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EXHIBIT 4(d)
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Credit Agreement
among
ESCO Electronics Corporation
and
Bank of America, N.A.,
as Administrative Agent, Swing Line Lender
and Issuing Lender
and
The Other Financial
Institutions Party Hereto
Dated as of April 11, 0000
Xxxx xx Xxxxxxx Securities LLC,
as
Sole Arranger and Sole Book Manager
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(BANK OF AMERICA LOGO)
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TABLE OF CONTENTS
Section Page
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Section 1. DEFINITIONS AND ACCOUNTING TERMS.......................................................................2
1.01 Defined Terms...................................................................................2
1.02 Use of Certain Terms...........................................................................26
1.03 Accounting Terms...............................................................................26
1.04 Rounding.......................................................................................27
1.05 Exhibits and Schedules.........................................................................27
1.06 References to Agreements and Laws..............................................................27
Section 2. the COMMITMENTS and extensions of credit..............................................................27
2.01 Committed Loans................................................................................27
2.02 Borrowings, Conversions and Continuations of Committed Loans...................................28
2.03 Letters of Credit..............................................................................29
2.04 Swing Line Loans...............................................................................35
2.05 Prepayments....................................................................................37
2.06 Reduction or Termination of Commitments........................................................37
2.07 Principal and Interest.........................................................................38
2.08 Fees...........................................................................................39
2.09 Computation of Interest and Fees...............................................................39
2.10 Making Payments................................................................................40
2.11 Funding Sources................................................................................41
2.12 Increase in Commitments........................................................................41
Section 3. TAXES, YIELD PROTECTION AND ILLEGALITY................................................................42
3.01 Taxes..........................................................................................42
3.02 Illegality.....................................................................................43
3.03 Inability to Determine Rates...................................................................43
3.04 Increased Cost and Reduced Return; Capital Adequacy............................................44
3.05 Breakfunding Costs.............................................................................44
3.06 Matters Applicable to all Requests for Compensation............................................45
3.07 Survival.......................................................................................45
Section 4. CONDITIONS PRECEDENT TO extensions of credit..........................................................45
4.01 Conditions of Initial Extension of Credit......................................................45
4.02 Conditions to all Extensions of Credit.........................................................49
Section 5. REPRESENTATIONS AND WARRANTIES........................................................................49
5.01 Existence and Qualification; Power; Compliance with Laws.......................................49
5.02 Power; Authorization; Enforceable Obligations..................................................49
5.03 No Legal Bar...................................................................................50
5.04 Financial Statements; No Material Adverse Effect...............................................50
5.05 Litigation.....................................................................................50
5.06 No Default.....................................................................................50
5.07 Ownership of Property; Liens...................................................................51
5.08 Taxes..........................................................................................51
5.09 Margin Regulations; Investment Company Act; Public Utility Holding Company Act.................51
5.10 ERISA Compliance...............................................................................51
5.11 Intangible Assets..............................................................................52
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5.12 Compliance With Laws...........................................................................52
5.13 Environmental Compliance.......................................................................52
5.14 Insurance......................................................................................52
5.15 Collateral Documents...........................................................................53
5.16 Capitalization; Subsidiaries...................................................................53
5.17 Insurance......................................................................................53
5.18 Swap Obligations...............................................................................53
5.19 Disclosure.....................................................................................54
Section 6. AFFIRMATIVE COVENANTS.................................................................................54
6.01 Financial Statements...........................................................................54
6.02 Certificates, Notices and Other Information....................................................55
6.03 Payment of Taxes...............................................................................56
6.04 Preservation of Existence......................................................................56
6.05 Maintenance of Properties......................................................................56
6.06 Maintenance of Insurance.......................................................................57
6.07 Compliance With Laws...........................................................................57
6.08 Inspection Rights..............................................................................57
6.09 Keeping of Records and Books of Account........................................................57
6.10 Compliance with ERISA..........................................................................57
6.11 Compliance With Agreements.....................................................................57
6.12 Use of Proceeds................................................................................57
6.13 Further Assurances.............................................................................58
6.14 Additional Guaranties and Personal Property Pledge.............................................58
6.15 Additional Real Property.......................................................................59
6.16 Additional Pledge..............................................................................59
6.17 Government Contracts...........................................................................59
6.18 Intellectual Property Pledge...................................................................59
6.19 Environmental Inspection Updates...............................................................59
Section 7. NEGATIVE COVENANTS....................................................................................60
7.01 Indebtedness...................................................................................60
7.02 Liens..........................................................................................60
7.03 Fundamental Changes............................................................................61
7.04 Dispositions...................................................................................61
7.05 Investments....................................................................................62
7.06 Lease Obligations..............................................................................63
7.07 Guaranty Obligations...........................................................................63
7.08 Restricted Payments............................................................................64
7.09 ERISA..........................................................................................64
7.10 Change in Nature of Business...................................................................64
7.11 Transactions with Affiliates...................................................................64
7.12 Hostile Acquisitions...........................................................................65
7.13 Limitations on Upstreaming.....................................................................65
7.14 Margin Regulations.............................................................................65
7.15 Accounting Changes.............................................................................65
7.16 Amendments to Charter and Agreements; Subordinated Indebtedness................................65
7.17 Leverage Ratio.................................................................................66
7.18 Minimum Consolidated EBITDA....................................................................66
7.19 No Preferred Stock.............................................................................66
7.20 Change in Auditors.............................................................................66
7.21 Negative Pledges...............................................................................66
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Section 8. EVENTS OF DEFAULT AND REMEDIES........................................................................67
8.01 Events of Default..............................................................................67
8.02 Remedies Upon Event of Default.................................................................69
Section 9. ADMINISTRATIVE AGENT..................................................................................71
9.01 Appointment and Authorization of Administrative Agent..........................................71
9.02 Delegation of Duties...........................................................................71
9.03 Liability of Administrative Agent..............................................................72
9.04 Reliance by Administrative Agent...............................................................72
9.05 Notice of Default..............................................................................73
9.06 Credit Decision; Disclosure of Information by Administrative Agent.............................73
9.07 Indemnification of Administrative Agent........................................................74
9.08 Administrative Agent in Individual Capacity....................................................74
9.09 Successor Administrative Agent.................................................................74
9.10 Collateral Matters.............................................................................75
Section 10. MISCELLANEOUS........................................................................................76
10.01 Amendments; Consents...........................................................................76
10.02 Transmission and Effectiveness of Communications and Signatures................................77
10.03 Attorney Costs, Expenses and Taxes.............................................................78
10.04 Binding Effect; Assignment.....................................................................78
10.05 Set-off........................................................................................80
10.06 Sharing of Payments............................................................................80
10.07 No Waiver; Cumulative Remedies.................................................................81
10.08 Usury..........................................................................................81
10.09 Counterparts...................................................................................82
10.10 Integration....................................................................................82
10.11 Nature of Lenders' Obligations.................................................................82
10.12 Survival of Representations and Warranties.....................................................82
10.13 Indemnity by Borrower..........................................................................82
10.14 Nonliability of Lenders........................................................................83
10.15 No Third Parties Benefited.....................................................................84
10.16 Severability...................................................................................84
10.17 Confidentiality................................................................................84
10.18 Further Assurances.............................................................................85
10.19 Headings.......................................................................................85
10.20 Time of the Essence............................................................................85
10.21 Foreign Lenders................................................................................85
10.22 Removal and Replacement of Lenders.............................................................86
10.23 Governing Law..................................................................................86
10.24 Waiver of Right to Trial by Jury...............................................................87
10.25 Judgment.......................................................................................87
10.26 Entire Agreement...............................................................................87
10.27 Collateral Protection Coverage.................................................................88
SIGNATURES.............................................................................................S-1
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EXHIBITS
Form of
A-1 Request for Extension of Credit
A-2 Request for Swing Line Loan
B Compliance Certificate
C Committed Loan Note
D Assignment and Acceptance
E Swing Line Note
SCHEDULES
1.01 Existing Letters of Credit
2.01 Commitments and Pro Rata Shares
5.17 Capitalization; Subsidiaries
6.17 Government Contracts
7.01 Existing Indebtedness, Liens and Negative Pledges
7.05 Existing Investments
10.02 Offshore and Domestic Lending Offices, Addresses for Notices
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CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of April 11,
2000 by and among ESCO Electronics Corporation, a Missouri corporation
("Borrower"), each lender from time to time party hereto (collectively,
"Lenders" and individually, a "Lender"), and BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and Issuing Lender.
RECITAL
Borrower has requested that Lenders and Issuing Lender provide a
revolving line of credit, and Lenders, Issuing Lender and Administrative Agent
are willing to do so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Accounts" means all present and future rights of Borrower or any
Subsidiary to payment for goods sold or leased or for services rendered, which
are not evidenced by instruments or chattel paper, and whether or not they have
been earned by performance.
"Acquired Cash Flow" means, with respect to any period, the
Consolidated EBITDA attributable on a pro forma basis to any Acquisitions
effected during such period assuming the consummation of such Acquisition as of
the first day of such period, taking into account adjustments reasonably
satisfactory to Administrative Agent to eliminate the effect of any
non-recurring expenses or income with respect to Borrower and its Subsidiaries
or any acquired Person or assets on Consolidated EBITDA as determined by the
chief financial officer of Borrower, the basis for which are set forth in
reasonable detail in the compliance certificate delivered to Administrative
Agent pursuant to Section. 6.02(b).
"Acquisition" means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the capital
stock, partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person (other than a Person
that is a Subsidiary) provided that a Borrower Party is the surviving entity.
"Administrative Agent" means Bank of America, N.A., in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
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"Administrative Agent's Office" means Administrative Agent's address
and, as appropriate, account as set forth on Schedule 10.02, or such other
address or account as Administrative Agent hereafter may designate by written
notice to Borrower and Lenders.
"Administrative Agent-Related Persons" means Administrative Agent
(including any successor agent), together with its Affiliates (including, in the
case of Bank of America in its capacity as Administrative Agent, the Arranger),
and the officers, directors, employees, agents and attorneys-in-fact of such
Persons and Affiliates.
"Affiliate" means any Person directly or indirectly controlling,
controlled by, or under direct or indirect common control with, another Person.
A Person shall be deemed to be "controlled by" any other Person if such other
Person possesses, directly or indirectly, power (a) to vote 10% or more of the
securities (on a fully diluted basis) having ordinary voting power for the
election of directors or managing general partners; or (b) to direct or cause
the direction of the management and policies of such Person whether by contract
or otherwise.
"Agreement" means this Credit Agreement, as amended, restated,
extended, supplemented or otherwise modified in writing from time to time.
"Applicable Amount" means the following amounts per annum in Basis
Points, based upon the Leverage Ratio as set forth in the most recent Compliance
Certificate received by Administrative Agent pursuant to Section 6.02(b);,
however, that, until Administrative Agent receives the Compliance Certificate
for the period ending June 30, 2000, the Applicable Amounts for Commitment Fees,
Offshore Rate Loans/Letters of Credit and Base Rate Loans shall be equal to
22.5, 100 and 0, respectively:
Commitment Fee Offshore Rate +
Pricing Level Leverage Ratio Base Rate + Letters of Credit
1 <1.5:1 20 0 75
2 > or equal to 1.5:1 but < 2.0:1 22.5 0 100
3 > or equal to 2.0:1 but <2.5:1 25 0 125
4 > or equal to 2.5:1 30 0 150
Thereafter, the Applicable Amount shall be in effect from the date the
most recent Compliance Certificate is received by Administrative Agent to but
excluding the date the next Compliance Certificate is received; provided,
however, that if Borrower fails to timely deliver the next Compliance
Certificate, the Applicable Amount from the date such Compliance Certificate was
due to but excluding the date such Compliance Certificate is received by
Administrative Agent shall be that indicated by the highest pricing level set
forth above, and, thereafter, the pricing level indicated by such Compliance
Certificate when received.
"Applicable Currency" means, as to any particular Letter of Credit,
Dollars or the Offshore Currency in which it is denominated.
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"Applicable Payment Date" means, (a) as to any Offshore Rate Loan, the
last day of the relevant Interest Period, any date that such Loan is prepaid or
converted in whole or in part and the Maturity Date; provided, however, that if
any Interest Period for an Offshore Rate Loan exceeds three months, interest
shall also be paid on the Business Day which falls every three months after the
beginning of such Interest Period; and (b) as to any other Obligations, the last
Business Day of each calendar quarter and the Maturity Date; provided, further,
that interest accruing at the Default Rate shall be payable from time to time
upon demand of Administrative Agent.
"Applicable Time" means Central time.
"Arranger" means Banc of America Securities LLC, a Delaware limited
liability company, in its capacity as sole arranger and sole book manager.
"Assignment and Acceptance" means an Assignment and Acceptance
substantially in the form of Exhibit D.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel and the allocated cost
of internal legal services and all disbursements of internal counsel.
"Audited Financial Statements" means the audited consolidated balance
sheet of Borrower and its Subsidiaries for the fiscal year ended September 30,
1999, and the related consolidated statements of income and cash flows for such
fiscal year of Borrower.
"Bank of America" means Bank of America, N.A.
"Base Rate" means a fluctuating rate per annum equal to the higher of
(a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect
for such day as publicly announced from time to time by Bank of America as its
"prime rate." Such rate is a rate set by Bank of America based upon various
factors including Bank of America's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate. Any change
in such rate announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such change.
"Base Rate Loan" means a Loan made hereunder and specified to be a Base
Rate Loan in accordance with Section 2.
"Basis Point" means one one-hundredth of one per cent.
"Borrower" has the meaning set forth in the introductory paragraph
hereto.
"Borrower Party" means Borrower or any Person (except Lenders,
Administrative Agent and any of their respective Affiliates) from time to time
party to a Loan Document.
"Borrowing" and "Borrow" each mean a borrowing of Loans hereunder.
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"Business Day" means any day other than a Saturday, Sunday, or other
day on which commercial banks are authorized to close under the Laws of, or are
in fact closed in, the state where Administrative Agent's Office is located and,
if such day relates to any Offshore Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the offshore
Dollar interbank market.
"Capital Stock" means (a) in the case of a corporation, corporate
stock, (b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock, (c) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (d) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.
"CERCLA" has the meaning specified in the definition of "Environmental
Laws."
"Change of Control" means, with respect to any Person, an event or
series of events by which:
(a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, but excluding any employee
benefit plan of such Person or its subsidiaries, or any Person acting in its
capacity as trustee, agent or other fiduciary or administrator of any such
plan), becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Securities Exchange Act of 1934, except that a person shall be deemed to
have "beneficial ownership" of all securities that such person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of 20% or more of the Voting Stock of such
Person; or
(b) during any period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of such
Person cease to be composed of individuals (i) who were members of that board or
equivalent governing body on the first day of such period, or (ii) whose
election or nomination to that board or equivalent governing body was approved
by individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other equivalent
governing body was approved by individuals referred to in clauses (i) and (ii)
above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body.
"Closing Date" means the date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 4.01.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral" means all property and interests in property and proceeds
thereof now owned or hereafter acquired by any Borrower Party in or upon which
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a Lien now or hereafter exists in favor of Lenders, or Administrative Agent on
behalf of Lenders, whether under this Agreement, under the Collateral Documents
or under any other documents executed by any such Person and delivered to
Administrative Agent or Lenders.
"Collateral Agent" means Bank of America in its capacity as collateral
agent under any of the Collateral Documents or any successor collateral agent.
"Collateral Documents" means, collectively, (a) the Security Agreement,
the Mortgages, the Pledge Agreement, and all other security agreements,
mortgages, deeds of trust, patent and trademark assignments, lease assignments,
guarantees and other similar agreements between any Borrower Party and Lenders
or Collateral Agent for the benefit of Lenders now or hereafter delivered to
Lenders or Administrative Agent pursuant to or in connection with the
transactions contemplated hereby, and all financing statements (or comparable
documents now or hereafter filed in accordance with the Uniform Commercial Code
or comparable law) against any Borrower Party as debtor in favor of Lenders or
Collateral Agent for the benefit of Lenders as secured party, and (b) any
amendments, supplements, modifications, renewals, replacements, consolidations,
substitutions and extensions of any of the foregoing.
"Commitment" means, for each Lender, the amount set forth opposite such
Lender's name on Schedule 2.01, as such amount may be reduced or adjusted from
time to time in accordance with the terms of this Agreement (collectively, the
"combined Commitments").
"Committed Loan" means a Base Rate Loan or an Offshore Rate Loan made
to Borrower by a Lender in accordance with its Pro Rata Share pursuant to
Section 2.01, except as otherwise provided herein.
"Committed Loan Note" means a promissory note made by Borrower in favor
of a Lender evidencing Committed Loans made by such Lender, substantially in the
form of Exhibit C (collectively, the "Committed Loan Notes").
"Compliance Certificate" means a certificate substantially in the form
of Exhibit B, properly completed and signed by a Responsible Officer of
Borrower.
"Consolidated EBITDA" means, for any period, for Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (a)
Consolidated Net Income, (b) Consolidated Interest Charges, (c) the amount of
taxes, based on or measured by income, used or included in the determination of
such Consolidated Net Income, and (d) the amount of depreciation and
amortization expense deducted in determining such Consolidated Net Income.
Solely for purposes of computing the Applicable Amount, Consolidated EBITDA
shall be calculated on a pro forma basis with respect to any Acquisitions and/or
Dispositions effected during such period assuming the consummation of such
Acquisition and/or Dispositions as of the first day of such period and taking
into account adjustments reasonably satisfactory to Administrative Agent to
eliminate the effect of any non-recurring expenses or income with respect to
Borrower and its Subsidiaries or any acquired Person or assets on Consolidated
EBITDA as determined by the
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chief financial officer of Borrower, the basis for which are set forth in
reasonable detail in the compliance certificate delivered to Administrative
Agent pursuant to Section 6.02(b).
"Consolidated Funded Indebtedness" means, as of any date of
determination, for Borrower and its Subsidiaries on a consolidated basis, the
sum of (a) the outstanding principal amount of all obligations and liabilities,
whether current or long-term, for borrowed money (including Obligations
hereunder), (b) any direct or contingent obligations arising under or in respect
of standby letters of credit, (c) that portion of obligations with respect to
capital leases that are capitalized in the consolidated balance sheet of
Borrower and its Subsidiaries, and (d) without duplication, all Guaranty
Obligations with respect to Indebtedness of the type specified in subsections
(a) and (b) above of Persons other than Borrower or any Subsidiary; provided
that "Consolidated Funded Indebtedness" shall not include any indebtedness
incurred by Borrower or any of its Subsidiaries pursuant to the PTI TROL
Documents.
"Consolidated Interest Charges" means, for any period, for Borrower and
its Subsidiaries on a consolidated basis, the sum of (a) all interest, premium
payments, fees, charges and related expenses of Borrower and its Subsidiaries in
connection with borrowed money (including capitalized interest) or in connection
with the deferred purchase price of assets, in each case to the extent treated
as interest in accordance with GAAP, and (b) the portion of rent expense of
Borrower and its Subsidiaries with respect to such period under capital leases
that is treated as interest in accordance with GAAP.
"Consolidated Net Income" means, for any period, for Borrower and its
Subsidiaries on a consolidated basis, the net income of Borrower and its
Subsidiaries from continuing operations after extraordinary items for that
period.
"Continuation" and "Continue" mean, with respect to any Offshore Rate
Loan, the continuation of such Offshore Rate Loan as an Offshore Rate Loan on
the last day of the Interest Period for such Loan.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any undertaking, contract, indenture,
mortgage, deed of trust or other instrument, document or agreement to which such
Person is a party or by which it or any of its property is bound.
"Conversion" and "Convert" mean, with respect to any Loan, the
conversion of such Loan from or into another type of Loan.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States of America or
other applicable jurisdictions (including foreign jurisdictions) from time to
time in effect affecting the rights of creditors generally.
"Default" means any event that, with the giving of any notice, the
passage of time, or both, would be an Event of Default.
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"Default Rate" means an interest rate equal to the Base Rate plus the
Applicable Amount, if any, applicable to Base Rate Loans plus 2% per annum;
provided, however, that with respect to an Offshore Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable
Amount) otherwise applicable to such Loan plus 2% per annum, in each case to the
fullest extent permitted by applicable Laws.
"Disposition" or "Dispose" means the sale, transfer, license or other
disposition (including any sale and leaseback transaction) of any shares of
Capital Stock of any Subsidiary or any other property by any Person, including
any sale, assignment, transfer or other disposal with or without recourse of any
notes or accounts receivable or any rights and claims associated therewith.
"Dollar" and "$" means lawful money of the United States of America.
"Dollar Equivalent" means, at any time, (a) as to any amount
denominated in Dollars, the amount thereof at such time, and (b) as to any
amount denominated in an Offshore Currency, the equivalent amount in Dollars, as
determined by Administrative Agent at such time on the basis of the Spot Rate
for the purchase of Dollars with such Offshore Currency on the most recent
Computation Date provided for in Section 2.03(l).
"Domestic Subsidiary" means a Subsidiary organized under the laws of
the United States or any political subdivision or any agency, department or
instrumentality thereof.
"Eligible Assignee" means (a) a financial institution organized under
the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (b) a commercial bank organized
under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development, or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located in the
United States; (c) a Person that is primarily engaged in the business of
commercial banking and that is (i) a Subsidiary of a Lender, (ii) a Subsidiary
of a Person of which a Lender is a Subsidiary, or (iii) a Person of which a
Lender is a Subsidiary; (d) another Lender; (e) any other entity which is an
"accredited investor" (as defined in Regulation D under the Securities Act of
1933, as amended) which extends credit or buys loans as one of its businesses,
including but not limited to, insurance companies, mutual funds and lease
financing companies; or (f) other lenders or institutional investors consented
to in writing in advance by Administrative Agent and Borrower. No Borrower Party
or any Affiliate of a Borrower Party shall be an Eligible Assignee.
"Environmental Claims" means all claims, however asserted, by any
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or injury
to the environment or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resources damage, or
otherwise alleging liability or responsibility for damages (punitive or
otherwise), investigation, cleanup, removal, remedial or response costs,
restitution, civil or criminal penalties, injunctive relief, or other
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type of relief, resulting from or based upon the presence, placements,
discharge, emission or release (including intentional and unintentional,
negligent and non-negligent, sudden or non-sudden, accidental or non-accidental,
placements, spills, leaks, discharges, emissions or releases) of any Hazardous
Material at, in, or from any property, whether or not owned by Borrower or any
Subsidiary or taken as collateral, or in connection with any operations of
Borrower.
"Environmental Laws" means all federal, state or local laws, statutes,
common law duties, rules, regulations, ordinances and codes, together with all
administrative order, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authorities, in each case
relating to environmental, health, safety and land use matters, including
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"), the Clean Air Act, the Federal Water Pollution
Control Act of 1972, the Solid Waste Disposal Act, the Federal Resource
Conservation and Recovery Act, the Toxic Substances Control Act, and the
Emergency Planning and Community Right-to-Know Act.
"ERISA" means the Employee Retirement Income Security Act of 1974 and
any regulations issued pursuant thereto, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with Borrower within the meaning of Sections
414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes
of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by Borrower or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by Borrower or any ERISA Affiliate
from a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment
of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or
the commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which might reasonably be expected
to constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multiemployer Plan;
or (f) the imposition of any liability under Title IV of ERISA, other than PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon Borrower or
any ERISA Affiliate.
"Event of Default" means any of the events or circumstances specified
in Section 8.01.
"Exposed Government Contracts" means contracts, subcontracts and
agreements which, if terminated, could result in a liability of Borrower or a
Subsidiary of Borrower for a refund of progress payments received, directly or
indirectly, from any federal governmental agency, authority, regulatory body or
other governmental entity.
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"Extension of Credit" means (a) a Borrowing, Conversion or Continuation
of Loans and (b) a Letter of Credit Action wherein a new Letter of Credit is
issued or which has the effect of increasing the amount of, extending the
maturity of, or making a material modification to an outstanding Letter of
Credit or the reimbursement of drawings thereunder (collectively, the
"Extensions of Credit").
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards to the nearest 1/100 of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank on the Business Day next succeeding such day; provided that
(a) if such day is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to Bank of America on such day on such
transactions as determined by Administrative Agent.
"FX Trading Office" means the Foreign Exchange Trading Center, Chicago,
Illinois, of Bank of America, or such other of Bank of America's offices as
Administrative Agent may designate from time to time.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or such other principles as may be
approved by a significant segment of the accounting profession, that are
applicable to the circumstances as of the date of determination, consistently
applied. If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Loan Document, and either
Borrower or Requisite Lenders shall so request, Administrative Agent, Lenders
and Borrower shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP (subject to
the approval of Requisite Lenders), provided that, until so amended, (a) such
ratio or requirement shall continue to be computed in accordance with GAAP prior
to such change therein and (b) Borrower shall provide to Administrative Agent
and Lenders financial statements and other documents required under this
Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP.
"Governmental Authority" means (a) any international, foreign, federal,
state, county or municipal government, or political subdivision thereof, (b) any
governmental or quasi-governmental agency, authority, board, bureau, commission,
department, instrumentality, central bank or public body, or (c) any court,
administrative tribunal or public utility.
"Government Contract" means a contract with any United States
Governmental Authority and pursuant to which Borrower or any of its Subsidiaries
will be supplying services.
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"Government Subcontract" means each contract of Borrower or any of its
Subsidiaries with a Person (other than Borrower or any of its Subsidiaries) for
the supply of goods or services to such Person pursuant to a Government Contract
between such Person and a United States Government Authority.
"Guarantors" means each of the Subsidiaries of Borrower from time to
time party to the Subsidiary Guaranty.
"Guaranty Obligation" means, as to any Person, any (a) guaranty by such
Person of Indebtedness of, or other obligation payable or performable by, any
other Person or (b) assurance, agreement, letter of responsibility, letter of
awareness, undertaking or arrangement given by such Person to an obligee of any
other Person with respect to the payment or performance of an obligation by, or
the financial condition of, such other Person, whether direct, indirect or
contingent, including any purchase or repurchase agreement covering such
obligation or any collateral security therefor, any agreement to provide funds
(by means of loans, capital contributions or otherwise) to such other Person,
any agreement to support the solvency or level of any balance sheet item of such
other Person or any "keep-well" or other arrangement of whatever nature given
for the purpose of assuring or holding harmless such obligee against loss with
respect to any obligation of such other Person; provided, however, that the term
Guaranty Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guaranty
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, covered by such
Guaranty Obligation or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by the Person in good
faith.
"Hazardous Materials" means all those substances that are regulated by,
or which may form the basis of liability or a standard of conduct under, any
Environmental Law, including any substance identified under any Environmental
Law as a pollutant, contaminant, hazardous waste, hazardous constituent, special
waste, hazardous substance, hazardous material, or toxic substance, or petroleum
or petroleum-derived substance or waste.
"Indebtedness" means, as to any Person at a particular time, all of the
following:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
(b) any direct or contingent obligations of such Person
arising under letters of credit (including standby and commercial),
banker's acceptances, bank guaranties, surety bonds and similar
instruments;
(c) net obligations under any Swap Contract in an amount equal
to (i) if such Swap Contract has been closed out, the termination value
thereof, or (ii) if such Swap Contract has not been closed out, the
xxxx-to-market value thereof determined on the basis of readily
available quotations provided by any recognized dealer in such Swap
Contract;
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(d) whether or not so included as liabilities in accordance
with GAAP, all obligations of such Person to pay the deferred purchase
price of property or services, and indebtedness (excluding prepaid
interest thereon) secured by a Lien on property owned or being
purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not
such indebtedness shall have been assumed by such Person or is limited
in recourse;
(e) lease payment obligations under capital leases or
Synthetic Lease Obligations; and
(f) all Guaranty Obligations of such Person in respect of any
of the foregoing;
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership, joint venture or limited liability company
in which such Person is a general partner, a joint venturer or a member, unless
such Indebtedness is expressly made non-recourse to such Person except for
customary exceptions acceptable to Requisite Lenders.
"Indemnified Liabilities" has the meaning set forth in Section 10.13.
"Indemnitees" has the meaning set forth in Section 10.13.
"Interest Period" means, for each Offshore Rate Loan, (i) initially,
the period commencing on the date such Offshore Rate Loan is disbursed or
Continued or Converted into such Offshore Rate Loan and (ii) thereafter, the
period commencing on the last day of the preceding Interest Period, and ending,
in each case, on the earlier of (x) the scheduled Maturity Date, or (y) one,
two, three or six months thereafter; provided that:
(a) any Interest Period that would otherwise end on a day that
is not a Business Day shall be extended to the next succeeding Business
Day unless such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period which 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 the calendar month at the
end of such Interest Period; and
(c) unless Administrative Agent otherwise consents, there may
not be more than 10 Interest Periods for Offshore Rate Loans in effect
at any time; and
(d) no Interest Period for any Loan shall extend beyond the
Maturity Date.
"Investment" means, as to any Person, any acquisition or any investment
by such Person, whether by means of the purchase or other acquisition of stock
or other securities of any other Person or by means of a loan, creating a debt,
capital contribution, guaranty or other debt or equity participation or
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interest in any other Person, including any partnership and joint venture
interests in such other Person and any payment by such Person in respect of
performance guaranties of any other Person. For purposes of covenant compliance,
the amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such
Investment.
"IRS" means the United States Internal Revenue Service, and any
Governmental Authority succeeding to any of its principal functions under the
Code.
"Judgment Currency" has the meaning specified in Section 10.25.
"Issuing Lender" means Bank of America, or any such other Lender
selected by Borrower that has agreed to act as issuer of such Letter of Credit.
"Laws" or "Law" means all international, foreign, federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"Lender" means each lender from time to time party hereto and, as the
context requires, Swing Line Lender and Issuing Lender.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such on Schedule 10.02, or such other office or offices as a
Lender may from time to time notify Administrative Agent.
"Letter of Credit" means any letter of credit issued or outstanding
hereunder, including without limitation the existing letters of credit set forth
on Schedule 1.01. whether standby letters of credit or commercial documentary
letters of credit.
"Letter of Credit Action" means the issuance, supplement, amendment,
renewal, extension, modification or other action relating to a Letter of Credit
hereunder.
"Letter of Credit Application" means an application for a Letter of
Credit Action from time to time in use by Issuing Lender.
"Letter of Credit Cash Collateral Account" means a blocked deposit
account at Bank of America in which Borrower hereby grants a security interest
to Bank of America for the benefit of the Issuing Lenders as security for Letter
of Credit Usage and with respect to which Borrower agrees to execute and deliver
from time to time such documentation as Administrative Agent or Bank of America
may reasonably request to further assure and confirm such security interest.
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"Letter of Credit Sublimit" means an amount equal to the lesser of (a)
$15,000,000 and (b) the combined Commitments. The Letter of Credit Sublimit is
part of, and not in addition to, the combined Commitments.
"Letter of Credit Usage" means, as of any date of determination, the
aggregate undrawn face amount of outstanding Letters of Credit plus the
aggregate amount of all drawings under the Letters of Credit not reimbursed by
Borrower or converted into Committed Loans.
"Leverage Ratio" means, as of any date of determination, for Borrower
and its Subsidiaries on a consolidated basis, the ratio of (a) Consolidated
Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of
the four fiscal quarters ending on such date.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement (in the nature of compensating balances, cash collateral accounts or
security interests), encumbrance, lien (statutory or other), charge, or
preference, priority or other security interest or preferential arrangement of
any kind or nature whatsoever (including any conditional sale or other title
retention agreement, any financing lease having substantially the same economic
effect as any of the foregoing, and the filing of any financing statement under
the Uniform Commercial Code or comparable Laws of any jurisdiction), including
the interest of a purchaser of accounts receivable.
"Loan" means any advance made by any Lender to Borrower as provided in
Section 2 (collectively, the "Loans").
"Loan Documents" means this Agreement and each Note, each Letter of
Credit Application, each Collateral Document, each Request for Extension of
Credit, each Compliance Certificate, each Rate Swap Document, each certificate,
each fee letter, and each other instrument, document and agreement from time to
time delivered in connection with this Agreement.
"Material Adverse Effect" means any set of circumstances or events
which (a) has or could reasonably be expected to have any material adverse
effect upon the validity or enforceability of any Loan Document, (b) is or could
reasonably be expected to be material and adverse to the condition (financial or
otherwise), business, assets, liabilities (actual or contingent), operations or
prospects of Borrower and its Subsidiaries taken as a whole, or (c) materially
impairs or could reasonably be expected to materially impair the ability of any
Borrower Party to perform the Obligations.
"Material Subsidiary" means, at any time, any Subsidiary either (i)
having at such time total assets in excess of 2.5% of the total assets of
Borrower and its Subsidiaries, based to the extent applicable, upon Borrower's
most recent annual or quarterly financial statements delivered to Administrative
Agent pursuant to Section 6.01 or (ii) having earnings that account for 7.0% of
the Consolidated EBITDA for the most recently completed fiscal year.
"Maturity Date" means (a) April 11, 2005, or (b) such earlier date upon
which the combined Commitments may be terminated in accordance with the terms
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of this Agreement, or (c) such later date to which the tenor of the combined
Commitments may be extended in accordance with the terms of this Agreement.
"Minimum Amount" means, with respect to each of the following actions,
the minimum amount and any multiples in excess thereof set forth opposite such
action:
Multiples in
Type of Action Minimum Amount excess thereof
-------------------------------------------- --------------- ---------------
Borrowing or prepayment of, or Conversion
into, Base Rate Loans $ 500,000 $ 500,000
Borrowing, prepayment or Continuation of,
or Conversion into, Offshore Rate Loans $ 1,000,000 $ 500,000
Borrowing or prepayment of, Swing Line Loans $ 100,000 None
Letter of Credit Action $ 1,000 None
Reduction in Commitments $ 5,000,000 $ 1,000,000
Assignments $ 5,000,000 None
"Mortgage" means any deed of trust, mortgage, leasehold mortgage,
assignment of rents or other document creating a Lien in favor of Collateral
Agent on real property or any interest in real property.
"Mortgaged Property" means all property subject to a Lien pursuant to a
Mortgage.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA.
"Negative Pledge" means a Contractual Obligation that restricts Liens
on property.
"Net Proceeds" means with respect to any Disposition, the sum of cash
or readily marketable cash equivalents received (including by way of a cash
generating sale or discounting of a note or receivable, but excluding any other
consideration received in the form of assumption by the acquiring Person of debt
or other obligations relating to the properties or assets so disposed of or
received in any other non-cash form) therefrom, whether at the time of such
disposition or subsequent thereto, net of all legal, title and recording tax
expenses, commissions and other fees and all costs and expenses incurred and all
federal, state, local and other taxes required to be paid or accrued as a
liability as a consequence of such transactions and net of all payments made by
Borrower or any of its Subsidiaries on any Indebtedness which is secured by such
assets pursuant to a Lien upon or with respect to such assets or which must by
the terms of such Lien, or in order to obtain a necessary consent to such
Disposition, or by applicable law be repaid out of the
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proceeds from such Disposition and net of all costs and expenses in readying for
sale the disposal of assets or properties.
"Notes" means, collectively, the Committed Loan Notes and the Swing
Line Note.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Borrower Party arising under any Loan
Document, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising
and including interest that accrues after the commencement of any proceeding
under any Debtor Relief Laws by or against any Borrower Party or any Subsidiary
or Affiliate of any Borrower Party.
"Offshore Base Rate" has the meaning set forth in the definition of
Offshore Rate.
"Offshore Currency" means any available and freely convertible
non-Dollar currency selected by Borrower and acceptable to Issuing Lender in its
sole discretion.
"Offshore Rate" means for any Interest Period with respect to any
Offshore Rate Loan, a rate per annum determined by Administrative Agent pursuant
to the following formula:
Offshore Base Rate
Offshore Rate = 1.00 - Eurodollar Reserve Percentage
Where,
"Offshore Base Rate" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
(b) in the event the rate referenced in the preceding
subsection (a) does not appear on such page or service or such page or
service shall cease to be available, the rate per annum equal to the
rate determined by Administrative Agent to be the offered rate on such
other page or other service that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
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(c) in the event the rates referenced in the preceding
subsections (a) and (b) are not available, the rate per annum
determined by Administrative Agent as the rate of interest (rounded
upward to the next 1/100th of 1%) at which deposits in Dollars for
delivery on the first day of such Interest Period in same day funds in
the approximate amount of the Offshore Rate Loan being made, Continued
or Converted by Administrative Agent (or its Affiliate) in its capacity
as a Lender and with a term equivalent to such Interest Period would be
offered by Bank of America's London Branch to major banks in the
offshore Dollar market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest
Period.
"Eurodollar Reserve Percentage" means, for any day during any
Interest Period, the reserve percentage (expressed as a decimal,
rounded upward to the next 1/100th of 1%) in effect on such day,
whether or not applicable to any Lender, under regulations issued from
time to time by the Board of Governors of the Federal Reserve System
for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with
respect to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"). The Offshore Rate for each outstanding Offshore Rate
Loan shall be adjusted automatically as of the effective date of any
change in the Eurodollar Reserve Percentage.
The determination of the Eurodollar Reserve Percentage and the
Offshore Base Rate by Administrative Agent shall be conclusive in the
absence of manifest error.
"Offshore Rate Loan" means a Committed Loan bearing interest based on
the Offshore Rate.
"Ordinary Course Dispositions" means:
(a) Dispositions of obsolete or worn out property, whether now
owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of cash, cash equivalents, inventory and
other property in the ordinary course of business;
(c) Dispositions of property to the extent that such property
is exchanged for credit against the purchase price of similar
replacement property, or the proceeds of such sale are reasonably
promptly applied to the purchase price of such replacement property or
where Borrower or any Subsidiary determine in good faith that the
failure to replace such equipment will not be detrimental to the
business of Borrower or such Subsidiary;
(d) Dispositions of assets or property by any Subsidiary to
Borrower or another wholly-owned Domestic Subsidiary that is party to
the Subsidiary Guaranty; and
(e) Dispositions of assets or property having a fair market
value not in excess of $100,000.
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provided, however, that no such Disposition shall be for less than the fair
market value of the property being disposed of.
"Ordinary Course Indebtedness" means:
(a) intercompany Guaranty Obligations of Borrower or any
Subsidiaries guarantying Indebtedness otherwise permitted hereunder of
Borrower or any wholly-owned Subsidiary;
(b) Indebtedness arising from the honoring of a check, draft
or similar instrument against insufficient funds;
(c) Ordinary Course Swap Obligations;
(d) trade and other accounts payable in the ordinary course of
business in accordance with customary trade terms and which are not
overdue for a period of more than 60 days; and
(e) deferred taxes.
"Ordinary Course Investments" means Investments consisting of:
(a) cash and cash equivalents;
(b) advances to officers, directors and employees of Borrower
and Subsidiaries for travel, entertainment, relocation and analogous
ordinary business purposes;
(c) Investments of any Subsidiary in Borrower or in another
Domestic Subsidiary party to the Subsidiary Guaranty;
(d) extensions of credit to customers or suppliers of Borrower
and Subsidiaries in the ordinary course of business and any Investments
received in satisfaction or partial satisfaction thereof; and
(e) Guaranty Obligations permitted by Section 7.01.
"Ordinary Course Liens" means:
(a) Liens for taxes not yet due or which are being contested
in good faith and by appropriate proceedings, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 30 days or
which are being contested in good faith and by appropriate proceedings,
if adequate reserves with respect thereto are maintained on the books
of the applicable Person;
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(c) pledges or deposits in connection with worker's
compensation, unemployment insurance and other social security
legislation;
(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 affecting real property 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 the applicable Person;
(f) Liens arising solely by virtue of any statutory or common
law provision relating to banker's liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained
with a creditor depository institution; provided that (i) such deposit
account is not a dedicated cash collateral account and is not subject
to restrictions against access by Borrower or any Subsidiary in excess
of those set forth by regulations promulgated by the Federal Reserve
Board, and (ii) such deposit account is not intended by Borrower or any
Subsidiary to provide collateral to the depository institution;
(g) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection
with the importation of goods; and
(h) attachment, judgment or other similar Liens arising in
connection with litigation or other legal proceedings (and not
otherwise a Default hereunder) in the ordinary course of business that
is currently being contested in good faith by appropriate proceedings,
adequate reserves have been set aside and no material property is
subject to a material risk of loss or forfeiture.
"Ordinary Course Swap Obligations" means all obligations (contingent
or otherwise) of Borrower or any Subsidiary existing or arising under any Swap
Contract, provided that each of the following criteria is satisfied: (a) such
obligations are (or were) entered into by such Person in the ordinary course of
business for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such
Person and not for purposes of speculation or taking a "market view;" and (b)
such Swap Contracts do not contain any provision ("walk-away" provision)
exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party.
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws; (b) with respect to
any limited liability company, the articles of formation and operating
agreement; and (c) with respect to any partnership, joint venture, trust or
other form of business entity, the partnership or joint venture agreement and
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any agreement, instrument, filing or notice with respect thereto filed in
connection with its formation with the secretary of state or other department in
the state of its formation, in each case as amended from time to time.
"Outstanding Obligations" means, as of any date, and giving effect to
making any Extensions of Credit requested on such date and all payments,
repayments and prepayments made on such date, (a) when reference is made to all
Lenders, the sum of (i) the aggregate outstanding principal amount of all Loans
and (ii) the Dollar Equivalent of all Letter of Credit Usage, and (b) when
reference is made to one Lender, the sum of (i) the aggregate outstanding
principal amount of all Loans made by such Lender (excluding, in the case of
Swing Line Lender, its Swing Line Loans except to the extent provided in clause
(iii) below), (ii) such Lender's ratable risk participation in the Dollar
Equivalent of all Letter of Credit Usage, and (iii) such Lender's ratable risk
participation in all outstanding Swing Line Loans.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto established under ERISA.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by Borrower or any
ERISA Affiliate or to which Borrower or any ERISA Affiliate contributes or has
an obligation to contribute, or in the case of a multiple employer plan (as
described in Section 4064(a) of ERISA) has made contributions at any time during
the immediately preceding (5) five plan years.
"Person" means any individual, trustee, corporation, general
partnership, limited partnership, limited liability company, joint stock
company, trust, unincorporated organization, bank, business association, firm,
joint venture, Governmental Authority, or otherwise.
"Plan" means any employee benefit plan maintained or contributed to by
a Borrower Party or by any trade or business (whether or not incorporated) under
common control with a Borrower Party as defined in Section 4001(b) of ERISA and
insured by the Pension Benefit Guaranty Corporation under Title IV of ERISA.
"Pledge Agreement" means that certain Pledge Agreement dated as of the
date hereof between Borrower, each Guarantor and Collateral Agent.
"Pledged Collateral" has the meaning specified in the Pledge Agreement.
"Pro Rata Share" means, with respect to each Lender, the percentage
(rounded, if necessary to the ninth decimal place) of the combined Commitments
set forth opposite the name of such Lender on Schedule 2.01, as such share may
be adjusted as contemplated herein.
"PTI TROL" means the cumulative transaction governed by the PTI TROL
Documents.
"PTI TROL Documents" means that certain series of agreements dated
February 9, 1999, as amended to date and hereafter in accordance with the
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terms hereof and executed pursuant to the terms of the PTI TROL Participation
Agreement, including without limitation: (a) the Agency Agreement; (b) the Trust
Agreement; (c) the Certificates; (d) the Credit Agreement; (e) the Notes; (f)
the Lease; (g) the Lease Supplements; (h) the Security Agreement, (i) the
Mortgage Instruments; (j) the Other Security Documents; (k) the Ground Leases;
and (l) the Deeds and the Bills of Sale, as all of the preceding terms are
defined in the PTI TROL Participation Agreement.
"PTI TROL Participation Agreement" means that certain Participation
Agreement dated as of February 9, 1999 by and among PTI Technologies, Inc., as
Construction Agent and Lessee, First Security Bank, National Association, not in
its individual capacity, but solely as Owner Trustee, Bank of America (f/k/a
Nationsbank, N.A.), as Agent for the Lenders and the Holders, Borrower and the
other Guarantors from time to time party thereto, as Guarantors, and the Holders
and Lenders from time to time party thereto.
"Rate Swap Documents" means, collectively, all Swap Contracts entered
into between any Borrower Party and any Lender or any Affiliate thereof in
respect of any portion of the Obligations.
"Register" has the meaning set forth in Section 2.01(c).
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA or the regulations thereunder (other than an event with respect to
which the reporting requirements have been waived), a withdrawal from a Plan
described in Section 4063 of ERISA, or a cessation of operations described in
Section 4062(e) of ERISA.
"Request for Extension of Credit" means, unless otherwise specified
herein, (a) with respect to a Borrowing, Conversion or Continuation of Committed
Loans, a written request substantially in the form of Exhibit A-1, (b) with
respect to a Letter of Credit Action, a Letter of Credit Application, and (c)
with respect to a Swing Line Loan, a written request substantially in the form
of Exhibit A-2, in each case of a written Request for Extension of Credit, duly
completed and signed by a Responsible Officer of Borrower and delivered by
Requisite Notice.
"Requisite Lenders" means, as of any date of determination: (a) if the
Commitments are then in effect, Lenders (excluding any Lenders not funding when
required to so hereunder) having in the aggregate more than 50% of the combined
Commitments then in effect and (b) if the Commitments have then been terminated
and there are Outstanding Obligations, Lenders holding Outstanding Obligations
aggregating more than 50% of such Outstanding Obligations.
"Requisite Notice" means, unless otherwise provided herein, (a)
irrevocable written notice to the intended recipient or (b) except with respect
to Letter of Credit Actions (which must be in writing), irrevocable telephonic
notice to the intended recipient, promptly followed by a written notice to such
recipient. Such notices shall be (i) delivered to such recipient at the address
or telephone number specified on Schedule 10.02 or as otherwise designated by
such recipient by written notice to Administrative Agent, and (ii) if made by
any Borrower Party, given or made by a Responsible Officer of such Borrower
Party. Any written notice delivered in connection
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with any Loan Document shall be in the form, if any, prescribed herein or
therein. Any notice sent by other than hardcopy shall be promptly confirmed by a
telephone call to the recipient and, if requested by Administrative Agent, by a
manually-signed hardcopy thereof.
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"Requisite Time" means, with respect to any of the actions listed
below, the time and date set forth below opposite such action:
Type of Action Applicable Time Date of Action
Delivery of Request for Extension of Credit
for, or notice for:
Borrowing or prepayment of Base Rate Loans 9:00 a.m. Same Business Day as such Borrowing or
prepayment
Conversion into Base Rate Loans 9:00 a.m. 3 Business Days prior such Conversion
Borrowing, prepayment or Continuation of, or 10:00 a.m. 3 Business Days prior to such
Conversion into, Offshore Rate Loans Borrowing, prepayment Continuation or
Conversion
Borrowing or prepayment of, Swing Line Loans 12:00 p.m. Same date as such Borrowing or
prepayment
Letter of Credit Action (Dollars as Applicable 10:00 a.m. 2 Business Days prior to such action
Currency) (or such lesser time which is
acceptable to Issuing Lender)
Letter of Credit Action (Offshore Currency as 10:00 a.m. 4 Business Days prior to such action
Applicable Currency) (or such lesser time which is
acceptable to Issuing Lender)
Voluntary reduction in or termination of 10:00 a.m. 5 Business Days prior to such reduction
Commitments or termination
Payments by Lenders or Borrower to 10:00 a.m. On date payment is due
Administrative Agent
"Responsible Officer" means the president, chief financial officer,
treasurer or assistant treasurer of a Borrower Party. Any document or
certificate hereunder that is signed by a Responsible Officer of a Borrower
Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Borrower Party
and such Responsible Officer shall be conclusively presumed to have acted on
behalf of such Borrower Party.
"Restricted Payment" means:
(a) the declaration or payment of any dividend or distribution
by Borrower or any Subsidiary, either in cash or property, on any of
the shares of the Capital Stock of Borrower or any Subsidiary (except
dividends or other distributions payable solely in shares of Capital
Stock of Borrower or any Subsidiary or cash dividends payable by any
Subsidiary to Borrower or to a wholly-owned Subsidiary);
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(b) the purchase, redemption or retirement by Borrower or any
Subsidiary of any of its Capital Stock or any warrants, rights or
options to purchase or acquire any of its Capital Stock, whether
directly or indirectly;
(c) any other payment or distribution by Borrower or any
Subsidiary in respect of its Capital Stock, either directly or
indirectly;
(d) any Investment other than an Investment otherwise
permitted under any Loan Document; and
(e) the prepayment, repayment, redemption, defeasance or other
acquisition or retirement for value prior to any scheduled maturity,
scheduled repayment or scheduled sinking fund payment, of any
Indebtedness not otherwise permitted under any Loan Document to be so
paid.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Security Agreement" means that certain Security Agreement dated as of
the date hereof between Borrower, each Guarantor and Collateral Agent.
"Spot Rate" for a currency means the rate quoted by Bank of America as
the spot rate for the purchase by Bank of America of such currency with another
currency through its FX Trading Office at approximately 10:30 a.m. (Applicable
Time) on the date two Business Days prior to the date as of which the foreign
exchange computation is made.
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries
of Borrower.
"Subsidiary Guaranty" means that certain Subsidiary Guaranty dated as
of the date hereof by certain Subsidiaries of Borrower in favor of
Administrative Agent.
"Surety Instruments" means all letters of credit (including standby and
commercial), banker's acceptances, bank guaranties, shipside bonds, performance
bonds, surety bonds and similar instruments.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
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bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, a "Master
Agreement"), including any such obligations or liabilities under any Master
Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a) the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include any Lender).
"Swing Line" means the revolving line of credit established by Swing
Line Lender in favor of Borrower pursuant to Section 2.04.
"Swing Line Lender" means Bank of America, or any successor swing line
Lender hereunder.
"Swing Line Loan" means a Base Rate Loan made by Swing Line Lender to
Borrower under the Swing Line.
"Swing Line Note" means a promissory note made by Borrower in favor of
Swing Line Lender evidencing Swing Line Loans made by such Lender, substantially
in the form of Exhibit E.
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$5,000,000 and (b) the combined Commitments. The Swing Line Sublimit is part of,
and not in addition to, the combined Commitments.
"Synthetic Lease Obligations" means all monetary obligations of a
Person under (a) a so-called synthetic, off-balance sheet or tax retention
lease, or (b) an agreement for the use or possession of property creating
obligations which do not appear on the balance sheet of such Person but which,
upon the insolvency or bankruptcy of such Person, would be characterized as the
Indebtedness of such Person (without regard to accounting treatment).
"Threshold Amount" means $10,000,000.
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"to the best knowledge of" means, when modifying a representation,
warranty or other statement of any Person, that the fact or situation described
therein is known by such Person (or, in the case of a Person other than a
natural Person, known by any officer of such Person) making the representation,
warranty or other statement, or with the exercise of reasonable due diligence
under the circumstances (in accordance with the standard of what a reasonable
Person in similar circumstances would have done) would have been known by such
Person (or, in the case of a Person other than a natural Person, would have been
known by an officer of such Person).
"type" of Loan means (a) a Base Rate Loan, (b) an Offshore Rate Loan
and (c) a Swing Line Loan.
"Voting Stock" of any Person as of any date means the Capital Stock of
such Person that is entitled to vote in the election of the Board of Directors
(or other governing body) of such Person.
"UCC" means the Uniform Commercial Code as in effect in the State of
Missouri.
"Unfunded Pension Liability" means the excess of a Pension Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
1.02 Use of Certain Terms.
(a) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
or thereto, unless otherwise defined therein.
(b) As used herein, unless the context requires otherwise, the
masculine, feminine and neuter genders and the singular and plural include one
another.
(c) The words "herein" and "hereunder" and words of similar import when
used in any Loan Document shall refer to the Loan Documents as a whole and not
to any particular provision thereof. The term "including" is by way of example
and not limitation. References herein to a Section, subsection or clause shall,
unless the context otherwise requires, refer to the appropriate Section,
subsection or clause in this Agreement.
(d) The term "or" is disjunctive; the term "and" is conjunctive. The
term "shall" is mandatory; the term "may" is permissive.
1.03 ACCOUNTING TERMS. All accounting terms not specifically or
completely defined in this Agreement shall be construed in conformity with, and
all financial data required to be submitted by this Agreement shall be prepared
in conformity with, GAAP applied on a consistent basis, as in effect from time
to time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed herein.
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1.04 ROUNDING. Any financial ratios required to be maintained by
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.05 EXHIBITS AND SCHEDULES. All exhibits and schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.06 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to agreements (including the Loan Documents) and
other contractual instruments shall include all amendments, restatements,
extensions, supplements and other modifications thereto (unless prohibited by
any Loan Document), and (b) references to any Law shall include all statutory
and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.
SECTION 2.
THE COMMITMENTS AND EXTENSIONS OF CREDIT
2.01 COMMITTED LOANS.
(a) Subject to the terms and conditions set forth in this Agreement,
each Lender severally agrees to make, Convert and Continue Committed Loans until
the Maturity Date in such amounts as Borrower may from time to time request;
provided, however, that the Outstanding Obligations of each Lender (including
Swing Line Lender's Swing Line Loans) shall not exceed such Lender's Commitment,
and the Outstanding Obligations of all Lenders shall not exceed the combined
Commitments at any time. This is a revolving credit and, subject to the
foregoing and the other terms and conditions hereof, Borrower may borrow,
Convert, Continue, prepay and reborrow Committed Loans as set forth herein
without premium or penalty.
(b) Loans made by each Lender shall be evidenced by one or more loan
accounts or records maintained by such Lender in the ordinary course of
business. Upon the request of any Lender made through Administrative Agent, such
Lender's Loans may be evidenced by one or more Notes, instead of or in addition
to loan accounts. Each such Lender may attach schedules to its Note(s) and
endorse thereon the date, amount and maturity of its Committed Loans and
payments with respect thereto. Such Notes, loan accounts and records shall be
conclusive absent manifest error of the amount of such Loans and payments
thereon. Any failure so to record or any error in doing so shall not, however,
limit or otherwise affect the obligation of Borrower to pay any amount owing
with respect to the Loans.
(c) (i) Administrative Agent shall maintain, at Administrative Agent's
Office, a register for the recordation of the names and addresses of
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Lenders and the Commitments and Extensions of Credit of each Lender from time to
time (the "Register"). The Register shall be available for inspection by
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(ii) Administrative Agent shall record in the Register the
Commitment and Extensions of Credit from time to time of each Lender,
and each repayment or prepayment in respect thereof. Any recordation
shall be conclusive and binding on Borrower and each Lender, absent
manifest error; provided, however, that the failure to make any such
recordation, or any error in such recordation, shall not affect any
Lender's Commitments or Outstanding Obligations.
(iii) Each Lender shall record on its internal records
(including, without limitation, the Notes held by such Lender) the
amount of each Extension of Credit made by it and each payment in
respect thereof. Any recordation shall be conclusive and binding on
Borrower, absent manifest error; provided, however, that the failure to
make any such recordation, or any error in such recordation, shall not
affect any Lender's Commitment or Outstanding Obligations; provided,
further, that in the event of any inconsistency between the Register
and any Lender's records, the recordations in the Register shall,
absent manifest error govern.
(iv) Borrower, Administrative Agent and Lenders shall deem and
treat the Persons listed as Lenders in the Register as the holders and
owners of the corresponding Commitments and Extensions of Credit listed
therein for all purposes hereof, and no assignment or transfer of any
such Commitment or Extensions of Credit shall be effective, in each
case, unless and until an Assignment and Acceptance effecting the
assignment or transfer thereof shall have been accepted by
Administrative Agent and recorded in the Register. Prior to such
recordation, all amounts owed with respect to the applicable Commitment
or Outstanding Obligations shall be owed to the Lender listed in the
Register as the owner thereof, and any request, authority or consent of
any Person who, at the time of making such request or giving such
authority or consent, is listed in the Register as Lender shall be
conclusive and binding on any subsequent holder, assignee or transferee
of the corresponding Commitments or Outstanding Obligations.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS.
(a) Borrower may irrevocably request a Borrowing, Conversion or
Continuation of Committed Loans on any Business Day in a Minimum Amount therefor
by delivering a Request for Extension of Credit therefor by Requisite Notice to
Administrative Agent not later than the Requisite Time therefor. All Borrowings,
Conversions and Continuations of Committed Loans shall constitute Base Rate
Loans unless properly and timely otherwise designated as set forth in the prior
sentence.
(b) Following receipt of a Request for Extension of Credit,
Administrative Agent shall promptly notify each Lender of its Pro Rata Share
thereof by Requisite Notice. In the case of a Borrowing of Committed Loans,
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each Lender shall make the funds for its Loan available to Administrative Agent
at Administrative Agent's Office not later than the Requisite Time therefor on
the Business Day specified in such Request for Extension of Credit. Upon
satisfaction of the applicable conditions set forth in Section 4.02 (and, if the
initial Extension of Credit hereunder, Section 4.01), all funds so received
shall be made available to Borrower in like funds received. Administrative Agent
shall promptly notify Borrower and Lenders of the interest rate applicable to
any Offshore Rate Loan which is a Committed Loan upon determination of same.
Administrative Agent shall from time to time notify Borrower and Lenders of any
change in Bank of America's prime rate used in determining the Base Rate
promptly following the public announcement of such change.
(c) Except as otherwise provided herein, an Offshore Rate Loan may be
Continued or Converted only on the last day of the Interest Period for such
Offshore Rate Loan. During the existence of a Default or Event of Default, no
Committed Loans may be requested as, Converted into or Continued as Offshore
Rate Loans without the consent of Requisite Lenders, and Requisite Lenders may
demand that any or all of the then outstanding Offshore Rate Loans be Converted
immediately into Base Rate Loans.
(d) If a Committed Loan is to be made on the same date that another
Committed Loan is due and payable, Borrower or Lenders, as the case may be,
shall, unless Administrative Agent otherwise requests, make available to
Administrative Agent the net amount of funds giving effect to both such Loans
and the effect for purposes of this Agreement shall be the same as if separate
transfers of funds had been made with respect to each such Loan.
(e) The failure of any Lender to make any Committed Loan on any date
shall not relieve any other Lender of any obligation to make a Committed Loan on
such date, but no Lender shall be responsible for the failure of any other
Lender to so make its Committed Loan.
2.03 LETTERS OF CREDIT.
(a) THE LETTER OF CREDIT COMMITMENT. Subject to the terms and
conditions set forth in this Agreement, until the date five (5) Business Days
prior to the Maturity Date, Issuing Lender shall take such Letter of Credit
Actions as Borrower may from time to time request; provided, however, that the
Outstanding Obligations of each Lender (excluding Swing Line Lender's Swing Line
Loans) shall not exceed such Lender's Commitment, and the Outstanding
Obligations of all Lenders shall not exceed the combined Commitments at any
time, and Letter of Credit Usage shall not exceed the Letter of Credit Sublimit
at any time. Subject to subsection (f) below and unless consented to by Issuing
Lender and Requisite Lenders, no Letter of Credit may expire more than 12 months
after the date of its issuance or last renewal; provided, however, that no
Letter of Credit shall expire after the date five (5) Business Days prior to the
Maturity Date. If any Letter of Credit Usage remains outstanding after such
date, Borrower shall, not later than such date, deposit cash in an amount equal
to such Letter of Credit Usage in a Letter of Credit Cash Collateral Account.
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(b) REQUESTING LETTER OF CREDIT ACTIONS. Borrower may irrevocably
request a Letter of Credit Action in a Minimum Amount therefor in United Stated
Dollars or any Offshore Currency by delivering a Letter of Credit Application
therefor to Issuing Lender, with a copy to Administrative Agent (who shall
notify Lenders), by Requisite Notice not later than the Requisite Time therefor.
Each Letter of Credit Action shall be in a form acceptable to Issuing Lender in
its sole discretion. Unless Administrative Agent notifies Issuing Lender that
such Letter of Credit Action is not permitted hereunder, or Issuing Lender
notifies Administrative Agent that it has determined that such Letter of Credit
Action is contrary to any Laws or policies of Issuing Lender, Issuing Lender
shall, upon satisfaction of the applicable conditions set forth in Section 4.02
with respect to any Letter of Credit Action constituting an Extension of Credit,
effect such Letter of Credit Action. This Agreement shall control in the event
of any conflict with any Letter of Credit Application. Upon the issuance of a
Letter of Credit, each Lender shall be deemed to have purchased from Issuing
Lender a risk participation therein in an amount equal to such Lender's Pro Rata
Share times the amount of such Letter of Credit.
(c) REIMBURSEMENT OF PAYMENTS UNDER LETTERS OF CREDIT. Borrower shall
reimburse Issuing Lender through Administrative Agent for any payment that
Issuing Lender makes under a Letter of Credit on or before the date of such
payment; provided, however, that if the conditions precedent set forth in
Section 4.02 can be satisfied, Borrower may request a Borrowing of Committed
Loans to reimburse Issuing Lender for such payment pursuant to Section 2.02, or,
failing to make such request, Borrower shall be deemed to have requested a
Borrowing of Base Rate Loans on such payment date pursuant to subsection (e)
below.
(d) FUNDING BY LENDERS WHEN ISSUING LENDER NOT REIMBURSED. Upon any
drawing under a Letter of Credit, Issuing Lender shall notify Administrative
Agent and Borrower. If Borrower fails to timely make the payment required
pursuant to subsection (c) above, Issuing Lender shall notify Administrative
Agent of such fact and the Dollar Equivalent of the amount of such unreimbursed
payment. Administrative Agent shall promptly notify each Lender of its Pro Rata
Share of such amount by Requisite Notice. Each Lender shall make funds in
Dollars in an amount equal to its Pro Rata Share of such amount available to
Administrative Agent at Administrative Agent's Office not later than the
Requisite Time therefor on the Business Day specified by Administrative Agent,
and Administrative Agent shall remit the funds so received to Issuing Lender.
The obligation of each Lender to so reimburse Issuing Lender shall be absolute
and unconditional and shall not be affected by the occurrence of a Default or
Event of Default or any other occurrence or event. Any such reimbursement shall
not relieve or otherwise impair the obligation of Borrower to reimburse Issuing
Lender for the amount of any payment made by Issuing Lender under any Letter of
Credit, together with interest as provided herein.
(e) NATURE OF LENDERS' FUNDING. If the conditions precedent set forth
in Section 4.02 can be satisfied (except for the giving of a Request for
Extension of Credit) on any date Borrower is obligated to, but fails to,
reimburse Issuing Lender for a drawing under a Letter of Credit, the funding by
Lenders pursuant to the previous subsection shall be deemed to be a
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Borrowing of Base Rate Loans (without regard to the Minimum Amount therefor)
deemed requested by Borrower. If the conditions precedent set forth in Section
4.02 cannot be satisfied on the date Borrower is obligated to, but fails to,
reimburse Issuing Lender for a drawing under a Letter of Credit, the funding by
Lenders pursuant to the previous subsection shall be deemed to be a funding by
each Lender of its risk participation in such Letter of Credit, and each Lender
making such funding shall thereupon acquire a pro rata participation, to the
extent of its reimbursement, in the claim of Issuing Lender against Borrower in
respect of such payment and shall share, in accordance with that pro rata
participation, in any payment made by Borrower with respect to such claim. Any
amounts made available by a Lender under its risk participation shall be payable
by Borrower upon demand of Administrative Agent, and shall bear interest at a
rate per annum equal to the Default Rate.
(f) SPECIAL PROVISIONS RELATING TO EVERGREEN LETTERS OF CREDIT.
Borrower may request Letters of Credit that have automatic extension or renewal
provisions ("evergreen" Letters of Credit) so long as Issuing Lender consents in
its sole and absolute discretion thereto and has the right to not permit any
such extension or renewal at least annually within a notice period to be agreed
upon at the time each such Letter of Credit is issued. Once an evergreen Letter
of Credit is issued, unless Administrative Agent has notified Issuing Lender
that Requisite Lenders have elected not to permit such extension or renewal, the
Borrower Parties, Administrative Agent and Lenders shall be deemed to have
authorized (but may not require) Issuing Lender to, in its sole and absolute
discretion, permit the renewal of such evergreen Letter of Credit at any time to
a date not later than the date five (5) Business Days prior to the Maturity
Date, and, unless directed by Issuing Lender, Borrower shall not be required to
request such extension or renewal. Issuing Lender may, in its sole and absolute
discretion elect not to permit an evergreen Letter of Credit to be extended or
renewed at any time.
(g) OBLIGATIONS ABSOLUTE. The obligation of Borrower to pay to Issuing
Lender the amount of any payment made by Issuing Lender under any Letter of
Credit shall be absolute, unconditional, and irrevocable. Without limiting the
foregoing, Borrower's obligation shall not be affected by any of the following
circumstances:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other agreement or instrument relating
thereto;
(ii) any amendment or waiver of or any consent to departure
from such Letter of Credit, this Agreement, or any other agreement or
instrument relating hereto or thereto;
(iii) the existence of any claim, setoff, defense, or other
rights which Borrower may have at any time against Issuing Lender,
Administrative Agent or any Lender, any beneficiary of such Letter of
Credit (or any persons or entities for whom any such beneficiary may be
acting) or any other Person, whether in connection with such Letter of
Credit, this Agreement, or any other agreement or instrument relating
thereto, or any unrelated transactions;
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(iv) any demand, statement, or any other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid,
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever so long as any such document
appeared to comply with the terms of the Letter of Credit;
(v) payment by Issuing Lender in good faith under such Letter
of Credit against presentation of a draft or any accompanying document
which does not strictly comply with the terms of such Letter of Credit;
or any payment made by Issuing Lender under such Letter of Credit to
any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Laws;
(vi) the existence, character, quality, quantity, condition,
packing, value or delivery of any property purported to be represented
by documents presented in connection with such Letter of Credit or for
any difference between any such property and the character, quality,
quantity, condition, or value of such property as described in such
documents;
(vii) the time, place, manner, order or contents of shipments
or deliveries of property as described in documents presented in
connection with such Letter of Credit or the existence, nature and
extent of any insurance relative thereto;
(viii) the solvency or financial responsibility of any party
issuing any documents in connection with such Letter of Credit;
(ix) any failure or delay in notice of shipments or arrival of
any property;
(x) any error in the transmission of any message relating to
such Letter of Credit not caused by Issuing Lender, or any delay or
interruption in any such message;
(xi) any error, neglect or default of any correspondent of
Issuing Lender in connection with such Letter of Credit;
(xii) any consequence arising from acts of God, wars,
insurrections, civil unrest, disturbances, labor disputes, emergency
conditions or other causes beyond the control of Issuing Lender;
(xiii) so long as Issuing Lender in good faith determines that
the document appears to comply with the terms of the Letter of Credit,
the form, accuracy, genuineness or legal effect of any contract or
document referred to in any document submitted to Issuing Lender in
connection with such Letter of Credit; and
(xiv) any other circumstances whatsoever where Issuing Lender
has acted in good faith.
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In addition, Borrower will promptly examine a copy of each Letter of
Credit and amendments thereto delivered to it and, in the event of any claim of
noncompliance with Borrower's instructions or other irregularity, Borrower will
immediately notify Issuing Lender in writing. Borrower shall be conclusively
deemed to have waived any such claim against Issuing Lender and its
correspondents unless such notice is given as aforesaid.
(h) ROLE OF ISSUING LENDER. Each Lender and Borrower Party agree that,
in paying any drawing under a Letter of Credit, Issuing Lender shall not have
any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. No
Administrative Agent-Related Person nor any of the respective correspondents,
participants or assignees of Issuing Lender shall be liable to any Lender for
any action taken or omitted in connection herewith at the request or with the
approval of Lenders or Requisite Lenders, as applicable; any action taken or
omitted in the absence of gross negligence or willful misconduct; or the due
execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit. Borrower hereby assumes all risks of
the acts or omissions of any beneficiary or transferee with respect to its use
of any Letter of Credit; provided, however, that this assumption is not intended
to, and shall not, preclude Borrower's pursuing such rights and remedies as it
may have against the beneficiary or transferee at law or under any other
agreement. No Administrative Agent-Related Person, nor any of the respective
correspondents, participants or assignees of Issuing Lender, shall be liable or
responsible for any of the matters described in subsection (g) above. In
furtherance and not in limitation of the foregoing, Issuing Lender may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and Issuing Lender shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.
(i) APPLICABILITY OF ISP98 AND UCP. Unless otherwise expressly agreed
by Issuing Lender and Borrower when a Letter of Credit is issued and subject to
applicable laws, performance under Letters of Credit by Issuing Lender, its
correspondents, and beneficiaries will be governed by (i) with respect to
standby Letters of Credit, the rules of the "International Standby Practices
1998" ("ISP98") or such later revision as may be published by the Institute of
International Banking Law & Practice, subject to applicable laws, and (ii) with
respect to commercial Letters of Credit, the rules of the Uniform Customs and
Practice for Documentary Credits, as published in its most recent version by the
International Chamber of Commerce (the "ICC") on the date any commercial Letter
of Credit is issued, and including the ICC decision published by the Commission
on Banking Technique and Practice on April 6, 1998 regarding the European single
currency (euro).
(j) LETTER OF CREDIT FEES. With respect to commercial Letters of
Credit, Borrower shall pay to Administrative Agent on each Applicable Payment
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Date in arrears, for the account of each Lender in accordance with its Pro Rata
Share, a Letter of Credit fee equal to 1/8 of 1% of the face amount thereof.
With respect to financial Letters of Credit and performance Letters of Credit,
Borrower shall pay to Administrative Agent on each Applicable Payment Date in
arrears, for the account of each Lender in accordance with its Pro Rata Share, a
Letter of Credit fee equal to the Applicable Amount for Letters of Credit times
the actual daily maximum amount available to be drawn under each Letter of
Credit since the later of the Closing Date and the previous Applicable Payment
Date.
If there is any change in the Applicable Amount during any quarter, the
actual daily amount shall be computed and multiplied by the Applicable Amount
separately for each period during such quarter that such Applicable Amount was
in effect.
(k) FRONTING FEE AND DOCUMENTARY AND PROCESSING CHARGES PAYABLE TO
ISSUING LENDER. Borrower shall pay directly to Issuing Lender for its sole
account a fronting fee in an amount (i) with respect to each performance Letter
of Credit and financial Letter of Credit, equal to 1/8 of 1% per annum on the
daily average face amount thereof, payable quarterly in arrears on each
Applicable Payment Date, and (ii) with respect to each commercial Letter of
Credit, equal to 1/8 of 1% of the face amount thereof, payable upon the issuance
thereof. In addition, Borrower shall pay directly to Issuing Lender, upon
demand, for its sole account its customary documentary and processing charges in
accordance with its standard schedule, as from time to time in effect, for any
Letter of Credit Action or other occurrence relating to a Letter of Credit for
which such charges are customarily made. Such fees and charges are
nonrefundable.
(l) UTILIZATION OF OFFSHORE CURRENCIES. (i) Administrative Agent will
determine the Dollar Equivalent amount with respect to (A) any Letter of Credit
denominated in an Offshore Currency as of the requested issuance date, and (B)
outstanding Letters of Credit denominated in an Offshore Currency as of the last
Business Day of each month (each such date under clauses (A) and (B) a
"Computation Date"). Administrative Agent will provide Borrower with the amount
determined pursuant to clause (ii) promptly following the end of each month.
(ii) In the case of a proposed issuance of a Letter of Credit
denominated in an Offshore Currency, the applicable Issuing Lender shall be
under no obligation to issue such Letter of Credit if the applicable Issuing
Lender cannot issue Letters of Credit denominated in the requested Offshore
Currency, in which event the Issuing Lender will give notice to Borrower no
later than 10:30 a.m. (Applicable Time) on the second Business Day prior to the
date of such issuance that the issuance in the requested Offshore Currency is
not then available. If the applicable Issuing Lender shall have so notified
Borrower that any such issuance in a requested Offshore Currency is not then
available, Borrower may, by notice to the applicable Issuing Lender not later
than 5:00 p.m. (Applicable Time) two Business Days prior to the requested date
of such issuance, withdraw the request for such proposed issuance. If Borrower
does so withdraw such request for such proposed issuance, the issuance requested
therein shall not occur. If Borrower does not so withdraw such request for such
proposed issuance it shall be deemed to
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be a request for a Letter of Credit denominated in Dollars in an equivalent
aggregate amount.
(m) CURRENCY EXCHANGE FLUCTUATIONS. If on any Computation Date
Administrative Agent shall have determined that the aggregate principal amount
of all Committed Loans then outstanding plus the aggregate Dollar Equivalent
amount of Letter of Credit Usage exceeds the combined Commitments, due to a
change in applicable rates of exchange between Dollars and Offshore Currencies,
then Administrative Agent shall give notice to Borrower that a prepayment is
required under this Section, and Borrower agrees thereupon to make prepayments
of Committed Loans, subject to Section 2.05, such that, after giving effect to
such prepayment, the aggregate amount of all Loans plus the aggregate Dollar
Equivalent amount of Letter of Credit Usage does not exceed the combined
Commitments.
(n) OUTSTANDING LETTERS OF CREDIT. The letters of credit set forth
under the caption "Letters of Credit outstanding on the Original Closing Date"
on Schedule 1.01 annexed hereto and made a part hereof were issued pursuant to
the Existing Credit Agreement and will remain outstanding as of the Closing Date
(the "Outstanding Letters of Credit"). Borrower, each Issuing Lender and each of
Lenders hereby agree with respect to the Outstanding Letters of Credit that such
Outstanding Letters of Credit, for all purposes under this Agreement shall be
deemed to be Letters of Credit governed by the terms and conditions of this
Agreement. Each Lender agrees to participate in each Outstanding Letter of
Credit issued by any Issuing Lender in an amount equal to its participation
calculated in accordance with Section 2.03(b).
2.04 SWING LINE LOANS.
(a) Subject to the terms and conditions set forth in this Agreement,
Swing Line Lender agrees to make Swing Line Loans until the Maturity Date in
such amounts as Borrower may from time to time request; provided, however, that
(i) the aggregate principal amount of all Swing Line Loans shall not exceed the
Swing Line Sublimit and (ii) the Outstanding Obligations of each Lender
(including Swing Line Lender's Swing Line Loans) shall not exceed such Lender's
Commitment and the Outstanding Obligations of all Lenders shall not exceed the
combined Commitments at any time. This is a revolving credit and, subject to the
foregoing and the other terms and conditions hereof, Borrower may borrow, prepay
and reborrow Swing Line Loans as set forth herein without premium or penalty;
provided, however, that Swing Line Lender may terminate or suspend the Swing
Line at any time in its sole discretion upon Requisite Notice to Borrower. Each
Swing Line Loan shall be a Base Rate Loan and shall bear interest at the rate of
interest (including Applicable Amount, if any) otherwise payable on Base Rate
Loans.
(b) Unless notified to the contrary by Swing Line Lender, Borrower may
irrevocably request a Swing Line Loan on any Business Day in a Minimum Amount
therefor by delivering a Request for Extension of Credit therefor by Requisite
Notice to Swing Line Lender and Administrative Agent not later than the
Requisite Time therefor. Promptly after receipt of such request, Swing Line
Lender shall obtain telephonic verification from Administrative Agent that such
Swing Line Loan is permitted hereunder. Upon receiving such
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verification, Swing Line Lender shall make such Swing Line Loan available to
Borrower. Without the consent of Requisite Lenders and Swing Line Lender, no
Swing Line Loan shall be made during the continuation of a Default or Event of
Default of which Swing Line Lender has received written notice from
Administrative Agent specifically referring to this Section and describing the
Default or Event of Default. Upon the making of each Swing Line Loan, each
Lender shall be deemed to have purchased from Swing Line Lender a risk
participation therein in an amount equal to such Lender's Pro Rata Share times
the amount of the Swing Line Loan.
(c) Swing Line Lender shall be responsible for invoicing Borrower for
interest on the Swing Line Loans. Unless and until any Swing Line Loan is
converted into a Borrowing of Base Rate Loans or a funding by Lenders of their
participation therein, the interest payable on Swing Line Loans is solely for
the account of Swing Line Lender.
(d) Borrower shall repay each Swing Line Loan not later than the
Requisite Time for payments hereunder upon the earlier of (i) demand made by
Swing Line Lender (with a copy to Administrative Agent) and (ii) the Maturity
Date. Payments shall be made directly to Swing Line Lender. If the conditions
precedent set forth in Section 4.02 can be satisfied, Borrower may request a
Borrowing of Committed Loans to repay Swing Line Lender pursuant to Section 2.02
or, failing to make such request, Borrower shall be deemed to have requested a
Borrowing of Base Rate Loans (without regard to the Minimum Amount therefor) on
such payment date in a principal amount equal to such payment. Swing Line Lender
shall promptly notify Administrative Agent of each Swing Line Loan and each
payment thereof.
(e) If Borrower fails to timely make (by payment, a Borrowing or a
deemed Borrowing) any payment of principal of or interest on any Swing Line Loan
to Swing Line Lender, Swing Line Lender shall notify Administrative Agent of
such fact and the unpaid amount. Administrative Agent shall promptly notify each
Lender of its Pro Rata Share of such unpaid amount by Requisite Notice, and each
Lender shall make its Pro Rata Share of such unpaid amount available to
Administrative Agent at Administrative Agent's Office not later than the
Requisite Time for payments hereunder on the following Business Day. The
obligation of each Lender to make such payment shall be absolute and
unconditional and shall not be affected by the occurrence of such or any other
Event of Default or any other event. Each Lender's payment shall be deemed to be
a funding of such Lender's participation in such Swing Line Loan, and each
Lender making such funding shall thereupon acquire a pro rata participation, to
the extent of its payment, in the claim of Swing Line Lender against Borrower in
respect of such payment and shall share, in accordance with that pro rata
participation, in any payment made by Borrower with respect to such claim. Any
amounts made available by a Lender under its risk participation shall not
relieve or otherwise impair the obligation of Borrower to repay Swing Line
Lender for any amount of Swing Line Loans, together with interest as provided
herein, and such amounts made available shall be payable by Borrower upon demand
of Administrative Agent, and shall bear interest at a rate per annum equal to
the Default Rate.
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2.05 PREPAYMENTS.
(a) Upon Requisite Notice to Administrative Agent not later than the
Requisite Time therefor, Borrower may at any time and from time to time
voluntarily prepay Committed Loans in part in the Minimum Amount therefor or in
full without premium or penalty. Administrative Agent will promptly notify each
Lender thereof and of such Lender's Pro Rata Share of such prepayment. Any
prepayment of an Offshore Rate Loan shall be accompanied by all accrued interest
thereon, together with the costs set forth in Section 3.05.
(b) Upon Requisite Notice to Swing Line Lender (with a copy to
Administrative Agent) not later than the Requisite Time therefor, Borrower may
at any time and from time to time voluntarily prepay Swing Line Loans in part in
the Minimum Amount therefor or in full without premium or penalty.
(c) If for any reason the Outstanding Obligations exceed the combined
Commitments or the Letter of Credit Usage exceeds the Letter of Credit Sublimit
as in effect or as reduced or because of any limitation set forth in this
Agreement or otherwise, Borrower shall immediately prepay Loans and/or deposit
cash in a Letter of Credit Cash Collateral Account in an aggregate amount equal
to such excess.
(d) Any prepayments pursuant to Section 2.06 shall be applied first to
any Base Rate Loans then outstanding and then to Offshore Loans with the
shortest Interest Periods remaining.
2.06 REDUCTION OR TERMINATION OF COMMITMENTS. (a) VOLUNTARY COMMITMENT
REDUCTIONS. Upon Requisite Notice to Administrative Agent not later than the
Requisite Time therefor, Borrower may at any time and from time to time, without
premium or penalty, permanently and irrevocably reduce the Commitments in a
Minimum Amount therefor to an amount not less than the Outstanding Obligations
at such time or terminate the Commitments. Any such reduction or termination
shall be accompanied by payment of all accrued and unpaid commitment fees with
respect to the portion of the Commitments being reduced or terminated.
Administrative Agent shall promptly notify Lenders of any such request for
reduction or termination of the Commitments. Each Lender's Commitment shall be
reduced by an amount equal to such Lender's Pro Rata Share times the amount of
such reduction.
(b) MANDATORY COMMITMENT REDUCTIONS. Upon receipt by Borrower or any of
its Subsidiaries of Net Proceeds realized upon a Disposition (other than
Ordinary Course Dispositions) made by Borrower or any of its Subsidiaries, the
Commitment of each Lender shall automatically be reduced by an amount equal to
such Lender's Pro Rata Share of such Net Proceeds, provided that the Commitments
will not be so reduced on such date to the extent that no Default or Event of
Default then exists and Borrower delivers a certificate to Administrative Agent
on or prior to such date stating the amount and stating that such Net Proceeds
shall be used to purchase assets used in the same or similar line of business of
Borrower or any of its Subsidiaries within 365 days following the date of such
Disposition; provided, further, if all or any portion of such Net Proceeds not
deemed to reduce the combined Commitments are not so used within such 365 day
period, the Commitment of each Lender shall automatically be reduced by an
amount equal to such Lender's Pro Rata Share of
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such remaining portion on the last day of such 365 day period to the extent that
Net Proceeds not deemed to reduce the combined Commitments and not so reinvested
exceed $25,000,000 in the aggregate from the Closing Date through the date of
such Disposition.
(c) SCHEDULED COMMITMENT REDUCTIONS. In addition to any
reductions pursuant to Section 2.06(b), the combined Commitments will be
permanently reduced by the following amounts (as reduced by any reduction in the
applicable year pursuant to Section 2.06(a)) annually on April 11, 2002 and each
anniversary thereof through and including the Maturity Date:
Date Amount
---- ------
April 11, 2002 $9,750,000 plus 13% of the amount the combined Commitments have been
increased pursuant to Section 2.12 on or prior to such date
April 11, 2003 $10,500,000 plus 14% of the amount the combined Commitments have been
increased pursuant to Section 2.12 on or prior to such date
April 11, 2004 $9,750,000 plus 13% of the amount the combined Commitments have been
increased pursuant to Section 2.12 on or prior to such date
April 11, 2005 Balance of combined Commitments on such date
To the extent applicable, Borrower will make the prepayments
required by Section 2.05(c) on such dates.
2.07 PRINCIPAL AND INTEREST.
(a) Except as otherwise provided hereunder, if not sooner paid,
Borrower agrees to pay the outstanding principal amount of each Committed Loan
on the Maturity Date.
(b) Subject to subsection (c) below, and unless otherwise specified
herein, Borrower shall pay interest on the unpaid principal amount of each Loan
(before and after default, before and after maturity, before and after judgment,
and before and after the commencement of any proceeding under any Debtor Relief
Laws) from the date borrowed until paid in full (whether by acceleration or
otherwise) on each Applicable Payment Date at a rate per annum equal to the
interest rate determined in accordance with the definition of such type of Loan,
plus, to the extent applicable in each case, the Applicable Amount for such type
of Loan.
(c) If (i) any Event of Default under Sections 8.01(a) or (b) exists
and is continuing or (ii) Administrative Agent has given notice to Borrower that
any other Event of Default exists and is continuing and the Default Rate is
applicable, all Loans outstanding hereunder shall thereafter bear interest
(after as well as before entry of judgment thereon to the extent permitted by
law) at a fluctuating interest rate per annum at all times equal to the Default
Rate to the fullest extent permitted by applicable Law until such
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Event of Default no longer exists and is continuing. Accrued and unpaid interest
on past due amounts (including interest on past due interest) shall be payable
upon demand.
2.08 FEES.
(a) COMMITMENT FEE. Borrower shall pay to Administrative Agent for the
account of each Lender pro rata according to its Pro Rata Share, a commitment
fee equal to the Applicable Amount times the actual daily amount by which the
combined Commitments exceed the Outstanding Obligations (excluding Swing Line
Loans). The commitment fee shall accrue at all times from the Closing Date until
the Maturity Date and shall be payable quarterly in arrears on each Applicable
Payment Date. The commitment fee shall be calculated quarterly in arrears, and
if there is any change in the Applicable Amount during any quarter, the actual
daily amount shall be computed and multiplied by the Applicable Amount
separately for each period during such quarter that such Applicable Amount was
in effect. The commitment fee shall accrue at all times, including at any time
during which one or more conditions in Section 4 are not met.
(b) AGENCY FEES. Borrower shall pay to Administrative Agent an agency
fee in such amounts and at such times as set forth in a separate letter
agreement between Borrower and Administrative Agent. The agency fee is for the
services to be performed by Administrative Agent in acting as Administrative
Agent and is fully earned on the date paid. The agency fee paid to
Administrative Agent is solely for its own account and is nonrefundable.
(c) ARRANGEMENT FEE. On the Closing Date, Borrower shall pay to
Arranger an arrangement fee in the amount set forth in a separate letter
agreement between Borrower and Arranger. Such arrangement fee is for the
services of Arranger in arranging the credit facilities under this Agreement and
is fully earned on the date paid. The arrangement fee paid to Arranger is solely
for its own account and is nonrefundable.
(d) LENDERS' UPFRONT FEE. On the Closing Date, Borrower shall pay to
Administrative Agent, for the respective accounts of Lenders (other than the
Co-Agents) pro rata according to their respective Pro Rata Shares, an upfront
fee in an amount set forth in a separate letter between Borrower, Bank of
America and Arranger. Such upfront fees are for the credit facilities committed
by Lenders under this Agreement and are fully earned on the date paid. The
upfront fee paid to Lenders is solely for their own account and is
nonrefundable.
2.09 COMPUTATION OF INTEREST AND FEES. Computation of interest on Base
Rate Loans when the Base Rate is determined by Bank of America's "prime rate"
shall be calculated on the basis of a year of 365 or 366 days, as the case may
be, and the actual number of days elapsed. Computation of all other types of
interest and all fees shall be calculated on the basis of a year of 360 days and
the actual number of days elapsed, which results in a higher yield to Lenders
than a method based on a year of 365 or 366 days. Interest shall accrue on each
Loan for the day on which the Loan is made, and shall not accrue on a Loan, or
any portion thereof, for the day on which the Loan or
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such portion is paid, provided that any Loan that is repaid on the same day on
which it is made shall bear interest for one day.
2.10 MAKING PAYMENTS.
(a) Except as otherwise provided herein, all payments by Borrower or
any Lender hereunder shall be made to Administrative Agent at Administrative
Agent's Office not later than the Requisite Time for such type of payment. All
payments received after such Requisite Time shall be deemed received on the next
succeeding Business Day. All payments shall be made in immediately available
funds in lawful money of the United States of America. All payments by Borrower
shall be made without condition or deduction for any counterclaim, defense,
recoupment or setoff.
(b) Upon satisfaction of any applicable terms and conditions set forth
herein, Administrative Agent shall promptly make any amounts received in
accordance with the prior subsection available in like funds received as
follows: (i) if payable to Borrower, by crediting a deposit account designated
from time to time by Borrower to Administrative Agent by Requisite Notice, and
(ii) if payable to any Lender, by wire transfer to such Lender at its Lending
Office. If such conditions are not so satisfied, Administrative Agent shall
return any funds it is holding to Lenders making such funds available, together
with interest thereon in respect of each day from and including the date such
amount was made available by such Lender to Administrative Agent to the date
such amount is repaid to such Lender at the Federal Funds Rate.
(c) Subject to the definition of "Interest Period," if any payment to
be made by any Borrower Party shall come due on a day other than a Business Day,
payment shall instead be considered due on the next succeeding Business Day, and
such extension of time shall be reflected in computing interest and fees.
(d) Unless Borrower or any Lender has notified Administrative Agent
prior to the date any payment to be made by it is due, that it does not intend
to remit such payment, Administrative Agent may, in its sole and absolute
discretion, assume that Borrower or Lender, as the case may be, has timely
remitted such payment and may, in its sole and absolute discretion and in
reliance thereon, make available such payment to the Person entitled thereto. If
such payment was not in fact remitted to Administrative Agent in immediately
available funds, then:
(i) if Borrower failed to make such payment, each Lender shall
forthwith on demand repay to Administrative Agent the amount of such
assumed payment made available to such Lender, together with interest
thereon in respect of each day from and including the date such amount
was made available by Administrative Agent to such Lender to the date
such amount is repaid to Administrative Agent at the Federal Funds
Rate; and
(ii) if any Lender failed to make such payment, Administrative
Agent shall be entitled to recover such corresponding amount on demand
from such Lender. If such Lender does not pay such corresponding amount
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forthwith upon Administrative Agent's demand therefor, Administrative
Agent promptly shall notify Borrower, and Borrower shall pay such
corresponding amount to Administrative Agent. Administrative Agent also
shall be entitled to recover from such Lender interest on such
corresponding amount in respect of each day from the date such
corresponding amount was made available by Administrative Agent to
Borrower to the date such corresponding amount is recovered by
Administrative Agent, (A) from such Lender at a rate per annum equal to
the daily Federal Funds Rate. and (B) from Borrower, at a rate per
annum equal to the interest rate applicable to such Borrowing. Nothing
herein shall be deemed to relieve any Lender from its obligation to
fulfill its Commitment or to prejudice any rights which Administrative
Agent or Borrower may have against any Lender as a result of any
default by such Lender hereunder.
(e) If Administrative Agent or any Lender is required at any time to
return to Borrower, or to a trustee, receiver, liquidator, custodian, or any
official under any proceeding under Debtor Relief Laws, any portion of a payment
made by Borrower, each Lender shall, on demand of Administrative Agent, return
its share of the amount to be returned, plus interest thereon from the date of
such demand (or the next Business Day if such demand is made after 12:00 p.m.
Applicable Time) to the date such payment is made at a rate per annum equal to
the daily Federal Funds Rate.
2.11 FUNDING SOURCES. Nothing in this Agreement shall be deemed to
obligate any Lender to obtain the funds for any Loan in any particular place or
manner or to constitute a representation by any Lender that it has obtained or
will obtain the funds for any Loan in any particular place or manner.
2.12 INCREASE IN COMMITMENTS.
(a) Borrower may from time to time prior to April 11, 2002, upon
Requisite Notice to Administrative Agent (who shall promptly notify Lenders),
request an increase in the combined Commitments in a minimum amount of
$10,000,000 up to an aggregate increase of $25,000,000. Each Lender shall
respond to Administrative Agent by Requisite Notice whether or not it agrees to
increase its Commitment and, if so, by an amount equal to or less than its Pro
Rata Share of such requested increase. If any Lender declines, or is deemed to
have declined, to participate in any such increase to the full extent of its Pro
Rata Share thereof, Borrower may request, through Administrative Agent, that (i)
one or more other Lenders, in their sole and absolute discretion, increase their
Commitment(s) by an aggregate amount equal to such shortfall and/or (ii) add a
financial institution procured by Borrower which would qualify as an Eligible
Assignee as a Lender with a Commitment equal to such shortfall (in which case
the provisions of Section 10.22(b) shall apply). Each request delivered to
Administrative Agent and Lenders under this Section shall specify the time
period within which Lenders are to respond. Any Lender not responding within
such time period shall be deemed to have declined to increase its Commitment.
Administrative Agent shall notify Borrower and each Lender of Lenders' responses
to each request made hereunder.
(b) If any Commitments are increased in accordance with this Section,
Administrative Agent and Borrower shall determine the effective date of such
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increase (the "Effective Date"). Administrative Agent and Borrower shall
promptly confirm in writing to Lenders the final allocation of such increase and
the Effective Date. As a condition precedent to such increase, Borrower shall
deliver to Administrative Agent a certificate dated as of the Effective Date (in
sufficient copies for each Lender) signed by a Responsible Officer of Borrower
(i) certifying and attaching the resolutions adopted by each applicable Borrower
Party approving or consenting to such increase and (ii) certifying that, before
and after giving effect to such increase, the representations and warranties
contained in Section 5 are true and correct on and as of the Effective Date and
no Default or Event of Default exists. Borrower shall deliver new or amended
Notes reflecting the increased Commitment of any Lender holding or requesting a
Note. Administrative Agent shall distribute an amended Schedule 2.01 (which
shall be incorporated into this Agreement), to reflect any changes therein.
Borrower shall prepay any Offshore Rate Loans outstanding on the Effective Date
(and pay any breakfunding costs in connection therewith pursuant to Section
3.05) to the extent necessary to keep outstanding Loans ratable with any revised
Pro Rata Shares arising from a nonratable increase in the Commitments under this
Section.
(c) This section shall supercede any provisions in Section 10.01 to the
contrary.
SECTION 3.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by Borrower to or for the account of
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of
Administrative Agent and each Lender, taxes imposed on or measured by its net
income, and franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the Laws of which
Administrative Agent or such Lender, as the case may be, is organized or
maintains a lending office (all such non-excluded taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as "Taxes"). If Borrower shall be
required by any Laws to deduct any Taxes from or in respect of any sum payable
under any Loan Document to Administrative Agent or any Lender, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section), Administrative Agent and such Lender receives an amount equal to
the sum it would have received had no such deductions been made, (ii) Borrower
shall make such deductions, (iii) Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with applicable
Laws, and (iv) within 30 days after the date of such payment, Borrower shall
furnish to Administrative Agent (who shall forward the same to such Lender) the
original or a certified copy of a receipt evidencing payment thereof.
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(b) In addition, Borrower agrees to pay any and all present or future
stamp, court or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If Borrower shall be required to deduct or pay any Taxes or Other
Taxes from or in respect of any sum payable under any Loan Document to
Administrative Agent or any Lender, Borrower shall also pay to such Lender or
Administrative Agent (for the account of such Lender), at the time interest is
paid, such additional amount that the respective Lender specifies as necessary
to preserve the after-tax yield (after factoring in all taxes, including taxes
imposed on or measured by net income) such Lender would have received if such
Taxes or Other Taxes had not been imposed.
(d) Borrower agrees to indemnify Administrative Agent and each Lender
for the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this Section)
paid by Administrative Agent and such Lender, amounts payable under Section
3.01(c) and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto.
3.02 ILLEGALITY. If any Lender determines that any Laws have made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Offshore Rate Loans, or materially restricts the authority of such Lender to
purchase or sell, or to take deposits of, Dollars in the applicable offshore
Dollar market, or to determine or charge interest rates based upon the Offshore
Rate, then, on notice thereof by such Lender to Borrower through Administrative
Agent, any obligation of such Lender to make Offshore Rate Loans shall be
suspended until such Lender notifies Administrative Agent and Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt of
such notice, Borrower shall, upon demand from such Lender (with a copy to
Administrative Agent), prepay or Convert all Offshore Rate Loans of such Lender,
either on the last day of the Interest Period thereof, if such Lender may
lawfully continue to maintain such Offshore Rate Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such Offshore
Rate Loans. Each Lender agrees to designate a different Lending Office if such
designation will avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES. If, in connection with any Request
for Extension of Credit involving any Offshore Rate Loan, Administrative Agent
determines that (a) Dollar deposits are not being offered to banks in the
applicable offshore dollar market for the applicable amount and Interest Period
of the requested Offshore Rate Loan, (b) adequate and reasonable means do not
exist for determining the underlying interest rate for such Offshore Rate Loan,
or (c) such underlying interest rate does not adequately and fairly reflect the
cost to Lenders of funding such Offshore Rate Loan, Administrative Agent will
promptly notify Borrower and all Lenders. Thereafter, the obligation of Lenders
to make or maintain such Offshore Rate Loan shall be
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suspended until Administrative Agent revokes such notice. Upon receipt of such
notice, Borrower may revoke any pending request for a Borrowing of Offshore Rate
Loans or, failing that, be deemed to have converted such request into a request
for a Borrowing of Base Rate Loans in the amount specified therein.
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY.
(a) If any Lender determines that any Laws:
(i) subject such Lender to any tax, duty, or other charge with
respect to any Offshore Rate Loans or its obligation to make Offshore
Rate Loans, or change the basis on which taxes are imposed on any
amounts payable to such Lender under this Agreement in respect of any
Offshore Rate Loans;
(ii) shall impose or modify any reserve, special deposit, or
similar requirement (other than the reserve requirement utilized in the
determination of the Offshore Rate) relating to any extensions of
credit or other assets of, or any deposits with or other liabilities or
commitments of, such Lender (including its Commitment); or
(iii) shall impose on such Lender or on the offshore Dollar
interbank market any other condition affecting this Agreement or any of
such extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender of
making, Converting into, Continuing, or maintaining any Offshore Rate Loans or
to reduce any sum received or receivable by such Lender under this Agreement
with respect to any Offshore Rate Loans, then from time to time upon demand of
Lender (with a copy of such demand to Administrative Agent), Borrower shall pay
to such Lender such additional amounts as will compensate such Lender for such
increased cost or reduction.
(b) If any Lender determines that any change in or the interpretation
of any Laws have the effect of reducing the rate of return on the capital of
such Lender or compliance by such Lender (or its Lending Office) or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with respect to
capital adequacy and such Lender's desired return on capital), then from time to
time upon demand of such Lender (with a copy to Administrative Agent), Borrower
shall pay to such Lender such additional amounts as will compensate such Lender
for such reduction.
3.05 BREAKFUNDING COSTS. Upon demand of any Lender (with a copy to
Administrative Agent) from time to time, Borrower shall promptly compensate such
Lender for and hold such Lender harmless from any loss, cost or expense incurred
by it as a result of:
(a) any Continuation, Conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise); or
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(b) any failure by Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, Continue or Convert any Loan
other than a Base Rate Loan on the date or in the amount notified by Borrower;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
Borrower shall also pay any customary administrative fees charged by such Lender
in connection with the foregoing.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
(a) A certificate of Administrative Agent or any Lender claiming
compensation under this Section 3 and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of clearly
demonstrable error. In determining such amount, Administrative Agent or any
Lender may use any reasonable averaging and attribution methods. For purposes of
this Section 3, a Lender shall be deemed to have funded each Offshore Rate Loan
at the Offshore Base Rate used in determining the Offshore Rate for such Loan by
a matching deposit or other borrowing in the offshore Dollar interbank market,
whether or not such Offshore Rate Loan was in fact so funded.
(b) Upon any Lender making a claim for compensation under Section 3.01
or 3.04, Borrower may remove and replace such Lender in accordance with Section
10.22.
3.07 SURVIVAL. All of Borrower's obligations under this Section 3 shall
survive termination of the Commitments and payment in full of all Obligations.
SECTION 4.
CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT
4.01 CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of each
Lender to make its initial Extension of Credit hereunder is subject to
satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent with
respect to immaterial matters or immaterial items specified in subsection (v) or
(vi) below with respect to which Borrower has given assurances satisfactory to
Administrative Agent that they will be delivered promptly following the Closing
Date), Administrative Agent's receipt of the following, each of which shall be
originals or facsimiles (followed promptly by originals) unless otherwise
specified, each properly executed by a Responsible Officer of the signing
Borrower Party, each dated on, or in the case of third-party certificates,
recently before the Closing Date and each in form and substance satisfactory to
Administrative Agent and its legal counsel:
(i) Credit Agreement and Notes. (A) executed counterparts of
this Agreement, sufficient in number for distribution to Administrative
Agent, Lenders and Borrower;
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(B) Committed Loan Notes executed by Borrower in
favor of each Lender requesting same, each in a principal
amount equal to such Lender's Commitment;
(C) a Swing Line Note executed by Borrower in favor
of Swing Line Lender requesting same in the principal amount
of the Swing Line Sublimit;
(ii) Resolutions; Incumbency. Such certificates of resolutions
or other action, incumbency certificates and/or other certificates of
Responsible Officers of each Borrower Party as Administrative Agent may
require to establish the identities of and verify the authority and
capacity of each Responsible Officer thereof authorized to act as a
Responsible Officer thereof;
(iii) Good Standing; Organizational Documents. Such evidence
as Administrative Agent may reasonably require to verify that each
Borrower Party is duly organized or formed, validly existing, in good
standing and qualified to engage in business in each jurisdiction in
which it is required to be qualified to engage in business, including
certified copies of each Borrower Party's Organization Documents,
certificates of good standing and/or qualification to engage in
business, tax clearance certificates, and the like;
(iv) Certificate. A certificate signed by a Responsible
Officer of Borrower certifying (A) that the conditions specified in
Sections 4.01(c) and (d) have been satisfied, and (B) that there has
been no event or circumstance since the date of the Audited Financial
Statements which has a Material Adverse Effect;
(v) Legal Opinions.
(i) an opinion of Xxxxx Xxxx, general counsel to
Borrower and its Subsidiaries addressed to Administrative Agent and
Lenders in form and substance satisfactory to Administrative Agent; and
(ii) an opinion of such local counsel to Borrower as
shall be requested by Administrative Agent and addressed to
Administrative Agent and Lenders.
(vi) Collateral Documents. The Collateral Documents, executed
by the Borrower Parties, in appropriate form for recording, where
necessary, together with:
(A) copies of all UCC-l financing statements to be
filed, registered or recorded to perfect the security interests of
Administrative Agent for the benefit of Lenders, and other filings,
registrations and recordings necessary and advisable to perfect the
Liens of Administrative Agent for the benefit of Lenders in accordance
with applicable law;
(B) written advice relating to such Lien and judgment
searches as Administrative Agent shall have requested, and such
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termination statements or other documents as may be necessary to
confirm that the Collateral is subject to no other Liens in favor of
any Persons (other than Liens permitted under this Agreement);
(C) all certificates and instruments representing the
Pledged Collateral and stock and note transfer powers executed in blank
with signatures guaranteed as Administrative Agent may specify;
(D) to the extent requested by Administrative Agent,
funds sufficient to pay any filing or recording tax or fee in
connection with any and all UCC-1 financing statements and the
Mortgages;
(E) with respect to the Mortgaged Property, an ALTA
Form B (or other form acceptable to Administrative Agent and Lenders)
mortgagee policy of title insurance or a binder issued by a title
insurance company satisfactory to Administrative Agent insuring (or
undertaking to insure, in the case of a binder) that the Mortgages
create and constitute a valid first Lien against the Mortgaged Property
in favor of Administrative Agent, subject only to exceptions acceptable
to Administrative Agent, with such endorsements and affirmative
insurance as Administrative Agent may reasonably request;
(F) evidence that Administrative Agent has been named
as loss payee under all policies of casualty insurance, and as
additional insured under all policies of liability insurance, required
by the Mortgage;
(G) flood insurance and earthquake insurance, to the
extent applicable, on terms reasonably satisfactory to Administrative
Agent;
(H) current ALTA surveys and surveyor's certification
as to all Mortgaged Property to the extent, if any, required by
Administrative Agent, each in form and substance reasonably
satisfactory to Administrative Agent;
(I) proof of payment (or arrangements therefor
satisfactory to Administrative Agent) of all title insurance premiums,
documentary stamp or intangible taxes, recording fees and mortgage
taxes payable in connection with the recording of any Mortgage or the
issuance of the title insurance policies (whether due on the Closing
Date or in the future) including sums due in connection with any future
advances;
(J) such consents, estoppels, subordination
agreements, waivers and other documents and instruments executed by
landlords, tenants, bailees, warehousemen and other Persons party to
material contracts relating to any Collateral as to which
Administrative Agent shall be granted a Lien for the benefit of
Lenders, as requested by Administrative Agent; and
(K) evidence that all other actions necessary or, in
the opinion of Administrative Agent, desirable to perfect and protect
the first priority Lien created by the Collateral Documents, and to
enhance
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Administrative Agent's ability to preserve and protect its interests in
and access to the Collateral, have been taken (or arrangements therefor
satisfactory to Administrative Agent have been made);
(vii) Insurance Policies. Standard lenders' payable
endorsements with respect to the insurance policies or other
instruments or documents evidencing insurance coverage on the
properties of Borrower Parties in accordance with Section 5.14;
(viii) Environmental Review. Such environmental site
assessments with respect to the real property of Borrower Parties as
shall be requested by Administrative Agent;
(ix) Repayment of Indebtedness. Written evidence that the
Existing Credit Agreement has been or concurrently herewith is being
terminated and all Liens securing obligations under the Existing Credit
Agreement have been or concurrently herewith are being released;
(x) Financial Statements. To the extent not previously
delivered to Administrative Agent, the Audited Financial Statements and
the audited consolidated balance sheet of Borrower and its Subsidiaries
for the fiscal years ended September 30, 1997, September 30, 1998 and
September 30, 1999, and the related consolidated statements of income
and cash flows for such fiscal year of Borrower and the unaudited pro
forma balance sheet for Borrower and its Subsidiaries as at March 31,
2000 prepared by Borrower and the projections for the next five years;
(xi) Pro Forma Compliance Certificate. A pro forma Compliance
Certificate as at March 31, 2000 demonstrating pro forma compliance
with Sections 7.17 and 7.18.
(xii) Other Documents. Such other assurances, certificates,
documents, consents or opinions as Administrative Agent, Issuing Lender
or Requisite Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall
have been paid, including any such fees arising under or referenced in Sections
2.08 and 10.03.
(c) The representations and warranties made by Borrower herein, or
which are contained in any certificate, document or financial or other statement
furnished at any time under or in connection herewith or therewith, shall be
correct on and as of the Closing Date.
(d) Each Borrower Party shall be in compliance with all the terms and
provisions of the Loan Documents to which it is a party, and no Default or Event
of Default shall have occurred and be continuing.
(e) Unless waived by Administrative Agent, Borrower shall have paid all
Attorney Costs of Administrative Agent to the extent invoiced prior to or on the
Closing Date, plus such additional amounts of Attorney Costs as shall constitute
its reasonable estimate of Attorney Costs incurred or to be incurred by it
through the closing proceedings (provided that such estimate
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shall not thereafter preclude final settling of accounts between Borrower and
Administrative Agent).
4.02 CONDITIONS TO ALL EXTENSIONS OF CREDIT. In addition to any
applicable conditions precedent set forth elsewhere in this Section 4 or in
Section 2, the obligation of each Lender to honor any Request for Extension of
Credit other than a Conversion or Continuation is subject to the following
conditions precedent:
(a) the representations and warranties of Borrower contained in Section
5, or which are contained in any certificate, document or financial or other
statement furnished at any time under or in connection herewith or therewith,
shall be correct on and as of the date of such Extension of Credit, except to
the extent that such representations and warranties specifically refer to an
earlier date.
(b) no Default or Event of Default exists, or would result from such
proposed Extension of Credit.
(c) Administrative Agent shall have timely received a Request for
Extension of Credit by Requisite Notice by the Requisite Time therefor.
(d) Administrative Agent shall have received, in form and substance
satisfactory to it, such other assurances, certificates, documents or consents
related to the foregoing as Administrative Agent or Requisite Lenders reasonably
may require.
Each Request for Extension of Credit by Borrower shall be deemed to be
a representation and warranty that the conditions specified in Sections 4.02(a)
and (b) have been satisfied on and as of the date of such Extension of Credit.
SECTION 5.
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Administrative Agent and Lenders
that:
5.01 EXISTENCE AND QUALIFICATION; POWER; COMPLIANCE WITH LAWS. Each
Borrower Party is a corporation, partnership or limited liability company duly
organized or formed, validly existing and in good standing under the Laws of the
state of its incorporation or organization, has the power and authority and the
legal right to own and operate its properties, to lease the properties it
operates and to conduct its business, is duly qualified and in good standing
under the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification, and is in
compliance with all Laws except to the extent that any such nonqualification or
noncompliance does not have a Material Adverse Effect.
5.02 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. Each Borrower Party
has the power and authority and the legal right to make, deliver and perform
each Loan Document to which it is a party and Borrower has power and
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authority to borrow hereunder and has taken all necessary action to authorize
the borrowings on the terms and conditions of this Agreement and to authorize
the execution, delivery and performance of this Agreement and the other Loan
Documents to which it is a party. No consent or authorization of, filing with,
or other act by or in respect of any Governmental Authority, is required in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of this Agreement or any of the other
Loan Documents. The Loan Documents to which a Borrower Party is a party have
been duly executed and delivered by such Borrower Party, and constitute a legal,
valid and binding obligation of such Borrower Party, enforceable against such
Borrower Party in accordance with their respective terms.
5.03 NO LEGAL BAR. The execution, delivery, and performance by each
Borrower Party of the Loan Documents to which it is a party and compliance with
the provisions thereof have been duly authorized by all requisite action on the
part of such Borrower Party and do not and will not (a) violate or conflict
with, or result in a breach of, or require any consent under (i) any
Organization Documents of such Borrower Party or any of its Subsidiaries, (ii)
any applicable Laws, rules, or regulations or any order, writ, injunction, or
decree of any Governmental Authority or arbitrator, or (iii) any Contractual
Obligation of such Borrower Party or any of its Subsidiaries or by which any of
them or any of their property is bound or subject or (b) constitute a default
under any such agreement or instrument or (c) result in, or require, the
creation or imposition of any Lien on any of the properties of such Borrower
Party or any of its Subsidiaries.
5.04 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of Borrower and its Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness in
accordance with GAAP consistently applied throughout the period covered thereby.
(b) Since the date of the Audited Financial Statements, there has been
no event or circumstance which has a Material Adverse Effect.
5.05 LITIGATION. No litigation, investigation or proceeding of or
before an arbitrator or Governmental Authority is pending or, to the knowledge
of Borrower after due and diligent investigation, threatened against any
Borrower Party or any of its Subsidiaries or against any of their properties or
revenues which, if determined adversely, has a Material Adverse Effect.
5.06 NO DEFAULT. Neither any Borrower Party nor any of its Subsidiaries
are in default under or with respect to any Contractual Obligation which has a
Material Adverse Effect, and no Default or Event of Default has occurred and is
continuing or will result from the consummation of
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this Agreement or any of the other Loan Documents, or the making of the
Extensions of Credit hereunder.
5.07 OWNERSHIP OF PROPERTY; LIENS. Each Borrower Party and its
Subsidiaries have valid fee or leasehold interests in all real property which
they use in their respective businesses, and each Borrower Party and its
Subsidiaries have good and marketable title to all their other property, and
none of such property is subject to any Lien, except as permitted in Section
7.02.
5.08 TAXES. Each Borrower Party and its Subsidiaries have filed all tax
returns which are required to be filed, and have paid, or made provision for the
payment of, all taxes with respect to the periods, property or transactions
covered by said returns, or pursuant to any assessment received by such Borrower
Party or its respective Subsidiaries, except (a) such taxes, if any, as are
being contested in good faith by appropriate proceedings and as to which
adequate reserves have been established and maintained, and (b) immaterial
taxes; provided, however, that in each case no material item or portion of
property of any Borrower Party or any of its Subsidiaries is in jeopardy of
being seized, levied upon or forfeited.
5.09 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) No Borrower Party is engaged or will engage, principally or as one
of its important activities, in the business of extending credit for the purpose
of "purchasing" or "carrying" "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. No part
of the proceeds of any Extensions of Credit hereunder will be used for
"purchasing" or "carrying" "margin stock" as so defined or for any purpose which
violates, or which would be inconsistent with, the provisions of Regulations U
or X of such Board of Governors.
(b) No Borrower Party or any of its Subsidiaries (i) is a "holding
company," or a "subsidiary company" of a "holding company," or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company," within
the meaning of the Public Utility Holding Company Act of 1935, or (ii) is or is
required to be registered as an "investment company" under the Investment
Company Act of 1940.
5.10 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state Laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to the best
knowledge of Borrower, nothing has occurred which would prevent, or cause the
loss of, such qualification. Borrower and each ERISA Affiliate have made all
required contributions to each Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of
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any amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan.
(b) There are no pending or, to the best knowledge of Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that has a Material Adverse Effect. There has been no
prohibited transaction or violation of the fiduciary responsibility rules with
respect to any Plan that has a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither Borrower
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA with respect to any Pension Plan (other than
premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Sections 4201 or
4243 of ERISA with respect to a Multiemployer Plan; and (v) neither Borrower nor
any ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069 or 4212(c) of ERISA.
5.11 INTANGIBLE ASSETS. Each Borrower Party and its Subsidiaries own,
or possess the right to use, all trademarks, trade names, copyrights, patents,
patent rights, franchises, licenses and other intangible assets that are used in
the conduct of their respective businesses as now operated, and none of such
items, to the best knowledge of Borrower, conflicts with the valid trademark,
trade name, copyright, patent, patent right or intangible asset of any other
Person to the extent that such conflict has a Material Adverse Effect.
5.12 COMPLIANCE WITH LAWS. Each Borrower Party and its Subsidiaries are
in compliance in all material respects with all Laws that are applicable to it.
5.13 ENVIRONMENTAL COMPLIANCE. Each Borrower Party and its Subsidiaries
has conducted a review of the effect of existing Environmental Laws and claims
alleging potential liability or responsibility for violation of any
Environmental Law on their respective businesses, operations and properties, and
as a result thereof Borrower has reasonably concluded that such Environmental
Laws and claims do not, individually or in the aggregate, have a Material
Adverse Effect.
5.14 INSURANCE. The properties of each Borrower Party and its
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of Borrower, in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where such Borrower Party
or such Subsidiary operates.
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5.15 COLLATERAL DOCUMENTS.
(a) The provisions of each of the Collateral Documents are effective to
create in favor of Administrative Agent for the benefit of Lenders, a legal,
valid and enforceable first priority security interest in all right, title and
interest of Borrower Parties in the collateral described therein, subject only
to Liens permitted under this Agreement.
(b) Each Mortgage when delivered will be effective to grant to
Administrative Agent for the benefit of Lenders a legal, valid and enforceable
lien on all the right, title and interest of the mortgagor under such Mortgage
in the mortgaged property described therein. When each such Mortgage is duly
recorded in the offices listed on the schedule to such Mortgage and the mortgage
recording fees and taxes in respect thereof are paid and compliance is otherwise
had with the formal requirements of state law applicable to the recording of
real estate mortgages generally, each such mortgaged property, subject to the
encumbrances and exceptions to title set forth therein and any Ordinary Course
Liens and except as noted in the title policies delivered to Administrative
Agent pursuant to Section 4.01, is subject to a legal, valid, enforceable and
perfected first priority lien; and when financing statements have been filed in
the offices specified in such Mortgage, such Mortgage also creates a legal,
valid, enforceable and perfected first lien on, and security interest in, all
right, title and interest of the applicable Borrower Party under such Mortgage
in all personal property and fixtures covered by such Mortgage, subject to no
other Liens, except the encumbrances and exceptions to title set forth therein
and except as noted in the title policies delivered to Administrative Agent
pursuant to Section 4.01, and Ordinary Course Liens.
(c) All representations and warranties of Borrower Parties contained in
the Collateral Documents are true and correct.
5.16 CAPITALIZATION; SUBSIDIARIES.
As of the Closing Date, after giving effect to the consummation of the
transactions contemplated by the Loan Documents, Borrower has no Subsidiaries
other than those specifically disclosed in part (a) of Schedule 5.17 hereto and
has no equity investments in any other corporation or entity other than those
specifically disclosed in part (b) of Schedule 5.17. The capitalization of
Borrower's Subsidiaries as of the Closing Date is as set forth on part (a) of
Schedule 5.17.
5.17 INSURANCE.
The properties of Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of Borrower,
in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and are similarly
situated.
5.18 SWAP OBLIGATIONS.
Neither Borrower nor any of its Subsidiaries has incurred any
outstanding obligations under any Swap Contracts, other than Ordinary Course
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Swap Obligations. Borrower has undertaken its own independent assessment of its
consolidated assets, liabilities and commitments and has considered appropriate
means of mitigating and managing risks associated with such matters and has not
relied on any swap counterparty or any Affiliate of any swap counterparty in
determining whether to enter into any Swap Contract.
5.19 DISCLOSURE. No statement, information, report, representation, or
warranty made by any Borrower Party in any Loan Document or furnished to
Administrative Agent or any Lender in connection with any Loan Document contains
any untrue statement of a material fact or omits to state any material fact
necessary to make the statements herein or therein not misleading.
SECTION 6.
AFFIRMATIVE COVENANTS
So long as any Obligation remains unpaid or unperformed, or any portion
of the Commitments remains outstanding, Borrower shall, and shall (except in the
case of Borrower's reporting covenants), cause each Subsidiary to:
6.01 FINANCIAL STATEMENTS. Deliver to Administrative Agent and each
Lender, in form and detail satisfactory to Administrative Agent and Requisite
Lenders:
(a) as soon as available, but not later than the earlier of (i) five
days after the filing thereof with the SEC and (ii) 90 days after the end of
each fiscal year of Borrower, a consolidated balance sheet of Borrower and its
Subsidiaries as at the end of such fiscal year, and the related consolidated
statements of income and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, all in
reasonable detail, audited and accompanied by a report and opinion of an
independent certified public accountant of nationally recognized standing
reasonably acceptable to Requisite Lenders, which report and opinion shall be
prepared in accordance with GAAP and shall not be subject to any qualifications
or exceptions as to the scope of the audit nor to any qualifications and
exceptions not reasonably acceptable to Requisite Lenders; and
(b) as soon as available, but not later than the earlier of (i) five
days after the filing thereof with the SEC and (ii) 45 days after the end of
each of the first three fiscal quarters of each fiscal year of Borrower, a
consolidated balance sheet of Borrower and its Subsidiaries as at the end of
such fiscal quarter, and the related consolidated statements of income and cash
flows for such fiscal quarter and for the portion of Borrower's fiscal year then
ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding
portion of the previous fiscal year, all in reasonable detail and certified by a
Responsible Officer of Borrower as fairly presenting the financial condition,
results of operations and cash flows of Borrower and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of footnotes.
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6.02 CERTIFICATES, NOTICES AND OTHER INFORMATION. Deliver to
Administrative Agent in form and detail satisfactory to Administrative Agent and
Requisite Lenders, with sufficient copies for each Lender:
(a) concurrently with the delivery of the financial statements referred
to in Section 6.01(a), a certificate of its independent certified public
accountants certifying such financial statement and stating that in making the
examination necessary therefor no knowledge was obtained of any Default or Event
of Default under the financial covenants set forth herein or, if any such
Default or Event of Default shall exist, stating the nature and status of such
event;
(b) concurrently with the delivery of the financial statements referred
to in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed
by a Responsible Officer of Borrower;
(c) concurrently with the delivery of the financial statements referred
to in Section 6.01(a), (i) a consolidating balance sheet and income statement
for such year (which need not be audited) and, in the case of such income
statement, setting forth in comparative form the figures for the previous fiscal
year, and (ii) a budget for the next succeeding fiscal year;
(d) promptly after request by Administrative Agent or any Lender,
copies of any detailed audit reports, management letters or recommendations
submitted to the board of directors (or the audit committee of the board of
directors) of Borrower by independent accountants in connection with the
accounts or books of Borrower or any Subsidiary, or any audit of any of them;
(e) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent to
the stockholders of Borrower, and copies of all annual, regular, periodic and
special reports and registration statements which Borrower may file or be
required to file with the Securities and Exchange Commission under Sections 13
or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to
be delivered to Administrative Agent pursuant hereto;
(f) promptly after the occurrence thereof, notice of any Default or
Event of Default;
(g) notice of any material change in accounting policies or financial
reporting practices by Borrower or any Subsidiary;
(h) notice of any matter that has resulted or could reasonably be
expected to result in a Material Adverse Effect, including (i) any breach or
non-performance of, or any default under, a Contractual Obligation of Borrower
or any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or
suspension between Borrower or any Subsidiary and any Governmental Authority; or
(iii) the commencement of, or any material development in, any litigation or
proceeding affecting Borrower or any Subsidiary; including pursuant to any
applicable Environmental Laws;
(i) notice of the occurrence of any of the following events affecting
Borrower or any ERISA Affiliate (but in no event more than 10 days after such
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event becomes known to an officer of Borrower or any Subsidiary), and deliver to
Administrative Agent and each Lender a copy of any notice with respect to such
event that is filed with a Governmental Authority and any notice delivered by a
Governmental Authority to Borrower or any ERISA Affiliate with respect to such
event:
(i) an ERISA Event;
(ii) a material increase in the Unfunded Pension
Liability of any Pension Plan;
(iii) the adoption of, or the commencement of
contributions to, any Plan subject to Section 412 of the Code by
Borrower or any ERISA Affiliate resulting in a material contribution
obligation; or
(iv) the adoption of any amendment to a Plan subject
to Section 412 of the Code, if such amendment results in a material
increase in contributions or Unfunded Pension Liability; and
(j) notice upon, but in no event later than 15 days after, any officer
of Borrower or any Subsidiary becoming aware of (i) any and all enforcement,
investigation, cleanup, removal or other governmental or regulatory actions
instituted, completed or threatened against Borrower or any Subsidiary or any of
their respective properties pursuant to any applicable Environmental Laws which
could reasonably be expected to have a Material Adverse Effect, (ii) all other
material Environmental Claims, and (iii) any environmental or similar condition
on any real property adjoining or in the vicinity of the property of Borrower or
any Subsidiary that could reasonably be anticipated to cause such property of
Borrower or such Subsidiary or any part thereof to be subject to any material
restrictions on the ownership, occupancy, transferability or use of such
property under any Environmental Laws.
(k) promptly after the occurrence thereof, notice of any Material
Adverse Effect; and
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer of Borrower setting forth details of the
occurrence referred to therein and stating what action Borrower has taken and
proposes to take with respect thereto.
6.03 PAYMENT OF TAXES. Pay and discharge when due all taxes,
assessments, and governmental charges, Ordinary Course Liens or levies imposed
on any Borrower Party or its Subsidiaries or on its income or profits or any of
its property, except for any such tax, assessment, charge, or levy which is an
Ordinary Course Lien under subsection (b) of the definition of such term.
6.04 PRESERVATION OF EXISTENCE. Preserve and maintain its existence,
licenses, permits, rights, franchises and privileges necessary or desirable in
the normal conduct of its business, except where failure to do so does not have
a Material Adverse Effect.
6.05 MAINTENANCE OF PROPERTIES. Maintain, preserve and protect all of
its material properties and equipment necessary in the operation of its
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business in good order and condition, subject to wear and tear in the ordinary
course of business, and not permit any waste of its properties.
6.06 MAINTENANCE OF INSURANCE. Maintain liability and casualty
insurance with financially sound and reputable insurance companies in such
amounts with such deductibles and against such risks as is customary for
similarly situated businesses.
6.07 COMPLIANCE WITH LAWS.
(a) Comply with the requirements of all applicable Laws and orders of
any Governmental Authority, noncompliance with which could reasonably be
expected to have Material Adverse Effect.
(b) Conduct its operations and keep and maintain its property in
compliance with all Environmental Laws, noncompliance with which has a Material
Adverse Effect.
6.08 INSPECTION RIGHTS. At any time during regular business hours and
as often as reasonably requested and, in the absence of a Default or Event of
Default, with reasonable advance notice and at the Lender's expense, permit
Administrative Agent or any Lender, or any employee, agent or representative
thereof, to examine, audit and make copies and abstracts from the Borrower
Parties' records and books of account and to visit and inspect their properties
and to discuss their affairs, finances and accounts with any of their officers
and key employees, and, upon request, furnish promptly to Administrative Agent
or any Lender true copies of all financial information and internal management
reports made available to their senior management.
6.09 KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Keep adequate records and
books of account reflecting all financial transactions in conformity with GAAP,
consistently applied, and in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over
Borrower or the applicable Subsidiary.
6.10 COMPLIANCE WITH ERISA. Cause, and cause each of its ERISA
Affiliates to: (a) maintain each Plan in compliance in all material respects
with the applicable provisions of ERISA, the Code and other federal or state
law; (b) cause each Plan which is qualified under Section 401(a) of the Code to
maintain such qualification; and (c) make all required contributions to any Plan
subject to Section 412 of the Code.
6.11 COMPLIANCE WITH AGREEMENTS. Promptly and fully comply with all
Contractual Obligations to which any one or more of them is a party, except for
any such Contractual Obligations (a) the performance of which would cause a
Default or Event of Default, (b) then being contested by any of them in good
faith by appropriate proceedings, or (c) if the failure to comply therewith does
not have a Material Adverse Effect.
6.12 USE OF PROCEEDS. Use the proceeds of Extensions of Credit for
lawful general corporate purposes not otherwise in contravention of this
Agreement.
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6.13 FURTHER ASSURANCES.
(a) Borrower shall ensure that all written information, exhibits and
reports furnished to Administrative Agent or Lenders do not and will not contain
any untrue statement of a material fact and do not and will not omit to state
any material fact or any fact necessary to make the statements contained therein
not misleading in light of the circumstances in which made, and will promptly
disclose to Administrative Agent and Lenders and correct any material defect or
error that is discovered therein or in any Loan Document or in the execution,
acknowledgment or recordation thereof.
(b) Promptly upon request by Administrative Agent or the Required
Lenders, Borrower shall (and shall cause any of its Subsidiaries to) do,
execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register, any and all such further acts, deeds, conveyances, security
agreements, mortgages, assignments, estoppel certificates, financing statements
and continuations thereof, termination statements, notices of assignment,
transfers, certificates, assurances and other instruments Administrative Agent
or such Lenders, as the case may be, may reasonably require from time to time in
order (i) to carry out more effectively the purposes of this Agreement or any
other Loan Document, (ii) to subject to the Liens created by any of the
Collateral Documents any of the properties, rights or interests covered by any
of the Collateral Documents, (iii) to perfect and maintain the validity,
effectiveness and priority of any of the Collateral Documents and the Liens
intended to be created thereby, and (iv) to better assure, convey, grant,
assign, transfer, preserve, protect and confirm to Administrative Agent and
Lenders the rights granted or now or hereafter intended to be granted to Lenders
under any Loan Document or under any other document executed in connection
therewith.
6.14 ADDITIONAL GUARANTIES AND PERSONAL PROPERTY PLEDGE.
Effective upon any Person becoming a Domestic Subsidiary (other than
any Domestic Subsidiary that is not a Material Subsidiary), such Person shall
(i) join as a guarantor under the Subsidiary Guaranty and join the Security
Agreement pursuant to amendments thereto in form and substance acceptable to
Administrative Agent and (ii) provide to Borrower an intercompany note to the
extent intercompany loans from Borrower to such Subsidiary exist and such loan
is evidenced by a note, which note shall be pledged to Collateral Agent pursuant
to the Pledge Agreement; provided, that any Domestic Subsidiary which does not
become a party to the Subsidiary Guaranty and the Security Agreement because it
does not satisfy the requirement in the parenthetical clause above shall execute
the Subsidiary Guaranty and the Security Agreement if it subsequently acquires
sufficient assets to satisfy such requirement; provided, further, that if all
Domestic Subsidiaries which are not party to the Subsidiary Guaranty and the
Security Agreement hold 5.0% or more of the total assets of Borrower and its
Subsidiaries, then such Domestic Subsidiaries shall promptly execute the
Subsidiary Guaranty and the Security Agreement so that, upon such execution,
such 5.0% threshold is no longer exceeded. Borrower shall promptly notify
Administrative Agent at any time at which, in accordance with this Section 6.14,
any Subsidiary shall be required to join as a guarantor under the Subsidiary
Guaranty and the Security Agreement.
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6.15 ADDITIONAL REAL PROPERTY.
Concurrent with (a) the acquisition by Borrower or any Domestic
Subsidiary of any parcel of property in the United States which has a fair
market value in excess of $1,000,000 or (b) the acquisition or lease by Borrower
or any Domestic Subsidiary of any parcel of property which, in Administrative
Agent's determination, is otherwise of significant value to the operations of
Borrower and its Subsidiaries, unless the Required Lenders shall otherwise
direct, Borrower shall, or shall cause such Domestic Subsidiary to, execute and
deliver to Administrative Agent a Mortgage on such parcel or leasehold
substantially in the form of the applicable Mortgages executed and delivered on
the date hereof, together with such other of the items specified in Section
4.01(a)(vi) as shall be applicable thereto, in each case in form and substance
reasonably acceptable to Administrative Agent.
6.16 ADDITIONAL PLEDGE.
Effective upon any Person becoming a Subsidiary, Borrower shall, or
shall cause the shareholder or shareholders thereof, to pledge the stock or
other equity interests thereof to Collateral Agent pursuant to documentation
reasonably acceptable to Administrative Agent; provided, that such shareholder
shall only be required to pledge 65% of the equity interests of any Subsidiary
which is not a Domestic Subsidiary.
6.17 GOVERNMENT CONTRACTS.
Borrower shall (i) deliver or cause to be delivered to Administrative
Agent a list in the form of Schedule 6.17 of each Government Contract and
Government Subcontract which has a remaining contract value in excess of
$1,000,000, and any amendments thereto, to which Borrower or any of its
Subsidiaries is a party and (ii) notify Administrative Agent of (A) the name and
address of any surety with respect to any such Government Contract or
Subcontract to which Borrower or any of its Subsidiaries is a party and (B) the
cancellation or early termination of any of such Government Contracts or,
Subcontracts.
6.18 INTELLECTUAL PROPERTY PLEDGE.
Upon the occurrence of a Default or Event of Default and at the request
of Administrative Agent, Borrower shall, and shall cause its Subsidiaries to,
execute and file assignment agreements with the United States Patent and
Trademark Office providing a first priority security interest in intellectual
property Collateral in favor of the Administrative Agent.
6.19 ENVIRONMENTAL INSPECTION UPDATES.
Upon the occurrence of a Default or Event of Default and at the request
of Administrative Agent, Borrower shall, and shall cause its Subsidiaries to, at
Borrower's expense, request environmental site assessments with respect to the
real property of Borrower Parties from an environmental auditing firm acceptable
to Administrative Agent.
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SECTION 7.
NEGATIVE COVENANTS
So long as any Obligations remain unpaid or unperformed, or any portion
of the Commitments remains outstanding, Borrower shall not, nor shall it permit
any Subsidiary to, directly or indirectly:
7.01 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on Schedule
7.01 (but not any refinancings, refundings, renewals or extensions thereof);
(c) Indebtedness consisting of Guaranty Obligations permitted pursuant
to Section 7.07;
(d) Indebtedness incurred in connection with leases permitted pursuant
to Section 7.06;
(e) (i) unsecured Indebtedness owed to Borrower by any Subsidiary so
long as it is not evidenced by a note and is incurred in accordance with Section
7.05 and (ii) unsecured Indebtedness owed by Borrower or any Subsidiary to a
Subsidiary, provided, that the aggregate outstanding principal amount of all
such Indebtedness owed by Borrower or any Subsidiary to Subsidiaries that are
not party to the Subsidiary Guaranty shall not at any time exceed $10,000,000;
(f) Indebtedness incurred in connection with the PTI TROL Documents
(and any renewals or extensions thereof);
(g) Ordinary Course Indebtedness; and
(h) Other Indebtedness not exceeding $10,000,000 in the aggregate at
any time.
7.02 LIENS. Incur, assume or suffer to exist, any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, except:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 7.01;
(c) Ordinary Course Liens;
(d) Liens on assets of corporations which become Subsidiaries after the
date of this Agreement, provided, however, that such Liens existed at the time
the respective corporations became Subsidiaries and were not created in
anticipation thereof and the obligations secured by all such Liens in the
aggregate at any time outstanding do not exceed (i) $10,000,000, less (ii)
amounts outstanding under paragraphs (e) and (h);
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(e) purchase money security interests on any property acquired or held
by Borrower or its Subsidiaries, securing Indebtedness incurred or assumed for
the purpose of financing all or any part of the cost of acquiring such property;
provided that (i) any such Lien attaches to such property concurrently with or
within 20 days after the acquisition thereof, (ii) such Lien attaches solely to
the property so acquired in such transaction and other like assets in respect of
which financing was provided by the same lender to the obligor of such
Indebtedness, (iii) the principal amount of the debt secured thereby does not
exceed 100% of the cost of such property, and (iv) the principal amount of the
Indebtedness secured by any and all such purchase money security interests shall
not at any time exceed, together with Indebtedness permitted under Section
7.01(d), (i) $10,000,000, less (ii) amounts outstanding under paragraphs (d) and
(h);
(f) Liens securing obligations in respect of capital leases on assets
subject to such leases, provided that such capital leases are otherwise
permitted hereunder;
(g) Liens pursuant to the PTI TROL Documents to secure the PTI TROL;
and
(h) Liens securing Indebtedness of Subsidiaries that are not Domestic
Subsidiaries provided that the principal amount of the Indebtedness secured by
any and all such Liens shall not at any time exceed (i) $10,000,000, less (ii)
amounts outstanding under paragraphs (d) and (e).
7.03 FUNDAMENTAL CHANGES. Merge or consolidate with or into any Person
or liquidate, wind-up or dissolve itself, or permit or suffer any liquidation or
dissolution or sell all or substantially all of its assets, except, that so long
as no Default or Event of Default exists or would result therefrom:
(a) any Subsidiary may merge with (i) Borrower provided that Borrower
shall be the continuing or surviving corporation, (ii) any one or more
Subsidiaries, and (iii) any joint venture, partnership or other Person, so long
as such joint venture, partnership and other Person will, as a result of making
such merger and all other contemporaneous related transactions, become a
Subsidiary; provided that when any wholly-owned Subsidiary is merging into
another Subsidiary, the wholly-owned Subsidiary shall be the continuing or
surviving Person and provided, further, that if one of the merging Persons is a
Guarantor, the continuing or surviving Person is a Guarantor; and
(b) any Subsidiary may sell all or substantially all of its assets
(upon voluntary liquidation or otherwise), to Borrower or to another Subsidiary;
provided that when any wholly-owned Subsidiary is selling all or substantially
all of its assets to another Subsidiary, the Subsidiary acquiring such assets
shall be a wholly-owned Subsidiary.
7.04 DISPOSITIONS. Make any Dispositions, except:
(a) Ordinary Course Dispositions;
(b) Dispositions permitted by Section 7.03;
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(c) sale/leaseback transactions involving an aggregate consideration
not to exceed $10,000,000 after the date hereof; and
(d) Dispositions not otherwise permitted hereunder which are made for
fair market value; provided, that (i) at the time of any Disposition, no Event
of Default shall exist or shall result from such Disposition (ii) the aggregate
value of all assets sold in any Disposition or series of related Dispositions
shall not exceed 15% of the total assets of Borrower and its Subsidiaries and
(iii) the aggregate value of all assets so sold by Borrower and its Subsidiaries
after the date hereof, shall not exceed $25,000,000 provided that to the extent
that no Default or Event of Default then exists and Borrower delivers a
certificate to Administrative Agent on or prior to the date of the Disposition
stating that the Net Proceeds shall be used to purchase assets used in the same
or similar line of business of Borrower or any of its Subsidiaries within 365
days following the date of such Disposition; the Disposition shall not reduce
the $25,000,000 limit provided, further, if all or any portion of such Net
Proceeds not deemed to reduce the $25,000,000 limit are not so used within such
365 day period, the $25,000,000 limit shall automatically be reduced by an
amount equal to such remaining portion on the last day of such 365 day period to
the extent that Net Proceeds not so reinvested or deemed to reduce the
$25,000,000 limit.
7.05 INVESTMENTS. Make any Investments, except:
(a) Investments existing on the date hereof and listed on Schedule
7.05;
(b) Ordinary Course Investments;
(c) Investments permitted by Section 7.03;
(d) Investments incurred in order to consummate Acquisitions otherwise
permitted herein, provided that (i) the cash consideration for any Acquisition
or series of related Acquisitions shall not exceed $25,000,000 (ii) such
Acquisitions are undertaken in accordance with all applicable Laws, (iii) the
prior, effective written consent or approval to such Acquisition of the board of
directors or equivalent governing body of the acquiree is obtained, (iv)
Borrower provides Administrative Agent and Lenders with a certificate at least
ten days prior to the consummation of such Acquisition evidencing that, after
giving effect to such Acquisition, (A) its Leverage Ratio would be at least
equal to that required pursuant to Section 7.17 and its Minimum Consolidated
EBITDA would be at least equal to that required pursuant to Section 7.18 as of
such date (in each case as determined on a pro forma basis as of the last day of
the preceding fiscal quarter) and (B) the Outstanding Obligations on the date
such Acquisition is expected to be consummated are at least $7,500,000 less than
the combined Commitments, (v) the Person or business which is the subject of
such Acquisition is in the same or similar line of business as Borrower and its
Subsidiaries, and (vi) such Acquisition consists exclusively of (A) assets
located in the United States or (B) a Person organized under the laws of the
United States or any state thereof;
(e) advances to vendors of Borrower and its Subsidiaries, or suppliers
to such vendors, to enable such vendors and suppliers to purchase goods or
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parts to be processed and sold to Borrower and its Subsidiaries in the ordinary
course of business and consistent with past practices;
(f) Investments (including debt obligations) received in connection
with the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with, customers and
suppliers arising in the ordinary course of business;
(g) Investments (i) by Borrower or any Subsidiary in Subsidiaries to
the extent not permitted under clause (c) above and (ii) incurred in order to
consummate Acquisitions of (x) assets located outside the United States or (y)
Persons which are not organized under the laws of the United States or any state
thereof; provided, that the cash consideration for any such Acquisition or
series of related Acquisitions shall not exceed $25,000,000; provided, further,
the aggregate cash consideration paid therefor after the date hereof shall not
exceed $35,000,000; and provided, further, that any such Investment made in
order to consummate an Acquisition shall be made in compliance with clauses
(ii), (iii), (iv) and (v) of paragraph (d) above; and
(h) other Investments not exceeding $10,000,000 in the aggregate after
the Closing Date.
7.06 LEASE OBLIGATIONS. Create or suffer to exist any obligations for
the payment of rent for any property under lease or agreement to lease, except:
(a) operating leases for real or personal property in existence on the
Closing Date or entered into by Borrower or any Subsidiary after the Closing
Date in the ordinary course of business; provided that the aggregate annual
lease payments for all such operating leases shall not exceed $8,000,000; and
(b) leases entered into by Borrower or any Subsidiary after the Closing
Date pursuant to sale-leaseback transactions permitted under Section 7.04.
7.07 GUARANTY OBLIGATIONS.
Create, incur, assume or suffer to exist any Guaranty Obligations
except:
(a) endorsements for collection or deposit in the ordinary course of
business;
(b) Ordinary Course Swap Obligations;
(c) Guaranty Obligations of Borrower and its Subsidiaries existing as
of the Closing Date and listed in Schedule 7.01;
(d) Guaranty Obligations with respect to Indebtedness of Borrower or of
Borrower's direct or indirect wholly-owned Subsidiaries permitted pursuant to
Section 7.01;
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(e) Guaranty Obligations with respect to Surety Instruments incurred by
Borrower and its Subsidiaries (including on behalf of third parties) in the
ordinary course of business; and
(f) Guaranty Obligations with respect to performance guaranties of
obligations of Subsidiaries incurred by Borrower and its Subsidiaries in the
ordinary course of business.
7.08 RESTRICTED PAYMENTS. Make any Restricted Payments except:
(a) purchases, redemptions or other acquisitions of shares of
Borrower's common stock or warrants or options to acquire any such shares with
the proceeds received from the substantially concurrent issue of new shares of
its common stock; and
(b) declarations or payments of cash dividends to Borrower's
stockholders and purchases, redemptions or other acquisitions of shares of
Borrower's Capital Stock or warrants, rights or options to acquire any such
shares for cash and computed on a cumulative consolidated basis; provided, that,
(i) all such payments made in any period of four fiscal quarters (ending with
the fiscal quarter in which any such payment is made) shall not exceed
$10,000,000, (ii) all such payments made between the Closing Date and the
Maturity Date shall not exceed $25,000,000 and (iii) immediately after giving
effect to such proposed action, no Default or Event of Default would exist
(determined with respect to Sections 7.18 and 7.19 on a pro forma basis as of
the last day of the previous fiscal quarter).
7.09 ERISA. At any time engage in a transaction which could be subject
to Sections 4069 or 4212(c) of ERISA, or permit any Pension Plan to (a) engage
in any non-exempt "prohibited transaction" (as defined in Section 4975 of the
Code); (b) fail to comply with ERISA or any other applicable Laws; or (c) incur
any material "accumulated funding deficiency" (as defined in Section 302 of
ERISA), which, with respect to each event listed above, has a Material Adverse
Effect.
7.10 CHANGE IN NATURE OF BUSINESS. Make any change in the nature of the
business of any Borrower Party as conducted and as proposed to be conducted as
of the date hereof, provided that any Borrower Party may enter into any business
substantially similar, related or incidental to the existing business of such
Borrower Party.
7.11 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any
kind with any Affiliate of Borrower other than arm's-length transactions with
Affiliates that are otherwise permitted hereunder and except for:
(a) employment or severance agreements entered into by Borrower or any
of its Subsidiaries in the ordinary course of business;
(b) transactions between or among Borrower and/or its Subsidiaries in
the ordinary course of business;
(c) the payment of reasonable directors' fees and benefits, provided
that the amount of such fees and benefits paid to any Affiliate does not
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exceed the amount of such fees and benefits paid to any Person who is not
otherwise an Affiliate of Borrower;
(d) payments permitted pursuant to Section 7.08 and transactions
permitted pursuant to Section 7.05 or Section 7.07;
(e) the provision of officers' and directors' indemnification and
insurance in the ordinary course of business to the extent permitted by
applicable law; and
(f) the payment of employee salaries, bonuses and employee benefits in
the ordinary course of business.
7.12 HOSTILE ACQUISITIONS. Use the proceeds of any Loan in connection
with the acquisition of a voting interest of five percent or more in any Person
if such acquisition is opposed by the board of directors or management of such
Person unless (a) Borrower has given Administrative Agent (who shall promptly
notify each Lender) five Business Days' prior notice thereof and (b) no Lender
shall have, within that period, notified Administrative Agent (who shall
promptly notify Borrower) not consented to the use of the proceeds of such Loan
for that purpose.
7.13 LIMITATIONS ON UPSTREAMING. Agree to any restriction or limitation
on the making of Restricted Payments or transferring of assets from any
Subsidiary to Borrower.
7.14 MARGIN REGULATIONS. No Borrower Party shall use the proceeds of
any Extensions of Credit hereunder for "purchasing" or "carrying" "margin stock"
as so defined or for any purpose which violates, or which would be inconsistent
with, the provisions of Regulations U or X of such Board of Governors.
7.15 ACCOUNTING CHANGES.
Borrower shall not, and shall not suffer or permit any Subsidiary to,
(a) make any significant change in accounting treatment or reporting practices,
except (i) as required by GAAP, (ii) a change in the depreciation method
employed, (iii) a change in a Subsidiary's accounting treatment or reporting
practices to conform the accounting practices or reporting practices of newly
acquired Subsidiaries to the methods used by Borrower, and (iv) any other change
which does not affect the calculations required to determine compliance with
Section 7.18, or 7.19, or (b) change the fiscal year of Borrower or of any
Subsidiary.
7.16 AMENDMENTS TO CHARTER AND AGREEMENTS; SUBORDINATED INDEBTEDNESS.
Borrower will not, nor will it permit any Subsidiary to, (a) make any
amendment or modification to any indenture, notes or other agreement evidencing
or governing any subordinated Indebtedness, (b) directly or indirectly prepay,
defease or in substance defease, purchase, redeem, retire or otherwise acquire,
any such Indebtedness, except that Borrower may pay the PTI TROL on the
scheduled maturity date therefor in accordance with the terms thereof as in
effect on the date of this Agreement or (c) make any amendment
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or modification to any terms or provisions of its Organizational Documents which
is materially adverse to Administrative Agent or Lenders without the prior
written consent of the Required Lenders.
7.17 LEVERAGE RATIO.
Borrower shall not permit its Leverage Ratio as determined as of the
last day of each fiscal quarter for the immediately preceding four fiscal
quarters in any period set forth below to be greater than the ratio set forth
below for such period:
Period Ratio
------ -----
4/01/00 through 3/31/01 3.00:1.0
4/01/01 through 3/31/02 3.00:1.0
4/01/02 through 3/31/03 2.75:1.0
4/01/03 through 3/31/04 2.50:1.0
4/01/04 and thereafter 2.25:1.0
7.18 MINIMUM CONSOLIDATED EBITDA.
Borrower shall not permit its Consolidated EBITDA determined as of the
last day of each fiscal quarter for the immediate preceding four fiscal quarters
to be less than the sum of (a) $20,000,000 plus (b) the lesser of (i) 80% of
Acquired Cash Flow or (ii) $10,000,000.
7.19 NO PREFERRED STOCK.
Borrower shall not, and shall not suffer or permit any Subsidiary to,
issue any additional Capital Stock other than in the case of Borrower, (i)
additional shares of its common stock and (ii) shares of its preferred stock
issued in a public offering registered under the Securities Act of 1933;
provided that any such preferred stock shall not be subject to any mandatory
redemption or repurchase provisions that would require redemption or repurchase
thereof on or prior to September 30, 2005.
7.20 CHANGE IN AUDITORS. Change the certified public accountants
auditing the books of Borrower except to certified public accountants of
nationally recognized standing reasonably acceptable to Requisite Lenders.
7.21 NEGATIVE PLEDGES.
Borrower shall not, nor will it permit any Subsidiary to, agree to or
become bound by any agreement or other arrangement that would restrict or impair
the ability of Borrower or any Subsidiary to grant Administrative Agent the
Liens contemplated under the Collateral Documents; provided, however, that any
agreement, note, indenture or other instrument entered into by Borrower or any
Subsidiary in connection with a Lien permitted by the terms of Section 7.02 may
prohibit the creation of any other Lien on the items of property which are the
subject of such permitted Lien.
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SECTION 8.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any one or more of the following events shall
constitute an Event of Default:
(a) Borrower fails to pay any principal on any Outstanding Obligation
(other than fees) as and on the date when due; or
(b) Borrower fails to pay any interest on any Outstanding Obligation or
any commitment fees due hereunder within three days after the date when due; or
fails to pay any other fees or amount payable to Administrative Agent or any
Lender under any Loan Document within five days after the date due; or
(c) Any default occurs in the observance or performance of any
agreement contained in Section 6.01, 6.02, 6.04, 6.08 or 7; or
(d) The occurrence of an Event of Default (as such term is or may
hereafter be specifically defined in any other Loan Document) under any other
Loan Document; or any Borrower Party fails to perform or observe any other
covenant or agreement (not specified in subsections (a), (b) or (c) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days; or
(e) Any representation or warranty in any Loan Document or in any
certificate, agreement, instrument or other document made or delivered by any
Borrower Party pursuant to or in connection with any Loan Document proves to
have been incorrect when made or deemed made; or
(f) (i) Any Borrower Party (x) defaults in any payment when due of
principal of or interest on any Indebtedness (other than Indebtedness hereunder)
having an aggregate principal amount in excess of the Threshold Amount or (y)
defaults in the observance or performance of any other agreement or condition
relating to any Indebtedness (other than Indebtedness hereunder) or contained in
any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur, the effect of which default or other event is to cause,
or to permit the holder or holders of such Indebtedness (or a trustee or agent
on behalf of such holder or holders or beneficiary or beneficiaries) to cause,
with the giving of notice if required, Indebtedness having an aggregate
principal amount in excess of the Threshold Amount to be demanded or become due
(automatically or otherwise) prior to its stated maturity, or any Guaranty
Obligation in such amount to become payable or cash collateral in respect
thereof to be demanded, or any Borrower Party is unable or admits in writing its
inability to pay its debts as they mature; or (ii) the occurrence under any Swap
Contract of an Early Termination Date (as defined in such Swap Contract)
resulting from (x) any event of default under such Swap Contract as to which
Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap
Contract) or (y) the occurrence of any Termination Event under such Swap
Contract (as defined therein) as to which Borrower or any Subsidiary is an
Affected Party (as so defined) as a result of which, in either event, the Swap
Termination Value owed by Borrower or such Subsidiary is greater than the
Threshold Amount; or (iii) Borrower or any Subsidiary fails to perform or
observe any condition or covenant under any
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contract providing for the issuance of, or reimbursement of amounts in respect
of, Surety Instruments (other than non-surety Letters of Credit), which in such
event requires the making of payments, in the aggregate in excess of the
Threshold Amount, net of the proceeds of insurance policies and indemnity
agreements in favor of Borrower or any Subsidiary and received or reasonably
expected to be received thereby; or (iv) the occurrence under any PTI TROL
Document of any Event of Default (as defined in the PTI TROL Participation
Agreement); or
(g) Any Loan Document, at any time after its execution and delivery and
for any reason other than the agreement of all Lenders or satisfaction in full
of all the Obligations, ceases to be in full force and effect or is declared by
a court of competent jurisdiction to be null and void, invalid or unenforceable
in any respect; or any Borrower Party denies that it has any or further
liability or obligation under any Loan Document, or purports to revoke,
terminate or rescind any Loan Document; or
(h) Any Collateral Document shall for any reason (other than pursuant
to the terms thereof) cease to create a valid security interest in the
Collateral purported to be covered thereby or such security interest shall for
any reason cease to be a perfected and first priority security interest subject
only to Liens permitted under Section 7.02.
(i) (i) A final judgment against any Borrower Party is entered for the
payment of money in excess of the Threshold Amount, or any non-monetary final
judgment is entered against any Borrower Party which has a Material Adverse
Effect and, in each case, if such judgment remains unsatisfied without
procurement of a stay of execution within (A) 30 calendar days after the date of
entry of judgment or, (B) if earlier, five days prior to the date of any
proposed sale, or (ii) any writ or warrant of attachment or execution or similar
process is issued or levied against all or any material part of the property of
any such Person and is not released, vacated or fully bonded within 30 calendar
days after its issue or levy; or
(j) Any Borrower Party or any of its Subsidiaries institutes or
consents to the institution of any proceeding under Debtor Relief Laws, or makes
an assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of its
property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent
of that Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under Debtor Relief Laws relating to any such
Person or to all or any part of its property is instituted without the consent
of that Person and continues undismissed or unstayed for 60 calendar days, or an
order for relief is entered in any such proceeding; or
(k) (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount; (ii) the aggregate amount of Unfunded Pension Liability
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among all Pension Plans at any time exceeds the Threshold Amount; or (iii)
Borrower or any ERISA Affiliate fails to pay when due, after the expiration of
any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in
an aggregate amount in excess of the Threshold Amount; or
(l) There occurs any Change of Control of Borrower; or
(m) Any Governmental Authority revokes or fails to renew any license,
permit or franchise of Borrower or any Material Subsidiary, or Borrower or any
Material Subsidiary for any reason loses any license, permit or franchise, or
Borrower or any Material Subsidiary suffers the imposition of any restraining
order, escrow, suspension or impound of funds in connection with any proceeding
(judicial or administrative) with respect to any license, permit or franchise,
and any such event, results in, or could reasonably be expected to result in, a
Material Adverse Effect; or
(n) Any Guarantor fails in any material respect to perform or observe
any term, covenant or agreement in the Subsidiary Guaranty; or the Subsidiary
Guaranty is for any reason partially (including with respect to future advances)
or wholly revoked or invalidated, or otherwise ceases to be in full force and
effect, or any Guarantor or any other Person contests in any manner the validity
or enforceability thereof or denies that it has any further liability or
obligation thereunder; or any event described at paragraph (j) of this Section
occurs with respect to any Guarantor; or
(o) (i) any provision of any Collateral Document shall for any reason
cease to be valid and binding on or enforceable against Borrower or any
Subsidiary party thereto or Borrower or any Subsidiary shall so state
in writing or bring an action to limit its obligations or liabilities
thereunder; or
(ii) any Collateral Document shall for any reason (other than
pursuant to the terms thereof) cease to create a valid security
interest in the Collateral purported to be covered thereby or such
security interest shall for any reason cease to be a perfected and
first priority security interest subject only to Liens permitted under
this Agreement.
8.02 REMEDIES UPON EVENT OF DEFAULT. Without limiting any other rights
or remedies of Administrative Agent or Lenders provided for elsewhere in this
Agreement, or the other Loan Documents, or by applicable Law, or in equity, or
otherwise:
(a) Upon the occurrence, and during the continuance, of any Event of
Default other than an Event of Default described in Section 8.01(j):
(i) Requisite Lenders may request Administrative Agent to, and
Administrative Agent thereupon shall, terminate the Commitments and/or
declare all or any part of the unpaid principal of all Loans, all
interest accrued and unpaid thereon and all other amounts payable under
the Loan Documents to be immediately due and payable, whereupon the
same shall become and be immediately due and payable, without protest,
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presentment, notice of dishonor, demand or further notice of any kind,
all of which are expressly waived by Borrower; and
(ii) Issuing Lender may, with the approval of Administrative
Agent on behalf of Requisite Lenders, demand immediate payment by
Borrower of an amount equal to the aggregate amount of all outstanding
Letter of Credit Usage to be held in a Letter of Credit Cash Collateral
Account.
(b) Upon the occurrence of any Event of Default described in Section
8.01(j):
(i) the Commitments and all other obligations of
Administrative Agent or Lenders shall automatically terminate without
notice to or demand upon Borrower, which are expressly waived by
Borrower;
(ii) the unpaid principal of all Loans, all interest accrued
and unpaid thereon and all other amounts payable under the Loan
Documents shall be immediately due and payable, without protest,
presentment, notice of dishonor, demand or further notice of any kind,
all of which are expressly waived by Borrower; and
(iii) an amount equal to the aggregate amount of all
outstanding Letter of Credit Usage shall be immediately due and payable
to Issuing Lender without notice to or demand upon Borrower, which are
expressly waived by Borrower, to be held in a Letter of Credit Cash
Collateral Account.
(c) Upon the occurrence of any Event of Default, Lenders and
Administrative Agent, or any of them, without notice to (except as expressly
provided for in any Loan Document) or demand upon Borrower, which are expressly
waived by Borrower (except as to notices expressly provided for in any Loan
Document), may proceed to (but only with the consent of Requisite Lenders)
protect, exercise and enforce their rights and remedies under the Loan Documents
against any Borrower Party and such other rights and remedies as are provided by
Law or equity.
(d) Except as permitted by Section 10.05, no Lender may exercise any
rights or remedies with respect to the Obligations without the consent of
Requisite Lenders in their sole and absolute discretion. The order and manner in
which Administrative Agent's and Lenders' rights and remedies are to be
exercised shall be determined by Requisite Lenders in their sole and absolute
discretion. Regardless of how a Lender may treat payments for the purpose of its
own accounting, for the purpose of computing the Obligations hereunder, payments
shall be applied first, to costs and expenses (including Attorney Costs)
incurred by Administrative Agent and each Lender, second, to the payment of
accrued and unpaid interest on the Loans to and including the date of such
application, third, to the payment of the unpaid principal of the Loans, and
fourth, to the payment of all other amounts (including fees) then owing to
Administrative Agent and Lenders under the Loan Documents, in each case paid pro
rata to each Lender in the same proportions that the aggregate Obligations owed
to each Lender under the Loan Documents bear to the aggregate Obligations owed
under the Loan Documents to all Lenders, without priority or
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preference among Lenders. No application of payments will cure any Event of
Default, or prevent acceleration, or continued acceleration, of amounts payable
under the Loan Documents, or prevent the exercise, or continued exercise, of
rights or remedies of Administrative Agent and Lenders hereunder or thereunder
or at Law or in equity.
SECTION 9.
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
(a) Each Lender hereby irrevocably (subject to Section 9.09) appoints,
designates and authorizes Administrative Agent to take such action on its behalf
under the provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly delegated to it by
the terms of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary contained elsewhere in this Agreement or in any other Loan
Document, Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall Administrative Agent have or
be deemed to have any fiduciary relationship with any Lender or participant, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against Administrative Agent. Without limiting the generality of
the foregoing sentence, the use of the term "agent" in this Agreement with
reference to Administrative Agent is not intended to connote any fiduciary or
other implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
(b) Issuing Lender shall act on behalf of Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith until such
time and except for so long as Administrative Agent may agree at the request of
Requisite Lenders to act for such Issuing Lender with respect thereto; provided,
however, that Issuing Lender shall have all of the benefits and immunities (i)
provided to Administrative Agent in this Section 9 with respect to any acts
taken or omissions suffered by Issuing Lender in connection with Letters of
Credit issued by it or proposed to be issued by it and the application and
agreements for letters of credit pertaining to the Letters of Credit as fully as
if the term "Administrative Agent" as used in this Section 9 included Issuing
Lender with respect to such acts or omissions, and (ii) as additionally provided
in this Agreement with respect to Issuing Lender.
9.02 DELEGATION OF DUTIES. Administrative Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Administrative Agent shall not
be responsible for the negligence or misconduct of any agent or
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attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.
9.03 LIABILITY OF ADMINISTRATIVE AGENT. No Administrative Agent-Related
Person shall (i) be liable for any action taken or omitted to be taken by any of
them under or in connection with this Agreement or any other Loan Document or
the transactions contemplated hereby (except for its own gross negligence or
willful misconduct in connection with its duties expressly set forth herein), or
(ii) be responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Borrower Party or any officer
thereof, contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for in,
or received by Administrative Agent under or in connection with, this Agreement
or any other Loan Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document, or
for any failure of any Borrower Party or any other party to any Loan Document to
perform its obligations hereunder or thereunder. No Administrative Agent-Related
Person shall be under any obligation to any Lender or participant 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 to
inspect the properties, books or records of any Borrower Party or any Subsidiary
or Affiliate thereof.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement 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 counsel to any Borrower Party), independent accountants
and other experts selected by Administrative Agent. Administrative Agent shall
be fully justified in failing or refusing to take any action under any Loan
Document unless it shall first receive such advice or concurrence of Requisite
Lenders as it deems appropriate and, if it so requests, it shall first be
indemnified to its satisfaction by 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. Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of Requisite Lenders or all
Lenders, if required hereunder, and such request and any action taken or failure
to act pursuant thereto shall be binding upon all of Lenders and participants.
Where this Agreement expressly permits or prohibits an action unless Requisite
Lenders otherwise determine, and in all other instances, Administrative Agent
may, but shall not be required to, initiate any solicitation for the consent or
a vote of Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender and participant shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter either sent by Administrative Agent to each Lender for consent,
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approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to a Lender.
9.05 NOTICE OF DEFAULT. Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to Administrative Agent for the account of Lenders, unless
Administrative Agent shall have received written notice from a Lender or
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". Administrative
Agent will notify Lenders of its receipt of any such notice. Administrative
Agent shall take such action with respect to such Default or Event of Default as
may be directed by Requisite Lenders in accordance with Section 8; provided,
however, that unless and until Administrative Agent has received any such
direction, Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable or in the best interest of Lenders.
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENT. Each Lender and participant acknowledges that no Administrative
Agent-Related Person has made any representation or warranty to it, and that no
act by Administrative Agent hereinafter taken, including any consent to and
acceptance of any assignment or review of the affairs of any Borrower Party or
any of its Subsidiaries or Affiliates, shall be deemed to constitute any
representation or warranty by any Administrative Agent-Related Person to any
Lender or participant as to any matter, including whether Administrative
Agent-Related Persons have disclosed material information in their possession.
Each Lender, including any Lender by assignment, and each participant represents
to Administrative Agent that it has, independently and without reliance upon any
Administrative Agent-Related Person and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, prospects, operations, property, financial and other condition and
creditworthiness of any Borrower Party and its Subsidiaries and Affiliates, and
all applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to any Borrower Party hereunder. Each Lender and participant also
represents that it will, independently and without reliance upon any
Administrative Agent-Related Person 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 to make such investigations as it
deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of any Borrower
Party and its Subsidiaries and Affiliates. Except for notices, reports and other
documents expressly required to be furnished to Lenders by Administrative Agent
herein, Administrative Agent shall not have any duty or responsibility to
provide any Lender or participant with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any Borrower Party or any of its Subsidiaries
or Affiliates which may come into the possession of any Administrative
Agent-Related Person.
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9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, Lenders shall indemnify upon
demand each Administrative Agent-Related Person (to the extent not reimbursed by
or on behalf of any Borrower Party and without limiting the obligation of any
Borrower Party to do so), pro rata, and hold harmless each Administrative
Agent-Related Person from and against any and all Indemnified Liabilities
incurred by it; provided, however, that no Lender shall be liable for the
payment to any Administrative Agent-Related Person of any portion of such
Indemnified Liabilities resulting from such Person's gross negligence or willful
misconduct; provided, however, that no action taken in accordance with the
directions of Requisite Lenders shall be deemed to constitute gross negligence
or willful misconduct for purposes of this Section. Without limitation of the
foregoing, each Lender shall reimburse Administrative Agent upon demand for its
ratable share of any costs or out-of-pocket expenses (including Attorney Costs)
incurred by Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the extent
that Administrative Agent is not reimbursed for such expenses by or on behalf of
any Borrower Party. The undertaking in this Section shall survive the payment of
all Obligations hereunder and the resignation or replacement of Administrative
Agent.
9.08 ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY. Bank of America and
its Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
any Borrower Party and its Subsidiaries and Affiliates as though Bank of America
were not Administrative Agent or Issuing Lender hereunder and without notice to
or consent of Lenders. Lenders and participants acknowledge that, pursuant to
such activities, Bank of America or its Affiliates may receive information
regarding any Borrower Party or its Affiliates (including information that may
be subject to confidentiality obligations in favor of any Borrower Party or such
Affiliate) and acknowledge that Administrative Agent shall be under no
obligation to provide such information to them. With respect to its Loans, Bank
of America shall have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though it were not Administrative
Agent or Issuing Lender.
9.09 SUCCESSOR ADMINISTRATIVE AGENT. Administrative Agent may resign as
Administrative Agent upon 30 days' notice to Lenders. If Administrative Agent
resigns under this Agreement, Requisite Lenders shall appoint from among Lenders
a successor administrative agent for Lenders which successor administrative
agent shall be consented to by Borrower at all times other than during the
existence of an Event of Default (which consent of Borrower shall not be
unreasonably withheld or delayed). If no successor administrative agent is
appointed prior to the effective date of the resignation of Administrative
Agent, Administrative Agent may appoint, after consulting with Lenders and
Borrower, a successor administrative agent from among Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, such
successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term
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"Administrative Agent" shall mean such successor administrative agent and the
retiring Administrative Agent's appointment, powers and duties as Administrative
Agent shall be terminated. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Section 9 and Sections
10.03 and 10.13 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. If no
successor administrative agent has accepted appointment as Administrative Agent
by the date which is 30 days following a retiring Administrative Agent's notice
of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and Lenders shall perform all of the
duties of Administrative Agent hereunder until such time, if any, as Requisite
Lenders appoint a successor agent as provided for above. Notwithstanding the
foregoing, however, Bank of America may not be removed as Administrative Agent
at the request of Requisite Lenders unless Bank of America shall also
simultaneously be replaced as "Issuing Lender" and "Swing Line Lender" hereunder
pursuant to documentation in form and substance reasonably satisfactory to Bank
of America.
9.10 COLLATERAL MATTERS.
(a) Administrative Agent is authorized on behalf of all Lenders,
without the necessity of any notice to or further consent from Lenders, from
time to time to take any action with respect to any Collateral or the Collateral
Documents which may be necessary to perfect and maintain perfected the security
interest in and Liens upon the Collateral granted pursuant to the Collateral
Documents.
(b) Lenders irrevocably authorize Administrative Agent, at its option
and in its discretion, to release any Lien granted to or held by Administrative
Agent upon any Collateral (i) upon termination of the combined Commitments and
payment in full of all Loans and all other Obligations known to Administrative
Agent and payable under this Agreement or any other Loan Document; (ii)
constituting property sold or to be sold or disposed of as part of or in
connection with any disposition permitted hereunder; (iii) constituting property
in which Borrower or any Subsidiary owned no interest at the time the Lien was
granted or at any time thereafter; (iv) constituting property leased to Borrower
or any Subsidiary under a lease which has expired or been terminated in a
transaction permitted under this Agreement or is about to expire and which has
not been, and is not intended by Borrower or such Subsidiary to be, renewed or
extended; (v) consisting of an instrument evidencing Indebtedness or other debt
instrument, if the indebtedness evidenced thereby has been paid in full; or (vi)
if approved, authorized or ratified in writing by the Required Lenders or all
Lenders, as the case may be, as provided in Section 10.01. Upon request by
Administrative Agent at any time, Lenders will confirm in writing Administrative
Agent's authority to release particular types or items of Collateral pursuant to
this Section 9.10(b), provided that the absence of any such confirmation for
whatever reason shall not affect Administrative Agent's rights under this
Section 9.10.
(c) Each Lender agrees with and in favor of each other (which agreement
shall not be for the benefit of Borrower or any Subsidiary) that Borrower's
obligation to such Lender under this Agreement and the other Loan
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Documents is not and shall not be secured by any real property collateral now or
hereafter acquired by such Lender other than the real property described in the
Mortgages.
SECTION 10.
MISCELLANEOUS
10.01 AMENDMENTS; CONSENTS. No amendment, modification, supplement,
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and no consent to any
departure by any Borrower Party therefrom shall be effective unless in writing
signed by Requisite Lenders and acknowledged by Administrative Agent, and each
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given. Except as otherwise expressly provided
herein, without the approval in writing of Administrative Agent and all Lenders,
no amendment, modification, supplement, termination, waiver or consent may be
effective to:
(a) Reduce the amount of principal or required principal payments or
prepayments of any Outstanding Obligations; provided, however, that only the
consent of Requisite Lenders shall be required in any instance where Lenders
have the right to consent to the release price of any property or Persons being
Disposed of;
(b) Reduce the rate of interest payable on any Outstanding Obligations
or the amount of any fee or other amount payable to any Lender under the Loan
Documents (unless consented to by each Lender entitled to receive such fee or
other amount), including in each case, any change in the way any financial
covenant used to determine the Applicable Amount is calculated;
(c) Waive an Event of Default consisting of the failure of Borrower to
pay when due principal, interest or any commitment fee;
(d) Postpone any date fixed for any payment of principal of, prepayment
of principal of, or any installment of interest on, any Loan or any installment
of any commitment fee, to extend the term of, or, except as described in
Sections 2.12 and 10.22, increase the amount of, any Lender's Commitment (it
being understood that a waiver of any Event of Default not referred to in
subsection (c) above shall require only the consent of Required Lenders);
(e) Amend the definition of "Requisite Lenders" or the provisions of
Section 4, Section 9, this Section 10.01 or Section 10.06;
(f) Amend any provision of this Agreement that expressly requires the
consent or approval of all Lenders; or
(g) Release all or substantially all of the Collateral;
provided, however, that (i) no amendment, waiver or consent shall, unless in
writing and signed by Issuing Lender in addition to Requisite Lenders or all
Lenders, as the case may be, affect the rights or duties of Issuing Lender,
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(ii) no amendment, waiver or consent shall, unless in writing and signed by
Administrative Agent in addition to Requisite Lenders or all Lenders, as the
case may be, affect the rights or duties of Administrative Agent, (iii) no
amendment, waiver or consent shall, unless in writing and signed by Swing Line
Lender in addition to Requisite Lenders or all Lenders, as the case may be,
affect the rights or duties of Swing Line Lender, and (iv) any fee letters may
be amended, or rights or privileges thereunder waived, in a writing executed by
the parties thereto. Any amendment, modification, supplement, termination,
waiver or consent pursuant to this Section shall apply equally to, and shall be
binding upon, all Lenders and Administrative Agent.
10.02 TRANSMISSION AND EFFECTIVENESS OF COMMUNICATIONS AND SIGNATURES.
(a) MODES OF DELIVERY. Except as otherwise provided in any Loan
Document, notices, requests, demands, directions, agreements and documents
delivered in connection with the Loan Documents (collectively, "communications")
shall be transmitted by Requisite Notice to the number and address set forth on
Schedule 10.02, may be delivered by the following modes of delivery, and shall
be effective as follows:
MODE OF EFFECTIVE ON EARLIER OF ACTUAL
DELIVERY RECEIPT AND:
------------------ ---------------------------------------------------
Courier Scheduled delivery date
Facsimile When transmission in legible form complete
Fourth Business Day after deposit in U.S. mail first
Mail class postage pre-paid
Personal delivery When received
Telephone When conversation completed
Electronic Mail When received
provided, however, that communications delivered to Administrative Agent
pursuant to Section 2 shall not be effective until actually received by
Administrative Agent.
(b) RELIANCE BY ADMINISTRATIVE AGENT AND LENDERS. Administrative Agent
and Lenders shall be entitled to rely and act on any communications purportedly
given by or on behalf of any Borrower Party even if (i) such communications (A)
were not made in a manner specified herein, (B) were incomplete or (C) were not
preceded or followed by any other notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any subsequent related
communications provided for herein. Borrower shall indemnify Administrative
Agent and Lenders from any loss, cost, expense or liability as a result of
relying on any communications permitted herein.
(c) EFFECTIVENESS OF FACSIMILE DOCUMENTS AND SIGNATURES. Loan Documents
may be transmitted and/or signed by facsimile. The effectiveness of
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any such documents and signatures shall, subject to applicable Law, have the
same force and effect as hardcopies with manual signatures and shall be binding
on all Borrower Parties and Administrative Agent and Lenders. Administrative
Agent may also require that any such documents and signatures be confirmed by a
manually-signed hardcopy thereof; provided, however, that the failure to request
or deliver any such manually-signed hardcopy shall not affect the effectiveness
of any facsimile document or signature.
(d) EFFECTIVENESS OF ELECTRONIC MAIL. Electronic mail and internet and
intranet websites may be used to distribute routine communications, such as
financial statements and other information and to distribute agreements and
other documents to be signed by Lenders; provided, however, that no Request for
Extension of Credit or executed or legally-binding notice, agreement, waiver,
amendment or other communication may be sent by electronic mail.
10.03 ATTORNEY COSTS, EXPENSES AND TAXES. Borrower agrees (a) to pay or
reimburse Administrative Agent for all costs and expenses incurred in connection
with the development, preparation, negotiation and execution of the Loan
Documents, and the development, preparation, negotiation and execution of any
amendment, waiver, consent, supplement or modification to, any Loan Documents,
and any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and
thereby, including all Attorney Costs, and (b) to pay or reimburse
Administrative Agent and each Lender for all costs and expenses incurred in
connection with any refinancing, restructuring, reorganization (including a
bankruptcy reorganization) and enforcement or attempted enforcement, or
preservation of any rights under any Loan Documents, and any other documents
prepared in connection herewith or therewith, or in connection with any
refinancing, or restructuring of any such documents in the nature of a "workout"
or of any insolvency or bankruptcy proceeding, including Attorney Costs. The
foregoing costs and expenses shall include all search, filing, recording, title
insurance and appraisal charges and fees and taxes related thereto, and other
out-of-pocket expenses incurred by Administrative Agent and the cost of
independent public accountants and other outside experts retained by
Administrative Agent or any Lender. The agreements in this Section shall survive
repayment of all Obligations.
10.04 BINDING EFFECT; ASSIGNMENT.
(a) This Agreement and the other Loan Documents to which Borrower is a
party will be binding upon and inure to the benefit of Borrower, Administrative
Agent, Lenders and their respective successors and assigns, except that,
Borrower may not assign its rights hereunder or thereunder or any interest
herein or therein without the prior written consent of all Lenders and any such
attempted assignment shall be void. Any Lender may at any time pledge its Note
or any other instrument evidencing its rights as a Lender under this Agreement
to a Federal Reserve Bank, but no such pledge shall release such Lender from its
obligations hereunder or grant to such Federal Reserve Bank the rights of a
Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may
assign to one or more Eligible Assignees all or any portion of its Commitment
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and/or Extensions of Credit; provided that (i) such assignment, if not to a
Lender or an Affiliate of the assigning Lender, shall be consented to by
Borrower at all times other than during the existence of a Default or Event of
Default and by Administrative Agent, Issuing Lender and Swing Line Lender (which
approval of Borrower shall not be unreasonably withheld or delayed), (ii) a copy
of a duly signed and completed Assignment and Acceptance shall be delivered to
Administrative Agent, (iii) except in the case of an assignment (A) to an
Affiliate of the assigning Lender or to another Lender or (B) of the entire
remaining Commitment of the assigning Lender, the portion of the Commitment
assigned shall not be less than the Minimum Amount therefor, and (iv) the
effective date of any such assignment shall be as specified in the Assignment
and Acceptance, but not earlier than the date which is five Business Days after
the date Administrative Agent has received the Assignment and Acceptance. Upon
obtaining any consent required as set forth in the prior sentence, any forms
required by Section 10.21 and payment of the requisite fee described below, the
assignee named therein shall be a Lender for all purposes of this Agreement to
the extent of the Assigned Interest (as defined in such Assignment and
Acceptance), and the assigning Lender shall be released from any further
obligations under this Agreement to the extent of such Assigned Interest.
Borrower agrees that it shall execute and deliver upon request (against delivery
by the assigning Lender to Borrower of any Note) to such assignee Lender, one or
more Notes evidencing such assignee Lender's Loans, and to the assigning Lender,
if requested, one or more Notes evidencing Loans under any Commitment retained
by the assigning Lender. Administrative Agent's consent to any assignment shall
not be deemed to constitute any representation or warranty by any Administrative
Agent-Related Person as to any matter. Administrative Agent shall record the
information contained in the Assignment and Acceptance in the Register. For
purposes hereof, each mutual fund that is an Affiliate of a Lender shall be
deemed to be a single Eligible Assignee, whether or not such fund is managed by
the same fund manager as other mutual funds that are Affiliates of the same
Lender.
(c) After receipt of a completed Assignment and Acceptance, and receipt
of an assignment fee of $3,500 from such Eligible Assignee and/or such assigning
Lender (including in the case of assignments to Affiliates of assigning
Lenders), Administrative Agent shall, promptly following the effective date
thereof, provide to Borrower and Lenders a revised Schedule 10.02 giving effect
thereto.
(d) Each Lender may from time to time, without the consent of any other
Person, grant participations to one or more other Person (including another
Lender) all or any portion of its Pro Rata Share of its Commitment and/or
Extensions of Credit; provided, however, that (i) such Lender's obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) the participating banks or other financial institutions shall
not be a Lender hereunder for any purpose except, if the participation agreement
so provides, for the purposes of Section 3 (but only to the extent that the cost
of such benefits to Borrower does not exceed the cost which Borrower would have
incurred in respect of such Lender absent the participation) and subject to
Sections 10.05 and 10.06, (iv) Borrower, Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and
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obligations under this Agreement, (v) the participation agreement shall not
restrict an increase in the combined Commitments or in the granting Lender's
Commitment or Pro Rata Share, so long as the amount of the participation
interest is not increased, and (vi) the consent of the holder of such
participation interest shall not be required for amendments or waivers of
provisions of the Loan Documents; provided, however, that the assigning Lender
may, in any agreement with a participant, give such participant the right to
consent to any matter which (A) extends the Maturity Date as to such participant
or any other date upon which any payment of money is due to such participant,
(B) reduces the rate of interest owing to such participant, any fee or any other
monetary amount owing to such participant, or (C) reduces the amount of any
installment of principal owing to such participant. Any Lender that sells a
participation to any Person that is a "foreign corporation, partnership or
trust" within the meaning of the Code shall include in its participation
agreement with such Person a covenant by such Person that such Person will
comply with the provisions of Section 10.21 as if such Person were a Lender and
provide that Administrative Agent and Borrower shall be third party
beneficiaries of such covenant.
10.05 SET-OFF. In addition to any rights and remedies of Administrative
Agent and Lenders or any assignee or participant of any Lender or any Affiliate
thereof (each, a "Proceeding Party") provided by law, upon the occurrence and
during the continuance of any Event of Default, each Proceeding Party is
authorized at any time and from time to time, without prior notice to Borrower,
any such notice being waived by Borrower to the fullest extent permitted by law,
to proceed directly, by right of set-off, banker's lien, or otherwise, against
any assets of the Borrower Parties which may be in the hands of such Proceeding
Party (including all general or special, time or demand, provisional or other
deposits and other indebtedness owing by such Proceeding Party to or for the
credit or the account of Borrower) and apply such assets against the
Obligations, irrespective of whether such Proceeding Party shall have made any
demand therefor and although such Obligations may be unmatured. Each Lender
agrees promptly to notify Borrower and Administrative Agent after any such
set-off and application made by such Lender; provided, however, that the failure
to give such notice shall not affect the validity of such set-off and
application.
10.06 SHARING OF PAYMENTS. Each Lender severally agrees that if it,
through the exercise of any right of setoff, banker's lien or counterclaim
against Borrower or otherwise, receives payment of the Obligations held by it of
a type owed ratably to the various Lenders that is ratably more than any other
Lender receives in payment of those Obligations held by such other Lender, then,
subject to applicable Laws: (a) such Lender exercising the right of setoff,
banker's lien or counterclaim or otherwise receiving such payment shall
purchase, and shall be deemed to have simultaneously purchased, from the other
Lender a participation in the Obligations held by the other Lender and shall pay
to the other Lender a purchase price in an amount so that the share of the
Obligations held by each Lender after the exercise of the right of setoff,
banker's lien or counterclaim or receipt of payment shall be in the same
proportion that existed prior to the exercise of the right of setoff, banker's
lien or counterclaim or receipt of payment; and (b) such other adjustments and
purchases of participations shall be made from time to time as shall be
equitable to ensure that all Lenders share any payment obtained in
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respect of the Obligations ratably in accordance with each Lender's share of the
Obligations immediately prior to, and without taking into account, the payment;
provided that, if all or any portion of a disproportionate payment obtained as a
result of the exercise of the right of setoff, banker's lien, counterclaim or
otherwise is thereafter recovered from the purchasing Lender by Borrower or any
Person claiming through or succeeding to the rights of Borrower, the purchase of
a participation shall be rescinded and the purchase price thereof shall be
restored to the extent of the recovery, but without interest. Each Lender that
purchases a participation in the Obligations pursuant to this Section shall from
and after the purchase have the right to give all notices, requests, demands,
directions and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though the purchasing
Lender were the original owner of the Obligations purchased. Borrower expressly
consents to the foregoing arrangements and agrees that any Lender holding a
participation in an Obligation so purchased may exercise any and all rights of
setoff, banker's lien or counterclaim with respect to the participation as fully
as if Lender were the original owner of the Obligation purchased.
10.07 NO WAIVER; CUMULATIVE REMEDIES.
(a) No failure by any Lender or Administrative Agent to exercise, and
no delay by any Lender or Administrative Agent in exercising, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege under any
Loan Document preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege.
(b) The rights, remedies, powers and privileges herein or therein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by Law. Any decision by Administrative Agent or any Lender
not to require payment of any interest (including Default Interest), fee, cost
or other amount payable under any Loan Document or to calculate any amount
payable by a particular method on any occasion shall in no way limit or be
deemed a waiver of Administrative Agent's or such Lender's right to require full
payment thereof, or to calculate an amount payable by another method that is not
inconsistent with this Agreement, on any other or subsequent occasion.
(c) Except with respect to Section 9.09, the terms and conditions of
Section 9 are for the sole benefit of Administrative Agent and Lenders.
10.08 USURY. Notwithstanding anything to the contrary contained in any
Loan Document, the interest paid or agreed to be paid under the Loan Documents
shall not exceed the maximum rate of non-usurious interest permitted by
applicable Law (the "Maximum Rate"). If Administrative Agent or any Lender shall
receive interest in an amount that exceeds the Maximum Rate, the excessive
interest shall be applied to the principal of the Outstanding Obligations or, if
it exceeds the unpaid principal, refunded to Borrower. In determining whether
the interest contracted for, charged, or received by Administrative Agent or a
Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate,
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allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations.
10.09 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.10 INTEGRATION. This Agreement, together with the other Loan
Documents and any letter agreements referred to herein, comprises the complete
and integrated agreement of the parties on the subject matter hereof and
supersedes all prior agreements, written or oral, on the subject matter hereof.
In the event of any conflict between the provisions of this Agreement and those
of any other Loan Document, the provisions of this Agreement shall control and
govern; provided that the inclusion of supplemental rights or remedies in favor
of Administrative Agent or Lenders in any other Loan Document shall not be
deemed a conflict with this Agreement. Each Loan Document was drafted with the
joint participation of the respective parties thereto and shall be construed
neither against nor in favor of any party, but rather in accordance with the
fair meaning thereof.
10.11 NATURE OF LENDERS' OBLIGATIONS. Nothing contained in this
Agreement or any other Loan Document and no action taken by Administrative Agent
or Lenders or any of them pursuant hereto or thereto may, or may be deemed to,
make Lenders a partnership, an association, a joint venture or other entity,
either among themselves or with Borrower or any Affiliate of Borrower. Each
Lender's obligation to make any Extension of Credit pursuant hereto is several
and not joint or joint and several. A default by any Lender will not increase
the Pro Rata Share attributable to any other Lender.
10.12 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder and in any other Loan Document, certificate or
statement delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery thereof. Such representations
and warranties have been or will be relied upon by Administrative Agent and each
Lender, notwithstanding any investigation made by Administrative Agent or any
Lender or on their behalf.
10.13 INDEMNITY BY BORROWER. Whether or not the transactions
contemplated hereby are consummated, Borrower agrees to indemnify, save and hold
harmless each Administrative Agent-Related Person and each Lender and their
respective Affiliates, directors, officers, agents, attorneys and employees
(collectively the "Indemnitees") from and against: (a) any and all claims,
demands, actions or causes of action that are asserted against any Indemnitee by
any Person (other than Administrative Agent or any Lender) relating directly or
indirectly to a claim, demand, action or cause of action that such Person
asserts or may assert against any Borrower Party, any of their Affiliates or any
of their officers or directors; (b) any and all claims, demands, actions or
causes of action arising out of or relating to, the Loan Documents, any
predecessor loan documents, the Commitments, the use or contemplated use of the
proceeds of any Loan, or the relationship of any Borrower Party, Administrative
Agent and Lenders under this Agreement; (c) any administrative or investigative
proceeding by any Governmental Authority arising out of or related to a claim,
demand, action or cause of action
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described in subsection (a) or (b) above; and (d) any and all liabilities,
losses, costs or expenses (including Attorney Costs) that any Indemnitee suffers
or incurs as a result of the assertion of any foregoing claim, demand, action,
cause of action or proceeding, or as a result of the preparation of any defense
in connection with any foregoing claim, demand, action, cause of action or
proceeding, in all cases, whether or not arising out of the negligence of an
Indemnitee, whether or not an Indemnitee is a party to such claim, demand,
action, cause of action or proceeding (all the foregoing, collectively, the
"Indemnified Liabilities"); provided that no Indemnitee shall be entitled to
indemnification for any loss caused by its own gross negligence or willful
misconduct or for any loss asserted against it by another Indemnitee. The
agreements in this Section shall survive repayment of all Obligations.
10.14 NONLIABILITY OF LENDERS. Borrower acknowledges and agrees that:
(a) Any inspections of any property of Borrower made by or through
Administrative Agent or Lenders are for purposes of administration of the Loan
Documents only, and Borrower is not entitled to rely upon the same (whether or
not such inspections are at the expense of Borrower);
(b) By accepting or approving anything required to be observed,
performed, fulfilled or given to Administrative Agent or Lenders pursuant to the
Loan Documents, neither Administrative Agent nor Lenders shall be deemed to have
warranted or represented the sufficiency, legality, effectiveness or legal
effect of the same, or of any term, provision or condition thereof, and such
acceptance or approval thereof shall not constitute a warranty or representation
to anyone with respect thereto by Administrative Agent or Lenders;
(c) The relationship between Borrower and Administrative Agent and
Lenders is, and shall at all times remain, solely that of borrower and lenders;
neither Administrative Agent nor any Lender shall under any circumstance be
deemed to be in a relationship of confidence or trust or a fiduciary
relationship with Borrower or its Affiliates, or to owe any fiduciary duty to
Borrower or its Affiliates; neither Administrative Agent nor any Lender
undertakes or assumes any responsibility or duty to Borrower or its Affiliates
to select, review, inspect, supervise, pass judgment upon or inform Borrower or
its Affiliates of any matter in connection with their property or the operations
of Borrower or its Affiliates; Borrower and its Affiliates shall rely entirely
upon their own judgment with respect to such matters; and any review,
inspection, supervision, exercise of judgment or supply of information
undertaken or assumed by Administrative Agent or any Lender in connection with
such matters is solely for the protection of Administrative Agent and Lenders
and neither Borrower nor any other Person is entitled to rely thereon; and
(d) Neither Administrative Agent nor any Lender shall be responsible or
liable to any Person for any loss, damage, liability or claim of any kind
relating to injury or death to Persons or damage to property caused by the
actions, inaction or negligence of Borrower and/or its Affiliates and Borrower
hereby indemnifies and holds Administrative Agent and Lenders harmless from any
such loss, damage, liability or claim.
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10.15 NO THIRD PARTIES BENEFITED. This Agreement is made for the
purpose of defining and setting forth certain obligations, rights and duties of
Borrower, Administrative Agent and Lenders in connection with the Extensions of
Credit, and is made for the sole benefit of Borrower, Administrative Agent and
Lenders, and Administrative Agent's and Lenders' successors and assigns. Except
as provided in Sections 10.04 and 10.13, no other Person shall have any rights
of any nature hereunder or by reason hereof.
10.16 SEVERABILITY. Any provision of the Loan Documents that 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 thereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.17 CONFIDENTIALITY. Administrative Agent, each Lender and each
participant shall use any confidential non-public information concerning the
Borrower Parties and their Subsidiaries that is furnished to Administrative
Agent or such Lender by or on behalf of the Borrower Parties and their
Subsidiaries in connection with the Loan Documents (collectively, "Confidential
Information") solely for the purpose of evaluating and providing products and
services to them and administering and enforcing the Loan Documents, and it will
hold the Confidential Information in confidence. Notwithstanding the foregoing,
Administrative Agent and each Lender may disclose Confidential Information (a)
to their affiliates or any of their or their affiliates' directors, officers,
employees, auditors, counsel, advisors, or representatives (collectively, the
"Representatives") whom it determines need to know such information for the
purposes set forth in this Section; (b) to any bank or financial institution or
other entity to which such Lender has assigned or desires to assign an interest
or participation in the Loan Documents or the Obligations, provided that any
such foregoing recipient of such Confidential Information agrees to keep such
Confidential Information confidential as specified herein; (c) to any
governmental agency or regulatory body having or claiming to have authority to
regulate or oversee any aspect of Administrative Agent's or such Lender's
business or that of their Representatives in connection with the exercise of
such authority or claimed authority; (d) to the extent necessary or appropriate
to effect or preserve Administrative Agent's or such Lender's or any of their
Affiliates' security (if any) for any Obligation or to enforce any right or
remedy or in connection with any claims asserted by or against Administrative
Agent or such Lender or any of their Representatives; and (e) pursuant to any
subpoena or any similar legal process. For purposes hereof, the term
"Confidential Information" shall not include information that (x) is in
Administrative Agent's or a Lender's possession prior to its being provided by
or on behalf of the Borrower Parties, provided that such information is not
known by Administrative Agent or such Lender to be subject to another
confidentiality agreement with, or other legal or contractual obligation of
confidentiality to, a Borrower Party, (y) is or becomes publicly available
(other than through a breach hereof by Administrative Agent or such Lender), or
(z) becomes available to Administrative Agent or such Lender on a
nonconfidential basis, provided that the source of such information was not
known by Administrative Agent or such
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Lender to be bound by a confidentiality agreement or other legal or contractual
obligation of confidentiality with respect to such information.
10.18 FURTHER ASSURANCES. Each Borrower Party shall, and shall cause
its Subsidiaries to, at their expense and without expense to Lenders or
Administrative Agent, do, execute and deliver such further acts and documents as
any Lender or Administrative Agent from time to time reasonably requires for the
assuring and confirming unto Lenders or Administrative Agent of the rights
hereby created or intended now or hereafter so to be, or for carrying out the
intention or facilitating the performance of the terms of any Loan Document.
10.19 HEADINGS. Section headings in this Agreement and the other Loan
Documents are included for convenience of reference only and are not part of
this Agreement or the other Loan Documents for any other purpose.
10.20 TIME OF THE ESSENCE. Time is of the essence of the Loan
Documents.
10.21 FOREIGN LENDERS. Each Lender that is a "foreign corporation,
partnership or trust" within the meaning of the Code shall deliver to
Administrative Agent, prior to receipt of any payment subject to withholding
under the Code (or after accepting an assignment of an interest herein), two
duly signed completed copies of either IRS Form W-8BEN or any successor thereto
(relating to such Person and entitling it to an exemption from, or reduction of,
withholding tax on all payments to be made to such Person by Borrower pursuant
to this Agreement) or IRS Form W-8ECI or any successor thereto (relating to all
payments to be made to such Person by Borrower pursuant to this Agreement) or
such other evidence satisfactory to Borrower and Administrative Agent that such
Person is entitled to an exemption from, or reduction of, U.S. withholding tax.
Thereafter and from time to time, each such Person shall (a) promptly submit to
Administrative Agent such additional duly completed and signed copies of one of
such forms (or such successor forms as shall be adopted from time to time by the
relevant United States taxing authorities) as may then be available under then
current United States laws and regulations to avoid, or such evidence as is
satisfactory to Borrower and Administrative Agent of any available exemption
from or reduction of, United States withholding taxes in respect of all payments
to be made to such Person by Borrower pursuant to this Agreement, (b) promptly
notify Administrative Agent of any change in circumstances which would modify or
render invalid any claimed exemption or reduction, and (c) take such steps as
shall not be materially disadvantageous to it, in the reasonable judgment of
such Lender, and as may be reasonably necessary (including the re-designation of
its Lending Office) to avoid any requirement of applicable Laws that Borrower
make any deduction or withholding for taxes from amounts payable to such Person.
If such Person fails to deliver the above forms or other documentation, then
Administrative Agent may withhold from any interest payment to such Person an
amount equivalent to the applicable withholding tax imposed by Sections 1441 and
1442 of the Code, without reduction. If any Governmental Authority asserts that
Administrative Agent did not properly withhold any tax or other amount from
payments made in respect of such Person, such Person shall indemnify
Administrative Agent therefor, including all penalties and interest, any taxes
imposed by any jurisdiction on the amounts payable to Administrative
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Agent under this Section, and costs and expenses (including Attorney Costs) of
Administrative Agent. The obligation of Lenders under this Section shall survive
the payment of all Obligations and the resignation or replacement of
Administrative Agent.
10.22 REMOVAL AND REPLACEMENT OF LENDERS.
(a) Under any circumstances set forth in this Agreement providing that
Borrower shall have the right to remove or replace a Lender as a party to this
Agreement, Borrower may, upon notice to such Lender and Administrative Agent,
remove such Lender by (i) non ratably terminating such Lender's Commitment (and
thereby reducing the aggregate Commitments) and/or (ii) causing such Lender to
assign its Commitment to one or more other Lenders or Eligible Assignees
procured by Borrower pursuant to Section 10.04(b). Borrower shall (x) pay in
full all principal, interest and fees owing to such Lender through the date of
termination or assignment (including any amounts payable pursuant to Section
3.05), (y) provide appropriate assurances and indemnities (which may include
letters of credit) to such Lender as it may reasonably require with respect to
its participation interest in any Letters of Credit or any Swing Line Loans then
outstanding and (z) release such Lender from its obligations under the Loan
Documents. Any Lender being replaced shall execute and deliver an Assignment and
Acceptance covering such Lender's Commitment. Administrative Agent shall
distribute an amended Schedule 2.01, which shall thereafter be incorporated into
this Agreement, to reflect adjustments to Lenders and their Commitments.
Borrower may net any payments required hereunder against any funds being
provided in the same currency by any Lender or Eligible Assignee replacing a
terminating Lender. The effect for purposes of this Agreement shall be the same
as if separate transfers of funds had been made with respect thereto.
(b) In order to make all Lender's interests in any outstanding
Extensions of Credit ratable in accordance with any revised Pro Rata Shares
after giving effect to the removal or replacement of a Lender, Borrower shall
pay or prepay, if necessary, on the effective date thereof, all outstanding
Extensions of Credit of all Lenders, together with any amounts due under Section
3.05. Borrower may then request Extensions of Credit from Lenders in accordance
with their revised Pro Rata Shares.
(c) This section shall supercede any provisions in Section 10.01 to the
contrary.
10.23 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF MISSOURI APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT ADMINISTRATIVE AGENT AND
EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF MISSOURI OR
OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH BORROWER PARTY, ADMINISTRATIVE AGENT AND EACH
LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-
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EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH BORROWER PARTY, ADMINISTRATIVE
Agent AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION
TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.
EACH BORROWER PARTY, ADMINISTRATIVE Agent AND EACH LENDER WAIVES PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY
OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
10.24 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.25 JUDGMENT.
If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or under any other Loan Document in one
currency into another currency, the rate of exchange used shall be that at which
in accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given. The obligation of Borrower in
respect of any such sum due from it to the Administrative Agent or any Lender
hereunder or under the other Loan Documents shall, notwithstanding any judgment
in a currency (the "Judgment Currency") other than that in which such sum is
denominated in accordance with the applicable provisions of this Agreement (the
"Agreement Currency"), be discharged only to the extent that on the Business Day
following receipt by the Administrative Agent or such Lender of any sum adjudged
to be so due in the Judgment Currency, the Administrative Agent or such Lender
may in accordance with normal banking procedures purchase the Agreement Currency
with the Judgment Currency. If the amount of the Agreement Currency so purchased
is less than the sum originally due to the Administrative Agent or such Lender
in the Agreement Currency, Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or such
Lender or the Person to whom such obligation was owing against such loss. If the
amount of the Agreement Currency so purchased is greater than the sum originally
due to the Administrative Agent or such Lender in such currency, the
Administrative Agent or such Lender agrees to return the amount of any excess to
Borrower (or to any other Person who may be entitled thereto under applicable
law).
10.26 ENTIRE AGREEMENT. (a) This Agreement, together with the other
Loan Documents, embodies the entire agreement and understanding among Borrower,
Lenders and Administrative Agent, and supersedes all prior or
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contemporaneous agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof.
(b) The following is added pursuant to Section 432.045 of the
Missouri Revised Statutes; as used below "you" shall refer to Borrower and
Guarantors, "us" shall refer to the Administrative Agent and Lenders and "this
writing" shall refer to the Loan Documents:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND
CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT
INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT
ENFORCEABLE. TO PROTECT YOU AND US FROM MISUNDERSTANDING OR
DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH MATTERS
ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE
MAY LATER AGREE IN WRITING TO MODIFY IT.
10.27 COLLATERAL PROTECTION COVERAGE.
The following is added pursuant to Section 427.120 of the Missouri
Revised Statutes; as used below "you" and "your" shall refer to Borrower and
Guarantors, "us", "we" and "our" shall refer to the Administrative Agent and
Lenders and "agreement" shall refer to the Loan Documents:
Unless you provide evidence of the insurance coverage
required by your agreement with us, we may purchase insurance
at your expense to protect our interests in your collateral.
This insurance may, but need not, protect your interests. The
coverage that we purchase may not pay any claim that you make
or any claim that is made against you in connection with the
collateral. You may later cancel any insurance purchased by
us, but only after providing evidence that you have obtained
insurance as required by our agreement. If we purchase
insurance for the collateral, you will be responsible for the
costs of that insurance, including the insurance premium,
interest and any other charges we may impose in connection
with the placement of the insurance, until the effective date
of the cancellation or expiration of the insurance. The costs
of the insurance may be added to your total outstanding
balance or obligation. The costs of the insurance may be more
than the cost of insurance you may be able to obtain on your
own.
[SIGNATURE PAGES FOLLOW]
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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.
ESCO ELECTRONICS CORPORATION, as Borrower
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
BANK OF AMERICA, N.A., as
Administrative Agent
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
BANK OF AMERICA, N.A., as a Lender,
Issuing Lender and Swing Line Lender
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
BANK ONE, NA, as a Lender
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
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THE NORTHERN TRUST COMPANY, as a Lender
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
LASALLE BANK NATIONAL ASSOCIATION, as a Lender
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
COMMERCE BANK, N.A., as a Lender
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
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SCHEDULE 1.01
EXISTING LETTERS OF CREDIT
DATE OF
SUBSIDIARY ISSUING BANK L/C# AMOUNT EXPIRY BENEFICIARY
ESCO BANK OF 0000000 4,000,000.00 0/0/00 XXXX XX
XXXXXXX XXXXXXX
TOTAL 4,000,000.00
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SCHEDULE 2.01
COMMITMENTS AND PRO RATE SHARES
LENDER COMMITMENT($) PRO RATE SHARE (%)
Bank of America, N.A. 20,000,000.00 26.67%
Bank One, N.A. 15,000,000.00 20.00%
LaSalle Bank National Association 15,000,000.00 20.00%
The Northern Trust Company 15,000,000.00 20.00%
Commerce Bank, N.A. 10,000,000.00 13.33%
TOTAL 75,000,000.00 100.00%
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SCHEDULE 5.16
CAPITALIZATION/SUBSIDIARIES
(a) The following is a list of Borrower's Subsidiaries
Domestic
Subsidiaries Outstanding
of Borrower Shares Held By % of Ownership
Defense Holding Corporation 1,000 ESCO Electronics Corp. 100%
PTI Technologies Inc. 10,000 Defense Holding Corp. 100%
PTI Advanced Filtration Inc. 100 Defense Holding Corp. 100%
Filtertek Inc. 100 Defense Holding Corp. 100%
Filtertek de Puerto Rico, Inc. 100 Filtertek Inc. 100%
VACCO Industries 100 Defense Holding Corp 100%
EMC Test Systems, L.P. N/A Rantec Holdings, Inc. 99%
N/A Rantec Commercial, Inc. 1%
Distribution Control Systmes, Inc. 1,000 Defense Holding Corp. 100%
Rantec Microwave & Electronics, Inc. 1,000 Rantec Holdings, Inc. 100%
Rantec Holdings, Inc. 1,000 Defense Holding Corp. 100%
Rantec Commercial, Inc. 1,000 Rantec Microwave &
Electronics, Inc. 100%
Comtrak Technologies, LLC N/A Defense Holding Corp
Comtrak International
Services, Inc. 100 Comtrak Technologies, LLC 100%
Xxxxxxxxx Europe, Inc. 1,000 Defense Holding Corp 100%
The Xxxxxx Company 2,312* Defense Holding Corp 100%
Xxxxxxxx, Inc. 1,756.46* Defense Holding Corp 100%
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NON-DOMESTIC SUBSIDIARIES OF BORROWER
Filtertek SA (France) N/A Filtertek Inc. 99%
Filtertek do Brazil N/A Filtertek Inc. 85%
Filtertek BV 1,000 Filtertek Inc. 100%
Filtertek GmbH N/A Filtertek Inc. 100%
Filtrotec, Inc.(Puerto Rico) N/A Filtertek Inc. 100%
Filtertek De Puerto Rico N/A Filtertek Inc. 100%
Rantec Europe Microwave Rantec Microwave &
Electronics S.A. N/A Electronics, Inc. 100%
Distribution Control Distribution Control
Systems Caribe, Inc. 1,000 Systems, Inc. 100%
PTI Technologies Limited 1,000,000 Defense Holding Corp 100%
Process Plant Design, Ltd. N/A PTI Technologies Limited 100%
ESCO Electronics De Mexico
S.A. de C.V. N/A Defense Holding Corp 100%
ESCOCAN Electronics, Inc. 1,000 Defense Holding Corp 100%
ESCO Fin Holding Oy 1,000 Defense Holding Corp 100%
Euroshield Oy 100 ESCO Fin Holding Oy 100%
Ray Proof N/A Xxxxxxxx, Inc. 100%
Xxxxxxxxx Limited N/A Xxxxxxxxx Europe, Inc. 100%
(b) The following is a list of any equity investments in any other
corporation or entity held by Borrower:
(1) 49% interest in a joint venture with Sanmar Engineering Corporation
located in Madras, India $233,258 on ESCO Consolidated Balance Sheet as
of 02-29-00
(2) $495,000 investment in CASSPER product line with CSSI Inc. (EMC Test &
Measurement Equipment)
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SCHEDULE 6.17
GOVERNMENT CONTRACTS
The following is a list of each Government Contract and Government Subcontract
which has a remaining contract value in excess of $1,000,000 and any amendments
thereto, to which Borrower or any of its Subsidiaries is a party.
Contract/
Purchase
Contract Type Amount $ Customer Order # Subsidiary
Subcontract 1,139,302 Boeing M9H7XXB-863625E Vacco
Subcontract 1,165,331 Electric Boat PPK005-070 Vacco
Subcontract 2,072,219 Electric Boat PPL011-064 Vacco
The following is the name and address of any surety with respect to any such
Government Contract or Subcontract to which Borrower or any of its Subsidiaries
is a party.
None
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SCHEDULE 7.01
EXISTING INDEBTEDNESS AND LIENS
(i) The following is a list of Indebtedness outstanding on the date hereof.
Letters of Credit
Subsidiary Issuing Bank L/C# Amount
PTI Bank of New York S00037794 179,995.00
ESCO Bank of America 3024820 4,000,000.00
PTI Bank of New York S00040612 168,750.00
EMC Bank of New York S00040587 1,362.50
EMC Bank of New York S00040807 150,000.00
XXXX Xxxxxx S-866710 400,000.00
XXXX Xxxxxx S-866664 282,000.00
TOTAL 5,182,107.50
(ii) The following is a list of liens outstanding on the date hereof
See attachment A hereto
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SCHEDULE 7.05
EXISTING INVESTMENTS
The following is a list of Investments existing on the date hereof:
(1) 49% interest in a joint venture with Sanmar Engineering Corporation
located in Madras, India $233,258 on ESCO Consolidated Balance Sheet as
of 02-29-00
(2) $495,000 investment in CASSPER product line with CSSI Inc. (EMC Test &
Measurement Equipment)
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