) fund ongoing working capital needs, (iii) fund
general corporate purposes, including in connection with the Stock
Repurchase Program, and (iv) make Permitted Acquisitions.
Agreement
In consideration of the Background and the premises and the
mutual covenants hereinafter contained, and for other good and valuable
consideration, the parties, intending to be legally bound, hereto agree
as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms.
As used in this Agreement, the following terms shall have the
following meanings:
"Acquisition": any transaction pursuant to which any of the
Borrowers or any of its Subsidiaries (a) acquires equity securities (or
warrants, options or other rights to acquire such securities) of any
Person other than any of the Borrowers or any Person which is not then
a Subsidiary of any of the Borrowers, pursuant to a solicitation of
tenders therefor, or in one or more negotiated block, market or other
transactions not involving a tender offer, or a combination of any of
the foregoing, or (b) makes any Person a Subsidiary of any of the
Borrowers, or causes any such Person to be merged into any of the
Borrowers or any of its Subsidiaries, in any case pursuant to a merger,
purchase of assets or any reorganization providing for the delivery or
issuance to the holders of such Person's then outstanding securities,
in exchange for such securities, of cash or securities of any of the
Borrowers or any of its Subsidiaries, or a combination thereof, or (c)
purchases all or substantially all of the business or assets of any
Person.
"Adjusted EBIT": EBIT plus the amount of the Special Charges.
"Adjusted EBITDA": EBITDA plus the amount of the Special
Charges.
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"Administrative Agent": Fleet National Bank, together with its
affiliates, as the Administrative Agent for the Lenders under this
Agreement and the other Loan Documents, and its successors and assigns.
"Administrative Agent's Alternative Currency Account(s)": the
Alternative Currency account(s) of the Administrative Agent maintained
by the Administrative Agent at the Principal Office or at such other
location(s) specified in writing from time to time by the
Administrative Agent to the Borrowers and the Lenders.
"Administrative Agent's Dollar Account": the Dollar account of
the Administrative Agent maintained by the Administrative Agent at the
Principal Office.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (a) vote 20% or more of the
securities having ordinary voting power for the election of directors
of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.
"Agreement": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Alternate Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. For purposes
hereof: "Prime Rate" shall mean variable per annum rate of interest so
designated from time to time by the Administrative Agent as its prime
rate (the Prime Rate is a reference rate and does not necessarily
represent the lowest or best rate being charged to any customer); and
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds
brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for
the day of such transactions received by the Administrative Agent from
three federal funds brokers of recognized standing selected by it. Any
change in the Alternate Base Rate due to a change in the Prime Rate or
the Federal Funds Effective Rate shall be effective as of the opening
of business on the effective day of such change in the Prime Rate or
the Federal Funds Effective Rate, respectively.
"Alternative Currency": any of the currencies specified in
Schedule 1-A, and any other currency as to which all Lenders and the
Borrowers from time to time may agree, in each case that is freely
transferable and available to all Lenders in the London inter-bank
deposit market.
"Alternative Currency Sublimit": as defined in Section 2.1.
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"Applicable Currency": any Alternative Currency selected by
the Borrowers pursuant to Section 2.2(c).
"Applicable Margin": for each Type of Loan, the rate per annum
set forth below, corresponding to the Leverage Ratio, measured
quarterly for the four consecutive fiscal quarters then ended,
applicable to the Parent, on a consolidated basis, according to the
most recent Compliance Certificate delivered by the Borrowers to the
Administrative Agent, which rate shall be set at Level II until the
Borrowers have delivered a Compliance Certificate to the Administrative
Agent for the fiscal year ending June 30, 2001, and have complied with
the requirements of Section 5.1(a) and (b) and Section 5.2(a) - (d) for
such period.
LEVEL LEVERAGE RATIO LIBOR RATE BASE RATE MARGIN
MARGIN
I greater than or equal to 2.50x < 2.75x 2.50% 0.25%
II greater than or equal to 2.00x < 2.50x 2.25% 0%
III greater than or equal to 1.50x < 2.00x 2.00% 0%
IV greater than or equal to 1.00x < 1.50x 1.75% 0%
V <1.00x 1.50% 0%
"Application": an application by a Borrower, in form and
containing terms and provisions acceptable to the Issuing Lender, for
the issuance by the Issuing Lender of a Letter of Credit.
"Approved Currency": Dollars and each of the Alternative
Currencies.
"Asset Sale": any sale, sale-leaseback, or other disposition
by any Borrower or other Credit Party of any of its property or assets,
or any rights or interests therein or with respect thereto, including
the Capital Stock of any Borrower or other Credit Party.
"Assignee": as defined in Section 9.6(c).
"Available Commitment": as to any Lender at any time, an
amount equal to the excess, if any, of (a) the amount of such Lender's
Revolving Credit Commitment over (b) the sum of (i) the aggregate
principal amount of all Revolving Credit Loans made by such Lender then
outstanding and (ii) such Lender's Commitment Percentage of Letter of
Credit Obligations.
"Base Rate Loans": Loans the rate of interest applicable to
which is based upon the Alternate Base Rate.
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"Borrower Account": the Borrowers' Dollar Account and the
Borrowers' Alternative Currency Account, collectively.
"Borrower Representative": the Parent in its capacity as
Borrower Representative pursuant to the provisions of Section 2.2(e).
"Borrower Security Agreement": the Security Agreement to be
executed and delivered by the Borrowers, substantially in the form of
Exhibit C-2, as the same may be amended, supplemented or otherwise
modified from time to time.
"Borrower Stock Pledge Agreement": the Stock Pledge Agreement
to be executed and delivered by the Borrowers, substantially in the
form of Exhibit D-2, as the same may be amended, modified or
supplemented from time to time.
"Borrowers": Xxxxxxx Americas Corporation, a Delaware
corporation, Xxxxxxx Europe Consolidated Inc., a Delaware corporation,
and Xxxxxxx Asia Pacific Corporation, a Delaware corporation, and the
respective successors and assigns of each.
"Borrowers' Alternative Currency Account(s)": the account(s)
of the Borrowers maintained by the Borrowers for Loans made in an
Alternative Currency specified in writing from time to time by the
Borrowers and the Administrative Agent.
"Borrowers' Dollar Account": (i) demand deposit account number
0000000000 in the name of Xxxxxxx Americas Corporation with Fleet
National Bank, or (ii) any successor account of the Borrowers with the
Administrative Agent, which may be maintained at one or more offices of
the Administrative Agent, or an agent for the Administrative Agent.
"Borrowing Date": any Business Day specified in a notice
pursuant to Section 2.2 as a date on which any Borrower, as the case
may be, requests the Lenders to make Loans hereunder.
"Borrowing Notice": with respect to each Loan denominated in
Dollars, the Notice of Dollar Borrowing in the form of the attached
Exhibit E-1 and, with respect to each Loan denominated in an Equivalent
Dollar Amount of the Alternative Currency, the Notice of Alternative
Currency Borrowing in the form of the attached Exhibit E-2.
"Business": as defined in Section 3.17(b).
"Business Day": in respect of any date that is specified in
this Agreement to be subject to adjustment in accordance with the
Following Business Day Convention, a day on which commercial banks
settle payments in (i) London, if the payment obligation is calculated
by reference to the LIBOR Rate, or (ii) New York, if the payment
obligation is calculated by reference to the Alternate Base Rate.
"Capital Stock": any and all shares, interests, participation
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership
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interests in a Person (other than a corporation) and any and all
warrants or options to purchase any of the foregoing.
"Capitalized Leases": Leases which are required to be
capitalized on the balance sheet of the lessee or obligor in accordance
with GAAP.
"Cash Collateral Account": as defined in Section 2.18(i)(iv).
"Cash Collateral Amounts": as defined in Section 2.18(i)(i).
"Cash Equivalents": (a) securities with maturities of one year
or less from the date of acquisition issued or fully guaranteed or
insured by the United States Government or any agency thereof, (b)
certificates of deposit and eurodollar time deposits with maturities of
one year or less from the date of acquisition and overnight bank
deposits of any Lender or of any commercial bank having capital and
surplus in excess of $500,000,000, (c) repurchase obligations of any
Lender or of any commercial bank satisfying the requirements of clause
(b) of this definition, having a term of not more than 30 days with
respect to securities issued or fully guaranteed or insured by the
United States Government, or (d) commercial paper of a domestic issuer
rated at least A-2 by Standard and Poor's Rating Group or P-2 by
Xxxxx'x Investors Service, Inc.
"Change of Control": the occurrence of any of the following
events: any Person or "group" (within the meaning of Rules 13d-3 and
13d-5 of the Securities Exchange Act of 1934, as amended), shall (i)
have acquired beneficial ownership of 40% or more on a fully diluted
basis of the economic and voting interest in the Parent's Capital Stock
or (ii) have obtained the power (whether or not exercised) to elect a
majority of the Parent's directors.
"Closing Date": the date on which the conditions precedent set
forth in Section 4.1 shall be satisfied.
"Co-Arrangers": Fleet Securities, Inc. and First Union
Securities, Inc.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": all domestic tangible and intangible assets of
the Credit Parties, now owned or hereinafter acquired, excluding real
property, and a pledge of 100% of the stock of the Domestic
Subsidiaries of each of the Credit Parties and, unless otherwise agreed
to by the Lenders, 65% of the stock of the Guarantors which are Foreign
Subsidiaries.
"Commitment": as to any Lender, such Lender's Revolving Credit
Commitment.
"Commitment Percentage": as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the
aggregate Commitments or, at any time after such Commitments shall have
expired or terminated, the percentage which the aggregate principal
amount of such Lender's Loans (including such Lender's Commitment
Percentage of Letter of Credit Obligations) then outstanding
constitutes of
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the aggregate principal amount of the Loans (including Letter of Credit
Obligations) then outstanding.
"Commitment Period": the period from and including the date
hereof to, but not including, the Revolving Credit Termination Date or
such earlier date on which the Revolving Credit Commitments shall
terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with any Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes such Borrower and which is treated as a single employer under
Section 414 of the Code.
"Compliance Certificate": as defined in Section 5.2(b).
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its property is bound.
"Credit Parties": each Borrower, the Parent and each
Guarantor.
"Default": any of the events specified in Section 7, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Defaulting Lender" as defined in Section 2.14(b).
"Documentation Agent": First Union National Bank, and its
successors and assigns.
"Dollar Equivalent": at any time for the determination
thereof, the amount of Dollars which could be purchased with the amount
of relevant Alternative Currency involved in such computation at the
Spot Exchange Rate.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Domestic Subsidiary": any Subsidiary which is not a Foreign
Subsidiary.
"EBIT": for any period, the sum of (i) pre-tax income (as
determined under GAAP) for such period and (ii) Interest Expenses for
such period.
"EBITDA": for any period, the sum of (i) EBIT and (ii) the
amount of depreciation and amortization deducted from earnings in
determining pre-tax income (as determined under GAAP).
"EMU Legislation": the legislative measures of the European
Council for the introduction of, changeover to, or operation of, a
single or unified European currency.
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"Environmental Laws": any and all foreign, federal, state,
local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority
or other Requirements of Law (including common law) regulating,
relating to or imposing liability or standards of conduct concerning
protection of human health or the environment, as now are, or may at
any time hereafter be, in effect.
"Equivalent Alternative Currency Amount": the amount of any
Alternative Currency required to purchase a given amount of Dollars, as
quoted by the Administrative Agent on the first Business Day following
receipt by the Administrative Agent of notice of any borrowing,
continuation, conversion, prepayment or repayment of Loans, or the
request of any Borrower or any Lender.
"Equivalent Dollar Amount": the amount of Dollars that may be
purchased with a given amount of an Alternative Currency, as quoted by
the Administrative Agent on the first Business Day following receipt by
the Administrative Agent of notice of any borrowing, continuation,
conversion, prepayment or repayment of Loans, or the request of any
Borrower or any Lender.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate": each person (as defined in Section 3(9) of
ERISA) which together with any Borrower or a Subsidiary of a Borrower
would be deemed to be a "single employer" within the meaning of Section
414(b) or (c) of the Code, and for purposes of Section 302 of ERISA
and/or Section 412, 4971, 4977 and/or each "applicable section" under
Section 414(t)(2) of the Code, within the meaning of Section 414(b),
(c), (m) or (o) of the Code.
"Euros": the single currency of participating member states of
the European Union.
"Event of Default": any of the events specified in Section 7,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Existing Credit Agreement": the Amended and Restated Credit
Agreement dated as of December 31, 1995, between, among others, Xxxxxxx
Americas Corporation and Nationsbank, National Association as
Administrative Agent, as amended, modified or otherwise supplemented
from time to time.
"Existing Indebtedness": all Indebtedness outstanding on the
Closing Date under the Existing Credit Agreement which will be
refinanced pursuant to the terms and conditions of this Agreement.
"Fee Property": as defined in Section 3.8.
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"Following Business Day Convention": an adjustment to be made
if any relevant date would otherwise fall on a day that is not a
Business Day so that the date will be the first following day that is a
Business Day.
"Foreign Subsidiary": any Subsidiary of any Credit Party which
(a) is organized under the laws of any jurisdiction outside the United
States of America or (b) conducts the major portion of its business
outside of the United States of America.
"Foreign Pension Plan": any plan, fund (including, without
limitation, any superannuation fund) or other similar program, other
than social security or social insurance, established or maintained
outside the United States of America by any Borrower or any one or more
of its Subsidiaries primarily for the benefit of employees of any
Borrower or such Subsidiaries residing outside the United States of
America, which plan, fund or other similar program provides, or results
in, retirement income, a deferral of income in contemplation of
retirement or severance or termination payments to be made upon
termination of employment, and which plan is not subject to ERISA or
the Code.
"Fronting Fee": an amount equal to one-eighth of one percent
(0.125%) of the stated amount of each Letter of Credit.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time, except that in
connection with any calculation of any amount referenced, directly or
indirectly, in Section 6.1, "GAAP" shall mean generally accepted
accounting principles in the United States of America consistent with
those utilized in preparing the audited financial statements referred
to in Section 3.1.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee": collectively, the Parent Guarantee and the
Subsidiaries Guarantee.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation
of the guaranteeing person, whether or not contingent, (i) to purchase
any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the
purchase or payment of any such primary obligation or (2) to maintain
working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary
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obligation or (iv) otherwise to assure or hold harmless the owner of
any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount
equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum
amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless
such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in
which case the amount of such Guarantee Obligation shall be such
guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the guaranteeing person in good faith.
"Guarantor": the Parent and the Persons listed on the attached
Schedule 1-B, and any other Person that has executed a Guarantee, or is
required to execute and deliver a Guarantee pursuant to this Agreement,
whether on or subsequent to the Closing Date, and (pursuant to such
Guarantee) is a guarantor of the Obligations.
"Indebtedness": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with such Person's customary practices), (b) any other
indebtedness of such Person which is evidenced by a note, bond,
debenture or similar instrument, except as excluded pursuant to the
parenthetical phrase of clause (a) hereof, (c) all reimbursement and
other obligations with respect to letters of credit, bankers
acceptances and surety bonds, whether or not matured, (d) all
obligations of such Person under Capitalized Leases, (e) all Guarantee
Obligations (without duplication) of such Person, (f) all obligations
of such Person in respect of acceptances issued or created for the
account of such Person, (g) all obligations under Interest Rate Hedge
Agreements whether or not entered into with a Lender and (h) all
liabilities secured by any Lien on any property owned by such Person
even though such Person has not assumed or otherwise become liable for
the payment thereof.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": as defined in Section 3.9.
"Interest Coverage Ratio": the ratio of Adjusted EBIT to
Interest Expense, for any period of four consecutive fiscal quarters.
"Interest Expense": for any period, the amount of interest
expense, both expensed and capitalized, of the Parent, on a
consolidated basis, determined in accordance with GAAP.
- 9 -
16
"Interest Payment Date": (a) as to any Base Rate Loan, the
last Business Day of each March, June, September and December, (b) as
to any LIBOR Rate Loan having an Interest Period, the last business day
of such Interest Period.
"Interest Period": with respect to any LIBOR Rate Loan:
(i) initially, the period commencing on the borrowing
or conversion date, as the case may be, with respect to such
LIBOR Rate Loan and ending one, two or three months
thereafter, as selected by any Borrower in the Borrowing
Notice given with respect thereto; and
(ii) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
LIBOR Rate Loan and ending one, two or three months
thereafter, as selected by the Borrowers by irrevocable notice
to the Administrative Agent not less than three Business Days
prior to the last day of the then current Interest Period with
respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period pertaining to a LIBOR Rate
Loan would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately
preceding Business Day;
(2) any Interest Period that would otherwise extend
beyond the Revolving Credit Termination Date, shall end on the
Revolving Credit Termination Date;
(3) any Interest Period pertaining to a LIBOR Rate
Loan that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month; and
(4) the Borrowers shall select Interest Periods so as
not to require a payment or prepayment of principal of any
LIBOR Rate Loan during an Interest Period for such Loan.
"Interest Rate Hedge Agreements": all interest rate swaps,
caps or collar agreements or similar arrangements, whether under a Swap
Agreement or otherwise, entered into by any Borrower with any Lender,
providing for financial protection against wide or unanticipated
fluctuations in interest rates or currency exchange rates or the
exchange of nominal interest obligations, either generally or under
specific contingencies, all as more fully set forth in such agreement.
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17
"Issuing Lender": Fleet National Bank or any other Lender
(with the prior consent and agreement of such Lender), each in its
capacity as issuer of the Letters of Credit.
"Joint Venture": depending on the jurisdiction of its
formation, a general partnership or joint venture in which any of the
Borrowers is a general partner or joint venturer, as the case may be.
"Judgment Currency": as defined in Section 9.16.
"Judgment Currency Conversion Date": as defined in Section
9.16.
[***]
"L/C Draft": a draft drawn on the Issuing Lender pursuant to a
Letter of Credit.
"Leased Property": as defined in Section 3.8.
"Lenders": the financial institutions party to this Agreement
and listed in Schedule 1-C, which have committed to make the Loans, and
the respective successors and assigns of each.
"Lending Office": as to each Lender, the Lending Office of
such Lender designated on the signature pages hereof or in an
Assignment and Acceptance or such other office of such Lender (or of an
affiliate of such Lender) as such Lender may from time to time specify
to the Borrowers and the Administrative Agent as the office by which
its Loans are to be made and maintained.
"Letter of Credit": any letter of credit issued by the Issuing
Lender, in its discretion but subject to the terms of this Agreement,
on the application of a Borrower.
"Letter of Credit Fee": the amount equal to, from time to
time, the Applicable Margin per annum for LIBOR Rate Loans constituting
Revolving Loans.
"Letter of Credit Obligations": as to Borrowers, at any time
of determination, an amount equal to the aggregate amounts available to
be drawn under Letters of Credit plus the aggregate of all unpaid
obligations of Borrowers to reimburse the Issuing Lender for amounts
drawn under all Letters of Credit.
"Leverage Ratio": the ratio of Total Debt to Adjusted EBITDA
for any period of four consecutive fiscal quarters.
"LIBOR Rate": (i) as applicable to any LIBOR Rate Loan
denominated in Dollars, the rate per annum determined on the basis of
the offered rates for deposits in US Dollars, for a period of time
comparable to such LIBOR Rate Loan which appears on the
*Confidential treatment requested.*
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18
Telerate page 3750 as of 11:00 a.m. London time on the day
that is two Business Days (assuming a London locus) preceding the first
day of such LIBOR Rate Loan; provided, however, if the rate described
above does not appear on the Telerate System on any applicable interest
determination date, the LIBOR Rate shall be the rate (rounded upward,
if necessary, to the nearest one hundred-thousandth of a percentage
point), determined on the basis of the offered rates for deposits in
Dollars for a period of time comparable to such LIBOR Rate Loan which
are offered by four major banks in the London interbank market (as
selected by the Administrative Agent) at approximately 11:00 a.m.
London time, on the day that is two (2) London Banking Days preceding
the first day of such LIBOR Rate Loan. The principal London office of
each of the four major London banks will be requested to provide a
quotation of its Dollar deposit offered rate. If at least two such
quotations are provided, the rate for that date will be the arithmetic
mean of the quotations. If fewer than two quotations are provided as
requested, the rate for that date will be determined on the basis of
the rates quoted for loans in Dollars to leading European banks for a
period of time comparable to such LIBOR Rate Loan offered by major
banks in New York City at approximately 11:00 a.m. New York City time,
on the day that is two Business Days (assuming a London locus)
preceding the first day of such LIBOR Rate Loan. In the event that the
Administrative Agent is unable to obtain any such quotation as provided
above, it will be deemed that the LIBOR Rate pursuant to a LIBOR Rate
Loan cannot be determined. In the event that the Board of Governors of
the Federal Reserve System shall impose a Reserve Percentage with
respect to London interbank market deposits of the Administrative
Agent, then for any period during which such Reserve Percentage shall
apply, the LIBOR Rate shall be equal to the amount determined above
divided by an amount equal to 1 minus the Reserve Percentage. "Reserve
Percentage" shall mean the maximum aggregate reserve requirement
(including all basic, supplemental, marginal and other reserves) which
is imposed on member banks of the Federal Reserve System against
"Euro-currency Liabilities" as defined in Regulation D.
(ii) as applicable to any LIBOR Rate Loan denominated
in an Alternative Currency, the Spot Exchange Rate for such Alternative
Currency.
"LIBOR Rate Loan": Loans the rate of interest applicable to
which is based upon the LIBOR Rate.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title
retention agreement and any Capitalized Lease having substantially the
same economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this
Agreement.
"Loan Documents": this Agreement, the Notes, the Guarantees
and the Security Documents.
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19
"Material Adverse Effect": a material adverse effect or
through the actions of one or more third parties, the likelihood of a
material adverse effect, on (a) the business, assets, operations,
property, condition (financial or otherwise) or prospects of the Credit
Parties taken as a whole or (b) the validity or enforceability of this
Agreement or any of the other Loan Documents or any Interest Rate Hedge
Agreements or the rights or remedies of the Administrative Agent or the
Lenders hereunder or thereunder.
"Material Environmental Amount": amounts payable by any
Borrower and/or any other Credit Party in excess of the aggregate of
$500,000 for remedial costs, compliance costs, compensatory damages,
punitive damages, fines, penalties or any combination thereof.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under, or which could otherwise give
rise to any liability under, any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
"Multiemployer Plan": any multiemployer plan as defined in
Section 4001(a)(3) of ERISA, which is a pension plan as described in
Section 3(2) of ERISA and which any Borrower, a Subsidiary of a
Borrower or an ERISA Affiliate maintains, contributes to or has an
obligation to contribute (or maintained, contributed to or had an
obligation to contribute to in the last five years).
"Net Income": for any period, net income of the Parent, on a
consolidated basis.
"Net Proceeds": the aggregate cash proceeds received by any
Borrower or any Credit Party thereof in respect of:
(a) any issuance of Capital Stock after the
Closing Date;
(b) any Asset Sale; or
(c) any cash payments received in respect of
promissory notes delivered to any Borrower or any Credit
Party thereof in respect of an Asset Sale;
in each case net of (without duplication) (A) the amount required to
repay any Indebtedness (other than the Loans) secured by a Lien on any
assets of such Person that are collateral for any such debt securities
or loans that are sold or otherwise disposed of in connection with such
Asset Sale, (B) the reasonable expenses (including legal fees and
brokers' and underwriters' commissions, lenders fees, filing fees of
the Securities and Exchange Commission, or credit enhancement fees, in
any case, paid to third parties or, to the extent permitted hereby,
Affiliates) incurred in effecting such issuance or sale and (C) any
taxes reasonably attributable to such sale and reasonably estimated by
such Person to be actually payable.
- 13 -
20
"Net Worth": as of the date of determination, all items which
in conformity with GAAP would be included under shareholders' equity on
a consolidated balance sheet of the Parent at such date.
"Non-Excluded Taxes": as defined in Section 2.16(a).
"Notes": the collective reference to the Revolving Credit
Notes.
"Notice of Alternative Currency Borrowing": as defined in
Section 2.2(c)(i).
"Notice of Dollar Borrowing": as defined in Section 2.2(b)(i).
"Obligation Currency": as defined in Section 9.16(a).
"Obligations": "Secured Obligations" as that term is defined
in the Borrower Security Agreement.
"Parent": Xxxxxxx Technology Company, Inc., a Delaware
corporation and its successors and assigns.
"Parent Guarantee": the Guarantee to be executed and delivered
by the Parent substantially in the form of Exhibit B-1, as the same may
be amended, supplemented or modified form time to time.
"Parent Security Agreement": the Parent Security Agreement to
be executed and delivered by the Parent, substantially in the form of
Exhibit C-1, as the same may be amended, supplemented or otherwise
modified from time to time.
"Parent Stock Pledge Agreement": the Stock Pledge Agreement to
be executed and delivered by the Parent, substantially in the form of
Exhibit D-1, as the same may be amended, supplemented or otherwise
modified from time to time.
"Participant": as defined in Section 9.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Acquisition": as defined in Section 6.16.
"Permitted Stock Repurchase": the repurchase by the Parent of
its Capital Stock up to the aggregate amount of $3,500,000.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which any Borrower or a Commonly
Controlled Entity is (or, if
- 14 -
21
such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Principal Office": means the principal office of the
Administrative Agent at Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx
00000, Attention: Xx. X. Xxxxxxx Xxxxxx, Jr., of such other office and
address as the Administrative Agent may from time to time designate.
"Properties": as defined in Section 3.17(a).
"Register": as defined in Section 9.6(d).
"Regulation "D": Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor
to all or a portion thereof establishing reserve requirements.
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Regulation X": Regulation X of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under PBGC Reg.Section 4043.
"Required Lenders": at any time, Lenders holding at least 51%
of the outstanding Loans and unused Commitments, except that with
respect to any consents to be delivered in connection with Permitted
Acquisitions, such term shall mean Lenders holding at least 66-2/3% of
the outstanding Loans and unused Commitments.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
final, non-appealable determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any
of its property is subject.
"Responsible Officer": any of the chief executive officer,
chief operating officer, president or, with respect only to financial
matters, the chief financial officer or the controller of the Borrower
Representative.
"Restricted Payments": (a) the declaration, payment or making,
directly or indirectly, of any dividend, payment or other distribution,
other than dividends payable solely in common stock of the Parent, on
or with respect to any of the Capital Stock of the Parent, any Borrower
or any of their Subsidiaries or the setting apart of any funds or
- 15 -
22
property therefor, or (b) the making of any payment on account of the
purchase, redemption, retirement or other acquisition, direct or
indirect, or the forgiveness or foreclosure of any Indebtedness owed to
the Parent, any Borrower or any of their Subsidiaries and secured by a
pledge of, the Capital Stock of the Parent, any Borrower or any of
their Subsidiaries.
"Revolving Credit Commitment": as to any Lender, the
obligation of such Lender to make Revolving Credit Loans to Borrowers
hereunder in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such Lender's name on
Schedule 1-C, as such amount may be reduced from time to time in
accordance with the provisions of this Agreement.
"Revolving Credit Loans": as defined in Section 2.1(a).
"Revolving Credit Note": as defined in Section 2.5(h).
"Revolving Credit Termination Date": October 31, 2003.
"Security Agreements": the collective reference to the Parent
Security Agreement, the Borrower Security Agreement and the
Subsidiaries Security Agreement.
"Security Documents": the collective reference to the Security
Agreements, the Stock Pledge Agreements and any other document that may
at any time be delivered to the Administrative Agent as security for
any Credit Party's obligations hereunder or under any other Loan
Document or any Interest Rate Hedge Agreement, as any of the foregoing
may be amended, supplemented or otherwise modified from time to time.
"Significant Subsidiary": (a) each Borrower, (b) each
Guarantor, and (c) each other direct or indirect Subsidiary of the
Parent or any Borrower which at the time in question was responsible
for not less than (x) five percent (5%) of the net revenues of the
Parent on a consolidated basis for the most recently completed fiscal
year or (y) five percent (5%) of the accounts receivable of the Parent
on a consolidated basis for the most recently completed fiscal year.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Solvent": with respect to any Person on a particular date,
the condition that on such date, (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the
present fair salable value of the assets of such Person is not less
than the amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and mature, (c) such
Person does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Person's ability to pay as such debts
and liabilities mature, and (d) such Person is not engaged in business
or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute an
unreasonably small amount of capital.
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23
"Special Charges": the special charges to Net Income taken by
the Parent (i) for the fiscal year ending June 30, 2000, up to the
amount of $5,664,000, (ii) for the fiscal year ending June 30, 2001, up
to the amount of $1,336,000, which represents the balance of the
restructuring charge announced by the Parent on Xxxxx 00, 0000, (xxx)
[***], and (iv) in connection with the sale of the Xxxxx Division of
Xxxxxxx Technology Corporation, up to the amount of $650,000 which
charge was taken in the fiscal quarter ended September 30, 2000.
"Spot Exchange Rate": on any day (a) with respect to any
Alternative Currency, the spot rate at which Dollars are offered on
such day by the Administrative Agent in London for such Alternative
Currency at approximately 11:00 a.m. (London time), and (b) with
respect to Dollars in relation to any specified Alternative Currency,
the spot rate at which such specified Alternative Currency is offered
on such day by the Administrative Agent in London for Dollars at
approximately 11:00 a.m. (London time). For purposes of determining the
Spot Exchange Rate in connection with a Loan based on an Alternative
Currency, such Spot Exchange Rate shall be determined as of the date
that is two (2) Business Days prior to the date of such Loan or
determination, or any renewal or conversion thereof.
"Stock Pledge Agreements": the collective reference to the
Parent Stock Pledge Agreement, the Borrower Stock Pledge Agreement and
the Subsidiaries Stock Pledge Agreement.
"Stock Repurchase Program": one or more programs adopted by
the Parent's Board of Directors pursuant to which the Parent may
repurchase shares of its outstanding Capital Stock up to the aggregate
of $3,500,000.
"Subsidiaries Guarantee": the Guarantee to be executed and
delivered by each Domestic Subsidiary, substantially in the form of
Exhibit B-3, as the same may be amended, supplemented or otherwise
modified from time to time.
"Subsidiaries Security Agreement": the Security Agreement to
be executed and delivered by each Domestic Subsidiary in favor of the
Administrative Agent, substantially in the form of Exhibit C-3, as the
same may be amended, supplemented or otherwise modified from time to
time.
"Subsidiaries Stock Pledge Agreement": the Stock Pledge
Agreement to be executed and delivered by each Domestic Subsidiary of
each of the Borrowers, substantially in the form of Exhibit D-3, as the
same may be amended, supplemented or otherwise modified from time to
time.
"Subsidiaries Security Documents": the collective reference to
the Subsidiaries Security Agreement and the Subsidiaries Stock Pledge
Agreement.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than
* Confidential treatment requested.*
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24
stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation, partnership
or other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise qualified,
all references to a "Subsidiary" or to "Subsidiaries" in this Agreement
shall refer to a Subsidiary or Subsidiaries of the Parent and each of
the Borrowers.
"Swap Agreement": as defined in 11 U.S.C. Section 101.
"Tangible Net Worth": with respect to any Person at any date,
the Net Worth, exclusive of cumulative transaction adjustments, of such
Person at such date, less the sum of (i) all goodwill, capitalized
organizational expenses, capitalized research and development expenses,
trademarks, trade names, copyrights, patents, patent applications,
licenses and rights in any thereof, and other intangible items, (ii)
all unamortized debt discount and expenses, and (iii) any write-up in
the book value of any asset resulting from a revaluation thereof.
"Total Debt": with respect to any Person, at any time, the sum
of Indebtedness plus (b) the principal amount of all obligations under
Capitalized Leases, determined in each case on a consolidated basis in
accordance with GAAP.
"Transferee": as defined in Section 9.6(f).
"Type": as to any Loan, its nature as a Base Rate Loan or a
LIBOR Rate Loan.
"Unfunded Current Liability": of any Plan shall mean the
amount, if any, by which the actuarial present value of the accumulated
plan benefits under the Plan determined as of the close of the most
recent plan year, exceeds the fair market value of the assets allocable
thereto, each determined in accordance with Statement of Financial
Accounting Standards No. 87.
1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in
this Agreement shall have the defined meanings when used in any Notes or any
certificate or other document made or delivered pursuant hereto.
(b) As used herein and in any Notes, and any certificate or
other document made or delivered pursuant hereto, accounting terms relating to
the Borrowers and their Subsidiaries not defined in Section 1.1 and accounting
terms partly defined in Section 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
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25
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural form of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments.
(a) Subject to the terms and conditions hereof, each Lender
severally agrees to make revolving credit loans ("Revolving Credit Loans") to
the Borrowers from time to time during the Commitment Period, each such Loan to
be in Dollars or an Equivalent Dollar Amount of the Alternative Currency, in an
aggregate principal amount at any one time outstanding not to exceed the amount
of such Lender's Revolving Credit Commitment less the sum of (i) the product of
(x) such Lender's Commitment Percentage and (y) the sum of the Letter of Credit
Obligations then outstanding and (ii) the amount of such Lender's outstanding
Revolving Credit Loans but in no event shall the aggregate Equivalent Dollar
Amount of the Alternative Currencies exceed $15,000,000 (the "Alternative
Currency Sublimit"). Notwithstanding the above, in no event shall any Revolving
Credit Loans be made if the aggregate amount of the Revolving Credit Loans to be
made (including, without limitation, the Equivalent Dollar Amount of the
Alternative Currencies, based on the respective exchange rates used at the time
of such Loans) would, after giving effect to the use of proceeds thereof, exceed
the aggregate Available Commitments. During the Commitment Period, the Borrowers
may use the Revolving Credit Commitments by borrowing, prepaying the Revolving
Credit Loans in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof.
(b) The Revolving Credit Loans may from time to time be (a)
Base Rate Loans, (b) LIBOR Rate Loans, or (c) a combination thereof, as
determined by the Borrowers and notified to the Administrative Agent in
accordance with Sections 2.2 and 2.8 provided that no Revolving Credit Loan
shall be made as a LIBOR Rate Loan after the day that is one month prior to the
Revolving Credit Termination Date.
2.2 Procedure for Revolving Credit Borrowing.
(a) Each Loan shall be, at the option of the Borrowers
specified in the Borrowing Notice furnished to the Administrative Agent pursuant
to subsection (b) hereof, either a Base Rate Loan or a LIBOR Rate Loan, which
shall in each case be made or maintained by each Lender at its Principal Office.
(b) (i) Notice of Dollar Borrowings. A Responsible Officer
shall give the Administrative Agent (A) at least three (3) Business Days'
irrevocable telephonic notice of each Loan based on Dollars that will be a LIBOR
Rate Loan prior to 11:00 a.m., New York City time; or (B) irrevocable telephonic
notice of each Loan based on Dollars that will be a Base Rate Loan prior to
11:00 a.m., New York City time, on the day of such proposed Base Rate Loan (each
such notice referred to in clauses (A) and (B) being referred to as a "Notice of
Dollar Borrowing"). Each such Notice of Dollar Borrowing, which shall be
effective upon receipt by the Administrative Agent, shall specify the amount of
the borrowing, the Type of Loan, the date of borrowing and, if a LIBOR Rate
Loan, the Interest Period to be used in the computation of interest. A
Responsible Officer shall provide the Administrative Agent written confirmation
of
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26
each such telephonic notice in the form attached hereto as Exhibit E-1 and
incorporated herein by reference with appropriate insertions, but failure to
provide such confirmation shall not affect the validity of such telephonic
notice. Notice of receipt of such Notice of Dollar Borrowing shall be provided
by the Administrative Agent to each Lender by telephone with reasonable
promptness, but not later than 1:00 p.m., New York City time, on the same day as
Administrative Agent's receipt of such telephonic notice. The Administrative
Agent shall provide each Lender written confirmation of such telephonic
confirmation, but failure to provide such notice shall not affect the validity
of such telephonic notice.
(ii) Funding of Dollar Borrowing. Not later than 3:00 p.m.,
New York City time, on the date specified for each borrowing under this
subsection (b), each Lender, pursuant to the terms and subject to the conditions
of this Agreement, shall make the amount of the Loan based on Dollars to be made
by it on such day available to the Administrative Agent, by depositing or
transferring the proceeds thereof in Dollars and in immediately available funds
at the Administrative Agent's Dollar Account. The amount so received by the
Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrowers by depositing the proceeds thereof
made available to the Administrative Agent in Dollars and in immediately
available funds in the Borrowers' Dollar Account.
(c) (i) Notice of Alternative Currency Borrowing. A
Responsible Officer shall give the Administrative Agent at least three (3)
Business Days' irrevocable telephonic notice of each Loan based on an
Alternative Currency prior to 11:00 a.m. New York City time (each such notice
being referred to as a "Notice of Alternative Currency Borrowing"). Each such
Notice of Alternative Currency Borrowing, which shall be effective upon receipt
by the Administrative Agent, shall specify the amount of the borrowing, the
Alternative Currency of the borrowing, that such Loan is a LIBOR Rate Loan, the
date of borrowing and the Interest Period to be used in the computation of
interest. A Responsible Officer shall provide the Administrative Agent written
confirmation of each such telephonic notice in the form attached hereto as
Exhibit E-2 and incorporated herein by reference with appropriate insertions,
but failure to provide such confirmation shall not affect the validity of such
telephonic notice. Notice of receipt of such Notice of Alternative Currency
Borrowing shall be provided by the Administrative Agent to each Lender by
telephone with reasonable promptness, but not later than 1:00 p.m., New York
City time, on the same day as Administrative Agent's receipt of such telephonic
notice. The Administrative Agent shall provide each Lender written confirmation
of such telephonic confirmation, but failure to provide such notice shall not
affect the validity of such telephonic notice.
(ii) Funding of Alternative Currency Borrowing. Not later than
3:00 p.m., New York City time, on the date specified for each borrowing under
this subsection (c), each Lender shall, pursuant to the terms and subject to the
conditions of this Agreement, make the amount of the Loan based on an
Alternative Currency of Loans based on such Alternative Currency to be made by
it on such day available to the Administrative Agent, by depositing or
transferring the proceeds thereof in the Applicable Currency and in immediately
available funds at the Administrative Agent's Alternative Currency Account for
the Applicable Currency. The amount so received by the Administrative Agent
shall, subject to the terms and conditions of this Agreement, be made available
to the Borrowers by depositing the proceeds thereof made
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available to the Administrative Agent in the Applicable Currency and in
immediately available funds in the Borrowers' Alternative Currency Account for
the Applicable Currency.
(d) Each borrowing under the Revolving Credit Commitments
shall be in an amount equal to $750,000 (or, in the case of an Alternative
Currency, the Equivalent Dollar Amount of $750,000) or a whole multiple of
$250,000 (or, in the case of an Alternative Currency, the Equivalent Dollar
Amount of $250,000) in excess thereof (or the full amount of the then Available
Commitments, subject to the Alternative Currency Sublimit).
(e) Reliance on Notices; Appointment of Borrower
Representative. The Administrative Agent shall be entitled to rely upon, and
shall be fully protected in relying upon, any Borrowing Notice or similar notice
believed by the Administrative Agent to be genuine. The Administrative Agent may
assume that each Person executing and delivering such a notice was duly
authorized, unless the responsible individual acting thereon for Administrative
Agent has actual knowledge to the contrary. Each Borrower hereby designates the
Borrower Representative as its representative and agent on its behalf for the
purposes of issuing Borrowing Notices, giving instructions with respect to the
disbursement of the proceeds of the Loans, selecting interest rate options,
requesting Letters of Credit, giving and receiving all other notices and
consents hereunder or under any of the other Loan Documents and taking all other
actions (including in respect of compliance with covenants) on behalf of any
Borrower or Borrowers under the Loan Documents. The Borrower Representative
hereby accepts such appointment. The Administrative Agent and each Lender may
regard any notice or other communication pursuant to any Loan Document from the
Borrower Representative as a notice or communication from all Borrowers, and may
give any notice or communication required or permitted to be given to any
Borrower or Borrowers hereunder to the Borrower Representative on behalf of such
Borrower or Borrowers. Each Borrower agrees that each notice, election,
representation and warranty, covenant, agreement and undertaking made on its
behalf by the Borrower Representative shall be deemed for all purposes to have
been made by such Borrower and shall be binding upon and enforceable against
such Borrower to the same extent as if the same had been made directly by such
Borrower.
2.3 Fees.
(a) Commitment Fee. The Borrowers agree to pay to the
Administrative Agent for the pro rata account of each Lender a revolving credit
commitment fee (the "Commitment Fee") on the average daily amount of the
Available Commitment of such Lender for the period from and including the first
day of the Commitment Period to the Revolving Credit Termination Date set forth
in Table 2.3 below corresponding to the Leverage Ratio, measured quarterly for
the four consecutive fiscal quarters then ended, applicable to the Parent on a
consolidated basis, according to the most recent Compliance Certificate
delivered by the Borrowers to the Administrative Agent. The Commitment Fee shall
be a rate per annum, determined in accordance with the Pricing Grid, set forth
in Table 2.3 below. The Commitment Fee shall be payable quarterly in arrears on
the first Business Day of each April, July, October and January, commencing
January 1, 2001, and on the Revolving Credit Termination Date or such earlier
date as the Revolving Credit Commitments shall terminate as provided herein,
commencing on the first of such dates to occur after the date hereof. The
Commitment Fee shall be determined as set forth in "Level II" until the
Borrowers have delivered a Compliance
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Certificate for the fiscal year ending June 30, 2001, and have complied with the
requirements of Section 5.1(a) and (b) and Section 5.2(a) - (d) for such period.
TABLE 2.3
APPLICABLE APPLICABLE MARGIN
MARGIN FOR BASE FOR COMMITMENT
LEVEL LEVERAGE RATIO RATE LOANS LIBOR RATE LOANS FEE
I greater than or equal to 2.50x < 2.75x 0.25% 2.50% 0.500%
II greater than or equal to 2.00x < 2.50x 0% 2.25% 0.500%
III greater than or equal to 1.50x < 2.00x 0% 2.00% 0.375%
IV greater than or equal to 1.00x < 1.50x 0% 1.75% 0.375%
V <1.00x 0% 1.50% 0.250%
(b) Letter of Credit Fees. (i) The Borrowers agree to pay to
the Administrative Agent, pro rata for the account of each Lender the Letter of
Credit Fee, computed on the average undrawn amount of Letters of Credit, payable
in arrears (A) for the preceding fiscal quarter on the first day of each fiscal
quarter subsequent to the Closing Date, and (B) on the Revolving Credit
Termination Date. The Letter of Credit Fee shall be increased by two hundred
basis points (2%) upon the occurrence of an Event of Default.
(ii) Fronting Fee. The Borrowers agree to pay to the
Administrative Agent for the account of the Issuing Lender the Fronting Fee
simultaneously with the issuance of each Letter of Credit by the Issuing Lender.
(iii) Administrative Charge. The Borrowers agree to pay to
the Issuing Lender upon each issuance of, payment under, and/or amendment of,
any Letter of Credit such reasonable amount as shall at the time of issuance,
payment or amendment be the administrative charge which the Issuing Lender is
customarily charging for issuances of, payments under or amendments of, letters
of credit issued by it.
(c) Underwriting Fee. The Borrowers agree to pay on the
Closing Date to the Administrative Agent (for the account of the Co-Arrangers),
as compensation for its services hereunder an underwriting fee as set forth in
the Letter Agreement dated the Closing Date between the Borrowers and the
Administrative Agent.
(d Administrative Agent Fee. The Borrowers agree to pay, on
the Closing Date and thereafter to the Administrative Agent, as compensation for
its services hereunder, an agency fee as set forth in the Letter Agreement dated
the Closing Date between the Borrowers and the Administrative Agent.
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(e) Payment of Fees and Expenses. The Borrowers shall pay on
demand all reasonable expenses of the Administrative Agent and the Lenders in
connection with the preparation, administration, default, collection, waiver or
amendment of loan terms, or in connection with the Administrative Agent's and
the Lenders' exercise, preservation or enforcement of any of their rights,
remedies or options hereunder, including, without limitation, reasonable fees of
outside legal counsel or the allocated costs of in-house legal counsel,
accounting, consulting, brokerage or other similar professional fees or
expenses, and any fees or expenses associated with travel or other costs
relating to any appraisals or examinations conducted in connection with the
Loans or any Collateral therefor, and the amount of all such expenses shall,
until paid, bear interest at the rate applicable to principal hereunder
(including any default rate) and be an obligation secured by any Collateral.
2.4 Termination or Reduction of Revolving Credit Commitments.
(a) The Borrowers shall have the right, upon not less than
five Business Days notice to the Administrative Agent, to terminate the
Revolving Credit Commitments or, from time to time, to reduce the amount of the
Revolving Credit Commitments, provided however, that at any time, the aggregate
amount of the Revolving Credit Commitments shall not be reduced below the sum of
(i) the aggregate outstanding principal amount of (x) Revolving Credit Loans and
(y) Letter of Credit Obligations and (ii) $5,000,000. Any such reduction shall
be in an amount equal to $1,000,000 or a whole multiple of $250,000 in excess
thereof and shall reduce permanently the Revolving Credit Commitments then in
effect. No such reduction shall result in the payment of any LIBOR Rate Loan
other than on the last day of the Interest Period of such Loan (except if the
Borrowers make the payments required under Section 2.17).
(b) Any reduction of the Revolving Credit Commitments provided
for in this Section 2.4 shall be accompanied by prepayment of Revolving Credit
Loans to the extent, if any, that the sum of the aggregate outstanding principal
amount of Revolving Credit Loans and Letter of Credit Obligations exceeds the
amount of the aggregate Revolving Credit Commitments as so reduced, pro rata
among the Lenders.
(c) No reduction or termination of the Revolving Loan
Commitments may be reinstated.
2.5 Repayment of Loans; Evidence of Debt.
(a) (i) Each of the Borrowers hereby unconditionally
jointly and severally agrees to pay to the Administrative Agent for the account
of each Lender the then unpaid principal amount of each Revolving Credit Loan of
such Lender on the Revolving Credit Termination Date. Each of the Borrowers
hereby further agrees to pay interest on the unpaid principal amount of the
Loans from time to time outstanding from the date hereof until payment in full
thereof at the rates per annum, and on the dates, set forth in Section 2.10
Each such payment and all other payments shall be made in immediately available
Dollars, to the Administrative Agent at the Principal Office, without
counterclaim or setoff and free and clear of, and without any deduction or
withholding for, any taxes or other payments. Each such payment and all other
payments shall be made on or before 1:00 p.m., New York City time, on the
designated date thereof.
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(ii) All payments shall be applied first to the payment of
all fees, expenses and other amounts due to the Administrative Agent and each
Lender (excluding principal and interest), then to accrued interest, and the
balance on account of outstanding principal; provided, however, that after the
occurrence and during the continuance of an Event of Default, payments will be
applied to the obligations of each Borrower to each Lender as each Lender
determines in its sole discretion.
(iii) If the entire amount of any required principal
and/or interest is not paid in full within ten (10) days after the same is due,
Borrowers shall pay to the Administrative Agent, for the account of the Lenders
on a pro rata basis, a late fee equal to five percent (5%) of the required
payment. Notwithstanding the foregoing, the payment of a late fee shall not
preclude the Lenders from exercising their rights as a result of the Event of
Default caused by such late payment, or charging interest at the default rate of
interest pursuant to Section 2.10(c) hereof.
(b) Each payment of principal (including any prepayment) of
any Loan shall be made in an amount of $750,000 (or in the case of Loan
denominated in an Alternative Currency, the Equivalent Alternative Currency
Amount of $750,000) or such greater amount which is an integral multiple of
$250,000 (or in the case of Loan denominated in an Alternative Currency, the
Equivalent Alternative Currency Amount of $250,000) in excess thereof or in an
amount equal to the entire outstanding principal balance of such Loan to the
Administrative Agent, for the account of each Lender's applicable Lending
Office, in Dollars and in immediately available funds before 3:00 p.m., New York
City time, on the date such payment is due. Each payment of principal on any
Loan (including any prepayment) shall be made in Dollars to the Administrative
Agent at the Administrative Agent's Dollar Account (or, with respect to Loans
denominated in Alternative Currencies, in the Applicable Currency at the
Administrative Agent's Alternative Current Account for the Applicable Currency).
Payments received by the Administrative Agent after such time shall be deemed
received on the next succeeding Business Day. The Administrative Agent may, but
shall not be obligated to, debit the amount of any such payment which is not
made by such time to any ordinary deposit account of the Borrowers with the
Administrative Agent. Any Borrower shall endeavor to give the Administrative
Agent prior telephonic notice of any payment of principal, such notice to be
given by not later than 11:00 a.m., New York City time, on the date of such
payment.
(c) The Administrative Agent shall deem any payment by or on
behalf of the Borrowers hereunder that is not made both (i) in Dollars (or, in
the case of Loan denominated in an Alternative Currency, in the Applicable
Currency) and in immediately available funds and (ii) prior to 3:00 p.m., New
York City time (other than if such payment is made by a debit by the
Administrative Agent to an account of any Borrower therewith), to be a
non-conforming payment. Any such payment shall not be deemed to be received by
the Administrative Agent until the time such funds become available funds,
provided that in the case of a nonconforming payment described in clause (ii)
above such payment shall be deemed received on the next succeeding Business Day.
The Administrative Agent shall give prompt telephonic notice to the Borrowers
and each of the Lenders (confirmed in writing) if any payment is nonconforming.
(d) In the event that any payment hereunder or under the Notes
becomes due and payable on a day other than a Business Day, then, subject to the
restrictions set forth in
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clause (ii) of the definition of "Interest Period," such due date shall be
extended to the next succeeding Business Day; provided that interest shall
continue to accrue during the period of any such extension.
(e) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of each of the Borrowers
to such Lender resulting from each Loan of such Lender from time to time,
including the amounts of principal and interest payable and paid to such Lender
from time to time under this Agreement.
(f) The Administrative Agent shall maintain the Register
pursuant to Section 9.6(d), and a subaccount therein for each Lender, in which
Register and/or subaccounts shall be recorded (i) the amount of each Revolving
Credit Loan made hereunder, the Type thereof and each Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from each Borrower to each Lender hereunder and (iii)
both the amount of any sum received by the Administrative Agent hereunder from
any Borrower and each Lender's share thereof.
(g) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection (b) above shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Borrowers therein recorded, absent manifest
error, provided, however, that the failure of any Lender or the Administrative
Agent to maintain the Register or any such account, or any error therein, shall
not in any manner affect the obligation of the Borrowers to repay (with
applicable interest) the Loans made to the Borrowers by such Lender in
accordance with the terms of this Agreement.
(h) The Borrowers acknowledge that (i) the Borrowers have
executed and delivered to each Lender a promissory note of the Borrowers
evidencing the Revolving Credit Loans of such Lender, substantially in the form
of Exhibit A with appropriate insertions as to date and principal amount (as
amended, supplemented or otherwise modified from time to time, a "Revolving
Credit Note").
2.6 Optional Prepayments.
Any Borrower may, on the last day of any Interest Period,
prepay its respective Loans, in whole or in part, without premium or penalty,
upon at least three Business Days' irrevocable notice to the Administrative
Agent specifying the date and amount of prepayment and whether the prepayment is
of Base Rate Loans or LIBOR Rate Loans, or a combination thereof, and the amount
allocable to each. Prepayment of LIBOR Rate Loans is subject to payment of
breakage costs, if any. Upon receipt of any such notice, the Administrative
Agent shall promptly notify each Lender thereof. If any such notice is given,
the amount specified in such notice shall be due and payable on the date
specified therein, together with any amounts payable pursuant to Section 2.17.
Repayments of Revolving Credit Loans under this Section 2.6 shall be in an
aggregate principal amount of $250,000 or a whole multiple thereof.
2.7 Mandatory Prepayments.
(a) If, subsequent to the Closing Date, the Parent, any of the
Borrowers or any of the Credit Parties shall receive Net Proceeds from any
issuance of Indebtedness, 100% of such
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Net Proceeds shall be simultaneously paid to the Administrative Agent for the
pro rata accounts of the Lenders.
(b) If, subsequent to the Closing Date, the Parent, any of the
Borrowers or any of the Credit Parties shall receive Net Proceeds from any Asset
Sale (other than in the ordinary course of business), 100% of such Net Proceeds
shall be simultaneously paid to the Administrative Agent for the pro rata
accounts of the Lenders.
(c) The Borrowers shall give the Administrative Agent (which
shall promptly notify each Lender) at least one Business Day's notice of each
mandatory prepayment pursuant to this Section 2.7 setting forth the date and
amount thereof. With respect to each prepayment of Loans required by this
Section 2.7, the Borrowers may designate the Types of Loans which are to be
prepaid and the specific borrowing(s) pursuant to which made; provided that: (i)
the Borrowers shall first so designate all Base Rate Loans and LIBOR Rate Loans,
if any, with Interest Periods ending on the date of repayment prior to
designating any other LIBOR Rate Loans; (ii) if any prepayment of LIBOR Rate
Loans made pursuant to a single borrowing shall reduce the outstanding Loans
made pursuant to such borrowing to an amount less than the minimum borrowing
amount set forth in Section 2.2(d), such borrowing shall be immediately
converted into Base Rate Loans; and (iii) each prepayment of any Loans made
pursuant to a borrowing shall be applied pro rata among such Loans. In the
absence of a designation by the Borrowers as described in the preceding
sentence, the Administrative Agent shall, subject to the above, make such
designations in its sole discretion with a view, but no obligation, to minimize
breakage costs owing under Section 2.17. Notwithstanding the foregoing
provisions of this Section 2.7, if at any time the mandatory prepayment of Loans
pursuant to this Section 2.7 would result, after giving effect to the second
sentence of this subsection (c), in the Borrowers incurring breakage costs under
Section 2.17 as a result of LIBOR Rate Loans being repaid other than on the last
day of an Interest Period applicable thereto (the "Affected LIBOR Rate Loans"),
then the Borrowers may, if they so elect by notice to the Administrative Agent,
deposit a portion (up to 100%) of the amounts that otherwise would have been
paid in respect of the Affected LIBOR Rate Loans with the Administrative Agent
to be held pursuant to an escrow agreement to be entered into in form and
substance satisfactory to the Administrative Agent, with such escrowed amounts
to be released from such escrow (and applied to repay the principal amount of
such Loans) upon each occurrence thereafter of the last day of an Interest
Period applicable to the relevant LIBOR Rate Loans (or such earlier date or
dates as shall be requested by the Borrowers), with the amount to be so released
and applied on the last day of each Interest Period to be the amount of the
Loans to which such Interest Period applies (or, if less, the amount remaining
in such escrow account).
(d) If on any date the aggregate principal amount of Revolving
Credit Loans (after giving effect to all other repayments thereof on such date)
exceeds the aggregate Available Commitments as then in effect (including,
without limitation, as a result of the determination of Dollar Equivalents
pursuant to Section 2.11(c) hereof), the Borrowers agree to repay on such date
the principal of the Revolving Credit Loans in an amount equal to such excess.
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2.8 Conversion and Continuation Options.
(a) Any Borrower may elect from time to time to convert LIBOR
Rate Loans to Base Rate Loans by giving the Administrative Agent at least two
Business Days' prior irrevocable notice of such election, provided that any such
conversion of LIBOR Rate Loans may only be made on the last day of an Interest
Period with respect thereto. Borrowers may elect to convert Base Rate Loans to
LIBOR Rate Loans by giving the Administrative Agent at least three Business
Days' prior irrevocable notice of such election. Any such notice of conversion
to LIBOR Rate Loans shall specify the length of the Interest Periods therefor.
Upon receipt of any such notice the Administrative Agent shall promptly notify
each Lender thereof. All or any part of outstanding LIBOR Rate Loans and Base
Rate Loans may be converted as provided herein, provided that no Loan may be
converted into a LIBOR Rate Loan when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Lenders have determined that
such a conversion is not appropriate.
(b) Any LIBOR Rate Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by any
Borrower giving notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in Section 2.2,
which shall specify the length of the next Interest Period to be applicable to
such Loans, provided that no LIBOR Rate Loan may be continued as such (i) when
any Event of Default has occurred and is continuing and the Administrative Agent
has or the Required Lenders have determined that such a continuation is not
appropriate or (ii) after the date that is one month prior to the Revolving
Credit Termination Date, and provided, further, that if any Borrower shall fail
to give such notice or if such continuation is not permitted, such Loans shall
be automatically converted to (i) if such LIBOR Rate Loan is denominated in
Dollars, a Base Rate Loan on the last day of the Interest Period for such LIBOR
Rate Loan, or (ii) if such LIBOR Rate Loan is denominated in an Alternative
Currency, a subsequent Interest Period of one month for such LIBOR Rate Loan.
All such continuations and conversions of Loans shall be effected pro rata based
on the applicable Commitment Percentage of the Lenders.
2.9 Maximum Number of Loans.
In no event shall there be more than five (5) LIBOR Rate Loans
or five (5) Base Rate Loans outstanding at any time.
2.10 Interest Rates and Payment Dates.
(a) Each LIBOR Rate Loan shall bear interest for each day
during each Interest Period with respect thereto at a rate per annum equal to
the LIBOR Rate determined for such day plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per
annum equal to the Alternative Base Rate.
(c) If all or a portion of (i) any principal of any Loan, (ii)
any interest payable thereon, (iii) any commitment fee or (iv) any other amount
payable hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), the principal of the Loans and any such overdue
interest, commitment fee or other amount shall bear interest at a rate
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per annum which is (x) in the case of principal, the rate that would otherwise
be applicable thereto pursuant to the foregoing provisions of this Section 2.10
above plus four percent (4%) or (y) in the case of any such overdue interest,
commitment fee or other amount, the rate described in this Section 2.10 plus
four percent (4%) in each case from the date of such non-payment until such
overdue principal, interest, commitment fee or other amount is paid in full (as
well after as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to subsection (c) above
shall be payable from time to time on demand.
(e) Interest on any Loan shall be paid in Dollars to the
Administrative Agent at the Administrative Agent's Dollar Account or, with
respect to Loans denominated in Alternative Currencies, in the Applicable
Currency at the Administrative Agent's Alternative Currency Account for the
Applicable Currency.
(f) All agreements between each Borrower and each Lender
are hereby expressly limited so that in no contingency or event whatsoever shall
the amount paid or agreed to be paid to each Lender for the use or the
forbearance of the indebtedness evidenced hereby exceed the maximum permissible
under applicable law. As used herein, the term "applicable law" shall mean the
law in effect as of the date hereof; provided, however, that in the event there
is a change in the law which results in a higher permissible rate of interest,
then this Credit Agreement shall be governed by such new law as of its effective
date. In this regard, it is expressly agreed that it is the intent of each
Borrower and each Lender in the execution and delivery and acceptance of this
Credit Agreement to contract in strict compliance with the laws of the State of
New York from time to time in effect. If, under or from any circumstances
whatsoever, fulfillment of any provision hereof or of any of the Credit
Agreement documents at the time of performance of such provision shall be due,
shall involve transcending the limit of such validity prescribed by applicable
law, then the obligation to be fulfilled shall automatically be reduced to the
limits of such validity, and if under or from circumstances whatsoever any
Lender should ever receive as interest an amount which would exceed the highest
lawful rate, such amount which would be excessive interest shall be applied to
the reduction of the principal balance evidenced hereby and not to the payment
of interest. This provision shall control every other provision of all
agreements between each Borrower and each Lender.
2.11 Computation of Interest and Fees.
(a) All computations of interest shall be made on the
basis of a three hundred sixty (360) day year and the actual number of days
elapsed. The Administrative Agent shall as soon as practicable notify each
Borrower and the Lenders of each determination of the LIBOR Rate. Any change in
the interest rate on a Loan resulting from a change in the Alternate Base Rate
or the LIBOR Rate shall become effective as of the opening of business on the
day on which such change becomes effective. The Administrative Agent shall as
soon as practicable notify the Borrowers and the Lenders of the effective date
and the amount of each such change in interest rate.
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(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrowers and the Lenders in the absence of
manifest error, provided that such determination is made in good faith. The
Administrative Agent shall, upon request, notify the Borrowers of the LIBOR Rate
used by the Administrative Agent in determining any interest rate pursuant to
Section 2.10(a).
(c) For purposes of this Agreement, the Dollar Equivalent
of each Revolving Credit Loan that is based on an Alternative Currency shall be
calculated on the date when any such Loan is made, provided that interest
payable with respect to any Loans denominated in Pounds Sterling shall be
computed on the basis of a 365 or 366-day year, as the case may be, on the first
Business Day of each month and at such other times as designated by the
Administrative Agent at any time when a Default or an Event of Default exists.
Such Dollar Equivalent shall remain in effect until the same is recalculated by
the Administrative Agent as provided above and notice of such recalculation is
received by the Borrowers, it being understood that until notice is received,
the Dollar Equivalent shall be that Dollar Equivalent as last reported to the
Borrowers by the Administrative Agent. The Administrative Agent shall promptly
notify the Borrowers and the Lenders of each such determination of the Dollar
Equivalent.
2.12 Increased Costs, Illegality, etc.
(a) In the event that (x) in the case of clause (i) or
(iv) below, the Administrative Agent or (y) in the case of clauses (ii) and
(iii) below, any Lender shall have determined (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto,
provided that such determination has been made in good faith):
(i) on any date for determining any LIBOR Rate for
any Interest Period, that, by reason of any changes arising after the Closing
Date affecting the interbank Eurodollar market, adequate and fair means do not
exist for ascertaining the applicable interest rate on the basis provided for in
the definition of the respective LIBOR Rate; or
(ii) at any time, that such Lender shall incur
increased costs or reductions in the amounts received or receivable hereunder
with respect to any LIBOR Rate Loans (other than any increased cost or reduction
in the amount received or receivable resulting from the imposition of or a
change in the rate of taxes or similar charges) because of (x) any change since
the Closing Date in any applicable law, governmental rule, regulation,
guideline, order or request (whether or not having the force of law), or in the
interpretation or administration thereof and including the introduction of any
new law or governmental rule, regulation, guideline, order or request (such as,
for example, but not limited to, a change in official reserve requirements, but,
in all events, excluding reserves required under Regulation D to the extent
included in the computation of the respective LIBOR Rate) and/or (y) other
circumstances materially affecting the interbank Eurodollar market generally;
(iii) at any time, that the making or continuance of
any LIBOR Rate Loan has become unlawful due to the compliance by such Lender in
good faith with any change since the Closing Date in any law, governmental rule,
regulation, guideline or order, or the interpretation or application thereof, or
would conflict with any thereof not having the force of
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36
law but with which such Lender customarily complies, or has become impracticable
as a result of a contingency occurring after the Closing Date which materially
adversely affects the interbank Eurodollar market; or
(iv) at any time that any Alternative Currency is not
available in sufficient amounts, as determined in good faith by the
Administrative Agent, to fund any borrowing of Loans denominated in such
Alternative Currency;
then, and in any such event, such Lender (or the Administrative Agent in the
case of clause (i) or (iv) above) shall (x) on such date and (y) within 10
Business Days of the date on which such event no longer exists give notice (by
telephone confirmed in writing) to the Borrowers and, except in the case of
clauses (i) and (iv) above, to the Administrative Agent of such determination
(which notice the Administrative Agent shall promptly transmit to each of the
other Lenders). Thereafter (w) in the case of clause (i) above, LIBOR Rate
Loans, priced in respect of the affected LIBOR Rate, shall no longer be
available until such time as the Administrative Agent notifies the Borrowers and
the Lenders that the circumstances giving rise to such notice by the
Administrative Agent no longer exist, and any Borrowing Notice given by the
Borrowers with respect to LIBOR Rate Loans which have not yet been incurred
shall be deemed rescinded by the Borrowers or, in the case of a Borrowing
Notice, shall, at the option of the Borrowers, be deemed converted into a
Borrowing Notice for Base Rate Loans to be made on the date of borrowing
contained in such Borrowing Notice, (x) in the case of clause (ii) above, the
Borrowers shall pay to such Lender, within 10 days of its receipt of written
demand therefor, such additional amounts (in the form of an increased rate of,
or a different method of calculating, interest or otherwise as such Lender shall
determine) as shall be required to compensate such Lender for such increased
costs or reductions in amounts receivable hereunder (a written notice as to the
additional amounts owed to such Lender, showing the basis for the calculation
thereof, which basis shall be reasonable and consistently applied, submitted to
the Borrowers by such Lender shall, absent manifest error and provided that such
calculation has been made in good faith, be final and conclusive and binding
upon all parties hereto), (y) in the case of clause (iii) above, the Borrowers
shall take one of the actions specified in subsection (b) below as promptly as
possible and, in any event, within the time period required by applicable law,
and (z) in the case of clause (iv) above, Loans in the affected Alternative
Currency shall no longer be available until such time as the Administrative
Agent notifies the Borrowers and the Lenders that the circumstances giving rise
to such notice by the Administrative Agent no longer exist in accordance with
clause (y) of the preceding sentence, and any Borrowing Notice given by
Borrowers with respect to such Alternative Currency Loans which have not yet
been incurred shall be deemed rescinded by the Borrowers.
(b) At any time that any LIBOR Rate Loan is affected by the
circumstances described in subsection (a)(ii) or (iii) above, the Borrowers may
(and in the case of a LIBOR Rate Loan affected pursuant to subsection (a)(iii)
above, the Borrowers shall) either (i) if the affected LIBOR Rate Loan is then
being made pursuant to a borrowing, by giving the Administrative Agent
telephonic notice (confirmed promptly in writing) thereof on the same date that
the Borrowers were notified in writing by a Lender pursuant to subsection
(a)(ii) or (iii) above, cancel said borrowing, convert the related Borrowing
Notice into one requesting a borrowing of Base Rate Loans or require the
affected Lender to make its requested Loan as a Base Rate Loan, or (ii) if the
affected LIBOR Rate Loan is then outstanding, upon at least three
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Business Days' notice to the Administrative Agent, (A) in the case of a LIBOR
Rate Loan denominated in Dollars, require the affected Lender to convert each
such LIBOR Rate Loan into a Base Rate Loan, and (B) in the case of a LIBOR Rate
Loan denominated in an Alternative Currency, repay all such LIBOR Rate Loans in
full, provided that if more than one Lender is affected at any time, then all
affected Lenders must be treated in the same manner pursuant to this subsection
(b).
(c) If any Lender shall have determined that after the Closing
Date the adoption or effectiveness of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged by law with the interpretation or
administration thereof, or compliance by such Lender or its parent corporation
with any request or directive regarding capital adequacy (whether or not having
the force of law) of any such Governmental Authority, central bank or comparable
agency, in each case made subsequent to the Closing Date, has or would have the
effect of reducing the rate of return on such Lender's or its parent
corporation's capital or assets as a consequence of such Lender's commitments or
obligations hereunder to a level below that which such Lender or its parent
corporation could have achieved but for such adoption, effectiveness, change or
compliance (taking into consideration such Lender's or its parent corporation's
policies with respect to capital adequacy), then from time to time, the
Borrowers shall within 10 days of their receipt of written demand by such Lender
(with a copy to the Administrative Agent), pay to such Lender such additional
amount or amounts as will compensate such Lender or its parent corporation for
such reduction. Each Lender, upon determining in good faith that any additional
amounts will be payable pursuant to this subsection (c), will give prompt
written notice thereof to the Borrowers, which notice shall set forth in
reasonable detail the basis of the calculation of such additional amounts, which
basis must be reasonable and consistently applied, although the failure to give
any such notice shall not release or diminish any of the Borrowers' obligations
to pay additional amounts pursuant to this subsection (c) upon the subsequent
receipt of such notice.
2.13 Compensation.
The Borrowers shall compensate each Lender, within three
Business Days after such Lender's written request (which request shall set forth
the basis for requesting such compensation), for all reasonable losses, expenses
and liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other funds
required by such Lender to fund its LIBOR Rate Loans but excluding any loss of
anticipated profit with respect to such Loans) which such Lender may sustain:
(i) if for any reason (other than a default by such Lender or the Administrative
Agent) a borrowing of LIBOR Rate Loans does not occur on a date specified
therefor in a Borrowing Notice (whether or not withdrawn by the Borrowers or
deemed withdrawn pursuant to Section 2.12(a) above); (ii) if any repayment,
prepayment or conversion of any of its LIBOR Rate Loans occurs on a date which
is not the last day of an Interest Period applicable thereto; (iii) if any
prepayment of any of its LIBOR Rate Loans is not made on any date specified in a
notice of prepayment given by the Borrowers; or (iv) as a consequence of (x) any
other failure by the Borrowers to repay such Loans when required by the terms of
this Agreement or (y) an election made pursuant to Section 2.12(b). Calculation
of all amounts payable to a Lender under this Section 2.13 shall be made as
though that Lender had actually funded its relevant LIBOR Rate Loan through the
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purchase of a Eurodollar deposit bearing interest at the relevant LIBOR Rate in
an amount equal to the amount of that Loan, having a maturity comparable to the
relevant Interest Period and through the transfer of such Eurodollar deposit
from an offshore office of that Lender or other bank to a domestic office of
that Lender in the United States of America; provided, however that each Lender
may fund each of its LIBOR Rate Loans in any manner it sees fit and the
foregoing assumption shall be utilized only for the calculation of amounts
payable under this Section 2.13.
2.14 Pro Rata Treatment and Payments.
(a) Each borrowing by the Borrowers from the Lenders
hereunder, each payment by the Borrowers on account of the Commitment Fee
hereunder and any reduction of the Commitments of the Lenders shall be made pro
rata according to the respective Commitment Percentages of the Lenders. Each
optional prepayment by the Borrowers of the Revolving Credit Loans shall be made
pro rata according to the respective outstanding principal amounts of the
Revolving Credit Loans then held by the respective Lenders. Each payment (other
than optional prepayments) by or on behalf of the Borrowers (including any
application of proceeds of collateral) on account of the principal of or
interest on the Loans shall be made pro rata according to the respective amounts
of such principal or interest then due and owing. All payments (including
prepayments) to be made by the Borrowers hereunder, whether on account of
principal, interest, fees or otherwise, shall be made without set off or
counterclaim and shall be made prior to 3:00 p.m., New York City time, on the
due date thereof to the Administrative Agent, for the account of the Lenders, at
the Administrative Agent's office specified in Section 9.2, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. If any
payment hereunder becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day, unless the
result of such extension would be to cause such payment to be made in the
succeeding calendar month, in which event such payment shall be due and payable
on the immediately preceding Business Day, and, with respect to payments of
principal and interest thereon shall be payable at the then applicable rate
during such extension.
(b) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender (a "Defaulting
Lender") will not make the amount that would constitute its Commitment
Percentage of such borrowing available to the Administrative Agent, the
Administrative Agent may assume that such Lender is making such amount available
to the Administrative Agent, and the Administrative Agent may, in reliance upon
such assumption, make available to the Borrowers a corresponding amount. If such
amount is not made available to the Administrative Agent by the required time on
the Borrowing Date therefor, such Lender shall pay to the Administrative Agent,
on demand, such amount with interest thereon at a rate equal to the daily
average Federal Funds Effective Rate for the period until such Lender makes such
amount immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this Section shall be conclusive in the absence of manifest error.
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2.15 Requirements of Law.
(a) If the adoption of or any change in any Requirement of Law
or in the interpretation or application thereof or compliance by the Lenders
with any request or directive (whether or not having the force of law) from any
central bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject Lenders to any tax of any kind
whatsoever with respect to this Agreement, any Note or any LIBOR Rate Loan made
by them or the issuance of a Letter of Credit by the Issuing Lender, or change
the basis of taxation of payments to such Lenders in respect thereof (except for
Non-Excluded Taxes covered by Section 2.16 and changes in the rate of tax on the
overall net income of such Lenders);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by, any
office of such Lenders which is not otherwise included in the determination of
the LIBOR Rate hereunder; or
(iii) shall impose on such Lenders any other
condition;
and the result of any of the foregoing is to increase the cost to such Lenders,
by an amount which such Lenders and the Administrative Agent deems to be
material, of making, converting into, continuing or maintaining LIBOR Rate Loans
or of issuing and maintaining Letters of Credit or to reduce any amount
receivable hereunder in respect thereof, then, in any such case, the Borrowers
shall promptly pay such Lenders such additional amount or amounts as will
compensate such Lenders for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, the Borrowers shall promptly pay to such
Lender and the Administrative Agent such additional amount or amounts as will
compensate such Lender for such reduction.
(c) If any Lender becomes entitled to claim any additional
amounts pursuant to this Section, it shall promptly notify the relevant
Borrowers (with a copy to the Administrative Agent) of the event by reason of
which it has become so entitled. A certificate as to any additional amounts
payable pursuant to this Section submitted by such Lender to the Borrowers (with
a copy to the Administrative Agent) shall be conclusive in the absence of
manifest error provided that the determination as to such additional amounts has
been made in good faith. The
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agreements in this Section shall survive the termination of this Agreement and
the payment of the Loans and all other amounts payable hereunder.
2.16 Taxes.
(a) All payments made by the Borrowers under this Agreement
and any Notes shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Administrative Agent or any Lender
as a result of a present or former connection between the Administrative Agent
or such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent or such
Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or any Note). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder or under any Note,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Borrowers shall not be required to
increase any such amounts payable to any Lender that is not organized under the
laws of the United States of America or a state thereof if such Lender fails to
comply with the requirements of subsection (b) below. Whenever any Non-Excluded
Taxes are payable by the Borrowers, as promptly as possible thereafter the
Borrowers shall send to the Administrative 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. If the
Borrowers fail to pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fail to remit to the Administrative Agent the required receipts or
other required documentary evidence, such Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure. The agreements in this Section 2.16 shall survive
the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
(b) Each Lender that is not incorporated or organized under
the laws of the United States of America, any state thereof or the District of
Columbia shall:
(i) deliver to the Borrowers and the Administrative
Agent on or before the date on which it becomes a Lender either (A) two properly
completed and duly executed copies of United States Internal Revenue Service
Form 1001 or 4224 (or successor applicable form, as the case may be) claiming
complete exemption from United States withholding tax with respect to payments
by the Borrowers under this Agreement or (B) in the case of a Lender claiming
exemption from United States withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of "portfolio interest" by the Borrowers under
this Agreement, a properly completed and duly executed United States Internal
Revenue Service Form W-8 (or
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successor applicable form, as the case may be) and an annual certificate
representing that such Lender is not a bank for purposes of Section 881(c) of
the Code, is not subject to regulatory or other legal requirements as a bank in
any jurisdiction, and has not been treated as a bank for purposes of any tax,
securities law or other filing or submission made to any Governmental Authority,
any application made to a rating agency or qualification for any exemption from
tax, securities law or other legal requirements, is not a 10% shareholder of any
Borrower within the meaning of Section 881(c)(3)(B) of the Code and is not a
controlled foreign corporation receiving interest from a related person within
the meaning of Section 881(c)(3)(C) of the Code;
(ii) deliver to the Borrowers and the Administrative
Agent two further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form previously
delivered; and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be requested by the
Borrowers or the Administrative Agent;
provided, however, that such Lender shall not be required to perform the
obligations under this subsection (b) if an event (including, without
limitation, any change in treaty, law or regulation) 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 form with respect to it and such Lender so advises the
Borrowers and the Administrative Agent.
2.17 Indemnity.
The Borrowers agree, jointly and severally, to indemnify each
Lender and to hold each Lender harmless from any loss or expense which such
Lender may sustain or incur as a consequence of (a) default by any Borrower in
making a borrowing of, conversion into or continuation of LIBOR Rate Loans after
such Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrowers in making any
prepayment after the Borrowers have given a notice thereof in accordance with
the provisions of this Agreement or (c) the making of a prepayment or payment of
LIBOR Rate Loans on a day which is not the last day of an Interest Period with
respect thereto. Such indemnification may include an amount equal to the excess,
if any, of (i) the amount of interest which would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or continue to the
last day of such Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the date
of such failure) in each case at the applicable rate of interest for such Loans
provided for herein (excluding, however, the Applicable Margin included therein,
if any) over (ii) the amount of interest (as reasonably determined by such
Lender) which would have accrued to such Lender on such amount by placing such
amount on deposit for a comparable period with leading banks in the interbank
eurodollar market. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
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2.18 Letters of Credit.
(a) The Issuing Lender will, from time to time until the
Revolving Credit Termination Date, upon receipt of duly executed Applications
and such other documents, instruments and/or agreements as the Issuing Lender
may require, issue or amend Letters of Credit on such terms as are satisfactory
to the Issuing Lender, provided, however that the Issuing Lender shall not issue
any Letter of Credit (A) at any time if, after giving effect to such Letter of
Credit, the Letter of Credit Obligations would exceed the lesser of (i)
$5,000,000 or (ii) the aggregate amount of Revolving Credit Commitments minus
the sum of (w) the Letter of Credit Obligations and (x) the outstanding
principal balance of the Revolving Credit Loans, (B) with an expiry date (i)
more than one year from its issuance or (ii) subsequent to a date 30 days prior
to the Revolving Credit Termination Date, and (C) in any currency other than
Dollars.
(b) The Borrowers jointly and severally agree to reimburse the
Administrative Agent for the account of the Issuing Lender, on demand, for each
such payment made by the Issuing Lender under or pursuant to any Letter of
Credit or L/C Draft. The Borrowers also jointly and severally agree to pay to
the Administrative Agent for the account of the Issuing Lender, on demand,
interest at the rate set forth in Section 2.10 applicable to Base Rate Loans on
any amount paid by the Issuing Lender under or pursuant to any Letter of Credit
or L/C Draft from the date of payment until the date of reimbursement to the
Issuing Lender.
(c) The Borrowers' obligations to reimburse the Administrative
Agent for the account of the Issuing Lender for payments and disbursements made
by the Issuing Lender under any Letter of Credit shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Borrowers may have or have had
against the Issuing Lender (or any other Lender), including, without limitation,
the legality, validity, regularity or enforceability of such Letter of Credit,
or the identity of the transferee of such Letter of Credit or the sufficiency of
any transfer of such Letter of Credit if transferable; provided, however, that
the Borrowers shall not be obligated to reimburse the Administrative Agent for
the account of the Issuing Lender for any wrongful payment or disbursement made
under any Letter of Credit as a result of acts or omissions constituting gross
negligence or willful misconduct on the part of the Issuing Lender or any of its
officers, employees or agents.
(d) Notwithstanding anything to the contrary herein or in any
Application, upon the occurrence of an Event of Default, an amount equal to the
aggregate amount of the outstanding Letter of Credit Obligations shall, without
demand upon or further notice to the Borrowers, be deemed (as between the
Issuing Lender and the Borrowers) to have been paid or disbursed by the Issuing
Lender under the Letters of Credit issued and L/C Drafts accepted by the Issuing
Lender (notwithstanding that such amounts may not in fact have been so paid or
disbursed), and a Revolving Credit Loan, which shall be a Base Rate Loan, to the
Borrowers in the amount of such Letter of Credit Obligations to have been made
and accepted by the Borrowers, which Loan shall be immediately due and payable.
(e) With respect to each Letter of Credit, each Lender (other
than the Issuing Lender) hereby irrevocably and unconditionally agrees that it
shall be deemed to have purchased and received from the Issuing Lender, without
recourse or warranty an undivided interest in such
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Letter of Credit, effective simultaneously with the issuance thereof, in an
amount equal to such Lender's Commitment Percentage of such Letter of Credit.
For the purposes of this Agreement, the proportionate interest which the Issuing
Lender retains in each Letter of Credit shall be referred to as its
"participation" in such Letter of Credit.
(f) If the Issuing Lender shall fail to be reimbursed pursuant
to subsections (b) or (d) above by the Borrowers for any payment or disbursement
under a Letter of Credit or L/C Draft, each other Lender shall, promptly upon
request of the Issuing Lender, make a Revolving Credit Loan, which shall be a
Base Rate Loan in an amount equal to such Lender's Commitment Percentage of such
payment or disbursement. If the Administrative Agent or the Issuing Lender
subsequently receives from the Borrowers any reimbursement of such payment or
disbursement, the Administrative Agent or the Issuing Lender, as the case may
be, shall promptly remit to each Lender its Commitment Percentage of such
reimbursement. All interest payments received by the Issuing Lender or the
Administrative Agent on account of reimbursements under this Agreement shall be
promptly distributed by the Issuing Lender or the Administrative Agent, as the
case may be, to the other Lenders pro rata according to their respective
Commitment Percentages (except to the extent that the Issuing Lender was not
promptly reimbursed by any such Lender).
(g) The obligation of each Lender to provide the
Administrative Agent with such Lender's pro rata share of the amount of any
payment or disbursement made by the Issuing Lender under any outstanding Letter
of Credit or L/C Draft shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
which such Lender may have or have had against the Issuing Lender (or any other
Lender), including, without limitation, any defense based on the failure of the
demand for payment under such Letter of Credit to conform to the terms of such
Letter of Credit, the legality, validity, regularity or enforceability of such
Letter of Credit, or the identity of the transferee of such Letter of Credit or
the sufficiency of any transfer if such Letter of Credit is transferable;
provided, however, that the Lenders shall not be obligated to reimburse the
Issuing Lender for any wrongful payment or disbursement made under any Letter of
Credit as a result of acts or omissions constituting gross negligence or willful
misconduct on the part of the Issuing Lender or any of its officers, employees
or agents.
(h) In determining whether to make any payment under or
pursuant to any Letter of Credit or any related L/C Draft, the Issuing Lender
shall have no obligation to the Borrowers, any Lender or any other Person other
than to confirm that any documents required to be delivered have been delivered
and that such documents comply on their face with the requirements of such
Letter of Credit. No action taken or omitted by the Issuing Lender under or in
connection with any Letter of Credit or L/C Draft, if taken or omitted in the
absence of gross negligence or willful misconduct, shall put the Issuing Lender
under any resulting liability to the Borrowers or any Lender.
(i) (i) If any Letter of Credit Obligations, whether or not
then due and payable, shall for any reason be outstanding upon the occurrence
and continuance of an Event of Default, the Borrowers shall either (A) pay to
the Administrative Agent for the benefit of the Lenders cash or Cash Equivalents
acceptable to the Administrative Agent in an amount equal to 105% of the maximum
amount then available to be drawn under such applicable Letter of Credit
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outstanding for the benefit of the Borrowers (the "Cash Collateral Amounts"),
(B) cause all such Letters of Credit to be canceled and returned, or (C) deliver
a standby letter (or letters) of credit in guaranty of such Letter of Credit
Obligation, which standby letter (or letters) of credit shall be of like tenor
and duration as, and in an amount equal to, 105% of the aggregate maximum amount
then available to be drawn under the Letters of Credit to which such outstanding
Letter of Credit Obligations relate and shall be issued by a Person, and shall
be subject to such terms and conditions, as are satisfactory to the
Administrative Agent in its sole discretion.
(ii) From time to time after the Cash Collateral
Amounts are deposited in the Cash Collateral Account by any Borrower, the
Administrative Agent may apply the Cash Collateral Amounts to the payment of any
amounts, in such order as the Administrative Agent may elect, as such shall
become due and payable by the Borrowers to the Lenders with respect to such
Letter of Credit Obligations of the Borrowers and, upon the satisfaction in full
of all Letter of Credit Obligations of the Borrowers, to any other Obligations
of the Borrowers then due and payable.
(iii) Neither any Borrower nor any Person claiming on
behalf of or through any Borrower shall have any right to withdraw any of the
Cash Collateral Amounts, except that upon the termination of all Letter of
Credit Obligations and the payment of all amounts payable by the Borrowers to
the Lenders in respect thereof, and any funds remaining in the Cash Collateral
Account shall be applied to the other Obligations when due and owing and upon
payment in full of such obligations and any remaining amount shall be paid to
the Borrowers or as otherwise required by law.
(iv) The Cash Collateral Amounts shall be held by the
Administrative Agent in a cash collateral account (the "Cash Collateral
Account") maintained with the Administrative Agent. The Cash Collateral Account
shall be in the name of one or more Borrowers and shall be pledged to, and
subject to the control of, the Administrative Agent, for the benefit of the
Administrative Agent and the Lenders, in a manner satisfactory to the
Administrative Agent. The Borrowers pledge and grant to the Administrative
Agent, on behalf of the Lenders, a security interest in the Cash Collateral
Account from time to time and all proceeds thereof, as security for the payment
of all amounts due in respect of the Letter of Credit Obligations and the other
Obligations, whether or not then due and the provisions of this subsection (iv)
shall constitute a security agreement under applicable law.
2.19 Change of Lending Office.
Each Lender agrees that, upon the occurrence of any event
giving rise to the operation of Section 2.12(a)(ii) or (iii) or Section 2.16
with respect to such Lender, it will, if requested by the Borrowers, use
reasonable efforts (subject to overall policy considerations of such Bank) to
designate another lending office for any Loans affected by such event; provided
that such designation is made on such terms that, in the opinion of such Lender,
such Lender and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of any such Section. Nothing in this Section 2.19 shall
affect or postpone any of the obligations of the Borrowers or the right of any
Lender provided in Section 2.12 or 2.16.
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2.20 Replacement of Lenders.
(x) If any Lender becomes a Defaulting Lender or (y) upon the
occurrence of any event giving rise to the operation of Section 2.12(a)(ii) or
(iii), Section 2.12(c) or Section 4.04 with respect to any Lender which results
in such Lender charging to the Borrowers increased costs in excess of those
being generally charged by the other Lenders, the Borrowers shall have the
right, if no Default or Event of Default then exists, to replace such Lender
(the "Replaced Lender") with one or more other lenders or financial
institutions, none of whom shall constitute a Defaulting Lender at the time of
such replacement (collectively, the "Replacement Lender") reasonably acceptable
to the Administrative Agent, provided that (i) at the time of any replacement
pursuant to this Section 2.20, the Replacement Lender shall enter into one or
more Assignment and Acceptance pursuant to Section 9.6(c) (and with all fees
payable pursuant to said Section 9.6(c) to be paid by the Replacement Lender)
pursuant to which the Replacement Lender shall acquire all of the Revolving Loan
Commitments (including all Letter of Credit Obligations) and all of the
outstanding Loans of the Replaced Lender and, in connection therewith, shall pay
to the Replaced Lender in respect thereof an amount equal to (A) the principal
of, and all accrued interest on, all outstanding Loans of the Replaced Lender
plus (B) all accrued, but theretofore unpaid, fees owing to the Replaced Lender
pursuant to Section 2.3, and (ii) all obligations (including, without
limitation, all such amounts, if any, due and owing under Section 2.13) of the
Borrowers due and owing to the Replaced Lender (other than those specifically
described in clause (i) above in respect of which the assignment purchase price
has been, or is concurrently being, paid) shall be paid in full to such Replaced
Lender concurrently with such replacement. Upon the execution of the respective
Assignment and Acceptance, the payment of amounts referred to in clauses (i) and
(ii) above, the Replacement Lender shall become a Lender hereunder and the
Replaced Lender shall cease to constitute a Lender hereunder, except with
respect to indemnification provisions under this Agreement (including, without
limitation, Sections 2.12, 2.13, 2.16, 8.7 and 9.5), which shall survive as to
such Replaced Lender.
2.21 Authority to Debit Borrower Account.
The Borrowers hereby authorize the Administrative Agent to
debit an amount from the Borrower Account to the extent the Administrative Agent
is entitled to withdraw any amount from the Borrower Account pursuant to any
Loan Document.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans, and to induce the Issuing Lender to issue
Letters of Credit, the Borrowers hereby represent and warrant, jointly and
severally, to the Administrative Agent, the Issuing Lender and each Lender that:
3.1 Financial Condition.
The consolidated balance sheet of the Parent and its
consolidated Subsidiaries as at June 30, 2000, and the related consolidated
statements of income and cash flow for the fiscal year then ended on such date,
reported on by PricewaterhouseCoopers LLP and certified by the
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chief financial officer of the Parent, copies of which have heretofore been
furnished to each Lender, are complete and correct and present fairly the
consolidated financial condition of the Parent and its consolidated Subsidiaries
as at such date, and the consolidated results of their operations and their
consolidated cash flows for the fiscal year then ended. All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the period
involved (except as approved by such accountants or chief financial officer, as
the case may be, and as disclosed therein). Except as set forth on Schedule 3.1,
neither the Parent nor any of its consolidated Subsidiaries had, at the date of
the balance sheet referred to above, any material Guarantee Obligation,
contingent liability or liability for taxes, or any long-term lease or unusual
forward or long-term commitment, including, without limitation, any obligation
under an Interest Rate Hedge Agreement which is not reflected in the foregoing
statements or in the notes thereto. During the period from June 30, 2000 to and
including the date hereof, there has been no sale, transfer or other disposition
by the Parent or any of its consolidated Subsidiaries of any material part of
its business or property and no purchase or other acquisition of any business or
property (including any Capital Stock of any other Person) material in relation
to the consolidated financial condition of the Parent and its consolidated
Subsidiaries at June 30, 2000, other than the sale of inventory in the ordinary
course of business.
3.2 No Change.
Since June 30, 2000, other than the sale of the business and
substantially all of the assets of the Xxxxx Division of Xxxxxxx Technology
Corporation, there has been no development or event which has had or could
reasonably be expected to have a Material Adverse Effect.
3.3 Corporate Existence; Compliance with Law.
Each Credit Party is (a) validly existing and in good standing
under the jurisdiction of its organization, (b) has the corporate power and
authority, and the legal right, to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification
except where the failure to so qualify or be in good standing would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect and (d) is
in compliance with all Requirements of Law except to the extent that the failure
to comply therewith could not, in the aggregate, reasonably be expected to have
a Material Adverse Effect.
3.4 Corporate Power; Authorization; Enforceable Obligations.
Each Credit Party has the corporate power and authority, and
the legal right, to make, deliver and perform the Loan Documents to which it is
a party and, in the case of the Borrowers only, to borrow hereunder and, in the
case of the Borrowers only, has taken all necessary corporate action to
authorize the borrowings on the terms and conditions of this Agreement and any
Notes and to authorize the execution, delivery and performance of the Loan
Documents and, in the case of the Borrowers only, each Interest Rate Hedge
Agreement, if any, to which it is a party. No consent or authorization of,
filing with, notice to or other act by or in
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respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of the Loan Documents and each Interest
Rate Hedge Agreement. This Agreement has been, and each other Loan Document and
each Interest Rate Hedge Agreement to which it is a party will be, duly executed
and delivered on behalf of each Credit Party that is a party hereto or thereto.
This Agreement constitutes, and each other Loan Document to which it is a party
when executed and delivered will constitute, a legal, valid and binding
obligation of each Credit Party that is a party hereto or thereto enforceable
against such Credit Party in accordance with its terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
3.5 No Legal Bar.
The execution, delivery and performance of the Loan Documents
and each Interest Rate Hedge Agreement to which any Credit Party is a party, if
any, the borrowings hereunder and the use of the proceeds thereof will not
violate any Requirement of Law or material Contractual Obligation of any Credit
Party or of any of its Subsidiaries and will not result in, or require, the
creation or imposition of any Lien, other than the Liens created pursuant to the
Loan Documents, on any of its or their respective properties or revenues
pursuant to any such Requirement of Law or Contractual Obligation.
3.6 No Material Litigation.
Except as set forth on Schedule 3.6, no litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of the Credit Parties, threatened by
or against any Credit Party or against any of its or their respective properties
or revenues (a) with respect to any of the Loan Documents or the Interest Rate
Hedge Agreements or any of the transactions contemplated hereby or thereby or
(b) which could reasonably be expected to have a Material Adverse Effect.
3.7 No Default.
None of the Credit Parties is in default under or with respect
to any of its Contractual Obligations in any respect that could reasonably be
expected to have a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
3.8 Ownership of Property; Liens.
Each of the Credit Parties has good record and marketable
title in fee simple to, or a valid leasehold interest in, all its real property,
and good title to, or a valid leasehold interest in, all its other property, and
none of such property is subject to any Lien except as permitted by Section 6.3.
With respect to real property or interests in real property, as of the Closing
Date, each Credit Party has (i) fee title to all of the real property listed on
Schedule 3.8 under the heading "Fee Properties" (each, a "Fee Property"), and
(ii) good and valid title to the leasehold estates in all of the real property
leased by it and listed on Schedule 3.8 under the heading "Leased Properties"
(each, a "Leased Property"), in each case free and clear of all mortgages,
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liens, security interests, easements, covenants, rights-of-way and other similar
restrictions of any nature whatsoever, except (A) Liens permitted pursuant to
Section 6.3, (B) as to Leased Property, the terms and provisions of the
respective lease therefor and any matters affecting the fee title and any estate
superior to the leasehold estate related thereto, and (C) title defects, or
leases or subleases granted to others, which are not material to the Fee
Properties or the Leased Properties, as the case may be, taken as a whole. The
Fee Properties and the Leased Properties constitute, as of the Closing Date, all
of the real property owned in fee or leased by each of the Credit Parties.
3.9 Intellectual Property.
Each Credit Party owns, or is licensed to use or otherwise has
the right to use, all trademarks, tradenames, copyrights, patents, trade secrets
and other proprietary information that it uses in the conduct of its business as
currently conducted except for those the failure to own or license which could
not reasonably be expected to have a Material Adverse Effect (the "Intellectual
Property"). To the knowledge of each Credit Party, no claim has been asserted
and is pending by any Person challenging or questioning the use of any such
Intellectual Property or the validity or enforceability of any such Intellectual
Property, nor does any Credit Party know of any valid basis for any such claim.
The use of such Intellectual Property by each Credit Party does not infringe on
the rights of any Person, except for such claims and infringements that, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
3.10 No Burdensome Restrictions.
No Contractual Obligation of any Credit Party could reasonably
be expected to have a Material Adverse Effect.
3.11 Taxes.
Each Credit Party has filed or caused to be filed all material
tax returns (or has received timely extensions for such filings) which are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of such Credit Party or its Subsidiaries, as the case may be); no tax Lien
has been filed, and, to the knowledge of the Credit Parties, no claim is being
asserted, with respect to any such tax, fee or other charge.
3.12 Federal Regulations.
No part of the proceeds of any Loans will be used for
"purchasing" or "carrying" any "margin stock" within the respective meanings of
each of the quoted terms under Regulation U of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in effect. If
requested by any Lender or the Administrative Agent, the Borrowers will furnish
to the Administrative Agent and each Lender a statement to the foregoing effect
in conformity with the requirements of FR Form G-1 or FR Form U-1 referred to in
said Regulation U, as the case may be.
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3.13 ERISA.
(a) Except to the extent that all of the following, taken
together, could not reasonably be expected to result in a Material Adverse
Effect, each Plan (and each related trust, insurance contract or fund) is in
substantial compliance with its terms and with all applicable laws, including
without limitation ERISA and the Code; each Plan (and each related trust, if
any) which is intended to be qualified under Section 401(a) of the Code (other
than a standardized prototype plan) has received a determination letter from the
Internal Revenue Service to the effect that it meets the requirements of
Sections 401(a) and 501(a) of the Code (or an application as to such
determination is currently pending with the IRS); no Reportable Event has
occurred; to the knowledge of the Borrowers and the other Credit Parties, no
Multiemployer Plan is insolvent or in reorganization; no Plan has an Unfunded
Current Liability; no Plan has an accumulated funding deficiency, within the
meaning of such sections of the Code or ERISA, or has applied for or received a
waiver of an accumulated funding deficiency or an extension of any amortization
period, within the meaning of Section 412 of the Code or Section 303 or 304 of
ERISA; all contributions required to be made with respect to a Plan and each
Multiemployer Plan have been timely made; neither any Borrower nor any
Subsidiary of any Borrower nor any ERISA Affiliate has incurred any liability
(including any indirect, contingent or secondary liability) to or on account of
a Plan pursuant to Section 409, 502(i), 502(l), 4062, 4063, 4064, or 4069 of
ERISA or Section 401(a)(29), 4971 or 4975 of the Code or to or on account of a
Multiemployer Plan pursuant to Section 515, 4201, 4204 or 4212 of ERISA or
reasonably expects to incur any of such liability under any of the foregoing
sections with respect to any Plan or Multiemployer Plan; to the Borrowers'
knowledge no condition exists which presents a material risk to any Borrower or
any Subsidiary of any Borrower or any ERISA Affiliate of incurring a liability
to or on account of a Plan or Multiemployer Plan pursuant to the foregoing
provisions of ERISA and the Code; no proceedings have been instituted to
terminate or appoint a trustee to administer any Plan which is subject to Title
IV of ERISA; no action, suit, proceeding, hearing, audit or investigation with
respect to the administration, operation or the investment of assets of any Plan
(other than routine claims for benefits) is pending, reasonably expected or to
the Borrowers' knowledge threatened; using actuarial assumptions and computation
methods consistent with Part 1 of subtitle E of Title IV of ERISA, the aggregate
liabilities of any Borrower and its Subsidiaries and its ERISA Affiliates to
each Multiemployer Plan in the event of a complete withdrawal therefrom, as of
the close of the most recent fiscal year of each Multiemployer Plan ended prior
to the date of the most recent Credit Event, would not result in a liability to
such Borrower, other Credit Party, Subsidiary or ERISA Affiliate; each group
health plan (as defined in Section 607(l) of ERISA or Section 4980B(g)(2) of the
Code) other than a multiemployer plan described in Section 3(37) of ERISA
maintained or contributed to by any Borrower, a Subsidiary of any Borrower or an
ERISA Affiliate which covers or has covered employees or former employees of any
Borrower, any Subsidiary of any Borrower or any ERISA Affiliate has at all times
been operated in compliance with the provisions of Part 6 of subtitle B of Title
I of ERISA and Section 4980B of the Code; no lien imposed under the Code or
ERISA on the assets of any Borrower or any Subsidiary of any Borrower or any
ERISA Affiliate exists or, to the Borrowers' knowledge, is likely to arise on
account of any Plan or Multiemployer Plan; and the Borrowers and their
Subsidiaries do not maintain or contribute to any employee welfare benefit plan
(as defined in Section 3(l) of ERISA) which provides benefits to retired
employees or other former employees (other than as required by Section 601 of
ERISA).
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(b) Expect as would not result in a material liability, each
Foreign Pension Plan has been maintained in substantial compliance with its
terms and with the requirements of any and all applicable laws, statutes, rules,
regulations and orders and has been maintained, where required, in good standing
with applicable regulatory authorities. Except as would not result in a material
liability, all contributions required to be made with respect to a Foreign
Pension Plan have been timely made. Neither the Borrowers nor any of their
Subsidiaries have incurred any material obligation in connection with the
termination of or withdrawal from any Foreign Pension Plan. Except as set forth
in Schedule 3.13, the present value of the accrued benefit liabilities (whether
or not vested) under each Foreign Pension Plan, determined as of the end of the
Borrowers' most recently ended fiscal year on the basis of actuarial
assumptions, each of which is reasonable, did not exceed the current value of
the assets of such Foreign Pension Plan allocable to such benefit liabilities.
3.14 Investment Company Act; Other Regulations.
No Credit Party is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended. No Borrower is subject to regulation under any
Federal or State statute or regulation (other than Regulation X of the Board of
Governors of the Federal Reserve System) which limits its ability to incur
Indebtedness.
3.15 Subsidiaries.
As of the date of this Agreement, the only Subsidiaries of the
Parent or any Borrower or any Credit Party are as set forth in Schedule 3.15.
3.16 Purpose of Loans.
The Borrowers shall utilize the proceeds of the Loans: (a) to
refinance the indebtedness outstanding under (i) the Existing Credit Agreement;
(b) to finance working capital; (c) for general corporate purposes, including
the Stock Repurchase Program; and (d) for Permitted Acquisitions. No portion of
the proceeds of the Loans shall be used, in whole or in part, for the purpose of
purchasing or carrying any "margin stock" as such term is defined in Regulation
U of the Board of Governors of the Federal Reserve System.
3.17 Environmental Matters.
Except as set forth on Schedule 3.17 and to the extent that
all of the following, taken together, could not reasonably be expected to result
in a Material Adverse Effect or to result in the payment of a Material
Environmental Amount:
(a) The facilities and properties owned, leased or operated by
each Credit Party or any of its Subsidiaries (the "Properties") do not contain,
and have not previously contained, any Materials of Environmental Concern in
amounts or concentrations which (i) constitute a violation of, or (ii) could
reasonably be expected to give rise to liability under, any Environmental Law.
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(b) The Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, in all material
respects with all applicable Environmental Laws, and to the knowledge of the
Credit Parties there is no contamination at or under the Properties or any
violation of any Environmental Law with respect to the Properties or the
business operated by any Credit Party or any of its Subsidiaries (the
"Business") which could materially interfere with the continued operation of the
Properties or materially impair the fair saleable value thereof.
(c) Neither any Credit Party nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance with
Environmental Laws which has not been resolved with regard to any of the
Properties or the Business, nor does any Credit Party have knowledge or reason
to believe that any such notice will be received or is being threatened.
(d) To the knowledge of the Credit Parties, Materials of
Environmental Concern have not been transported or disposed of from the
Properties by any Credit Party in violation of, or in a manner or to a location
which could reasonably be expected to give rise to liability under, any
Environmental Law, nor have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any of the Properties
or elsewhere in violation of, or in a manner that could reasonably be expected
to give rise to liability under, any applicable Environmental Law.
(e) Except as set forth on Schedule 3.6, no judicial
proceeding or governmental or administrative action is pending or, to the
knowledge of the Credit Parties, threatened, under any Environmental Law to
which any Credit Party or any Subsidiary thereof is or will be named as a party
with respect to the Properties or the Business, nor are there any consent
decrees or other decrees, consent orders, administrative orders or other orders,
or other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties or the Business.
(f) To the knowledge of the Credit Parties, there has been no
release or threat of release of Materials of Environmental Concern at or from
the Properties, or arising from or related to the operations of any Credit Party
or any Subsidiary thereof in connection with the Properties or otherwise in
connection with the Business, in violation of or in amounts or in a manner that
could reasonably give rise to liability to any Credit Party under Environmental
Laws.
3.18 Solvency.
Each Credit Party is, and after giving effect to the
incurrence of all Indebtedness and obligations being incurred in connection
herewith will be and will continue to be, Solvent.
3.19 Security Documents.
(a) Each Stock Pledge Agreement is effective to create in
favor of the Administrative Agent, for the benefit of the Lenders, a legal,
valid and enforceable security interest in the Collateral (as such term is
defined in such Stock Pledge Agreement) and proceeds thereof and, after
satisfaction of the conditions specified in Section 4.1(s), and the making of
the
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initial Loan hereunder, such Stock Pledge Agreement shall at all times
constitute a fully perfected first priority Lien on, and security interest in,
all right, title and interest of the Pledgors in such Collateral, as security
for the Secured Obligations (as such terms are defined in such Stock Pledge
Agreement), in each case prior and superior in right to any other Person,
subject to exceptions to be determined.
(b) Each Security Agreement is effective to create in favor of
the Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable security interest in the Collateral described, and as defined,
therein and proceeds thereof, and, after financing statements in appropriate
form are filed in the offices specified on Schedule 3 to such Security
Agreement, and the making of the initial Loan hereunder, each Security Agreement
shall at all times constitute a fully perfected Lien on, and security interest
in, all right, title and interest of the Credit Parties in such Collateral and
the proceeds thereof, as security for the Secured Obligations (as defined in
such Security Agreement), in each case prior and superior in right to any other
Person, other than with respect to Liens expressly permitted by Section 6.3.
3.20 Accuracy of Information.
No statement or information contained in this Agreement, any
other Loan Document or the Interest Rate Hedge Agreements or any other document,
certificate or statement furnished in writing to the Administrative Agent or the
Lenders or any of them, by or on behalf of any Credit Party for use in
connection with the transactions contemplated by this Agreement or the other
Loan Documents or the Interest Rate Hedge Agreements, contained as of the date
such statement, information, document or certificate was so furnished any untrue
statement of any fact material to the interests of the Administrative Agent or
any Lender, or omitted to state a fact necessary in order to make the statements
contained herein or therein not misleading in any respect material to the
interests of the Administrative Agent or any Lender, except to the extent any
such document, certificate or statement was subsequently replaced or the
information contained therein otherwise superseded. There is no fact known to
any Credit Party that could reasonably be expected to have a Material Adverse
Effect that has not been expressly disclosed herein, in the other Loan
Documents, in the Interest Rate Hedge Agreements or in such other documents,
certificates and statements furnished to the Administrative Agent and the
Lenders for use in connection with the transactions contemplated hereby and by
the other Loan Documents and the Interest Rate Hedge Agreements.
3.21 Status Under Certain Federal Statutes.
Neither any Borrower nor any other Credit Party is (a) an
"investment company" or a company "controlled" by an "investment company" or an
"open-end investment company" or a "unit investment trust" or a "face-amount
certificate company," within the meaning of the Investment Company Act of 1940,
as amended, (b) a "holding company" or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended, or (c) a "carrier," as defined in Section
11,301(a)(1) of Title 49 of the United States Code and subject to the provisions
of such Title. Neither any Borrower nor any other Credit Party is a "national of
any designated foreign country," within the meaning of the Foreign Assets
Control Regulations or the Cuban Assets Control Regulations of
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the United States Treasury Department, 31 C.F.R., Subtitle B, Chapter V, as
amended, or any regulations or rulings issued thereunder. Neither the making of
the Loans nor the use of such proceeds by the Borrowers as required by this
Agreement will violate the Foreign Assets Control Regulations, the Foreign Funds
Control Regulations, the Transaction Control Regulations, the Cuban Assets
Control Regulations, the Iranian Assets Control Regulations, the Libyan
Sanctions Regulations, the Iranian Transactions Regulations, the Iraqi Sanctions
Regulations, the Haitian Transactions Regulations, or any other regulations of
the U.S. Treasury Department (as set forth in 31 C.F.R., Subtitle B, Chapter V,
as amended), or any of Executive Orders 12,722, 12,724, 12,808 and 12,810 of the
President of the United States.
3.22 Capitalization.
On the Closing Date, and after giving effect to the
transactions contemplated hereby, the authorized capital stock of the Parent,
the Borrowers and the other Credit Parties consists of the Capital Stock set
forth on the attached Schedule 3.22. As of the Closing Date, all such
outstanding shares of the Borrowers and the other Credit Parties have been duly
and validly issued and are fully paid and nonassessable. On the Closing Date and
after giving effect to the transactions contemplated hereby, neither any
Borrower nor any other Credit Party (other than the Parent) has outstanding any
securities convertible into or exchangeable for its Capital Stock or outstanding
any rights to subscribe for or to purchase, or any options for the purchase of,
or any agreements providing for the issuance (contingent or otherwise) of, or
any calls, commitments or claims of any character relating to, its Capital
Stock, except for options, warrants and grants outstanding in the aggregate
amounts set forth on the attached Schedule 3.22.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Loans.
The agreement of each Lender to make the initial Loans
requested to be made by it, and for the Issuing Lender to issue any Letter of
Credit, is subject to the satisfaction, immediately prior to or concurrently
with the making of such Loans or the issuance of such Letters of Credit, of the
following conditions precedent on or before the Closing Date:
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly authorized officer
of each Borrower, the Parent and each of the other Credit Parties which is a
party hereto, with a counterpart for each Lender, (ii) each of the Stock Pledge
Agreements, each executed and delivered by a duly authorized officer of the
party thereto, with a counterpart or a conformed copy for each Lender, (iii) the
Guarantees, executed and delivered by a duly authorized officer of each party
thereto, with a counterpart or a conformed copy for each Lender, and (iv) each
of the Security Agreements, each executed and delivered by a duly authorized
officer of the party thereto, with a counterpart or a conformed copy for each
Lender.
(b) Related Agreements. The Administrative Agent shall have
received true and correct copies, certified as to authenticity by each Borrower,
of such other documents or instruments as may be reasonably requested by the
Administrative Agent, including, without
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limitation, a copy of any debt instrument, security agreement or other material
contract to which any Credit Party may be a party.
(c) Borrowing Certificates. The Administrative Agent shall
have received, with a copy for each Lender, a certificate of the Borrowers,
dated the Closing Date, substantially in the form of Exhibit F with appropriate
insertions and attachments, satisfactory in form and substance to the
Administrative Agent, executed by the President or any Vice President and the
Secretary or any Assistant Secretary of the Borrowers.
(d) Corporate Proceedings of the Borrowers. The Administrative
Agent shall have received, with a counterpart for each Lender, a copy of the
resolutions, in form and substance satisfactory to the Administrative Agent, of
the Board of Directors of each Borrower authorizing (i) the execution, delivery
and performance of this Agreement and the other Loan Documents and any Interest
Rate Hedge Agreements to which it is a party, (ii) the borrowings contemplated
hereunder and (iii) the granting by it of the Liens created pursuant to the
Security Documents, certified by the Secretary or an Assistant Secretary of such
Borrower as of the Closing Date, which certificate shall be in form and
substance satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded.
(e) Borrower Incumbency Certificate. The Administrative Agent
shall have received, with a counterpart for each Lender, a certificate of each
Borrower, dated the Closing Date, as to the incumbency and signature of the
officers of such Borrower executing any Loan Document and any Interest Rate
Hedge Agreement satisfactory in form and substance to the Administrative Agent,
executed by the President or any Vice President and the Secretary or any
Assistant Secretary of such Borrower.
(f) Corporate Proceedings of the Parent. The Administrative
Agent shall have received, with a counterpart for each Lender, copies of the
resolutions, in form and substance satisfactory to the Administrative Agent, of
the Board of Directors of the Parent authorizing the execution, delivery and
performance of the Loan Documents to which the Parent is a party, certified by
the Secretary or an Assistant Secretary of the Parent as of the Closing Date,
which certificate shall be in form and substance satisfactory to the
Administrative Agent and shall state that the resolutions thereby certified have
not been amended, modified, revoked or rescinded.
(g) Parent Incumbency Certificate. The Administrative Agent
shall have received, with a counterpart for each Lender, a certificate of the
Parent, dated the Closing Date, as to the incumbency and signature of the
officers of the Parent executing any Loan Document satisfactory in form and
substance to the Administrative Agent, executed by the President or any Vice
President and the Secretary or any Assistant Secretary of the Parent.
(h) Corporate Proceedings of Subsidiaries. The Administrative
Agent shall have received, with a counterpart for each Lender, a copy of the
resolutions, in form and substance satisfactory to the Administrative Agent, of
the Board of Directors of each Subsidiary of the Borrowers which is a Credit
Party authorizing (i) the execution, delivery and performance of the Loan
Documents and the Interest Rate Hedge Agreements being executed on the Closing
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Date to which it is a party and (ii) the granting by it of the Liens created
pursuant to the Subsidiaries Security Documents to which it is a party,
certified by the Secretary or an Assistant Secretary of each such Subsidiary as
of the Closing Date, which certificate shall be in form and substance
satisfactory to the Administrative Agent and shall state that the resolutions
thereby certified have not been amended, modified, revoked or rescinded.
(i) Subsidiary Incumbency Certificates. The Administrative
Agent shall have received, with a counterpart for each Lender, a certificate of
each Subsidiary of the Borrowers which is a Credit Party, dated the Closing
Date, as to the incumbency and signature of the officers of such Subsidiaries
executing any Loan Document or any Interest Rate Hedge Agreement being executed
on the Closing Date, satisfactory in form and substance to the Administrative
Agent, executed by the President or any Vice President and the Secretary or any
Assistant Secretary of each such Subsidiary.
(j) Corporate Documents. The Administrative Agent shall have
received, with a counterpart for each Lender, true and complete copies of the
certificate of incorporation and by-laws or other organizational documents
similar in purpose under the laws of the relevant jurisdiction of incorporation
of each Credit Party, certified as of the Closing Date as complete and correct
copies thereof by the Secretary or an Assistant Secretary of such Credit Party.
(k) Termination of Existing Credit Agreement. The "Borrowers"
thereto shall have terminated their right to receive, and shall have satisfied
in full, all "Loans" under the Existing Credit Agreement.
(l) Fees. The Administrative Agent shall have received, for
disbursements as appropriate, all invoiced fees and expenses required to be paid
on the Closing Date.
(m) Legal Opinions. The Administrative Agent shall have
received, with a counterpart for each Lender, the executed legal opinion of
Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Parent, the Borrowers and the other
Credit Parties, substantially in the form of Exhibit G; such legal opinion to
cover such other matters incident to the transactions contemplated by this
Agreement as the Administrative Agent may reasonably require.
(n) Third-Party Consents. All governmental and third party
approvals (including landlords and other consents) necessary or advisable in
connection with the making of the initial Loans and the continuing operations of
each of the Borrowers and the other Credit Parties shall have been obtained and
be in full force and effect, and all applicable waiting periods shall have
expired without any action being taken or threatened by any competent authority
which would restrain, prevent or otherwise impose materially adverse conditions
on the making of the initial Loans except where the failure to obtain such
approvals would not be reasonably likely to have a Material Adverse Effect.
(o) Financial Statements. The Administrative Agent shall have
received, with a copy for each Lender, (i) audited consolidated financial
statements of the Parent and its consolidated Subsidiaries for the three most
recent fiscal years ended prior to the Closing Date, and (ii) unaudited interim
consolidated financial statements of the Credit Parties and their consolidated
Subsidiaries for each fiscal quarter ended subsequent to the date of the latest
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financial statements delivered pursuant to clause (i) of this subsection as to
which such financial statements are available, reasonably satisfactory to the
Lenders and certified by the chief financial officer of the Parent, all such
financial statements, including the related schedules and notes thereto, having
been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by such accountants or chief financial
officer, as the case may be, and as disclosed therein).
(p) Solvency Certificate. The Administrative Agent shall have
received the executed Solvency Certificate, substantially in the form of Exhibit
H.
(q) Other Conditions. All the representations contained in
Section 3 hereof shall remain true and correct in all respects and no event
shall have occurred or shall be pending or threatened which has resulted in or
could reasonably be expected to result in through the passage of time a Material
Adverse Effect.
(r) Pledged Stock; Stock Powers. The Administrative Agent
shall have received the certificates representing the shares pledged pursuant to
each of the Stock Pledge Agreements, together with an undated stock power for
each such certificate executed in blank by a duly authorized officer of the
pledgor thereof.
(s) Actions to Perfect Liens. The Administrative Agent shall
have received evidence in form and substance satisfactory to it that all
filings, recordings, registrations and other actions, including, without
limitation, the filing of duly executed financing statements on form UCC-1,
necessary or, in the opinion of the Administrative Agent, desirable to perfect
the Liens created by the Security Documents shall have been completed.
(t) Lien Searches. The Administrative Agent shall have
received the results of a recent search by a Person satisfactory to the
Administrative Agent, of the Uniform Commercial Code, judgment and tax lien
filings which may have been filed with respect to personal property of the
Parent, each of the Borrowers and their Domestic Subsidiaries in each of the
jurisdictions and offices where assets of each such Person is located or
recorded, and such search shall reveal no material liens on any of the assets of
any such Person except for liens permitted by the Loan Documents.
(u) Organizational Chart. The Administrative Agent shall have
received an organizational chart of the Parent and its consolidated
Subsidiaries, in detail acceptable to the Administrative Agent.
(v) Pledgor's Questionnaire. The Administrative Agent shall
have received an executed Pledgor's Questionnaire, in the form of the attached
Exhibit K, for the Parent, the Borrowers and each other Credit Party which is a
Domestic Subsidiary.
4.2 Conditions to Each Loan.
The agreement of each Lender to make any Loan requested to be
made by it on any date (including, without limitation, its initial Loan), and
for the Issuing Lender to issue any Letter of Credit, is subject to the
satisfaction of the following conditions precedent:
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(a) Representations and Warranties. Each of the
representations and warranties made by each Credit Party in or pursuant to the
Loan Documents and the Interest Rate Hedge Agreements shall be true and correct
in all material respects on and as of such date as if made on and as of such
date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the Loans
requested to be made on such date.
(c) Additional Matters. All corporate and other proceedings,
and all documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents shall
be satisfactory in form and substance to the Administrative Agent, and the
Administrative Agent shall have received such other documents and legal opinions
in respect of any aspect or consequence of the transactions contemplated hereby
or thereby as it shall reasonably request.
Each borrowing by the Borrowers hereunder shall constitute a representation and
warranty by such Borrower as of the date thereof that the conditions contained
in this Section have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Parent, the Borrowers and the other Credit Parties hereby agree,
jointly and severally, that, except as otherwise agreed to in writing by the
Administrative Agent, so long as the Commitments remain in effect or any amount
is owing to any Lender or the Administrative Agent hereunder or under any other
Loan Document, they shall:
5.1 Financial Statements.
Furnish to the Administrative Agent in sufficient number for
distribution to the Lenders:
(a) as soon as available, but in any event not more than 90
days after the end of each fiscal year of the Parent, (i) a consolidated and
consolidating balance sheet of the Parent and its consolidated Subsidiaries as
of the end of such fiscal year and (ii) the related consolidated (and with
respect to statements of income and changes in shareholders' equity, upon the
request of the Administrative Agent or any Lender, consolidating) statements of
income, of cash flows and of changes in shareholders' equity of the Parent and
its consolidated Subsidiaries for such fiscal year, and setting forth in each
case, in comparative form, corresponding figures for the preceding fiscal year
of the Parent, all in reasonable detail and in accordance with GAAP and (x) in
the case of such consolidated financial statements accompanied by a report
thereon of independent certified public accountants of recognized national
standing selected by the Parent and reasonably acceptable to the Administrative
Agent, which report shall be without limitations to the scope of the audit and
shall state that such consolidated financial statements present fairly the
financial condition of the Parent and its consolidated Subsidiaries as at the
dates indicated and the consolidated results of their operations and cash flows
for the periods indicated in conformity with GAAP (except as otherwise specified
in such report) and that the audit by such accountants of such consolidated
financial statements has been made in accordance with generally accepted
auditing standards and (y) in the case of the financial statement of each of the
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Borrowers, accompanied by a review report with respect to such financial
statements prepared by the same independent certified public accountants that
prepared the report referred to in clause (x) above for such fiscal year; and
(b) as soon as available, but in any event not later than 60
days after the end of each of the first three quarterly periods of each fiscal
year of the Parent, the unaudited consolidated (and, upon the request of the
Administrative Agent or any Lender, consolidating) balance sheet of the Parent
and its consolidated Subsidiaries and a balance sheet of each of the Borrowers
as at the end of such quarter and the related unaudited consolidated (and, with
respect to statements of income and changes in shareholders' equity, upon the
request of the Administrative Agent or any Lender, consolidating) statements of
income, of changes in shareholders' equity and of cash flow of the Parent and
its consolidated Subsidiaries, and the related statements of income and of
changes in shareholders' equity of each of the Borrowers, in each case for such
period(s) setting forth, in each case in comparative form, figures for the
corresponding period(s) in the preceding fiscal year of the Parent, all in
reasonable detail and in accordance with GAAP and certified by the Responsible
Officer as fairly presenting the consolidated (and, if requested, consolidating)
financial condition of the Parent and its Subsidiaries, and the financial
condition of each of the Borrowers, as at the dates indicated and the
consolidated results of their operations and cash flows, in each case for the
periods indicated, in conformity with GAAP (except as disclosed in the
certificate of such chief Responsible Officer with any changes in accounting
policies discussed in reasonable detail), subject to changes resulting from
year-end adjustments not material in scope or amount.
5.2 Certificates; Other Information.
Furnish to the Administrative Agent in sufficient number for
distribution to the Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Section 5.1(a), a certificate of the independent certified public
accountants reporting on such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of any Default or Event
of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Section 5.1(a), a letter addressed to the Administrative Agent,
on behalf of itself and the Lenders, in form and substance reasonably
satisfactory to the Administrative Agent and subject to standard qualifications
taken by nationally recognized accounting firms, signed by such accounting firm
acknowledging that the Administrative Agent and the Lenders are entitled to rely
upon such accounting firm's certification of such audited financial statements;
(c) concurrently with the delivery of the financial statements
referred to in Section 5.1(a) and (b), a certificate of a Responsible Officer in
the form of Exhibit J (the "Compliance Certificate") (i) stating that, to the
best of such Responsible Officer's knowledge, each Credit Party during such
period has observed or performed all of its covenants and other agreements, and
satisfied every condition, contained in this Agreement and the other Loan
Documents and the Interest Rate Hedge Agreements to be observed, performed or
satisfied by it, and that such officer has obtained no knowledge of any Default
or Event of Default except as
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specified in such certificate; and (ii) in the case of financial statements
referred to in Section 5.1(a) and (b), including calculations and information
demonstrating in reasonable detail compliance with the requirements of Sections
6.1 and 6.8;
(d) Within 60 days after the end of each fiscal quarter, with
respect to each Borrower and each Credit Party (other than the Parent), a
quarterly report showing accounts receivable outstanding aged from invoice date
as follows: 1 to 30 days; 31 to 60 days; 61 to 90 days; and 91 days or more;
accompanied by such supporting detail and documentation as shall be requested by
the Administrative Agent in its reasonable discretion;
(e) promptly after the transmission thereof, copies of all
such financial statements, proxy statements, notices and reports as the Parent,
any Borrower or any of their Subsidiaries shall send to its public debtholders
or public stockholders and copies of all registration statements (without
exhibits) and all reports which the Parent, any Borrower or any of their
Subsidiaries files with the SEC;
(f) promptly after receipt thereof, copies of all reports,
statements and notices the Parent, any Borrower or any of their Subsidiaries may
receive in accordance with Section 13(d) or 14(d) of the Exchange Act and the
rules and regulations promulgated thereunder by the SEC;
(g) promptly upon any such occurrence, written notice of any
event resulting in a mandatory reduction in the Commitments, or prepayment of
the Loans, and of the net proceeds, if any, realized by any Borrower in
connection therewith or as a result thereof;
(h) as soon as practicable and in any event not more than 60
days after the end of each fiscal year (each, a "Prior Fiscal Year") of the
Parent, a copy of consolidated projected cash flow statements for the Parent
with respect to the fiscal year immediately following such Prior Fiscal Year;
and
(i) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
5.3 Payment of Obligations.
Pay, discharge or otherwise satisfy at or before maturity or
before they become delinquent, as the case may be, all its obligations of
whatever nature, except where the amount or validity thereof is currently being
contested in good faith by appropriate proceedings and reserves in conformity
with GAAP with respect thereto have been provided on the books of such Person,
and except where the failure to pay, discharge or otherwise satisfy could
reasonably be expected to have a Material Adverse Effect.
5.4 Maintenance of Existence.
Preserve, renew and keep in full force and effect its
corporate existence and take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its
business except as otherwise permitted pursuant to Section 6.5, and comply with
all Contractual Obligations and Requirements of Law except to the extent that
failure to
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comply therewith could not, in the aggregate, be reasonably expected to have a
Material Adverse Effect.
5.5 Maintenance of Property; Insurance.
Keep all property useful and necessary in its business in good
working order and condition; maintain with financially sound and reputable
insurance companies insurance on all its property in at least such amounts and
against at least such risks (but including in any event general liability,
product liability and business interruption) as are usually insured against in
the same general area by companies of similar size engaged in the same or a
similar business; and furnish to each Lender, upon written request, full
information as to the insurance carried.
5.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true
and correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its business and
activities; and, upon reasonable prior written notice and during normal business
hours, permit representatives of the Administrative Agent to visit and inspect
any of its properties and examine and make abstracts from any of its books and
records at any reasonable time and as often as may reasonably be desired and to
discuss the business, operations, properties and financial and other condition
of any Credit Party with officers and employees of such Credit Party and with
its independent certified public accountants.
5.7 Notices.
Promptly give notice to the Administrative Agent (who shall
promptly notify each Lender) of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of any Credit Party, or (ii) litigation, investigation or proceeding
which may exist at any time between any Credit Party and any Governmental
Authority, which in either case, if not cured or if adversely determined, as the
case may be, could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding (including without limitation
any notice of violation, alleged violation, liability or potential liability
under any Environmental Law) affecting any Credit Party in which the amount
involved is $500,000 with respect to any single cause of action or $1,000,000 in
the aggregate and not covered by insurance or in which injunctive or similar
relief is sought;
(d) the following events, as soon as possible and in any event
within 30 days after any Credit Party knows or has reason to know thereof: (i)
the occurrence or expected occurrence of any Reportable Event with respect to
any Plan, a failure to make any required contribution to a Plan, the creation of
any Lien in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
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institution of proceedings or the taking of any other action by the PBGC or
either Borrower or any Commonly Controlled Entity or any Multiemployer Plan with
respect to the withdrawal from, or the terminating, Reorganization or Insolvency
of, any Plan; and
(e) any development or event which has had or could reasonably
be expected to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrowers propose to take with respect thereto.
5.8 Environmental Laws.
(a) Comply with, and ensure compliance by all tenants and
subtenants, if any, with, all applicable Environmental Laws and obtain and
comply in all material respects with and maintain, and ensure that all tenants
and subtenants obtain and comply in all material respects with and maintain, any
and all licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws, except, in each case, to the extent that any
failures could not, in the aggregate, be expected to have a Material Adverse
Effect or to result in the payment of a Material Environmental Amount.
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings could not be
reasonably expected to have a Material Adverse Effect.
5.9 Additional Subsidiaries.
With respect to any Subsidiary of the Parent or any other
Credit Party created or acquired after the Closing Date which would be
considered a Significant Subsidiary, or any existing Subsidiary of the Parent or
any other Credit Party which becomes a Significant Subsidiary subsequent to the
Closing Date, (i) with respect to a Subsidiary which is to be acquired or
created, give the Administrative Agent not less than 30 days prior written
notice of such creation or acquisition, (ii) promptly execute and deliver, or
cause to be executed and delivered, to the Administrative Agent a pledge
agreement or supplement to a Stock Pledge Agreement, in form, scope and
substance satisfactory to the Administrative Agent, granting to the
Administrative Agent, for the benefit of the Lenders, a perfected first priority
security interest in the Capital Stock of such Subsidiary owned by the Parent or
other Credit Party (or 65% of such Capital Stock if it is a Foreign Subsidiary),
(iii) promptly deliver to the Administrative Agent the certificates representing
such Capital Stock, together with undated stock powers, executed in blank, (ii)
promptly cause such Subsidiary to execute and deliver a guarantee or a
supplement to the Subsidiaries Guarantee (which guarantee shall be senior to all
other Indebtedness of such guarantor), in form and substance satisfactory to the
Administrative Agent, in respect to all obligations of the Borrowers hereunder
and under the other Loan Documents, (v) promptly cause such Subsidiary (but only
if such Subsidiary is a Domestic Subsidiary) to
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execute and deliver a security agreement or supplement to the Subsidiaries
Security Agreement, in form and substance satisfactory to the Administrative
Agent, securing such Subsidiary's obligations under such guarantee and covering
the types of assets covered by the Subsidiaries Security Agreement, (viii)
promptly execute and deliver such amendments to this Agreement requested by the
Administrative Agent to reflect the existence of such Subsidiary, including,
without limitation, amendments to Sections 3, 5, 6 and 7 to include such
Subsidiary in the covenants, representations and warranties and agreements
contained therein, and (ix) if requested by the Administrative Agent, deliver
to the Administrative Agent legal opinions relating to the matters described in
the preceding clauses (i) -(vii), which opinions shall be in form and substance,
and from counsel, reasonably satisfactory to the Administrative Agent.
5.10 After-Acquired Property.
Grant in favor of the Administrative Agent, for the benefit of
the Lenders, Liens on any material assets hereafter acquired and on previously
encumbered assets which become unencumbered, to the extent such Liens are then
permissible under applicable law and pursuant to any agreements to which any
Borrower or its Subsidiaries are a party, pursuant to documentation in form and
substance reasonably satisfactory to the Administrative Agent.
5.11 Foreign Subsidiary.
Cause each Borrower and any Foreign Subsidiary which is, or is
required to become, a Guarantor to execute and deliver to the Administrative
Agent, in form and substance satisfactory to the Administrative Agent, such
documents and instruments (including, without limitation, pledge agreements) and
take such action (including, without limitation, the delivery of stock
certificates and instruments) as the Administrative Agent may reasonably request
to grant to the Administrative Agent, for the ratable benefit of the Lenders, as
collateral security for the Borrowers' obligations hereunder, a first priority
perfected security interest (to the extent permitted and applicable under
applicable law) in 65% of the Capital Stock of, or equivalent ownership
interests in, the Foreign Subsidiary, along with any warrants, options, or other
rights to acquire the same, in all cases to the extent legally permissible and
practicable.
5.12 ERISA.
As soon as possible and, in any event, within 15 days after
any Borrower, any other Credit Party or any ERISA Affiliate knows or has reason
to know of the occurrence of any of the following, the Borrowers will deliver to
each of the Lenders a certificate of a Responsible Officer of the Borrowers
setting forth the full details as to such occurrence and the action, if any,
that the Borrowers, such Credit Party or such ERISA Affiliate is required or
proposes to take, together with any notices required or proposed to be given or
filed by such Borrower, such Credit Party, the Plan administrator or such ERISA
Affiliate, to or with the PBGC or any other government agency, or a Plan or
Multiemployer Plan participant and any notices received by such Borrower, such
Credit Party or such ERISA Affiliate from the PBGC or any other government
agency, or a Plan or Multiemployer Plan participant with respect thereto: that a
Reportable Event has occurred (except to the extent that the Borrowers have
previously delivered to the Lender a certificate and notices (if any) concerning
such event pursuant to the next clause hereof); that a contributing sponsor (as
defined in Section 4001(a)(13) of ERISA) of a Plan
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subject to Title IV of ERISA is subject to the advance reporting requirement of
PBGC Regulation Section 4043.61 (without regard to subparagraph (b)(1) thereof),
and an event described in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC
Regulation Section 4043 is reasonably expected to occur with respect to such
Plan within the following 30 days; that an accumulated funding deficiency,
within the meaning of Section 412 of the Code or Section 302 of ERISA, has been
incurred or an application may reasonably expected to be or has been made for a
waiver or modification of the minimum funding standard (including any required
installment payments) or an extension of any amortization period under Section
412 of the Code or Section 303 or 304 of ERISA with respect to a Plan; that any
contribution required to be made with respect to a Plan, Multiemployer Plan or
Foreign Pension Plan has not been timely made; that a Plan has been or may be
terminated, reorganized, partitioned or declared insolvent under Title IV of
ERISA; that a Plan has an Unfunded Current Liability; that proceedings are
reasonably expected to be or have been instituted to terminate or appoint a
trustee to administer a Plan which is subject to Title IV of ERISA; that a
proceeding has been instituted pursuant to Section 515 of ERISA to collect a
delinquent contribution to a Multiemployer Plan; that the Borrowers, any other
Credit Party or any ERISA Affiliate will or are reasonably expected to incur any
liability (including any indirect, contingent, or secondary liability) to or on
account of the termination of a Plan under Section 4062, 4063, 4064, or 4069 of
ERISA or with respect to the withdrawal from a Multiemployer Plan under Section
4201, 4204 or 4212 of ERISA or with respect to a Plan under Section 401(a)(29),
4971, 4975 or 4980 of the Code or Section 409, 502(i) or 502(l) of ERISA or with
respect to a group health plan (as defined in Section 607(l) of ERISA or Section
4980B(g)(2) of the Code) under Section 4980B of the Code; or that any Borrower,
any other Credit Party or any ERISA Affiliate may incur any liability pursuant
to any employee welfare benefit plan (as defined in Section 3(l) of ERISA) that
provides benefits to retired employees or other former employees (other than as
required by Section 601 of ERISA) or any Plan or any Foreign Pension Plan. Upon
request, the Borrowers will deliver to each of the Lenders copies of any
records, documents or other information that must be furnished to the PBGC with
respect to any Plan pursuant to Section 4010 of ERISA. The Borrowers will also
deliver, upon request, to each of the Lenders a complete copy of the annual
report (on Internal Revenue Service Form 5500-series) of each Plan (including,
to the extent required, the related financial and actuarial statements and
opinions and other supporting statements, certifications, schedules and
information) required to be filed with the Internal Revenue Service. In addition
to any certificates or notices delivered to the Lenders pursuant to the first
sentence hereof, copies of annual reports and any records, documents or other
information required to be furnished to the PBGC or any other government agency,
and any material notices received by any Borrower, any other Credit Party or any
ERISA Affiliate from any relevant government agency with respect to any Plan or
any Foreign Pension Plan or received from any government agency or plan
administrator or sponsor or trustee with respect to any Multiemployer Plan shall
be delivered to the Lenders no later than 15 days after the date such annual
report has been filed with the Internal Revenue Service or such records,
documents and/or information has been furnished to the PBGC or any other
government agency or such notice has been received by a Borrower, any other
Credit Party or any ERISA Affiliate, as applicable. The Borrowers and the other
Credit Parties shall ensure that all Foreign Pension Plans administered by them
or into which they make payments obtains or retains (as applicable) registered
status under and as required by applicable law and is administered in a timely
manner in all respects in compliance with all applicable laws
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except where the failure to do any of the foregoing would not be reasonably
likely to result in a Material Adverse Effect.
SECTION 6. NEGATIVE COVENANTS
The Parent and each of the Borrowers and the other Credit Parties
hereby agree, jointly and severally, that, except as otherwise agreed in writing
by the Administrative Agent, so long as the Commitments remain in effect or any
amount is owing to any Lender or the Administrative Agent hereunder or under any
other Loan Document, they shall not, directly or indirectly:
6.1 Financial Condition Covenants.
(a) Minimum Tangible Net Worth. Permit the Tangible Net
Worth of the Parent, on a consolidated basis, at any time to be less than the
sum of (i) Tangible Net Worth as of the fiscal quarter ended September 30, 2000
less the amount of $2,000,000, and (ii) commencing with the fiscal quarter
ending December 31, 2000, 75% of cumulative Net Income (without deduction for
any net loss) of the Parent on a consolidated basis; notwithstanding the
foregoing, [***], Borrowers shall not permit the Tangible Net Worth of he
Parent, on a consolidated basis, at any time to be less than the sum of (x)
Tangible Net Worth as of the end of the fiscal quarter [***] and (y) commencing
with the fiscal quarter ending after the fiscal quarter [***] of the cumulative
Net Income (without deduction for any net loss) of the Parent on a consolidated
basis.
(b) Leverage Ratio. Permit the Leverage Ratio of the
Parent, on a consolidated basis, for any period of four consecutive fiscal
quarters ending on the last day of any fiscal quarter to be greater than 2.75 to
1.00.
(c) Interest Coverage Ratio. Permit the Interest Coverage
Ratio of the Parent, on a consolidated basis, for any period of four consecutive
fiscal quarters ending on the last day of any fiscal quarter to be less than 3.5
to 1.00.
(d) Net Loss. Permit the Parent, on a consolidated basis,
to report a net loss, on its consolidated income statement, for any two (2) of
the four (4) most recently completed fiscal quarters.
6.2 Limitation on Indebtedness.
Create, incur, assume or suffer to exist any Indebtedness,
except:
(a) Indebtedness of the Borrowers under this Agreement;
(b) Indebtedness under Interest Rate Hedge Agreements,
and other similar agreements entered into between any Borrower and another
Person, entered into with the prior written consent of the Administrative Agent;
* Confidential treatment requested.*
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(c) Indebtedness existing on the date hereof and
described on the attached Schedule 6.2;
(d) Indebtedness of any Borrower to any other Credit
Party and of any Credit Party to any Borrower or any other Credit Party;
(e) Indebtedness in connection with Permitted
Acquisitions;
(f) Indebtedness in connection with Guarantee Obligations
of Guarantors; and
(g) Additional Indebtedness of the Parent on a
consolidated basis not exceeding $10,000,000 in aggregate principal amount at
any one time outstanding.
6.3 Limitation on Liens.
Create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired,
except for:
(a) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of such Person in
conformity with GAAP (or, in the case of Foreign Subsidiaries, generally
accepted accounting principles in effect from time to time in their respective
jurisdictions of incorporation);
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
are (I) not overdue for a period of more than 60 days or (II) being contested in
good faith by appropriate proceedings, unless, in the case of Liens permitted by
clause (i) only, enforcement proceedings have been commenced with respect
thereto;
(c) pledges or deposits in connection with workers,
compensation, unemployment insurance and other social security legislation
(excluding ERISA);
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case materially
detract from the value of the property subject thereto or materially interfere
with the ordinary conduct of the business of such Person;
(f) Liens securing Indebtedness of the Borrowers
permitted by Section 6.2(c) incurred to finance the acquisition of fixed or
capital assets (whether pursuant to a loan, a Capitalized Lease or otherwise),
provided that (i) such Liens shall be created substantially simultaneously with
the acquisition of such fixed or capital assets, (ii) such Liens do not at any
time encumber any property other than the property financed by such
Indebtedness, (iii) the amount of Indebtedness secured thereby is not increased
and (iv) the principal amount of
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Indebtedness secured by any such Lien shall at no time exceed 90% of the
original purchase price of such property at the time it was acquired;
(g) possessory Liens which (I) occur in the ordinary
course of business; (II) secure trade debt not yet due and payable and (III) do
not secure Indebtedness for borrowed money;
(h) Liens encumbering the fee title interest of the fee
properties described in Schedule 3.8 located in Tranas, Sweden and Amal, Sweden,
securing an aggregate amount of approximately $2,000,000; and
(i) Liens created pursuant to the Security Documents.
6.4 Limitation on Guarantee Obligations.
Create, incur, assume or suffer to exist any Guarantee
Obligation except:
(a) Guarantee Obligations in existence on the date hereof
and listed on Schedule 6.4;
(b) Guarantee Obligations incurred after the date hereof
in an aggregate amount not to exceed $5,000,000 at any one time outstanding;
(c) guarantees made in the ordinary course of its
business by any Borrower of obligations of any of its Subsidiaries, which
obligations are otherwise permitted under this Agreement; and
(d) the Guarantees.
6.5 Limitation on Fundamental Changes.
Enter into any merger, consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease, assign, transfer or otherwise dispose of,
all or substantially all of its property, business or assets, or make any
material change in its present method of conducting business, except:
(a) any Subsidiary of any of the Borrowers may be merged
or consolidated with or into such Borrower (provided that such Borrower shall be
the continuing or surviving corporation) or with or into any one or more
wholly-owned Subsidiaries of such Borrower (provided that a wholly-owned Credit
Party or Credit Parties shall be the continuing or surviving corporation); and
(b) any Credit Party may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to any Borrower or any other Credit Party.
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6.6 Limitation on Sale of Assets.
Convey, sell, lease, assign, transfer or otherwise dispose of
any of its property, business or assets or any interest therein (including,
without limitation, receivables and leasehold interests), whether now owned or
hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares
of such Subsidiary's Capital Stock to any Person other than the Borrowers or any
wholly-owned Subsidiary, except:
(a) the sale or other disposition of obsolete or worn
out property in the ordinary course of business;
(b) the sale of inventory in the ordinary course of
business;
(c) as permitted by Section 6.5(b);
(d) [***]
(e) any other sales up to the aggregate of $1,000,000.
6.7 Limitation on Restricted Payments.
Except in connection with (a) the Stock Repurchase Program or
(b) Restricted Payments made by one Credit Party to another Credit Party
provided that such Restricted Payments are in the nature of a dividend or
distribution.
6.8 Limitation on Capital Expenditures.
Make any expenditure in respect of the purchase or other
acquisition of fixed or capital assets (excluding any such asset acquired in
connection with normal replacement and maintenance programs properly charged to
current operations) except for expenditures by any of the Credit Parties in the
ordinary course of business not exceeding, in the aggregate during any fiscal
year of the Credit Parties, $2,500,000 on a consolidated basis.
6.9 Limitation on Investments, Loans and Advances.
Subject to Section 6.16, make any advance, loan, extension of
credit or capital contribution to, or purchase any stock, bonds, notes,
debentures or other securities of or any assets constituting a business unit of,
or make any other investment in, any Person, except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) loans and advances to employees of any of the
Borrowers or its Subsidiaries for travel, entertainment and relocation expenses
in the ordinary course of business
* Confidential treatment requested.*
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in an aggregate amount for the Borrowers and their Subsidiaries not to exceed
$100,000 at any one time outstanding;
(d) investments by any of the Borrowers or any other
Credit Party in any other Credit Party.
(e) investments by the Borrowers in Joint Ventures in
existence on the date hereof and listed on Schedule 6.9(e);
(f) in connection with Permitted Acquisitions;
(g) loans to executive officers of the Parent pursuant
to certain employment agreements between the Parent and such officers, up to the
maximum outstanding amount of approximately $1,500,000 (including loans existing
on the Closing Date) and amounts which certain employees of the Parent are
entitled to receive based on their respective employment agreements; and
(h) in connection with the Permitted Stock Repurchase
provided that at the time of such Permitted Stock Repurchase, and after giving
effect thereto, no Default or Event of Default shall have occurred and be
continuing.
6.10 Limitation on Optional Payments and Modifications of Debt
Instruments.
(a) Make any optional payment or prepayment on or
redemption or purchase of any Indebtedness except pursuant to the Loan
Documents, or (b) amend, modify or change, or consent or agree to any amendment,
modification or change to any of the terms of any Indebtedness (excluding the
Loans) (other than any such amendment, modification or change which would extend
the maturity or reduce the amount of any payment of principal thereof or which
would reduce the rate or extend the date for payment of interest thereon).
6.11 Limitation on Transactions with Affiliates.
Enter into any transaction, including, without limitation, any
purchase, sale, lease or exchange of property or the rendering of any service,
with any Affiliate unless such transaction is (a) otherwise permitted under this
Agreement, (b) in the ordinary course of any Borrower's or such Subsidiary's
business or (c) upon fair and reasonable terms no less favorable to such
Borrower or such Subsidiary, as the case may be, than it would obtain in a
comparable arm's length transaction with a Person which is not an Affiliate.
6.12 Limitation on Sales and Leasebacks.
Enter into any arrangement with any Person providing for the
leasing by any Borrower or any of its Subsidiaries of real or personal property
which has been or is to be sold or transferred by any Borrower or such
Subsidiary to such Person or to any other Person to whom funds have been or are
to be advanced by such Person on the security of such property or rental
obligations of any Borrower or such Subsidiary.
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6.13 Limitation on Changes in Fiscal Year.
Permit the fiscal year of the Parent to end on a day other
than June 30.
6.14 Limitation on Negative Pledge Clauses.
Enter into with any Person any agreement, other than (a) this
Agreement and (b) any industrial revenue bonds, purchase money mortgages or
Capitalized Leases permitted by this Agreement (in which cases, any prohibition
or limitation shall only be effective against the assets financed thereby),
which agreement prohibits or limits the ability of any Borrower or any of its
Subsidiaries to create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired.
6.15 Limitations on Lines of Business.
Enter into any business, either directly or through any
Subsidiary, except for such businesses which are substantially similar to those
in which the Borrowers and their Subsidiaries are currently entered.
6.16 Permitted Acquisitions.
Notwithstanding the provisions of Section 6.9 above, any
Borrower or any Guarantor (or the Parent, so long as contemporaneously
therewith, all assets so acquired are transferred to one or more Borrowers), may
make an Acquisition of any Person (the "Target") (in each case, a "Permitted
Acquisition") subject to the satisfaction of each of the following conditions:
(a) the Administrative Agent shall receive at least
twenty (20) Business Days' prior written notice of such proposed Permitted
Acquisition, which notice shall include a reasonably detailed description of the
proposed Permitted Acquisition;
(b) such Permitted Acquisition shall comprise a business,
or those assets of a business, of the type or substantially similar to the type,
engaged in, or complementary or related to the business engaged in, by the
Credit Parties or any of them as of the Closing Date, and which business would
not subject the Administrative Agent or any Lender to regulatory or third party
approvals in connection with the exercise of its rights and remedies under this
Agreement or any other Loan Documents other than approvals applicable to the
exercise of such rights and remedies with respect to the Borrowers prior to such
Permitted Acquisition;
(c) such Permitted Acquisition shall be consensual and
shall have been approved by the Target's board of directors;
(d) unless otherwise consented to in writing by the
Administrative Agent and the Lenders, no additional Indebtedness, Guaranteed
Indebtedness, contingent obligations or other liabilities shall be incurred,
assumed or otherwise reflected on a consolidated balance sheet of the Parent and
the Target after giving effect to the Permitted Acquisition, except ordinary
course trade payables, accrued expenses and unsecured Indebtedness of the Target
to the extent
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no Default or Event of Default shall have occurred and be continuing or would
result after giving effect to such Permitted Acquisition and other Indebtedness
on terms acceptable to the Lenders;
(e) the Target shall have achieved Net Income of not less
than $1.00 (i) for the prior fiscal year period, as determined based upon the
Target's financial statements for its most recently completed fiscal year, and
(ii) for such interim financial period, if any, completed within sixty (60) days
prior to the date of consummation of such Permitted Acquisition;
(f) the business and assets acquired in such Permitted
Acquisition shall be free and clear of all Liens (other than Permitted
Encumbrances);
(g) total consideration (including assumed Indebtedness)
for all Permitted Acquisitions) shall not exceed $15,000,000;
(h) at or prior to the closing of any Permitted
Acquisition, the Administrative Agent will be granted a first priority perfected
Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto
or in the assets and capital stock of the Target, and the Parent, the Borrowers
and the Target shall have executed such documents and taken such actions as may
be required by Agent in connection therewith;
(i) cash consideration (including assumed Indebtedness)
for any one Permitted Acquisition shall not exceed $10,000,000 without the
consent of the Required Lenders.
(j) concurrently with delivery of the notice referred to
in clause (a) above, Borrowers shall have delivered to the Administrative Agent,
in form and substance satisfactory to the Agent, a pro forma consolidated
balance sheet of the Parent (the "Acquisition Pro Forma"), based on recent
financial data, which shall be complete and shall accurately and fairly
represent the assets, liabilities, financial condition and results of operations
of the Parent in accordance with GAAP consistently applied, but taking into
account such Permitted Acquisition and the funding of all Loans in connection
therewith, and such Acquisition Pro Forma shall reflect that on a pro forma
basis, no Event of Default shall have occurred and be continuing or would result
after giving effect to such Permitted Acquisition and the Borrowers would have
been in compliance with the financial covenants set forth in Section 6.1 hereof
for the four quarter period reflected in the Compliance Certificate most
recently delivered to the Administrative Agent prior to the consummation of such
Permitted Acquisition (giving effect to such Permitted Acquisition and all Loans
funded in connection therewith as if made on the first day of such period);
(k) on or prior to the date of such Permitted
Acquisition, the Administrative Agent shall have received, in form and substance
satisfactory to the Administrative Agent, all opinions, certificates, lien
search results and other documents reasonably requested by Agent; and
(l) at the time of such Permitted Acquisition and after
giving effect thereto, no Default or Event of Default shall have occurred and be
continuing.
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6.17 Prohibition on Change of Control.
Cause, permit or allow any Change of Control.
6.18 Tax Sharing.
It will not, and will not permit any Subsidiary to, consent to
or permit the filing of or be a party to any consolidated income tax return with
any Person other than a consolidated return of the Parent and its Subsidiaries.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of or
interest on any Loan when due in accordance with the terms hereof, or any
Borrower shall fail to pay any other amount payable hereunder or under any Loan
Document or any Interest Rate Hedge Agreement after any such other amount
becomes due in accordance with the terms hereof or thereof; or
(b) Any representation or warranty made or deemed made by
any Borrower or any other Credit Party herein or in any other Loan Document or
any Interest Rate Hedge Agreement or which is contained in any certificate,
document or financial or other statement furnished by it at any time under or in
connection with this Agreement or any such other Loan Document shall prove to
have been incorrect in any material respect on or as of the date made or deemed
made; or
(c) Any Borrower or any other Credit Party shall default
in the observance or performance of any agreement contained in Section 5.1, 5.2,
5.4 or 5.5 or Section 6 hereof (including to the extent incorporated by
reference pursuant to Section 6 of the Subsidiaries Guarantee), Section 5(b) of
any Stock Pledge Agreement, or 6.2(a) or (b) of the Borrower Security Agreement,
or Section 4.7, 5.5(a) or 6.2(a) or (b) or of the Subsidiaries Security
Agreement; or
(d) Any Borrower or any other Credit Party shall default
in the observance or performance of any other agreement contained in this
Agreement or any other Loan Document or any Interest Rate Hedge Agreement (other
than as provided in subsections (a) through (c) of this Section 7) and such
default shall continue for a period of 15 days; or
(e) Any Borrower or any other Credit Party shall: (i)
default in any payment of principal of or interest on any Indebtedness (other
than the Loans) or in the payment of any Guarantee Obligation, beyond the period
of grace (not to exceed 30 days), if any, provided in the instrument or
agreement under which such Indebtedness or Guarantee Obligation was created, if
the aggregate amount of the Indebtedness and/or Guarantee Obligations in respect
of which such default or defaults shall have occurred is at least $1,000,000; or
(ii) default in the observance or performance of any other agreement or
condition relating to any such Indebtedness (other than the Loans) or Guarantee
Obligation or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit the
holder or holders of such
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Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation (or a
trustee or Administrative Agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable (after the expiration of any applicable grace
period); or
(f) (i) Any Borrower or any other Credit Party shall
commence any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or such Borrower or any other Credit Party shall make a general
assignment for the benefit of its creditors; or (ii) there shall be commenced
against any Borrower or any other Credit Party any case, proceeding or other
action of a nature referred to in clause (i) above which (A) results in the
entry of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against any Borrower or any other Credit Party any
case, proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or (iv) any Borrower or any other Credit
Party shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause (i), (ii),
or (iii) above; or (v) any Borrower or any other Credit Party shall generally
not, or shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of any
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall occur
with respect to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders, likely to result
in the termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) any
Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion
of the Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or
(vi) any other event or condition shall occur or exist with respect to a Plan;
and in each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, would reasonably be
expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered
against any of the Credit Parties involving in the aggregate liability (not paid
or fully covered by insurance) of
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$1,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 60 days from the
entry thereof, or any action to enforce any such judgment or decree, or any Lien
created in connection therewith, shall have been taken and shall have been
stayed within 60 days thereof; or
(i) (i) Any of the Security Documents shall cease, for
any reason, to be in full force and effect, or any Borrower or any other Credit
Party shall so assert, directly or indirectly, or (ii) the Lien created by any
of the Security Documents shall cease to be enforceable and of the same effect
and priority purported to be created thereby; or
(j) Any Guarantee shall cease, for any reason, to be in
full force and effect or any Guarantor shall so assert, directly or indirectly;
(k) The business or operations of the Credit Parties
taken as a whole shall experience a Material Adverse Effect; or
(l) A Change of Control shall occur.
then, and in any such event, (a) if such event is an Event of Default specified
in clause (i), (ii) or (iv) of subsection (f) of this Section with respect to
any Borrower or any other Credit Party, automatically the Commitments shall
immediately terminate and the Obligations (other than Obligations in respect of
Interest Rate Hedge Agreements) including, without limitation, the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement shall immediately become due and payable and the Borrowers' rights to
request issuance of Letters of Credit shall terminate and the Borrowers shall
provide cash collateral for Letter of Credit Obligations as set forth in Section
2.18(i) hereof, and (B) if such event is any other Event of Default, either or
both of the following actions may be taken: (i) with the consent of the Required
Lenders, the Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to the Borrowers declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrowers, declare the Obligations
(other than Obligations in respect of Interest Rate Hedge Agreements),
including, without limitation, the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement to be due and payable
forthwith, whereupon the same shall immediately become due and payable and, in
either of such actions under this clause (b), the Borrowers shall provide cash
collateral for Letter of Credit Obligations as set forth in Section 2.18(i)
hereof. Except as expressly provided above in this Section, presentment, demand,
protest and all other notices of any kind are hereby expressly waived.
SECTION 8. ADMINISTRATIVE AGENT
8.1 Appointment.
Each Lender hereby irrevocably designates and appoints the
Administrative Agent as the Administrative Agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other
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Loan Documents and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Agreement
and the other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
8.2 Delegation of Duties.
The Administrative Agent may execute any of its duties under
this Agreement and the other Loan Documents and the Interest Rate Hedge
Agreement by or through its agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any of its agents or attorneys-in-fact selected by it with reasonable care.
8.3 Exculpatory Provisions.
Neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates shall be (I)
liable for any action lawfully taken or omitted to be taken by it or any such
Person under or in connection with this Agreement or any other Loan Document or
any Interest Rate Hedge Agreement (except for its or such Person's own gross
negligence or willful misconduct) or (II) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
any Borrower or any officer thereof contained in this Agreement or any other
Loan Document or any Interest Rate Hedge Agreement or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document or any Interest Rate Hedge Agreement or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or any Interest Rate Hedge Agreement or for
any failure of any Borrower to perform its obligations hereunder or thereunder.
The Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document or any Interest Rate Hedge Agreement, or to inspect the properties,
books or records of any Borrower.
8.4 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telecopy, telex or teletype message, statement,
order or other document or conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation, counsel
to any Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing
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or refusing to take any action under this Agreement or any other Loan Document
or any Interest Rate Hedge Agreement unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Loan Documents and the Interest Rate Hedge Agreements in accordance with a
request of the Required Lenders, and such request and any action taken or
failure to act pursuant hereto or thereto or shall be binding upon all the
Lenders and all future holders of the Loans.
8.5 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default hereunder unless
the Administrative Agent has received notice from a Lender or the Borrowers
referring to this Agreement and describing such Default or Event of Default and
stating that such notice is a "notice of default." In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
notice thereof to the Lenders. The Administrative Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably directed
by the Required Lenders; provided that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable and in
the best interests of the Lenders.
8.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that none of the
Administrative Agent or any of its respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates has made any representations or
warranties to it and that no act by the Administrative Agent hereinafter taken,
including any review of the affairs of any Borrower, shall be deemed to
constitute any representation or warranty by the Administrative Agent to any
Lender. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrowers and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents and the
Interest Rate Hedge Agreements, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, financial
and other condition and creditworthiness of the Borrowers. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of any Borrower which may come into
the possession
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of the Administrative Agent or any of its respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
8.7 Indemnification.
The Lenders agree to indemnify the Administrative Agent in its
capacity as such (to the extent not reimbursed by the Borrowers and without
limiting the obligation of the Borrowers to do so), ratably according to their
respective Commitment Percentages in effect on the date on which indemnification
is sought (or, if indemnification is sought after the date upon which the
Commitments shall have terminated and the Loans shall have been paid in full,
ratably in accordance with their Commitment Percentages immediately prior to
such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation, at
any time following the payment of the Loans) be imposed on, incurred by or
asserted against the Administrative Agent in any way relating to or arising out
of, the Commitments, this Agreement, any of the other Loan Documents, any of the
Interest Rate Hedge Agreements or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Administrative Agent under or in connection with
any of the foregoing; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting solely
from the Administrative Agent's gross negligence or willful misconduct. The
agreements in this Section shall survive the payment of the Loans and all other
amounts payable hereunder.
8.8 Administrative Agent in Its Individual Capacity.
The Administrative Agent and its Affiliates may make loans to,
accept deposits from and generally engage in any kind of business with any
Borrower as though the Administrative Agent were not the Administrative Agent
hereunder and under the other Loan Documents and the Interest Rate Hedge
Agreements. With respect to the Loans made by it, the Administrative Agent shall
have the same rights and powers under this Agreement and the other Loan
Documents and the Interest Rate Hedge Agreements as any Lender and may exercise
the same as though it were not the Administrative Agent, and the terms "Lender"
and "Lenders" shall include the Administrative Agent in its individual capacity.
8.9 Successor Administrative Agent.
The Administrative Agent may resign as Administrative Agent
upon 10 days notice to Lenders. In addition, the Administrative Agent may be
removed in its capacity as Administrative Agent, by vote of the Required Lenders
(for which purpose Administrative Agent shall not be deemed a Lender and its
Commitment and Commitment Percentage shall be excluded from such calculation)
if, at any time after the Closing Date, (i) the Administrative Agent ceases to
hold an economic stake of at least ten percent (10%) of the Commitment or the
Loans, whether as a result of any assignment of participation permitted under
this Agreement or otherwise, or (ii) the Administrative Agent has engaged in any
conduct that constitutes gross negligence or willful misconduct. If the
Administrative Agent shall resign or be removed as Administrative Agent under
this Agreement and the other Loan Documents, then the Required
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Lenders shall appoint from among the Lenders a successor Administrative Agent
for the Lenders, which successor Administrative Agent shall be deemed approved
by the Borrowers, whereupon such successor Administrative Agent shall succeed to
the rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor Administrative Agent effective
upon such appointment and approval, and the former Administrative Agent's
rights, powers and duties as Administrative Agent shall be terminated, without
any other or further act or deed on the part of such former Administrative Agent
or any of the parties to this Agreement or any holders of the Loans. After any
retiring Administrative Agent's resignation as Administrative Agent, the
provisions of this Section 8.9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Agreement and the other Loan Documents and the Interest Rate Hedge Agreements.
8.10 Documentation Agent.
The parties agree that the Documentation Agent shall not have
any special duties, rights or powers under this Agreement but shall be entitled
to the same protections afforded to the Administrative Agent under this Section
8 to the extent that the Documentation Agent performed any duties or exercised
any rights or powers, in such capacity under this Agreement.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers.
Neither this Agreement nor any other Loan Document, nor any
terms hereof or thereof may be amended, supplemented or modified except in
accordance with the provisions of this Section. The Required Lenders may, or,
with the written consent of the Required Lenders, the Administrative Agent may,
from time to time, (a) enter into with the Borrowers and the other Credit
Parties, written amendments, supplements or modifications hereto and to the
other Loan Documents for the purpose of adding any provisions to this Agreement
or the other Loan Documents or changing in any manner the rights of the Lenders
or of the Borrowers and the other Credit Parties hereunder or thereunder, or (b)
waive in writing, on such terms and conditions as the Required Lenders or the
Administrative Agent, as the case may be, may specify in such instrument, any of
the requirements of this Agreement or the other Loan Documents or any Default or
Event of Default and its consequences; provided, however, that no such waiver
and no such amendment, supplement or modification shall (i) reduce the amount or
extend the scheduled date of maturity of any Loan or of any installment thereof,
or reduce the stated rate of, or amount of, any interest, fee or other amount
payable hereunder or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Lender's Commitment, in
each case without the consent of each Lender affected thereby, or (ii) amend,
modify or waive any provision of this Section or reduce the percentage specified
in the definition of Required Lenders, or consent to the assignment or transfer
by any Borrower or any of the other Credit Parties of any of its rights and
obligations under this Agreement and the other Loan Documents or release all or
a material portion of the Collateral or release any Guarantee or Guarantor or
amend, modify or waive any provision of Section 2.7, in each case without the
written consent of all the Lenders. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and shall
be binding upon the Borrowers, the other Credit Parties, the Lenders, the
Administrative Agent and all future holders of the
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Loans. In the case of any waiver, the Parent, the Borrowers, the other Credit
Parties, the Lenders and the Administrative Agent shall be restored to their
former positions and rights hereunder and under the other Loan Documents, and
any Default or Event of Default waived shall be deemed to be cured and not
continuing; no such waiver shall extend to any subsequent or other Default or
Event of Default or impair any right consequent thereon, except as may be
expressly set forth in any such waiver.
9.2 Notices.
All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by facsimile
transmission) and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made (a) in the case of delivery by hand, when
delivered, (b) in the case of delivery by mail, three days after being deposited
in the mail, postage prepaid, or (c) in the case of delivery by facsimile
transmission, when sent and receipt has been confirmed, addressed as follows in
the case of the Credit Parties and the Administrative Agent, or to such other
address as may be hereafter notified by the respective parties hereto:
If to any Credit Party: c/x Xxxxxxx Technology Company, Inc.
00 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxxxxxx,
Chief Financial Officer
Fax: 000.000.0000
With a copy to: Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxxxxx, III, Esq.
Fax: 000.000.0000
The Administrative
Agent: Fleet National Bank
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xx. X. Xxxxxxx Xxxxxx, Jr.
Fax: 000.000.0000
With a copy to: Xxxxxxxx & Xxxx LLP
Financial Centre
000 Xxxx Xxxx Xxxxxx
X.X. Xxx 00000
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: 000.000.0000
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provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to Section 2.2, 2.4, 2.5 or 2.11 shall not be effective
until received.
9.3 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part
of the Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder or under the other Loan Documents or the Interest Rate Hedge
Agreements shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 Survival of Representations and Warranties.
All representations and warranties made hereunder, in the
other Loan Documents and the Interest Rate Hedge Agreements and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder until all obligations hereunder and under the other Loan
Documents have been paid in full and the Commitments hereunder have been
terminated.
9.5 Payment of Expenses and Taxes.
The Borrowers jointly and severally agree (a) to pay or
reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation,
syndication and execution of, and any amendment, supplement or modification to,
this Agreement and the other Loan Documents and the Interest Rate Hedge
Agreements and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent, (b) to pay or reimburse
each Lender and the Administrative Agent for all its reasonable costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and the Interest Rate
Hedge Agreements and any such other documents, including, without limitation,
the fees and disbursements of counsel to each Lender and of counsel to the
Administrative Agent, (c) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying
stamp, excise and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and the Interest Rate Hedge Agreements
and any such other documents, and (d) to pay, indemnify, and hold each Lender
and the Administrative Agent, and each of their respective Affiliates,
directors, officers, employees and representatives (each, an "Indemnified
Party") harmless from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the
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execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and the Interest Rate Hedge Agreements, and
the use of the proceeds of the Loans and the Letters of Credit, including,
without limitation, any of the foregoing relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable to the
operations of the Borrowers, any of the other Credit Parties or any of the
Properties (all the foregoing in this clause (d), collectively, the "Indemnified
Liabilities"), provided, that the Borrowers shall have no obligation hereunder
to any Indemnified Party with respect to Indemnified Liabilities arising from
the gross negligence or willful misconduct of such Indemnified Party. The
agreements in this Section shall survive repayment of the Loans and all other
amounts payable hereunder.
9.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the
benefit of the Borrowers, the other Credit Parties, the Lenders, the
Administrative Agent and their respective successors and assigns, except that no
Borrower or any other Credit Party may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender shall have the unrestricted right at any time
and from time to time, and without the consent of or notice to any Borrower or
any other Credit Party, to grant to one of more banks or other financial
institutions (each, a "Participant") participating interests in any or all of
the Loans held by such Lender hereunder. In the event of any such grant by a
Lender of a participating interest to a Participant, whether or not upon notice
to the Borrowers or the other Credit Parties, the Borrowers and the other Credit
Parties shall continue to deal solely and directly with such Lender in
connection with Lender's rights and obligations hereunder. Any Lender may
furnish any information concerning the Borrowers in its possession from time to
time to prospective Participants, provided that the Lenders shall require any
such prospective Participant to agree in writing to maintain the confidentiality
of such information.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and from
time to time assign to any of its affiliates or to any Lender or any affiliate
thereof or to an additional bank or financial institution (an "Assignee"), in
the case of any assignment relating to Commitments to such an additional bank or
financial institution with the consent of the Borrowers and the Administrative
Agent (which consents in each case shall not be unreasonably withheld), all or
any part of its rights and obligations under this Agreement and the other Loan
Documents pursuant to an Assignment and Acceptance, substantially in the form of
Exhibit I, executed by such Assignee, such assigning Lender (and, to the extent
required, by the Borrowers and the Administrative Agent) and delivered to the
Administrative Agent for its acceptance and recording in the Register. Upon such
execution, delivery, acceptance and recording, from and after the effective date
determined pursuant to such Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
with a Commitment as set forth therein, and (y) the assigning Lender thereunder
shall, to the extent provided in such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations
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under this Agreement, such assigning Lender shall cease to be a party hereto).
Notwithstanding any provision of this Section and subsection (d) below, the
consent of the Borrowers shall not be required, and, unless requested by the
Assignee and/or the assigning Lender, new Notes shall not be required to be
executed and delivered by the Borrowers, for any assignment which occurs at any
time when any of the events described in Section 7 shall have occurred and be
continuing (including during any grace or cure period).
(d) The Administrative Agent shall, on behalf of the
Borrowers, maintain at the address of the Administrative Agent referred to in
Section 9.2 a copy of each Assignment and Acceptance delivered to it and a
register (the "Register") for the recordation of the names and addresses of the
Lenders and the Commitment of, and principal amounts of the Loans owing to, each
Lender from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error and provided such entries are made in good faith,
and the Borrowers, the Administrative Agent and the Lenders shall treat each
Person whose name is recorded in the Register as the owner of a Loan or other
obligation hereunder or under any Note as the owner thereof for all purposes of
this Agreement and the other Loan Documents, notwithstanding any notice to the
contrary. Any assignment of any Loan or other obligation hereunder or under any
Note shall be effective only upon appropriate entries with respect thereto being
made in the Register. 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) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of any assignment
relating to Revolving Credit Loans to an Affiliate of such assigning Lender or
to an Assignee that is not then a Lender or an affiliate thereof, by the
Borrowers and the Administrative Agent), the Administrative Agent shall (I)
promptly accept such Assignment and Acceptance and (II) on the effective date
determined pursuant thereto, record the information contained therein in the
Register and give notice of such acceptance and recordation to the Lenders and
the Borrowers.
(f) The Borrowers authorize each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
approved by the Borrowers in accordance with Section 9.6(c), subject to the
provisions of Section 9.15, any and all financial information in such Lender's
possession concerning the Borrowers and their Affiliates which has been
delivered to such Lender by or on behalf of the Borrowers pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrowers in connection with such Lender's credit evaluation of the Borrowers
and their Affiliates prior to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section concerning assignments of Loans
and Notes relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including, without limitation,
any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve
Bank in accordance with applicable law; provided, however, that no such pledge
or assignment shall release such Lender from such Lender's obligations hereunder
or under any other Loan Document.
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9.7 Adjustments; Set-off.
(a) If any Lender (a "Benefited Lender") shall at any time
receive any payment of all or part of its Loans, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in clause
(f) of Section 7, or otherwise), in a greater proportion than any such payment
to or collateral received by any other Lender, if any, in respect of such other
Lender's Loans, or interest thereon, such Benefited Lender shall purchase for
cash from the other Lenders a participating interest in such portion of each
such other Lender's Loan, or shall provide such other Lenders with the benefits
of any such collateral, or the proceeds thereof, as shall be necessary to cause
such Benefited Lender to share the excess payment or benefits of such collateral
or proceeds ratably with each of the Lenders; provided, however, that if all or
any portion of such excess payment or benefits is thereafter recovered from such
Benefited Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrowers or the other Credit Parties, any such notice being expressly waived by
the Borrowers and the other Credit Parties to the extent permitted by applicable
law, upon any amount becoming due and payable by any Borrower or any other
Credit Party hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of any Borrower or any other Credit
Party. Each Lender agrees promptly to notify the Borrowers, the other Credit
Parties and the Administrative Agent after any such set-off and application made
by such Lender, provided that the failure to give such notice shall not affect
the validity of such set-off and application.
(c) Each of the Borrowers and the other Credit Parties hereby
grant to each Lender a continuing lien, security interest and right of set-off
as security for all liabilities and obligations to such Lender, whether now
existing or hereafter arising, upon and against all deposits, credits,
collateral and property, now or hereafter in the possession, custody,
safekeeping or control of such Lender or any entity under the control of
FleetBoston Financial Corporation and its successors and assigns or in transit
to any of them. At any time, without demand or notice (any such notice being
expressly waived by the Borrower and the other Credit Parties), such Lender may
set off the same or any part thereof and apply the same to any liability or
obligation of Borrower and any other Credit Party and regardless of the adequacy
of any other collateral securing the Obligations. ANY AND ALL RIGHTS TO REQUIRE
ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER
COLLATERAL WHICH SECURES THE OBLIGATIONS PRIOR TO EXERCISING ITS RIGHT OF SETOFF
WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWERS OR ANY
OTHER CREDIT PARTIES, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
9.8 Pledge to the Federal Reserve.
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Each Lender may at any time pledge or assign all or any
portion of its rights under this Agreement or any loan documents to any of the
twelve (12) Federal Reserve Banks organized under Section 4 of the Federal
Reserve Act, 12 U.S.C. Section 341. No such pledge or assignment or enforcement
thereof shall release any Lender from its obligations under this Agreement or
any of the loan documents.
9.9 Replacement Promissory Note.
Upon receipt of an affidavit of an officer of a Lender as to
the loss, theft, destruction or mutilation of a Note issued to such Lender or
any other security document which is not of public record, and, in the case of
any such loss, theft, destruction or mutilation, upon cancellation of such Note
or other security document, Borrowers will issue, in lieu thereof, a replacement
note or other security document in the same principal amount thereof and
otherwise of like tenor.
9.10 Counterparts.
This Agreement may be executed by one or more of the parties
to this Agreement on any number of separate counterparts (including by facsimile
transmission), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrowers and the
Administrative Agent.
9.11 Severability.
Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.12 Integration.
This Agreement and the other Loan Documents and the Interest
Rate Hedge Agreements, if any, are intended by the parties as the final,
complete and exclusive statement of the transactions evidenced by this Agreement
and the other Loan Documents and the Interest Rate Hedge Agreements. All prior
or contemporaneous promises, agreements and understandings, whether oral or
written, are deemed to be superseded by this Agreement and the other Loan
Documents and the Interest Rate Hedge Agreements, and no party is relying on any
promise, agreement or understanding not set forth in this Agreement and the
other Loan Documents and the Interest Rate Hedge Agreements. This Agreement and
the other Loan Documents and the Interest Rate Hedge Agreements may not be
amended or modified except by a written instrument describing such amendment or
modification executed by the parties.
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9.13 CHOICE OF LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
9.14 Submission To Jurisdiction; Waivers.
Each of the parties hereto hereby irrevocably and
unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents and the
Interest Rate Hedge Agreements to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such party
at its address set forth in Section 9.2 or Schedule 1-C, as applicable, or at
such other address of which the other parties shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, punitive or consequential damages.
9.15 Acknowledgements.
Each of the Borrowers, the Parent and the other Credit Parties
hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to any Borrower, the Parent or other Credit
Party arising out of or in connection with this Agreement or any of the other
Loan Documents or the Interest Rate Hedge Agreements, and the relationship
between the Administrative Agent and Lenders, on one hand,
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and any Borrower, the Parent or any other Credit Party, on the other hand, in
connection with this Agreement or any of the other Loan Documents is solely that
of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or the Interest Rate Hedge Agreements or otherwise exists by virtue of
the transactions contemplated hereby among the Lenders or among the Borrowers,
the Parent, the other Credit Parties and the Lenders.
9.16 WAIVERS OF JURY TRIAL.
EACH BORROWER, THE PARENT, THE OTHER CREDIT PARTIES, THE
ADMINISTRATIVE AGENT AND THE LENDERS MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED
HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR INTEREST RATE HEDGE AGREEMENT CONTEMPLATED TO BE EXECUTED IN
CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING, WITHOUT
LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF
LENDERS RELATING TO THE ADMINISTRATION OF THE LOANS OR ENFORCEMENT OF ANY LOAN
DOCUMENT OR INTEREST RATE HEDGE AGREEMENT, AND AGREE THAT NONE OF THE PARTIES
WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY
TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW, BORROWERS
HEREBY WAIVE ANY RIGHT THEY MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN,
OR IN ADDITION TO, ACTUAL DAMAGES. EACH BORROWER, THE PARENT AND THE OTHER
CREDIT PARTIES CERTIFY THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF LENDERS HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LENDERS WOULD NOT, BY THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. THIS WAIVER CONSTITUTES A
MATERIAL INDUCEMENT FOR THE LENDERS TO ACCEPT THIS AGREEMENT AND MAKE THE LOANS.
9.17 Confidentiality.
The Administrative Agent and each Lender agrees to keep
confidential all non-public information provided to it by any Borrower pursuant
to this Agreement that is designated by such Borrower in writing as
confidential; provided that nothing herein shall prevent any Lender from
disclosing any such information (i) to the Administrative Agent or any other
Lender, (ii) to any Transferee which receives such information having been made
aware of the confidential nature thereof, (iii) to its and its Affiliates'
employees, directors, agents, attorneys, accountants and other professional
advisors, (iv) upon the request or demand of any Governmental Authority having
jurisdiction over such Lender, (v) in response to any order of any court or
other Governmental Authority or as may otherwise be required pursuant to any
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Xxxxxxxxxxx xx Xxx, (xx) which has been publicly disclosed other than in breach
of this Agreement, or (vii) in connection with the exercise of any remedy
hereunder or under any of the other Loan Documents or the Interest Rate Hedge
Agreements.
9.18 Judgment Currency.
(a) The Borrowers' obligations hereunder and under the other
Loan Documents to make payments in the applicable Approved Currency (the
"Obligation Currency") shall not be discharged or satisfied by any tender or
recovery pursuant to any judgment expressed in or converted into any currency
other than the Obligation Currency, except to the extent that such tender or
recovery results in the effective receipt by the Administrative Agent or the
respective Lender of the full amount of the Obligation Currency expressed to be
payable to the Administrative Agent or such Lender under this Agreement or the
other Loan Documents. If for the purpose of obtaining or enforcing judgment
against any Borrower in any court or in any jurisdiction, it becomes necessary
to convert into or from any currency other than the Obligation Currency (such
other currency being hereinafter referred to as the "Judgment Currency") an
amount due in the Obligation Currency, the conversion shall be made at the
Equivalent Dollar Amount, and, in the case of other currencies, the rate of
exchange (as quoted by the Administrative Agent or if the Administrative Agent
does not quote a rate of exchange on such currency, by a known dealer in such
currency designated by the Administrative Agent) determined, in each case, as of
the Business Day immediately preceding the day on which the judgment is given
(such Business Day being hereinafter referred to as the "Judgment Currency
Conversion Date").
(b) If there is a change in the rate of exchange prevailing
between the Judgment Currency Conversion Date and the date of actual payment of
the amount due, the Borrowers covenant and agree to pay, or cause to be paid,
such additional amounts, if any (but in any event not a lesser amount) as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on the Judgment Currency Conversion
Date.
9.19 Euro.
(a) If at any time that a Loan based on any Alternative
Currency is outstanding, the relevant Alternative Currency is fully replaced as
the lawful currency of the country that issued such Alternative Currency (the
"Issuing Country") by the Euro so that all payments are to be made in the
Issuing Country in Euros and not in the Alternative Currency previously the
lawful currency of such Issuing Country, then such Loan based on an Alternative
Currency shall be automatically converted into a Loan denominated in Euros in a
principal amount or stated amount equal to the amount of Euros into which the
principal amount or stated amount of such Loan based on an Alternative Currency
would be converted pursuant to the EMU Legislation and thereafter no further
Loans will be available in such Alternative Currency, with the basis of accrual
of interest, notices requirements and payment offices with respect to such
converted Loans to be that consistent with the convention and practices in the
London interbank market for Euro-denominated Loans.
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(b) The Borrowers shall from time to time, at the request of
any Lender, pay to such Lender the amount of any losses, damages, liabilities,
claims, reduction in yield, additional expense, increased cost, reduction in any
amount payable, reduction in the effective return of its capital, the decrease
or delay in the payment of interest or any other return forgone by such Lender
or its affiliates as a result of the tax or currency exchange resulting from the
introduction, changeover to or operation of the Euro in any applicable nation or
Eurocurrency market.
SECTION 10. GUARANTY
10.1 The Guaranty.
Each of the Borrowers hereby unconditionally and irrevocably,
jointly and severally guaranties the full and punctual payment (whether at
stated maturity, upon acceleration or otherwise) of the principal of and
interest of the obligations of the other Borrowers hereunder and under the other
Loan Documents. Upon failure by any other Borrower to pay punctually any such
amount, each Borrower shall forthwith on demand pay the amount not so paid at
the place and in the manner specified in this Agreement or the other applicable
Loan Document.
10.2 Guaranty Unconditional.
The obligations of each Borrower under this Section 10 shall
be unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of any other Borrower under this Agreement
or any Note or any other Loan Document, by operation of law or otherwise;
(b) any modification or amendment of or supplement to this
Agreement or any Note or any other Loan Document;
(c) any release, non-perfection or invalidity of any direct or
indirect security for any obligation of any other Borrower under this Agreement
or any Note or any other Loan Document;
(d) any change in the corporate existence, structure or
ownership of any other Borrower or any other Credit Party, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting any other
Borrower or any other Credit Party or its assets or any resulting release or
discharge of any other Borrower or any other Credit Party or any obligation of
any other Borrower or any other Credit Party contained in this Agreement or any
Note or any other Loan Document;
(e) the existence of any claim, set-off or other rights which
each Borrower may have at any time against any other Borrower or any other
Credit Party, the Administrative Agent, any Lender or any other Person, whether
in connection herewith or any unrelated transactions; provided that nothing
herein shall prevent the assertion of any such claim by separate suit or
compulsory counterclaim;
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(f) any invalidity or unenforceability relating to or against
any other Borrower or any other Credit Party, for any reason, of this Agreement
or any Note or any other Loan Document, or any provision of applicable law or
regulation purporting to prohibit the payment by any other Borrower or any other
Credit Party of the principal of or interest on any Note or any other amount
payable by it under this Agreement or any other Loan Document; or
(g) any other act or omission to act or delay of any kind by
any other Borrower or any other Credit Party, the Administrative Agent, any
Lender or any other Person or any other circumstance whatsoever which might, but
for the provisions of this Section 10, constitute a legal or equitable discharge
of such Borrower's obligations hereunder.
10.3 Discharge Only Upon Payment in Full; Reinstatement in Certain
Circumstances.
Each Borrower's obligations under this Section 10 shall remain
in full force and effect until the Commitments shall have terminated and the
principal of and interest on the Notes and all other amounts payable by the
Borrowers under this Agreement and each of the other Loan Documents shall have
been finally and indefeasibly paid in full in cash. If at any time any payment
of the principal of or interest on any Note or any other amount payable by any
Borrower under this Agreement or any other Loan Document is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of any Borrower or any Subsidiary or otherwise, each Borrower's obligations
hereunder with respect to such payment shall be reinstated at such time as
though such payment had been due but not made at such time.
10.4 Waiver by the Borrower.
Each Borrower irrevocably waives acceptance hereof,
presentment, demand, protest and any notice not provided for herein, as well as
any requirement that at any time any action be taken by any Person against any
Borrower, any other Credit Party or any other Person.
10.5 Subrogation.
Each Borrower irrevocably waives any and all rights to which
it may be entitled, by operation of law or otherwise, upon making any payment
hereunder to be subrogated to the rights of the payee against any other Borrower
or any other Credit Party with respect to such payment or otherwise to be
reimbursed, indemnified or exonerated by such other Borrower or any other Credit
Party in respect thereof, until the expiration of one year after all amounts
owing to the Lenders hereunder and under the other Loan Documents shall have
been repaid and the Commitments are terminated.
10.6 Stay of Acceleration.
If acceleration of the time for payment of any amount payable
by any Borrower or any other Credit Party under this Agreement or the Notes or
any other Loan Document is stayed upon insolvency, bankruptcy or reorganization
of any Borrower or any other Credit Party, all such amounts otherwise subject to
acceleration under the terms of this Agreement shall nonetheless be payable by
each Borrower hereunder forthwith on demand by the Administrative Agent made at
the request of the Required Lenders.
- 82 -
89
Signature Page to
Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the date first above written.
Borrowers:
---------
XXXXXXX AMERICAS CORPORATION
By /s/Xxxxx X. Xxxxxxxx
--------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
XXXXXXX EUROPE CONSOLIDATED INC.
By /s/Xxxxx X. Xxxxxxxx
--------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
XXXXXXX ASIA PACIFIC CORPORATION
By /s/Xxxxx X. Xxxxxxxx
--------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Lenders:
-------
FLEET NATIONAL BANK, as Administrative
Agent and Lender
By /s/X. Xxxxxxx Xxxxxx, Jr.
--------------------------------------------------
X. Xxxxxxx Xxxxxx, Jr.
Title: Senior Vice President
FIRST UNION NATIONAL BANK, as
Documentation Agent and Lender
- 83 -
90
By /s/Xxxxxxxx Xxxxxxxxxxx
--------------------------------------------------
Xxxxxxxx Xxxxxxxxxxx
Title: Executive Vice President
- 84 -
91
The following Persons are signatories to this Agreement in their capacities as
Credit Parties and not as Borrowers.
XXXXXXX TECHNOLOGY CORPORATION
By /s/Xxxxxx X. Xxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Treasurer
XXXXXXX GRAPHIC SYSTEMS, INC.
By /s/Xxxxxx X. Xxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Treasurer
XXXXXXX ENKEL CORPORATION
By /s/Xxxxx X. Xxxxxxxx
--------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
XXXXXXX KANSA CORPORATION
By /s/Xxxxxx X. Xxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Secretary & Treasurer
XXXXXXX EUROPE CONSOLIDATED BV
By /s/S. Xxxxx Xxxxxxxxx
--------------------------------------------------
Name: S. Xxxxx Xxxxxxxxx
Title: Managing Director
XXXXXXX GERMAN CAPITAL HOLDING GMBH
By /s/S. Xxxxx Xxxxxxxxx
--------------------------------------------------
Name: S. Xxxxx Xxxxxxxxx
Title: Geschaftsfuhrer
XXXXXXX GRAFOTEC GMBH
By /s/Xxxxxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Xxxxxxxxxxxxxxx
- 00 -
00
XXXXXXX XXXXXX HOLDING AB
By /s/Xxxxx X. Xxxxxxxx
--------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
XXXXXXX XXXX AB
By /s/Xxxxxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
XXXXXXX IVT AB
By /s/Xxxxxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
XXXXXXX JIMEK AB
By /s/Xxxxxxx X. Xxxxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
XXXXXXX - JAPAN LTD.
By /s/Takayuki Miyaoku
--------------------------------------------------
Name: Takayuki Miyaoku
Title: President
- 86 -
93
SCHEDULE 1-A
TO CREDIT AGREEMENT
ALTERNATIVE CURRENCIES
- Deutschmarks
- Dutch Xxxxxx
- Euros
- Japanese Yen
- Pounds Sterling
- Swedish Krone
94
SCHEDULE 1-B
TO CREDIT AGREEMENT
GUARANTORS
- Xxxxxxx Technology Company, Inc.
- Xxxxxxx Technology Corporation
- Xxxxxxx Graphics Systems, Inc.
- Xxxxxxx Enkel Corporation
- Xxxxxxx Kansa Corporation
- Xxxxxxx Europe Consolidated BV
- Xxxxxxx German Capital Holding GmbH
- Xxxxxxx Grafotec GmbH
- Xxxxxxx Sweden Holding AB
- Xxxxxxx XXXX AB
- Xxxxxxx IVT AB
- Xxxxxxx Jimek AB
- Xxxxxxx - Japan Ltd.
95
SCHEDULE 1-C
TO CREDIT AGREEMENT
LENDERS, COMMITMENTS AND ADDRESSES FOR NOTICES
Revolving Credit
Name/Address Commitment
------------ ----------
Fleet National Bank $17,500,000
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
First Union National Bank $17,500,000
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
96
SCHEDULE 3.1
TO CREDIT AGREEMENT
LIABILITIES
None
97
SCHEDULE 3.6
TO CREDIT AGREEMENT
LITIGATION
None
98
SCHEDULE 3.8
TO CREDIT AGREEMENT
PROPERTIES
1. FEE PROPERTIES
Xxxxxxx Kansa Corporation
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxx 00000
Xxxxxxx IVT AB
Xxxxxxxxxxxxx 00, Xxx 0
X-000 00 Xxxxxx, Xxxxxx
Xxxxxxx Xxxx AB
V:a Xxxxxxxx 0, Xxx 0
X-000 00 Xxxx, Xxxxxx
2. LEASED PROPERTIES
Xxxxxxx Graphic Systems, Inc.
00 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Xxxxxxx Web Controls
0000-X Xxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxxxx Enkel Corporation
0000 Xxxxxx Xxxx
Xxxxxxxxx Xxxx, Xxxxxxxx 00000
Xxxxxxx Enkel Corporation
0000 Xxxxxx Xxxx
Xxxxxxxxx Xxxx, Xxxxxxxx 00000
Xxxxxxx Enkel Corporation
0000 Xxxxxx Xxxx
Xxxxxxxxx Xxxx, Xxxxxxxx 00000
99
Xxxxxxx Graphic Products
5M Xxxxxx Industrial Park, Railroad Avenue
Beacon Falls, Connecticut
Xxxxxxx Japan Ltd.
0-0-00 Xxxx
Xxxxxx-xx Xxxxx, Xxxxx 000-0000
Xxxxxxx Grafotec GmbH
Xxxxxxxxxx Xxxxxxx 000
X-00000 Xxxxxxxx, Xxxxxxx
Xxxxxxx Jimek AB
Xxxxxxxxx 00
Xxxxx (Xxxxx), Xxxxxx
- 2 -
100
SCHEDULE 3.15
TO CREDIT AGREEMENT
SUBSIDIARIES
CREDIT PARTY SUBSIDIARIES
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Technology Company, Inc. Xxxxxxx Americas Corporation
Xxxxxxx Europe Consolidated Inc.
Xxxxxxx Asia Pacific Corporation
Xxxxxxx Technology Limited
Xxxxxxx Document Finishing Systems, Inc.
Xxxxxxx Technology India Private Limited
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Americas Corporation Xxxxxxx Technology Corporation
Xxxxxxx Enkel Corporation
Xxxxxxx Graphic Systems, Inc.
Xxxxxxx Americas Do Brasil Ltda.
Xxxxxxx India Private Limited (in formation)
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Asia Pacific Corporation Xxxxxxx Asia Pacific Ltd. (in liquidation)
Xxxxxxx Japan Ltd.
Xxxxxxx Printing Control Equipment (Beijing) Company, Ltd.
Xxxxxxx Printing Equipment (Shanghai) Company, Ltd.
BAP VC Limited (in liquidation)
Xxxxxxx Graphic Equipment Pty. Ltd.
Xxxxxxx Printing Controls Ltd.
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Technology Corporation Xxxxxxx Kansa Corporation
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Enkel Corporation Enkel Foreign Sales Corporation
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Europe Consolidated Inc. Xxxxxxx Europe Consolidated BV
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Europe Consolidated BV Xxxxxxx Graphic Equipment BV
Xxxxxxx German Capital Holding GmbH
Xxxxxxx U.K. Holding Limited
Xxxxxxx Sweden Holding XX
Xxxxxxx France Sarl
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx German Capital Holding GmbH Xxxxxxx Grafotec GmbH
Xxxxxxx International Products GmbH
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx U.K. Holding Limited Xxxxxxx (UK) Ltd.
Acrotec UK Ltd.
----------------------------------------------------------------------------------------------------------------------------
Acrotec UK Ltd. Xxxxxxx Globaltec Ltd.
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Sweden Holding AB Xxxxxxx XXXX XX
Xxxxxxx IVT XX
Xxxxxxx Jimek AB
----------------------------------------------------------------------------------------------------------------------------
101
SCHEDULE 3.17
TO CREDIT AGREEMENT
ENVIRONMENTAL MATTERS
None
102
SCHEDULE 3.22
TO CREDIT AGREEMENT
CAPITALIZATION
----------------------------------------------------------------------------------------------------------------------------
CREDIT PARTY CAPITAL STOCK AUTHORIZED CAPITAL STOCK ISSUED
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Technology Company, Inc. 45,000,000 Class A shares 13,233,747 Class A shares
4,500,000 Class B shares 1,810,883 Class B shares
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Americas Corporation 3,000 shares 10 shares
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Europe Consolidated Inc. 3,000 shares 10 shares
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Asia Pacific Corporation 3,000 shares 10 shares
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Technology Corporation 360,000 Class A shares 0 Class A shares
40,000 Class B shares 100 Class B shares
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Graphic Systems, Inc. 3,000 shares 100 shares
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Enkel Corporation 100 shares 100 shares
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Kansa Corporation 10,000 shares 1,000 shares
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Europe Consolidated BV 200,000 NLG 44 shares @ 1,000 NLG each
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx German Capital Holding GmbH DM 200,000 DM 200,000
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Grafotec GmbH DM 5,920,000
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Sweden Holding AB 200,000 shares 1,000 shares
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx XXXX AB 40,000 shares 15,000 shares
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx IVT AB 3,000 shares 340 shares
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx Jimek AB 400 shares 100 shares
----------------------------------------------------------------------------------------------------------------------------
Xxxxxxx-Japan Ltd. 160,000 shares 40,000 shares
----------------------------------------------------------------------------------------------------------------------------
103
SCHEDULE 6.2
TO CREDIT AGREEMENT
INDEBTEDNESS
104
SCHEDULE 6.4(a)
TO CREDIT AGREEMENT
GUARANTEE OBLIGATIONS
- Guarantee by Xxxxxxx Americas Corporation to Xxxxxx Financial, Inc.
dated May 24, 1994, with an approximate maximum guaranteed obligation
as of the Closing Date of $200,000.
105
SCHEDULE 6.9(e)
TO CREDIT AGREEMENT
INVESTMENT IN JOINT VENTURES
- Joint Venture between Xxxxxxx Americas Corporation and Bandhu
Industrial Resources Pvt. Ltd. (the "JV"). The JV is expected to be
named Xxxxxxx India Private Limited and is expected to manufacture,
sell and service certain products in India.
