Credit Agreement Dated as of June 27, 2006 among CTS Corporation, the Guarantors from time to time parties hereto, the Lenders from time to time parties hereto, Harris N.A., as L/C Issuer and Harris N.A. as Administrative Agent
Dated
as of June 27, 2006
among
CTS
Corporation,
the
Guarantors from time to time parties hereto,
the
Lenders from time to time parties hereto,
Xxxxxx
X.X.,
as
L/C Issuer
and
Xxxxxx
X.X.
as
Administrative Agent
BMO
Capital Markets,
as
Sole Book Runner and Co-Lead Arranger,
and
National
City Bank of Indiana,
as
Co-Lead Arranger
This
Credit Agreement is entered into as of June 27, 2006, by and among
CTS Corporation, an Indiana corporation (the “Borrower”),
the
direct and indirect Subsidiaries of the Borrower from time to time party
to this
Agreement, as Guarantors, the several financial institutions from time to
time
party to this Agreement, as Lenders, Xxxxxx X.X., as L/C Issuer, and Xxxxxx
X.X., as Administrative Agent as provided herein. All capitalized terms used
herein without definition shall have the same meanings herein as such terms
are
defined in Section 5.1 hereof.
Preliminary
Statement
The
Borrower has requested, and the Lenders have agreed to extend, certain credit
facilities on the terms and conditions of this Agreement.
Now,
Therefore,
in
consideration of the mutual agreements contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
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Section 1.
|
The
Credit Facilities.
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Section 1.1. Revolving
Credit Commitments.
Subject
to the terms and conditions hereof, each Lender, by its acceptance hereof,
severally agrees to make a loan or loans (individually a “Revolving
Loan”
and
collectively the “Revolving
Loans”)
in U.S.
Dollars to the Borrower from time to time on a revolving basis up to the
amount
of such Lender’s Revolving Credit Commitment, subject to any reductions thereof
pursuant to the terms hereof, before the Revolving Credit Termination Date.
The
sum of the aggregate principal amount of Revolving Loans, Swing
Loans, and L/C Obligations at any time outstanding shall not exceed the
Revolving Credit Commitments in effect at such time. Each Borrowing of Revolving
Loans shall be made ratably by the Lenders in proportion to their respective
Revolver Percentages. As provided in Section 1.5(a) hereof, the Borrower
may elect that each Borrowing of Revolving Loans be either Base Rate Loans
or
Eurodollar Loans. Revolving Loans may be repaid and the principal amount
thereof
reborrowed before the Revolving Credit Termination Date, subject to the terms
and conditions hereof.
Section 1.2. Letters
of
Credit.
(a) General
Terms.
Subject
to the terms and conditions hereof, as part of the Revolving Credit, the
L/C
Issuer shall issue standby and commercial letters of credit (each a “Letter
of Credit”)
for the
Borrower’s account and/or for the account of the Borrower and/or one or more of
its Subsidiaries in an aggregate undrawn face amount up to the L/C Sublimit.
Notwithstanding anything herein to the contrary, those certain letters of
credit
issued for the account of the Borrower by Xxxxxx X.X. and listed on Schedule
1.2
hereof (the “Existing
Letters of Credit”)
shall
each constitute a “Letter
of Credit”
herein
for all purposes of this Agreement with the Borrower as the applicant therefor,
to the same extent, and with the same force and effect as if the Existing
Letters of Credit had been issued under this Agreement at the request of
the
Borrower. Each Letter of Credit shall be issued by the L/C Issuer, but each
Lender shall be obligated to reimburse the L/C Issuer for such Lender’s Revolver
Percentage of the amount of each drawing thereunder and, accordingly, each
Letter of Credit shall constitute usage of the Revolving Credit Commitment
of
each Lender pro rata in an amount equal to its Revolver Percentage of the
L/C Obligations then outstanding.
(b) Applications.
At any
time before the Revolving Credit Termination Date, the L/C Issuer shall, at
the request of the Borrower, issue one or more Letters of Credit in
U.S. Dollars, in a form reasonably satisfactory to the L/C Issuer, with
expiration dates no later than the earlier of 12 months from the date of
issuance (or which are cancelable not later than 12 months from the date of
issuance and each renewal) and 30 days prior to the Revolving Credit
Termination Date, in an aggregate face amount as set forth above, upon the
receipt of an application duly executed by the Borrower and, if such Letter
of
Credit is for the account of one of its Subsidiaries, such Subsidiary, in
the
form then customarily prescribed by the L/C Issuer for the Letter of Credit
requested (each an “Application”).
Notwithstanding anything contained in any Application to the contrary:
(i) the Borrower shall pay fees in connection with each Letter of Credit as
set forth in Section 2.1 (b) hereof, (ii) except as otherwise provided
in Section 1.8 hereof, before the occurrence of an Event of Default, the
L/C Issuer will not call for the funding by the Borrower of any amount under
a
Letter of Credit before being presented with a drawing thereunder, and
(iii) if the L/C Issuer is not timely reimbursed for the amount of any
drawing under a Letter of Credit on the date such drawing is paid, the
Borrower’s obligation to reimburse the L/C Issuer for the amount of such drawing
shall bear interest (which the Borrower hereby promises to pay) from and
after
the date such drawing is paid until the Business Day following the date such
drawing is paid at a rate per annum equal to the Applicable Margin plus
the Base
Rate from time to time in effect (computed on the basis of a year of 365
or 366
days, as the case may be, and the actual number of days elapsed) and thereafter
at a rate per annum equal to the sum of 2.0% plus
the
Applicable Margin plus
the
Base
Rate from time to time in effect (computed on the basis of a year of 365
or
366 days, as the case may be, and the actual number of days elapsed). If
the L/C Issuer issues any Letter of Credit with an expiration date that is
automatically extended unless the L/C Issuer gives notice that the expiration
date will not so extend beyond its then scheduled expiration date, unless
the
Required Lenders instruct the L/C Issuer otherwise, the L/C Issuer will
give such notice of non-renewal before the time necessary to prevent such
automatic extension if before such required notice date: (i) the expiration
date of such Letter of Credit if so extended would be after the Revolving
Credit
Termination Date, (ii) the Revolving Credit Commitments have been
termi-nated, or (iii) a Default or an Event of Default exists and the
Administrative Agent, at the request or with the consent of the Required
Lenders, has given the L/C Issuer instructions not to so permit the extension
of
the expiration date of such Letter of Credit. The L/C Issuer agrees to issue
amendments to the Letter(s) of Credit increasing the amount, or extending
the
expiration date, thereof at the request of the Borrower subject to the
conditions of Section 7 hereof and the other terms of this
Section 1.2.
(c) The
Reimbursement Obligations.
Subject
to Section 1.2(b) hereof, the obligation of the Borrower to reimburse the
L/C Issuer for all drawings under a Letter of Credit (a “Reimbursement
Obligation”)
shall
be governed by the Application related to such Letter of Credit, except that
reimbursement shall be made by no later than 12:00 Noon (Chicago
time) on
the
date when each drawing is to be paid in immediately available funds at the
Administrative Agent’s principal office in Chicago, Illinois or such other
office as the Administrative Agent may designate in writing to the Borrower
(who
shall thereafter cause to be distributed to the L/C Issuer such amount(s)
in like funds). If the Borrower does not make any such reimbursement payment
on
the date due and the Participating Lenders fund their participations therein
in
the manner set forth in Section 1.2(d) below, then all payments thereafter
received by the Administrative Agent in discharge of any of the relevant
Reimbursement Obligations shall be distributed in accordance with
Section 1.2(d) below.
(d) The
Participating Interests.
Each
Lender (other than the Lender acting as L/C Issuer in issuing the relevant
Letter of Credit), by its acceptance hereof, severally agrees to purchase
from
the L/C Issuer, and the L/C Issuer hereby agrees to sell to each such Lender
(a
“Participating
Lender”),
an
undivided percentage participating interest (a “Participating
Interest”),
to the
extent of its Revolver Percentage, in each Letter of Credit issued by, and
each
Reimbursement Obligation owed to, the L/C Issuer. Upon any failure by the
Borrower to pay any Reimburse-ment Obligation at the time required on the
date
the related drawing is to be paid, as set forth in Section 1.2(c) above, or
if the L/C Issuer is required at any time to return to the Borrower or to
a
trustee, receiver, liquidator, custodian or other Person any portion of any
payment of any Reimbursement Obligation, each Participating Lender shall,
not
later than the Business Day it receives a certificate in the form of
Exhibit A hereto from the L/C Issuer (with a copy to the Administrative
Agent) to such effect, if such certificate is received before 1:00 p.m.
(Chicago time), or not later than 1:00 p.m. (Chicago time) the following
Business Day, if such certificate is received after such time, pay to the
Administrative Agent for the account of the L/C Issuer an amount equal to
such
Participating Lender’s Revolver Percentage of such unpaid or recap-tured
Reimbursement Obligation together with interest on such amount accrued from
the
date the related payment was made by the L/C Issuer to the date of such payment
by such Participating Lender at a rate per annum equal to: (i) from the
date the related payment was made by the L/C Issuer to the date two
(2) Business Days after payment by such Participating Lender is due
hereunder, the Federal Funds Rate for each such day and (ii) from the date
two (2) Business Days after the date such payment is due from such
Participating Lender to the date such payment is made by such Participating
Lender, the Base Rate in effect for each such day. Each such Participating
Lender shall thereafter be entitled to receive its Revolver Percentage of
each
payment received in respect of the relevant Reimbursement Obligation and
of
interest paid thereon, with the L/C Issuer retaining its Revolver Percentage
thereof as a Lender hereunder.
The
several obligations of the Participating Lenders to the L/C Issuer under
this
Section 1.2 shall be absolute, irrevocable and unconditional under any and
all circumstances whatsoever and shall not be subject to any set-off,
counterclaim or defense to payment which any Participating Lender may have
or
have had against the Borrower, the L/C Issuer, the Administrative Agent,
any
Lender or any other Person whatsoever except in the case of the gross negligence
or willful misconduct of the L/C Issuer. Without limiting the generality
of the
foregoing, such obligations shall not be affected by any Default or Event
of
Default or by any reduction or termination of any Revolving Credit Commitment
of
any Lender, and each payment by a Participating Lender under this
Section 1.2 shall be made without any offset, abatement, withholding or
reduction whatsoever.
(e) Indemnification.
The
Participating Lenders shall, to the extent of their respective Revolver
Percentages, indemnify the L/C Issuer (to the extent not reimbursed by the
Borrower) against any cost, expense (including reasonable counsel fees and
disbursements), claim, demand, action, loss or liability (except such as
result
from the L/C Issuer’s gross negligence or willful misconduct) that the L/C
Issuer may suffer or incur in connection with any Letter of Credit issued
by it.
The obligations of the Participating Lenders under this Section 1.2(e) and
all other parts of this Section 1.2 shall survive termination of this
Agreement and of all Applications, Letters of Credit, and all drafts and
other
documents presented in connection with drawings thereunder.
(f) Manner
of Requesting a Letter of Credit.
The
Borrower shall provide at least five (5) Business Days’ advance written
notice to the Administrative Agent of each request for the issuance of a
Letter
of Credit, such notice in each case to be accompanied by an Application for
such
Letter of Credit properly completed and executed by the Borrower and, in
the
case of an extension or an increase in the amount of a Letter of Credit,
a
written request therefor, in a form reasonably acceptable to the Administrative
Agent and the L/C Issuer. The Administrative Agent shall promptly notify
the L/C Issuer of the Administrative Agent’s receipt of each such notice and the
L/C Issuer shall promptly notify the Administrative Agent and the Lenders
of the
issuance of the Letter of Credit so requested.
Section 1.3. Applicable
Interest Rates.
(a) Base
Rate Loans.
Subject
to the provisions of Section 1.9, each Base Rate Loan made or maintained by
a Lender shall bear interest during each Interest Period it is outstanding
(computed on the basis of a year of 365 or 366 days, as the case may be,
and the actual number of days elapsed) on the unpaid principal amount thereof
from the date such Loan is advanced, continued or created by conversion from
a
Eurodollar Loan until such Loan is repaid at a rate per annum equal to the
sum
of the Applicable Margin plus
the Base
Rate from time to time in effect, payable on the last day of such Interest
Period and at maturity (whether by acceleration or otherwise).
“Base
Rate”
means
for any day the greater of: (i) the rate of interest announced or otherwise
established by the Administrative Agent from time to time as its prime
commercial rate as
in
effect on such day, with any change in the Base Rate resulting from a change
in
said prime commercial rate to be effective as of the date of the relevant
change
in said prime commercial rate (it being acknowledged and agreed that such
rate
may not be the Administrative Agent’s best or lowest rate) and (ii) the sum
of (x) the rate determined by the Administrative Agent to be the average
(rounded upward, if necessary, to the next higher 1/100 of 1%) of the rates
per
annum quoted to the Administrative Agent at approximately 10:00 a.m. (Chicago
time) (or as soon thereafter as is practicable) on such day (or, if such
day is
not a Business Day, on the immediately preceding Business Day) by two or
more
Federal funds brokers selected by the Administrative Agent for sale to the
Administrative Agent at face value of Federal funds in the secondary market
in
an amount equal or comparable to the principal amount owed to the Administrative
Agent for which such rate is being determined, plus
(y) 1/2
of 1%.
(b) Eurodollar
Loans.
Each
Eurodollar Loan made or maintained by a Lender shall bear interest during
each
Interest Period it is outstanding (computed on the basis of a year of 360
days
and the actual number of days elapsed) on the unpaid principal amount thereof
from the date such Loan is advanced, continued or created by conversion from
a
Base Rate Loan until maturity (whether by acceleration or otherwise) at a
rate
per annum equal to the sum of the Applicable Margin plus
the
Adjusted LIBOR applicable for such Interest Period, payable on the last day
of
the Interest Period and at maturity (whether by acceleration or otherwise),
and,
if the applicable Interest Period is longer than three months, on each day
occurring every three months after the commencement of such Interest
Period.
“Adjusted
LIBOR”
means,
for any Borrowing of Eurodollar Loans, a rate per annum determined in accordance
with the following formula:
Adjusted
LIBOR = LIBOR
1
-
Eurodollar Reserve Percentage
“Eurodollar
Reserve Percentage”
means,
for any Borrowing of Eurodollar Loans, the daily average for the applicable
Interest Period of the maximum rate, expressed as a decimal, at which reserves
(including, without limitation, any supplemental, marginal, and emergency
reserves) are imposed during such Interest Period by the Board of Governors
of
the Federal Reserve System (or any successor) on “eurocurrency
liabilities”,
as
defined in such Board’s Regulation D (or in respect of any other category
of liabilities that includes deposits by reference to which the interest
rate on
Eurodollar Loans is determined or any category of extensions of credit or
other
assets that include loans by non-United States offices of any Lender to United
States residents), subject to any amendments of such reserve requirement
by such
Board or its successor, taking into account any transitional adjustments
thereto. For purposes of this definition, the Eurodollar Loans shall be deemed
to be “eurocurrency
liabilities”
as
defined in Regulation D without benefit or credit for any prorations,
exemptions or offsets under Regulation D.
“LIBOR”
means,
for an Interest Period for a Borrowing of Eurodollar Loans, (a) the LIBOR
Index Rate for such Interest Period, if such rate is available, and (b) if
the LIBOR Index Rate cannot be determined, the arithmetic average of the
rates
of interest per annum (rounded upwards, if necessary, to the nearest 1/100
of
1%) at which deposits in U.S. Dollars in immediately available funds are
offered
to the Administrative Agent at 11:00 a.m. (London, England time) two
(2) Business Days before the beginning of such Interest Period by three (3)
or more major banks in the interbank eurodollar market selected by the
Administrative Agent for delivery on the first day of and for a period equal
to
such Interest Period and in an amount equal or comparable to the principal
amount of the Eurodollar Loan scheduled to be made by the Administrative
Agent
as part of such Borrowing.
“LIBOR
Index Rate”
means,
for any Interest Period, the rate per annum (rounded upwards, if necessary,
to
the next higher one hundred-thousandth of a percentage point) for deposits
in
U.S. Dollars for a period equal to such Interest Period, which appears on
the
Telerate Page 3750 as of 11:00 a.m. (London, England time) on the day
two (2) Business Days before the commencement of such Interest
Period.
“Telerate
Page 3750”
means
the display designated as “Page
3750”
on the
Dow Xxxxx Markets Service (formerly known as the Telerate Service) (or such
other page as may replace Page 3750 on that service or such other service
as may
be nominated by the British Bankers’ Association as the information vendor for
the purpose of displaying British Bankers’ Association Interest Settlement Rates
for U.S. Dollar deposits).
(c) Rate
Determinations. The
Administrative Agent shall determine each interest rate applicable to the
Loans
and the Reimbursement Obligations hereunder, and its determination thereof
shall
be conclusive and binding except in the case of manifest error.
Section 1.4. Minimum
Borrowing Amounts; Maximum Eurodollar Loans.
Each
Borrowing of Base Rate Loans advanced under a Credit shall be in an amount
not
less than $1,000,000 or such greater amount which is an integral multiple
of
$100,000. Each Borrowing of Eurodollar Loans advanced, continued or converted
shall be in an amount equal to $2,000,000 or such greater amount which is
an
integral multiple of $100,000. Without the Administrative Agent’s consent, there
shall not be more than ten (10) Borrowings of Eurodollar Loans outstanding
under
the Revolving Credit at any one time; provided
that not
more than two (2) of such Borrowings shall have an Interest Period of one
week.
Section 1.5. Manner
of Borrowing Loans and Designating Applicable Interest Rates.
(a) Notice
to the Administrative Agent.
The
Borrower shall give notice to the Administrative Agent
by
no later than 12:00 noon (Chicago time): (i) at least three
(3) Business Days before the date on which the Borrower requests the
Lenders to advance a Borrowing of Eurodollar Loans and (ii) on the date the
Borrower requests the Lenders to advance a Borrowing of Base Rate Loans.
The
Loans included in each Borrowing shall bear interest initially at the type
of
rate specified in such notice of a new Borrowing. Thereafter, the Borrower
may
from time to time elect to change or continue the type of interest rate borne
by
each Borrowing or, subject to the minimum amount requirement for each
outstanding Borrowing contained in Section 1.4, a portion thereof, as
follows: (i) if such Borrowing is of Eurodollar Loans, on the last day of
the Interest Period applicable thereto, the Borrower may continue part or
all of
such Borrowing as Eurodollar Loans or convert part or all of such Borrowing
into
Base Rate Loans or (ii) if such Borrowing is of Base Rate Loans, on any
Business Day, the Borrower may convert all or part of such Borrowing into
Eurodollar Loans for an Interest Period or Interest Periods specified by
the
Borrower. The Borrower shall give all such notices requesting the advance,
continuation or conversion of a Borrowing to the Administrative Agent
by
telephone or telecopy (which notice shall be irrevocable once given and,
if by
telephone, shall be promptly confirmed in writing), substantially in the
form
attached hereto as Exhibit B (Notice of Borrowing) or Exhibit C
(Notice of Continuation/Conversion), as applicable, or in such other form
acceptable to the Administrative Agent.
Notice of the continuation of a Borrowing of Eurodollar Loans for an additional
Interest Period or of the conversion of part or all of a Borrowing of Base
Rate
Loans into Eurodollar Loans must be given by no later than 12:00 noon
(Chicago time) at least three (3) Business Days before the date of the
requested continuation or conversion. All such notices concerning the advance,
continuation or conversion of a Borrowing shall specify the date of the
requested advance, continuation or conversion of a Borrowing (which shall
be a
Business Day), the amount of the requested Borrowing to be advanced, continued
or converted, the type of Loans to comprise such new, continued or converted
Borrowing and, if such Borrowing is to be comprised of Eurodollar Loans,
the
Interest Period applicable thereto. The Borrower agrees that the Administrative
Agent may rely on any such telephonic or telecopy notice given by any person
the
Administrative Agent in good faith believes is an Authorized Representative
without the necessity of independent investigation and, in the event any
such
notice by telephone conflicts with any written confirmation, such telephonic
notice shall govern if the Administrative Agent has acted in reliance
thereon.
(b) Notice
to the
Lenders.
The
Administrative Agent shall give prompt telephonic or telecopy notice to each
Lender of any notice from the Borrower received pursuant to Section 1.5(a)
above and, if such notice requests the Lenders to make Eurodollar Loans,
the
Administrative Agent shall give notice to the Borrower and each Lender by
like
means of the interest rate applicable thereto promptly after the Administrative
Agent has made such determination.
(c) Borrower’s
Failure to Notify; Automatic Continuations and Conversions.
Any
outstanding Borrowing of Base Rate Loans shall automatically be continued
for an
additional Interest Period on the last day of its then current Interest Period
unless the Borrower has notified the Administrative Agent within the period
required by Section 1.5(a) that the Borrower intends to convert such
Borrowing, subject to Section 7.1 hereof, into a Borrowing of Eurodollar
Loans or such Borrowing is prepaid in accordance with Section 1.8(a). If
the
Borrower fails to give notice pursuant to Section 1.5(a) above of the
continuation or conversion of any outstanding principal amount of a Borrowing
of
Eurodollar Loans before the last day of its then current Interest Period
within
the period required by Section 1.5(a) or, whether or not such notice has
been given, one or more of the conditions set forth in Section 7.1 for the
continuation or conversion of a Borrowing of Eurodollar Loans would not be
satisfied, and such Borrowing is not prepaid in accordance with
Section 1.8(a), such Borrowing shall automatically be converted into a
Borrowing of Base Rate Loans.
(d) Disbursement
of Loans.
Not
later than 1:00 p.m. (Chicago time) on the date of any requested advance of
a new Borrowing, subject to Section 7 hereof, each Lender shall make
available its Loan comprising part of such Borrowing in funds immediately
available at the principal office of the Administrative Agent in Chicago,
Illinois. The Administrative Agent shall make the proceeds of each new Borrowing
available to the Borrower at the Administrative Agent’s principal office in
Chicago, Illinois.
(e) Administrative
Agent
Reliance on Lender Funding.
Unless
the Administrative Agent shall have been notified by a Lender prior to (or,
in
the case of a Borrowing of Base Rate Loans, by 1:00 p.m. (Chicago time) on)
the date on which such Lender is scheduled to make payment to the Administrative
Agent of the proceeds of a Loan (which notice shall be effective upon receipt)
that such Lender does not intend to make such payment, the Administrative
Agent
may assume that such Lender has made such payment when due and the
Administrative Agent may in reliance upon such assumption (but shall not
be
required to) make available to the Borrower the proceeds of the Loan to be
made
by such Lender and, if any Lender has not in fact made such payment to the
Administrative Agent, such Lender shall, on demand, pay to the Administrative
Agent the amount made available to the Borrower attributable to such Lender
together with interest thereon in respect of each day during the period
commencing on the date such amount was made available to the Borrower and
ending
on (but excluding) the date such Lender pays such amount to the Administrative
Agent at a rate per annum equal to: (i) from the date the related advance
was made by the Administrative Agent to the date two (2) Business Days after
payment by such Lender is due hereunder, the Federal Funds Rate for each
such
day and (ii) from the date two (2) Business Days after the date such
payment is due from such Lender to the date such payment is made by such
Lender,
the Base Rate in effect for each such day. If such amount is not received
from
such Lender by the Administrative Agent immediately upon demand, the Borrower
will, on demand, repay to the Administrative Agent the proceeds of the Loan
attributable to such Lender with interest thereon at a rate per annum equal
to
the interest rate applicable to the relevant Loan, but without such payment
being considered a payment or prepayment of a Loan under Section 1.11
hereof so that the Borrower will have no liability under such Section with
respect to such payment.
Section 1.6. Interest
Periods.
As
provided in Section 1.5(a) and 1.14 hereof,
at the time of each request to advance, continue or create by conversion
a
Borrowing of Eurodollar Loans or Swing Loans, the Borrower shall select an
Interest Period applicable to such Loans from among the available options.
The
term “Interest
Period”
means
the period commencing on the date a Borrowing of Loans is advanced, continued
or
created by conversion and ending: (a) in the case of Base Rate Loans, on
the
last day of the calendar quarter (i.e.,
the
last day of March, June, September or December, as applicable) in which such
Borrowing is advanced, continued or created by conversion (or on the last
day of
the following calendar quarter if such Loan is advanced, continued or created
by
conversion on the last day of a calendar quarter), (b) in the case of a
Eurodollar Loan, one week, two weeks, 1, 2, 3 or 6 months thereafter, and
(c) in the case of a Swing Loan, on the date 1 to 7 days thereafter as
mutually agreed to by the Borrower and the Administrative Agent; provided,
however, that:
(a) any
Interest
Period for a Borrowing of Revolving Loans or Swing Loans that otherwise would
end after the Revolving Credit Termination Date shall end on the Revolving
Credit Termination Date;
(b) whenever
the
last day of any Interest Period would otherwise be a day that is not a Business
Day, the last day of such Interest Period shall be extended to the next
succeeding Business Day, provided
that,
if such
extension would cause the last day of an Interest Period for a Borrowing
of
Eurodollar Loans to occur in the following calendar month, the last day of
such
Interest Period shall be the immediately preceding Business Day;
and
(c) for
purposes of determining an Interest Period for a Borrowing of Eurodollar
Loans,
a month means a period starting on one day in a calendar month and ending
on the
numerically corresponding day in the next calendar month; provided,
however, that
if
there is no numerically corresponding day in the month in which such an Interest
Period is to end or if such an Interest Period begins on the last Business
Day
of a calendar month, then such Interest Period shall end on the last Business
Day of the calendar month in which such Interest Period is to end.
Section 1.7. Maturity
of
Loans. Each
Revolving Loan and Swing Loan, both for principal and interest not sooner
paid,
shall mature and become due and payable by the Borrower on the Revolving
Credit
Termination Date.
Section 1.8. Prepayments.
(a) Optional.
The
Borrower shall have the privilege of prepaying without premium or penalty
(except as set forth in Section 1.11 below) and in whole or in part (but,
if in part, then: (i) if such Borrowing is of Base Rate Loans, in an amount
not less than $100,000, (ii) if such Borrowing is of Eurodollar Loans, in
an amount not less than $500,000, and (iii) in each case, in an amount such
that the minimum amount required for a Borrowing pursuant to Section 1.4
and 1.14 hereof remains outstanding) any Borrowing of Eurodollar Loans at
any
time upon three (3) Business Days prior notice by the Borrower to the
Administrative Agent or, in the case of a Borrowing of Base Rate Loans, notice
delivered by the Borrower to the Administrative Agent no later than
12:00 noon (Chicago time) on the date of prepayment, such prepayment to be
made by the payment of the principal amount to be prepaid and, in the case
of
any Eurodollar Loans or Swing Loans, accrued interest thereon to the date
fixed
for prepayment plus
any
amounts due the Lenders under Section 1.11 hereof.
(b) Mandatory.
(i) The
Borrower
shall, on each date the Revolving Credit Commitments are reduced pursuant
to
Section 1.12 hereof, prepay the Revolving Loans, Swing Loans, and, if
necessary, prefund the L/C Obligations in accordance with Section 9.4 by
the amount, if any, necessary to reduce the sum of the aggregate principal
amount of Revolving Loans, Swing Loans, and L/C Obligations then outstanding
to
the amount to which the Revolving Credit Commitments have been so reduced.
(ii) Unless
the
Borrower otherwise directs, prepayments of Loans under this Section 1.8(b)
shall be applied first to Borrowings of Base Rate Loans until payment in
full
thereof with any balance applied to Borrowings of Eurodollar Loans in the
order
in which their Interest Periods expire. Each prepayment of Loans under this
Section 1.8(b) shall be made by the payment of the principal amount to be
prepaid and accrued interest thereon to the date of prepayment and, in the
case
of any Eurodollar Loan or Swing Loan, together with any amounts due the Lenders
under Section 1.11 hereof. Each prefunding of L/C Obligations shall be made
in accordance with Section 9.4 hereof.
(c) The
Administrative Agent will promptly advise each Lender of any notice of
prepayment it receives from the Borrower. Any amount of Revolving Loans and
Swing Loans paid or prepaid before the Revolving Credit Termination Date
may,
subject to the terms and conditions of this Agreement, be borrowed, repaid
and
borrowed again.
Section 1.9. Default
Rate.
Notwithstanding anything to the contrary contained in Section 1.3 hereof,
while any Event of Default exists or after acceleration, the Borrower shall
pay
interest (after as well as before entry of judgment thereon to the extent
permitted by law) on the principal amount of all Loans and Reimbursement
Obligations, and letter of credit fees then owing by it at a rate per annum
equal to:
(a) for
any Base
Rate Loan or any Swing Loan bearing interest based on the Base Rate, the
sum of
2.0% plus
the
Applicable Margin plus
the Base
Rate from time to time in effect;
(b) for
any
Eurodollar Loan or any Swing Loan bearing interest at the Quoted Rate, the
sum
of 2.0% plus
the rate
of interest in effect thereon at the time of such default until the end of
the
Interest Period applicable thereto and, thereafter, at a rate per annum equal
to
the sum of 2.0% plus
the
Applicable Margin for Base Rate Loans plus
the Base
Rate from time to time in effect;
(c) for
any
Reimbursement Obligation, the sum of 2.0% plus
the
amounts due under Section 1.2(c) with respect to such Reimbursement
Obligation; and
(d) for
any
Letter of Credit, the sum of 2.0% plus
the
letter of credit fee due under the second sentence of Section 2.1(b) with
respect to such Letter of Credit;
provided,
however, that
in
the absence of acceleration, any adjustments pursuant to this Section shall
be
made at the election of the Administrative Agent, acting at the request or
with
the consent of the Required Lenders, with written notice to the Borrower.
While
any Event of Default exists or after acceleration, interest shall be paid
on
demand of the Administrative Agent at the request or with the consent of
the
Required Lenders.
Section 1.10. Evidence
of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including
the
amounts of principal and interest payable and paid to such Lender from time
to
time hereunder.
(b) The
Administrative Agent shall also maintain accounts in which it will record
(i) the amount of each Loan made hereunder, the type thereof and the
Interest Period with respect thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to
each
Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender’s share
thereof.
(c) The
entries
maintained in the accounts maintained pursuant to paragraphs (a) and (b)
above shall be prima
facie
evidence
of the existence and amounts of the Obligations therein recorded; provided,
however, that
the
failure of the Administrative Agent or any Lender to maintain such accounts
or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Obligations in accordance with their terms.
(d) Any
Lender
may request that its Loans be evidenced by a promissory note or notes in
the
forms of Exhibit D-1 (in the case of its Revolving Loans and referred to
herein
as a “Revolving
Note”)
or D-2
(in the case of its Swing Loans and referred to herein as a “Swing
Note”),
as
applicable (Revolving Notes and Swing Note being hereinafter referred to
collectively as the “Notes”
and
individually as a “Note”).
In
such event, the Borrower shall prepare, execute and deliver to such Lender
a
Note payable to the order of such Lender in the amount of the relevant
Commitment or Swing Line Sublimit, as applicable. Thereafter, the Loans
evidenced by such Note or Notes and interest thereon shall at all times
(including after any assignment pursuant to Section 13.12) be represented
by one or more Notes payable to the order of the payee named therein or any
assignee pursuant to Section 13.12, except to the extent that any such
Lender or assignee subsequently returns any such Note for cancellation and
requests that such Loans once again be evidenced as described in
subsections (a) and (b) above.
Section 1.11. Funding
Indemnity.
If any
Lender shall incur any loss, cost or expense (including, without limitation,
any
loss, cost or expense incurred by reason of the liquidation or re-employment
of
deposits or other funds acquired by such Lender to fund or maintain any
Eurodollar Loan or Swing Loan or the relending or reinvesting of such deposits
or amounts paid or prepaid to such Lender, but excluding any loss of profit)
as
a result of:
(a) any
payment,
prepayment or conversion of a Eurodollar Loan or Swing Loan on a date other
than
the last day of its Interest Period,
(b) any
failure (because of a failure to meet the conditions of Section 7 or
otherwise) by the Borrower to borrow or continue a Eurodollar Loan or Swing
Loan, or to convert
a Base Rate Loan into a
Eurodollar Loan or Swing Loan, on the date specified in a notice given pursuant
to Section 1.5(a) or 1.14 hereof,
(c) any
failure by the Borrower to make any payment of principal on any Eurodollar
Loan
or Swing Loan when due (whether by acceleration or otherwise), or
(d) any
acceleration of the maturity of a Eurodollar Loan or Swing Loan as a result
of
the occurrence of any Event of Default hereunder,
then,
upon the demand of such Lender, the Borrower shall pay to such Lender such
amount as will reimburse such Lender for such loss, cost or expense. If any
Lender makes such a claim for compensation, it shall provide to the Borrower,
with a copy to the Administrative Agent, a certificate setting forth the
amount
of such loss, cost or expense in reasonable detail (including an explanation
of
the basis for and the computation of such loss, cost or expense) and the
amounts
shown on such certificate, absent manifest error, shall be deemed prime
facie
correct.
Section 1.12. Commitment
Terminations.
(a) Optional
Revolving Credit Terminations. The
Borrower shall have the right at any time and from time to time, upon five
(5) Business Days, prior written notice to the Administrative Agent (or
such shorter time period agreed to by the Administrative Agent), to terminate
the Revolving Credit Commitments without premium or penalty and in whole
or in
part, any partial termination to be (i) in an amount not less than
$1,000,000 and (ii) allocated ratably among the Lenders in proportion to
their respective Revolver Percentages, provided
that
the
Revolving Credit Commitments may not be reduced to an amount less than the
sum
of the aggregate principal amount of Revolving Loans, Swing Loans, and
L/C Obligations then outstanding. Any termination of the Revolving Credit
Commitments below the L/C Sublimit or Swing Line Sublimit then in effect
shall reduce the L/C Sublimit and Swing Line Sublimit, as applicable, by a
like amount. The Administrative Agent shall give prompt notice to each Lender
of
any such termination of the Revolving Credit Commitments.
(b) Any
termination of the Revolving Credit Commitments pursuant to this
Section 1.12 may not be reinstated.
(c) For
the
avoidance of doubt, prepayments pursuant to Sections 1.8(a) shall not
result in any reduction of the Revolving Credit Commitments.
Section 1.13. Substitution
of Lenders.
(a) Upon the receipt by the Borrower of a claim from any Lender for
compensation under Section 10.3 or 13.1 hereof, or a notice by any Lender
to the Borrower of any illegality pursuant to Section 10.1 hereof or
(b) in the event any Lender is in default in any material respect with
respect to its obligations under the Loan Documents (any such Lender referred
to
in clause (a) or (b) above being hereinafter referred to as an “Affected
Lender”),
the
Borrower may, in addition to any other rights the Borrower may have hereunder
or
under applicable law, require, at its expense, any such Affected Lender to
assign, at par plus
accrued
interest and fees, without recourse, all of its interest, rights, and
obligations hereunder (including its Revolving Credit Commitment and all
of its
Loans and participation interests in Letters of Credit and other amounts
at any
time owing to it hereunder and the other Loan Documents) to a bank or other
institutional lender specified by the Borrower, provided
that
(i) such assignment shall not conflict with or violate any law, rule or
regulation or order of any court or other governmental authority, (ii) the
Borrower shall have received the written consent of the Administrative Agent,
which consent shall not be unreasonably withheld or delayed, to such assignment,
(iii) the Borrower shall have paid to the Affected Lender all monies
(together with amounts due such Affected Lender under Section 1.11 hereof
as if the Loans owing to it were prepaid rather than assigned) other than
such
principal, interest, and fees accrued and owing to it hereunder, and
(iv) the assignment is entered into in accordance with the other
requirements of Section 13.12 hereof.
Section 1.14. Swing
Loans.
(a) Generally.
Subject
to the terms and conditions hereof, as part of the Revolving Credit, the
Administrative Agent agrees to make loans to the Borrower under the Swing
Line
(individually a “Swing
Loan”
and
collectively the “Swing
Loans”)
which
shall not in the aggregate at any time outstanding exceed the Swing Line
Sublimit. The Swing Loans may be availed of the Borrower from time to time
and
borrowings thereunder may be repaid and used again during the period ending
on
the Revolving Credit Termination Date; provided
that
each Swing Loan must be repaid on the last day of the Interest Period applicable
thereto. Each Swing Loan shall be in a minimum amount of $250,000 or such
greater amount which is an integral multiple of $100,000.
(b) Interest
on Swing Loans.
Each
Swing Loan shall bear interest until maturity (whether by acceleration or
otherwise) at a rate per annum equal to (i) the sum of the Base Rate
plus
the
Applicable Margin for Base Rate Loans under the Revolving Credit as from
time to
time in effect (computed on the basis of a year of 365 or 366 days, as the
case
may be, for the actual number of days elapsed) or (ii) the Quoted Rate
(computed on the basis of a year of 360 days for the actual number of days
elapsed). Interest on each Swing Loan shall be due and payable prior to such
maturity on the last day of each Interest Period applicable
thereto.
(c) Requests
for
Swing Loans.
The
Borrower shall give the Administrative Agent prior notice (which may be written
or oral) no later than 2:00 p.m. (Chicago time) on the date upon which a
Borrower requests that any Swing Loan be made, of the amount and date of
such
Swing Loan, and the Interest Period requested therefor. Within 30 minutes
after receiving such notice, the Administrative Agent shall in its discretion
quote an interest rate to the Borrower at which the Administrative Agent
would
be willing to make such Swing Loan available to the Borrower for the Interest
Period so requested (the rate so quoted for a given Interest Period being
herein
referred to as “Quoted
Rate”).
The
Borrower acknowledges and agrees that the interest rate quote is given for
immediate and irrevocable acceptance. If the Borrower does not so immediately
accept the Quoted Rate for the full amount requested by the Borrower for
such
Swing Loan, the Quoted Rate shall be deemed immediately withdrawn and such
Swing
Loan shall bear interest at the rate per annum determined by adding the
Applicable Margin for Base Rate Loans under the Revolving Credit to the Base
Rate as from time to time in effect. Subject to the terms and conditions
hereof,
the proceeds of such Swing Loan shall be made available to the Borrower on
the
date so requested at the offices of the Administrative Agent in Chicago,
Illinois. Anything contained in the foregoing to the contrary notwithstanding
(i) the obligation of the Administrative Agent to make Swing Loans shall be
subject to all of the terms and conditions of this Agreement and (ii) the
Administrative Agent shall not be obligated to make more than one Swing Loan
during any one day.
(d) Refunding
Loans.
In its
sole and absolute discretion, the Administrative Agent may at any time, on
behalf of the Borrower (which hereby irrevocably authorizes the Administrative
Agent to act on its behalf for such purpose) and with notice to the Borrower,
request each Lender to make a Revolving Loan in the form of a Base Rate Loan
in
an amount equal to such Lender’s Revolver Percentage of the amount of the Swing
Loans outstanding on the date such notice is given. Unless an Event of Default
described in Section 9.1(j) or 9.1(k) exists with respect to the Borrower,
regardless of the existence of any other Event of Default, each Lender shall
make the proceeds of its requested Revolving Loan available to the
Administrative Agent, in immediately available funds, at the Administrative
Agent’s principal office in Chicago, Illinois, before 12:00 Noon (Chicago
time) on the Business Day following the day such notice is given. The proceeds
of such Borrowing of Revolving Loans shall be immediately applied to repay
the
outstanding Swing Loans.
(e) Participations.
If any
Lender refuses or otherwise fails to make a Revolving Loan when requested
by the
Administrative Agent pursuant to Section 1.14(d) above (because an Event of
Default described in Section 9.1(j) or 9.1(k) exists with respect to the
Borrower or otherwise), such Lender will, by the time and in the manner such
Revolving Loan was to have been funded to the Administrative Agent, purchase
from the Administrative Agent an undivided participating interest in the
outstanding Swing Loans in an amount equal to its Revolver Percentage of
the
aggregate principal amount of Swing Loans that were to have been repaid with
such Revolving Loans. Each Lender that so purchases a participation in a
Swing
Loan shall thereafter be entitled to receive its Revolver Percentage of each
payment of principal received on the Swing Loan and of interest received
thereon
accruing from the date such Lender funded to the Administrative Agent its
participation in such Loan. The several obligations of the Lenders under
this
Section shall be absolute, irrevocable and unconditional under any and all
circumstances whatsoever and shall not be subject to any set-off, counterclaim
or defense to payment which any Lender may have or have had against the
Borrower, any other Lender or any other Person whatever. Without limiting
the
generality of the foregoing, such obligations shall not be affected by any
Default or Event of Default or by any reduction or termination of the Revolving
Credit Commitments of any Lender, and each payment made by a Lender under
this
Section shall be made without any offset, abatement, withholding or reduction
whatsoever.
Section 1.15. Increase
in Commitments. The
Borrower may, with the written consent of the Administrative Agent (which
consent shall not be unreasonably withheld or delayed), increase the aggregate
amount of the Revolving Credit Commitments by delivering a Commitment Amount
Increase Request at least five (5) Business Days prior to the desired
effective date of such increase (the “Commitment
Amount Increase”)
identifying an additional Lender (or additional Revolving Credit Commitments
for
existing Lender(s)) and the amount of its Revolving Credit Commitment (or
additional amount of its Revolving Credit Commitment(s)); provided,
however, that
(i) any increase of the aggregate amount of the Revolving Credit
Commitments to an amount in excess of $150,000,000 will require the approval
of
the Required Lenders, and (ii) any increase of the aggregate amount of the
Revolving Credit Commitments shall be in an amount not less than $25,000,000.
The effective date of the Commitment Amount Increase shall be agreed upon
by the
Borrower and the Administrative Agent. Upon the effectiveness thereof, the
new
Lender(s) (or, if applicable, existing Lender(s)) shall advance Loans in
an
amount sufficient such that after giving effect to its Loans each Bank shall
have outstanding its pro
rata
share of
Loans. It shall be a condition to such effectiveness that (i) either no
Eurodollar Loans be outstanding on the date of such effectiveness or the
Borrower pays any applicable breakage cost under Section 1.11 incurred by
any Lender resulting from the repayment of its Loans and (ii) the Borrower
shall not have terminated any portion of the Revolving Credit Commitments
pursuant to Section 1.14 hereof. The Borrower agrees to pay any reasonable
expenses of the Administrative Agent relating to any Commitment Amount Increase.
Notwithstanding anything herein to the contrary, no Lender shall have any
obligation to increase its Revolving Credit Commitment and no Lender’s Revolving
Credit Commitment shall be increased without its consent thereto, and each
Lender may at its option, unconditionally and without cause, decline to increase
its Revolving Credit Commitment.
|
Section 2.
|
Fees.
|
Section 2.1. Fees. (a) Revolving
Credit
Commitment Fee.
The
Borrower shall pay to the Administrative Agent for the ratable account of
the
Lenders in accordance with their Revolver Percentages a commitment fee at
the
rate per annum equal to the Applicable Margin (computed on the basis of a
year
of 365 or 366 days, as the case may be, and the actual number of days
elapsed) on the average daily Unused Revolving Credit Commitments. Such
commitment fee shall be payable quarterly in arrears on the last day of each
March, June, September, and December in each year (commencing on the first
such
date occurring after the date hereof) and on the Revolving Credit Termination
Date, unless the Revolving Credit Commitments are terminated in whole on
an
earlier date, in which event the commitment fee for the period to the date
of
such termination in whole shall be paid on the date of such
termination.
(b) Letter
of Credit Fees.
On the
date of issuance or extension, or increase in the amount, of any Letter of
Credit pursuant to Section 1.2 hereof, the Borrower shall pay to the L/C
Issuer for its own account an issuance fee equal to 0.125% of the face amount
of
(or of the increase in the face amount of) such Letter of Credit. Quarterly
in
arrears, on the last day of each March, June, September, and December,
commencing on the first such date occurring after the date hereof, the Borrower
shall pay to the Administrative Agent, for the ratable benefit of the Lenders
in
accordance with their Revolver Percentages, a letter of credit fee at a rate
per
annum equal to the Applicable Margin (computed on the basis of a year of
365 or
366 days, as the case may be, and the actual number of days elapsed) in
effect during each day of such quarter applied to the daily average face
amount
of Letters of Credit outstanding during such quarter. In addition, the Borrower
shall pay to the L/C Issuer for its own account the L/C Issuer’s standard
issuance, drawing, negotiation, amendment, assignment and other administrative
fees for each Letter of Credit. Such standard fees referred to in the preceding
sentence may be established by the L/C Issuer from time to time as notified
to
the Borrower in writing.
(c) Administrative
Agent Fees.
The
Borrower shall pay to the Administrative Agent, for its own use and benefit,
the
fees agreed to between the Administrative Agent and the Borrower in a fee
letter
dated the date hereof or as otherwise agreed to in writing between
them.
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Section 3.
|
Place
and Application of Payments.
|
Section 3.1. Place
and Application of
Payments.
All
payments of principal of and interest on the Loans and the Reimbursement
Obligations, and of all other Obligations payable by the Borrower under this
Agreement and the other Loan Documents, shall be made by the Borrower to
the
Administrative Agent by no later than 12:00 Noon (Chicago time) on the due
date
thereof at the office of the Administrative Agent in Chicago, Illinois (or
such
other location as the Administrative Agent may designate to the Borrower)
for
the benefit of the Lender or Lenders entitled thereto. Any payments received
after such time shall be deemed to have been received by the Administrative
Agent on the next Business Day. All such payments shall be made in U.S. Dollars,
in immediately available funds at the place of payment, in each case without
set-off or counterclaim. The Administrative Agent will promptly thereafter
cause
to be distributed like funds relating to the payment of principal or interest
on
Loans and on Reimbursement Obligations in which the Lenders have purchased
Participating Interests ratably to the Lenders and like funds relating to
the
payment of any other amount payable to any Lender to such Lender, in each
case
to be applied in accordance with the terms of this Agreement.
Anything
contained herein to the contrary notwithstanding, all payments and collections
received in respect of the Obligations by the Administrative Agent or any
of the
Lenders after acceleration or the final maturity of the Obligations or
termination of the Commitments as a result of an Event of Default shall be
remitted to the Administrative Agent and distributed as follows:
(a) first,
to
the payment of any outstanding costs and expenses incurred by the Administrative
Agent in protecting, preserving or enforcing rights under the Loan Documents,
and in any event all costs and expenses of a character which the Borrower
has
agreed to pay the Administrative Agent under Section 13.15 hereof (such
funds to be retained by the Administrative Agent for its own account unless
it
has previously been reimbursed for such costs and expenses by the Lenders,
in
which event such amounts shall be remitted to the Lenders to reimburse them
for
payments theretofore made to the Administrative Agent);
(b) second,
to
the payment of any outstanding interest and fees due under the Loan Documents
to
be allocated pro rata in accordance with the aggregate unpaid amounts owing
to
each Person to which such sums are due;
(c) third,
to
the payment of principal on the Loans, unpaid Reimbursement Obligations,
together with amounts to be held by the Administrative Agent as collateral
security for any outstanding L/C Obligations pursuant to Section 9.4
hereof (until the Administrative Agent is holding an amount of cash equal
to the
then outstanding amount of all such L/C Obligations), and any Hedging
Liability, the aggregate amount paid to, or held as collateral security for,
the
Lenders and, in the case of Hedging Liability, their Affiliates to be allocated
pro
rata
in
accordance with the aggregate unpaid amounts owing to each Person to which
such
sums are due;
(d) fourth,
to
the payment of all other unpaid Obligations to be allocated pro
rata
in
accordance with the aggregate unpaid amounts owing to each Person to which
such
sums are due; and
(e) fifth,
to
the Borrower or whoever else may be lawfully entitled thereto.
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Section 4.
|
The
Guaranties.
|
Section 4.1. Guaranties. The
payment and performance of the Obligations, Hedging Liability, and Funds
Transfer and Deposit Account Liability shall at all times be guaranteed by
such
direct and indirect Subsidiaries of the Borrower as are from time to time
required to become Guarantors hereunder pursuant to Section 12 hereof
pursuant to one or more guaranty agreements or Additional Guarantor Supplements,
each in form and substance reasonably acceptable to the Administrative Agent,
as
the same may be amended, modified or supplemented from time to time
(individually a “Guaranty”
and
collectively the “Guaranties”);
provided,
however,
that a
Foreign Subsidiary shall
not
be required to be a guarantor hereunder.
Section 4.2. Further
Assurances. In
the event the Borrower
or any Subsidiary forms or acquires any other Subsidiary after the date hereof,
the Borrower shall promptly upon such formation or acquisition cause such
newly
formed or acquired Subsidiary to execute a Guaranty or Additional Guarantor
Supplement as the Administrative Agent may then require in accordance with
Section 12, and the Borrower shall also deliver to the Administrative
Agent, or cause such Subsidiary to deliver to the Administrative Agent, at
the
Borrower’s cost and expense, such other instruments, documents, certificates,
and opinions reasonably required by the Administrative Agent in connection
therewith.
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Section 5.
|
Definitions;
Interpretation.
|
Section 5.1. Definitions.
The
following terms when used herein shall have the following meanings:
“Acquired
Business”
means
the entity or assets acquired by the Borrower or a Subsidiary in an Acquisition,
whether before or after the date hereof.
“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 (other
than
a Person that is a Subsidiary prior to such acquisition), 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
prior to such acquisition) provided that the Borrower or the Subsidiary is
the
surviving entity.
“Additional
Guarantor Supplement” means
an
Additional Guarantor Supplement in the form of Exhibit G hereto.
“Administrative
Questionnaire” means
an
administrative questionnaire in a form supplied by the Administrative
Agent.
“Adjusted
EBITDA”
means,
with reference to any period, Net Income for such period plus
(a) the
sum of all amounts deducted in arriving at such Net Income amount in respect
of
(i) Interest Expense for such period, (ii) federal, state, and local
income taxes for such period, (iii) depreciation of fixed assets and
amortization of intangible assets for such period, (iv) non-cash charges
(including, without limitation, option expenses), (b) up to $4,000,000 in
any
four fiscal quarter period (but in no event more than $12,000,000 in the
aggregate from the Closing Date) of restructuring expenses paid in cash or
charges relating to disputes with customers and (c) an amount calculated
by the
Borrower and approved by the Administrative Agent in its reasonable discretion
equal to the Adjusted EBITDA (calculated without giving effect to this clause
(c)) of the Persons or assets which are the subject of each Permitted
Acquisition as if such Permitted Acquisition was completed on the first day
of
such period to the extent not subsequently sold or otherwise disposed of
during
such period minus
to the
extent included in computing Net Income, non-cash income, including, without
limitation, non-cash income that would constitute “prepaid pension expense” on
the financial statements of the Borrower in accordance with GAAP.
“Adjusted
LIBOR”
is
defined in Section 1.3(b) hereof.
“Administrative
Agent” means
Xxxxxx X.X. and any successor appointed pursuant to Section 11.7
hereof.
“Affiliate”
means
any Person directly or indirectly controlling or controlled by, or under
direct
or indirect common control with, another Person. A Person shall be deemed
to
control another Person for the purposes of this definition if such Person
possesses, directly or indirectly, the power to direct, or cause the direction
of, the management and policies of the other Person, whether through the
ownership of voting securities, common directors, trustees or officers, by
contract or otherwise; provided
that,
in any
event for purposes of this definition, any Person that owns, directly or
indirectly, 5% or more of the securities having the ordinary voting power
for
the election of directors or governing body of a corporation or 5% or more
of
the partnership or other ownership interest of any other Person (other than
as a
limited partner of such other Person) will be deemed to control such corporation
or other Person.
“Agreement”
means
this Credit Agreement, as the same may be amended, modified, restated or
supplemented from time to time pursuant to the terms hereof.
“Applicable
Margin”
means,
with respect to Loans, Reimbursement Obligations, and the commitment fees
and
letter of credit fees payable under Section 2.1 hereof until the first
Pricing Date (defined below), the rates per annum shown opposite Level II
below, and, thereafter, from one Pricing Date to the next Pricing Date means
the
applicable margin determined in accordance with the following
schedule:
|
Level
|
Leverage
Ratio for Such Pricing Date
|
Applicable
Margin for Base Rate Loans and Reimbursement
Obligations shall be:
|
Applicable
Margin for Eurodollar Loans and Latter of
Credit Fee shall be:
|
Applicable
Margin for Commitment Fee shall
be:
|
|
V
|
Greater
than or equal to 2.5 to 1.0
|
0.00%
|
1.25%
|
0.250%
|
|
IV
|
Less than 2.5 to 1.0 but greater than or equal to 2.0 to 1.0 |
0.00%
|
1.00%
|
0.225%
|
|
III
|
Less than 2.0 to 1.0 but greater than or equal to 1.5 to 1.0 |
0.00%
|
0.875%
|
0.200%
|
|
II
|
Less than 1.5 to 1.0 but greater than or equal to 1.0 to 1.0 |
0.00%
|
0.700%
|
0.150%
|
|
I
|
Less than 1.0 to 1.0 |
0.00%
|
0.575%
|
0.125%
|
For
purposes hereof, the term “Pricing
Date”
means,
for any fiscal quarter of the Borrower ending on or after June 30, 2006,
the date on which the Administrative Agent is in receipt of the Borrower’s most
recent financial statements (and, in the case of the year-end financial
statements, audit report) for the fiscal quarter then ended, pursuant to
Section 8.5 hereof. The Applicable Margin shall be established based
on the Leverage Ratio for the most recently completed fiscal quarter and
the
Applicable Margin established on a Pricing Date shall remain in effect until
the
next Pricing Date. If the Borrower has not delivered its financial statements
by
the date such financial statements (and, in the case of the year-end financial
statements, audit report) are required to be delivered under Section 8.5
hereof, until such financial statements and audit report are delivered, the
Applicable Margin shall be the highest Applicable Margin (i.e.,
the
Leverage Ratio shall be deemed to be greater than 2.5 to 1.0). If the Borrower
subsequently delivers such financial statements before the next Pricing Date,
the Applicable Margin established by such late delivered financial statements
shall take effect from the date of delivery until the next Pricing Date.
In all
other circumstances, the Applicable Margin established by such financial
statements shall be in effect from the Pricing Date that occurs immediately
after the end of the fiscal quarter covered by such financial statements
until
the next Pricing Date. Each determination of the Applicable Margin made by
the
Administrative Agent in accordance with the foregoing shall be conclusive
and
binding on the Borrower and the Lenders if reasonably determined.
“Application”
is
defined in Section 1.2(b) hereof.
“Approved
Fund” means
any
Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a
Lender or (c) an entity or an Affiliate of an entity that administers or
manages
a Lender.
“Assignment
and Acceptance”
means an
assignment and acceptance entered into by a Lender and an assignee in accordance
with the terms of Section 13.12 hereof (with the consent of any party whose
consent is required by Section 13.12 hereof), and accepted by the
Administrative Agent, in substantially the form of Exhibit H or any other
form approved by the Administrative Agent.
“Authorized
Officer”
means
the Chief Executive Officer, President, Vice President Finance, Treasurer
or
Assistant Treasurer of the Borrower, acting singly.
“Authorized
Representative”
means
those persons shown on the list of officers provided by the Borrower pursuant
to
Section 7.2 (h) hereof or on any update of any such list provided by the
Borrower to the Administrative Agent, or any further or different officers
of
the Borrower so named by any Authorized Representative of the Borrower in
a
written notice to the Administrative Agent.
“Base
Rate”
is
defined in Section 1.3(a) hereof.
“Base
Rate Loan”
means a
Loan bearing interest at a rate specified in Section 1.3(a)
hereof.
“Borrower”
is
defined in the introductory paragraph of this Agreement.
“Borrower’s
Shareholder Rights Plan”
means
the Rights Agreement between CTS Corporation and National City Bank, N.A.
(successor to EquiServe Trust Company, N.A.) dated August 28, 1998, as amended,
as the same may be amended, modified or replaced from time to time by the
Borrower.
“Borrowing”
means
the total of Loans of a single type advanced, continued for an additional
Interest Period, or converted from a different type into such type by the
Lenders under a Credit on a single date and, in the case of Eurodollar Loans,
for a single Interest Period. Borrowings of Revolving Loans are made and
maintained ratably by each of the Lenders according to their Revolver
Percentages. A Borrowing is “advanced”
on the
day Lenders advance funds comprising such Borrowing to the Borrower, is
“continued”
on the
date a new Interest Period for the same type of Loans commences for such
Borrowing, and is “converted”
when
such Borrowing is changed from one type of Loan to the other, all as requested
by the Borrower pursuant to Section 1.5(a) hereof. Borrowings of Swing
Loans are made by the Administrative Agent in accordance with the procedures
set
forth in Section 1.14 hereof.
“Business
Day”
means
any day (other than a Saturday or Sunday) on which banks are not authorized
or
required to close in Chicago, Illinois and, if the applicable Business Day
relates to the advance or continuation of, or conversion into, or payment
of a
Eurodollar Loan, on which banks are dealing in U.S. Dollar deposits in the
interbank eurodollar market in London, England.
“Capital
Lease”
means
any lease of Property which in accordance with GAAP is required to be
capitalized on the balance sheet of the lessee.
“Capitalized
Lease Obligation”
means,
for any Person, the amount of the liability shown on the balance sheet of
such
Person in respect of a Capital Lease determined in accordance with
GAAP.
“CERCLA”
means
the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as
amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C.
§§9601
et
seq.,
and any
future amendments.
“Change
of Control”
means
any of (a) the acquisition by any “person”
or
“group”
(as such
terms are used in sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended) at any time of beneficial ownership of 20% or more of
the
outstanding capital stock or other equity interest of the Borrower on a
fully-diluted basis, (b) the failure of individuals who are members of the
board of directors (or similar governing body) of the Borrower on the Closing
Date (together with any new or replacement directors whose initial nomination
for election was approved by a majority of the directors who were either
directors on the Closing Date or previously so approved) to constitute a
majority of the board of directors (or similar governing body) of the Borrower
or (c) any “Change
of Control Transaction”
or event
of like import under and as defined in the Subordinated Notes.
“Closing
Date”
means
the date of this Agreement or such later Business Day upon which each condition
described in Section 7.2 shall be satisfied or waived in a manner
acceptable to the Administrative Agent in its discretion.
“Code”
means
the Internal Revenue Code of 1986, as amended, and any successor statute
thereto.
“Collateral
Account”
is
defined in Section 9.4 hereof.
“Commitment
Amount Increase”
is
defined in Section 1.15 hereof.
“Commitment
Amount Increase Request”
means a
Commitment Amount Increase Request in the form of Exhibit E
hereto.
“Controlled
Group”
means
all members of a controlled group of corporations and all trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414 of the
Code.
“Credit”
means
either the Revolving Credit or the Swing Line.
“Credit
Event”
means
the initial advancing of any Loan, the continuation of or conversion of a
Loan
into a Eurodollar Loan, or the issuance of, or extension of the expiration
date
or increase in the amount of, any Letter of Credit.
“Default”
means
any event or condition the occurrence of which would, with the passage of
time
or the giving of notice, or both, constitute an Event of Default.
“Disposition”
means
the sale, lease, conveyance or other disposition of Property, other than
sales
or other dispositions expressly permitted under Section 8.10
hereof.
“Domestic
Subsidiary”
means
each subsidiary which is organized under the laws of any jurisdiction of
the
United States of America.
“Eligible
Line of Business”
means
any business similar to any lines of business engaged in as of the date of
this
Agreement by the Borrower or any of its Subsidiaries and businesses reasonably
incidental or ancillary thereto.
“Environmental
Claim” means
any
investigation, notice, violation, demand, allegation, action, suit, injunction,
judgment, order, consent decree, penalty, fine, lien, pro-ceeding or claim
(whether administrative, judicial or private in nature) arising
(a) pursuant to, or in connection with an actual or alleged violation of,
any Environmental Law, (b) in connection with any Hazardous Material,
(c) from any abatement, removal, remedial, cor-rective or response action
in connection with a Hazardous Material, Environmental Law or order of a
governmental authority or (d) from any actual or alleged damage, injury,
threat or harm to health, safety, natural resources or the
environment.
“Environmental
Law”
means
any current or future Legal Requirement pertaining to (a) the protection of
health, safety and the indoor or outdoor environment, (b) the conservation,
management or use of natural resources and wildlife, (c) the protection or
use
of surface water or groundwater, (d) the management, manufacture, possession,
presence, use, generation, transportation, treatment, storage, disposal,
Release, threatened Release, abatement, removal, remediation or handling
of, or
exposure to, any Hazardous Material or (e) pollution (including any Release
to
air, land, surface water or groundwater), and any amendment, rule, regulation,
order or directive issued thereunder.
“ERISA”
means
the Employee Retirement Income Security Act of 1974, as amended, or any
successor statute thereto.
“Eurodollar
Loan”
means a
Loan bearing interest at the rate specified in Section 1.3(b)
hereof.
“Eurodollar
Reserve Percentage”
is
defined in Section 1.3(b) hereof.
“Event
of Default”
means
any event or condition identified as such in Section 9.1
hereof.
“Federal
Funds Rate”
means
the fluctuating interest rate per annum described in part (x) of clause (ii)
of
the definition of Base Rate appearing in Section 1.3(a) hereof.
“Fixed
Charges”
means,
with reference to any period, the sum of (a) all scheduled payments of
principal made or to be made during such period with respect to Indebtedness
for
Borrowed Money of the Borrower and its Subsidiaries, plus
(b) Interest Expense for such period (to the extent payable in cash),
plus
(c) all dividends of the Borrower paid in cash during such period,
plus
(d) federal,
state, and local income taxes paid in cash by the Borrower and its Subsidiaries
during such period.
“Foreign
Subsidiary”
means
each Subsidiary which is organized under the laws of a jurisdiction other
than
the United States of America or any state thereof.
“Fund”
means
any
Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course.
“Funds
Transfer and Deposit Account Liability”
means
the liability of the Borrower or any of its Subsidiaries owing to any of
the
Lenders, or any Affiliates of such Lenders, arising out of (a) the
execution or processing of electronic transfers of funds by automatic clearing
house transfer, wire transfer or otherwise to or from the deposit accounts
of
the Borrower and/or any Subsidiary now or hereafter maintained with any of
the
Lenders or their Affiliates, (b) the acceptance for deposit or the honoring
for payment of any check, draft or other item with respect to any such deposit
accounts, and (c) any other deposit, disbursement, and cash management
services afforded to the Borrower or any such Subsidiary by any of such Lenders
or their Affiliates.
“GAAP”
means
generally accepted accounting principles set forth from time to time 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 agencies with similar functions
of
comparable stature and authority within the U.S. accounting profession),
which
are applicable to the circumstances as of the date of
determination.
“Guarantor”
and
“Guarantors”
each is
defined in Section 12.1 hereof.
“Guaranty”
and
“Guaranties”
each is
defined in Section 4.1 hereof.
“Hazardous
Material” means
any
substance, chemical, compound, product, solid, gas, liquid, waste, byproduct,
pollutant, contaminant or material which is hazardous or toxic, and includes,
without limitation, (a) asbestos, polychlorinated biphenyls and petroleum
(including crude oil or any fraction thereof) and (b) any material classified
or
regulated as “hazardous” or “toxic” or words of like import pursuant to an
Environmental Law.
“Hazardous
Material Activity”
means
any activity, event or occurrence involving a Hazardous Material, including,
without limitation, the manufacture, possession, presence, use, generation,
transportation, treatment, storage, disposal, Release, threatened Release,
abatement, removal, remediation, handling of or corrective or response action
to
any Hazardous Material.
“Hedging
Liability”
means
the liability of the Borrower or any Subsidiary to any of the Lenders, or
any
Affiliates of such Lenders, in respect of any interest rate, foreign currency,
and/or commodity swap, exchange, cap, collar, floor, forward, future or option
agreement, or any other similar interest rate, currency or commodity hedging
arrangement, as the Borrower or such Subsidiary, as the case may be, may
from
time to time enter into with any one or more of the Lenders or their Affiliates.
“Hostile
Acquisition”
means
the acquisition of the capital stock or other equity interests of a Person
through a tender offer or similar solicitation of the owners of such capital
stock or other equity interests which has not been approved (prior to such
acquisition) by resolutions of the Board of Directors of such Person or by
similar action if such Person is not a corporation, or to which such approval
has been withdrawn.
“Indebtedness
for Borrowed Money”
means
for any Person (without duplication) (a) all indebtedness of such Person
for borrowed money, whether current or funded, or secured or unsecured,
(b) all indebtedness for the deferred purchase price of Property or
services, (c) all indebtedness created or arising under any conditional
sale or other title retention agreement with respect to Property acquired
by
such Person (even though the rights and remedies of the seller or lender
under
such agreement in the event of a default are limited to repossession or sale
of
such Property), (d) all indebtedness secured by a purchase money mortgage
or other Lien to secure all or part of the purchase price of Property subject
to
such mortgage or Lien, (e) all obligations under leases which shall have
been or must be, in accordance with GAAP, recorded as Capital Leases in respect
of which such Person is liable as lessee, (f) any liability in respect of
banker’s acceptances or letters of credit (other than obligations in respect of
undrawn letters of credit securing current account payables or performance
obligations in the ordinary course of business), and (g) any indebtedness,
whether or not assumed, secured by Liens on Property acquired by such Person
at
the time of acquisition thereof, it being understood that the term “Indebtedness
for Borrowed Money” shall not include trade payables arising in the ordinary
course of business.
“Interest
Expense”
means,
with reference to any period, the sum of all interest charges (including
imputed
interest charges with respect to Capitalized Lease Obligations and all
amortization of debt discount and expense) net of interest income of the
Borrower and its Subsidiaries for such period determined on a consolidated
basis
in accordance with GAAP.
“Interest
Period”
is
defined in Section 1.6 hereof.
“Knowledge”
means
the
actual knowledge of an Authorized Officer.
“L/C
Issuer”
means
Xxxxxx X.X.
“L/C
Obligations”
means
the aggregate undrawn face amounts of all outstanding Letters of Credit and
all
unpaid Reimbursement Obligations.
“L/C
Sublimit”
means
$10,000,000, as reduced pursuant to the terms hereof.
“Legal
Requirement”
means
any treaty, convention, statute, law, regulation, ordinance, license, permit,
governmental approval, injunction, judgment, order, consent decree or other
requirement of any governmental authority, whether federal, state, or
local.
“Lenders”
means
and includes the financial institutions from time to time party to this
Agreement, including each assignee Lender pursuant to Section 13.12 hereof
and each new Lender pursuant to Section 1.15 hereof.
“Lending
Office”
is
defined in Section 10.4 hereof.
“Letter
of Credit”
is
defined in Section 1.2(a) hereof.
“Leverage
Ratio”
means,
as of the last day of any fiscal quarter of the Borrower, the ratio of Total
Funded Debt of the Borrower and its Subsidiaries as of the last day of such
fiscal quarter to Adjusted EBITDA of the Borrower and its Subsidiaries for
the
period of four fiscal quarters then ended.
“LIBOR”
is
defined in Section 1.3(b) hereof.
“Lien”
means
any
mortgage, lien, security interest, pledge, charge or encumbrance of any kind
in
respect of any Property, including the interests of a vendor or lessor under
any
conditional sale, Capital Lease or other title retention
arrangement.
“Loan”
means
any Revolving Loan or Swing Loan, whether outstanding as a Base Rate Loan
or
Eurodollar Loan or otherwise, each of which is a “type”
of Loan
hereunder.
“Loan
Documents”
means
this Agreement, the Notes, the Applications, the Guaranties, and each other
instrument or document to be delivered hereunder or thereunder or otherwise
in
connection therewith.
“Material
Adverse Effect”
means
(a) a material adverse change in, or material adverse effect upon, the
operations, business, Property, or financial condition of the Borrower and
its
Subsidiaries taken as a whole, (b) a material impairment of the ability of
the Borrower or any Subsidiary to perform its material obligations under
any
Loan Document or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against the Borrower or any Subsidiary of
any
Loan Document or the rights and remedies of the Administrative Agent and
the
Lenders thereunder.
“Material
Subsidiary”
means,
at any time, each Domestic Subsidiary that, together with its Subsidiaries,
shall have accounted for more than 5% of Adjusted EBITDA for the four
consecutive fiscal quarters of the Borrower most recently ended; provided
that if,
at any time, the Domestic Subsidiaries that are not Material Subsidiaries
(collectively, the “Non-Material
Subsidiaries”)
account
for 10% or more in the aggregate of Adjusted EBIDTA for the four consecutive
fiscal quarters of the Borrower most recently ended, then the Borrower shall
designate one or more additional Domestic Subsidiaries as Material Subsidiaries
to the effect that, after such designation, all the remaining Non-Material
Subsidiaries, taken as a whole, would not account for 10% or more in the
aggregate of Adjusted EBIDTA for the four consecutive fiscal quarters of
the
Borrower most recently ended; provided,
however,
that no
SPV, nor any other Subsidiary subject to special regulation preventing it
from
guaranteeing the Indebtedness of the Borrower hereunder, shall be designated
as
a Material Subsidiary.
“Moody’s”
means
Xxxxx’x Investors Service, Inc.
“Net
Income”
means,
with reference to any period, the net income (or net loss) of the Borrower
and
its Subsidiaries for such period computed on a consolidated basis in accordance
with GAAP; provided
that
there shall be excluded from Net Income (a) the net income (or net loss) of
any Person accrued prior to the date it becomes a Subsidiary of, or has merged
into or consolidated with, the Borrower or another Subsidiary, and (b) the
net income (or net loss) of any Person (other than a Subsidiary) in which
the
Borrower or any of its Subsidiaries has a equity interest, except to the
extent
of the amount of dividends or other distributions actually paid to the Borrower
or any of its Subsidiaries during such period.
“Notes”
is
defined in Section 1.10(d) hereof.
“Obligations”
means
all obligations of the Borrower to pay principal and interest on the Loans,
all
Reimbursement Obligations owing under the Applications, all fees and charges
payable hereunder, and all other payment obligations of the Borrower or any
of
its Subsidiaries arising under or in relation to any Loan Document, in each
case
whether now existing or hereafter arising, due or to become due, direct or
indirect, absolute or contingent, and howsoever evidenced, held or
acquired.
“Participating
Interest”
is
defined in Section 1.2(d) hereof.
“Participating
Lender”
is
defined in Section 1.2(d) hereof.
“PBGC”
means
the Pension Benefit Guaranty Corporation or any Person succeeding to any
or all
of its functions under ERISA.
“Permitted
Acquisition”
means
any Acquisition with respect to which all of the following conditions shall
have
been satisfied:
(a) the
Acquired Business is in an Eligible Line of Business;
(b) the
Acquisition shall not be a Hostile Acquisition;
(c) the
financial statements of the Acquired Business shall have been audited by
an
independent accounting firm of national or regional repute or otherwise
reasonably satisfactory to the Administrative Agent, or if such financial
statements have not been audited by such an accounting firm, such financial
statements shall have been approved by the Administrative Agent;
(d) for
any
Acquired Business with its primary operations outside the United States,
the
Total Consideration for such Acquired Business does not exceed $50,000,000
and,
when taken together with the Total Consideration for all Acquired Businesses
with their primary operations outside the United States of America acquired
from
the Closing Date, does not exceed in the aggregate $100,000,000;
(e) the
Borrowers shall have (i) notified the Administrative Agent and the Lenders
not
less than 10 days prior to any such Acquisition and (ii) for each Acquired
Business the Total Consideration of which exceeds $30,000,000, furnished
to the
Administrative Agent and Lenders at such time reasonable details as to such
Acquisition (including sources and uses of funds therefor), and 3-year
historical financial information (or such shorter period for which such Acquired
Business has been in existence) and 1-year pro
forma
financial forecasts of the Acquired Business on a stand alone basis as well
as
of the Borrower on a consolidated basis after giving effect to the Acquisition
and covenant compliance calculations reasonably satisfactory to the
Administrative Agent;
(f) if
a new
Subsidiary is formed or acquired as a result of or in connection with the
Acquisition, the Borrower shall have complied with the requirements of
Section 4 hereof in connection therewith; and
(g) after
giving
effect to the Acquisition, no Default or Event of Default shall exist, including
with respect to the covenants contained in Sections 8.22 and 8.23, on a
pro
forma
basis
assuming the Acquisition occurred on the first day of the immediately preceding
12-month period.
“Permitted
Securitization” means
an
accounts receivable securitization program which provides for the transfer
at no
less than fair market value of accounts receivable and related rights owed
to
the Borrower or any of its Subsidiaries.
“Person”
means an
individual, partnership, corporation, limited liability company, association,
trust, unincorporated organization or any other entity or organization,
including a government or agency or political subdivision thereof.
“Plan”
means
any employee pension benefit plan covered by Title IV of ERISA or subject
to the minimum funding standards under Section 412 of the Code that either
(a) is maintained by a member of the Controlled Group for employees of a
member of the Controlled Group or (b) is maintained pursuant to a
collective bargaining agreement or any other arrangement under which more
than
one employer makes contributions and to which a member of the Controlled
Group
is then making or accruing an obligation to make contributions or has within
the
preceding five plan years made contributions.
“Property”
means,
as to any Person, all types of real, personal, tangible, intangible or mixed
property owned by such Person whether or not included in the most recent
balance
sheet of such Person and its subsidiaries under GAAP.
“Quoted
Rate”
is
defined in Section 1.14(c) hereof.
“RCRA”
means
the Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984,
42 U.S.C. §§6901 et
seq.,
and any
future amendments.
“Register”
is
defined in Section 13.12(b) hereof.
“Reimbursement
Obligation”
is
defined in Section 1.2(c) hereof.
“Release”
means
any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, migration, dumping, or disposing into the
indoor
or outdoor environment, including, without limitation, the abandonment or
discarding of barrels, drums, containers, tanks or other receptacles containing
or previously containing any Hazardous Material.
“Required
Lenders”
means,
as of the date of determination thereof, Lenders whose outstanding Loans
and
interests in L/C Obligations and Unused Revolving Credit Commitments constitute
more than 50% of the sum of the total outstanding Loans, interests in L/C
Obligations, and Unused Revolving Credit Commitments of the
Lenders.
“Revolver
Percentage”
means,
for each Lender, the percentage of the Revolving Credit Commitments represented
by such Lender’s Revolving Credit Commitment or, if the Revolving Credit
Commitments have been terminated, the percentage held by such Lender (including
through participation interests in Reimbursement Obligations) of the aggregate
principal amount of all Revolving Loans and L/C Obligations then
outstanding.
“Revolving
Credit”
means
the credit facility for making Revolving Loans and issuing Letters of Credit
described in Sections 1.1 and 1.2 hereof.
“Revolving
Credit Commitment”
means,
as to any Lender, the obligation of such Lender to make Revolving Loans to
and
to participate in Swing Line Loans and Letters of Credit issued for the account
of the Borrower hereunder in an aggregate principal or face amount at any
one
time outstanding not to exceed the amount set forth opposite such Lender’s name
on Schedule 1 attached hereto and made a part hereof, as the same may be
reduced or modified at any time or from time to time pursuant to the terms
hereof.
“Revolving
Credit Termination Date”
means
June 27, 2011, or such earlier date on which the Revolving Credit Commitments
are terminated in whole pursuant to Section 1.12, 9.2 or 9.3
hereof.
“Revolving
Loan” is
defined in Section 1.1 hereof and, as so defined, includes a Base Rate Loan
or a Eurodollar Loan, each of which is a “type”
of
Revolving Loan hereunder.
“Revolving
Note”
is
defined in Section 1.10(d) hereof.
“S&P”
means
Standard & Poor’s Ratings Services Group, a division of The XxXxxx-Xxxx
Companies, Inc.
“Securitization
Attributed Indebtedness” means
the
amount of obligations outstanding under a Permitted Securitization on any
date
of determination that would be characterized as principal if such facility
were
structured as a secured lending transaction rather than as a
purchase.
“SPV”
means
any Wholly-owned Subsidiary formed solely for the purpose of and that engages
only in one or more Permitted Securitizations, and activities related
thereto.
“Subordinated
Debt”
means
Indebtedness for Borrowed Money owing to any Subordinated Noteholder in respect
of the Subordinated Notes.
“Subordinated
Indenture”
means
that certain Indenture dated as of May 11, 2004 between the Borrower and
the Subordinated Indenture Trustee, as the same may be amended, supplemented
or
modified in accordance with Section 8.21 hereof.
“Subordinated
Indenture Trustee”
means
Xxxxx Fargo Bank, N.A., and any successor or assignee thereof as “Trustee” under
the Subordinated Indenture.
“Subordinated
Note Documents”
means
(i) the Subordinated Notes, (ii) the Subordinated Indenture and
(iii) any other agreements, documents or instruments executed and/or
delivered in connection with the Subordinated Notes or the Subordinated
Indenture in form and substance reasonably acceptable to the Administrative
Agent, as the same may be amended, supplemented or modified in accordance
with
Section 8.21 hereof (including, without limitation, the Registration Rights
Agreement (as defined in the Subordinated Indenture)).
“Subordinated
Noteholders”
means
collectively, the “Holders”
(as
defined in the Subordinated Indenture).
“Subordinated
Notes”
means
those certain 2.125% Convertible Senior Subordinated Notes due 2024 issued
by
the Borrower in an original aggregate principal amount of $60,000,000 pursuant
to the Subordinated Indenture, as the same may be amended, supplemented or
modified in accordance with Section 8.21 hereof.
“Subsidiary”
means,
as to any particular parent corporation or organization, any other corporation
or organization more than 50% of the outstanding Voting Stock of which is
at the
time directly or indirectly owned by such parent corporation or organization
or
by any one or more other entities which are themselves subsidiaries of such
parent corporation or organization. Unless otherwise expressly noted herein,
the
term “Subsidiary”
means a
Subsidiary of the Borrower or of any of its direct or indirect
Subsidiaries.
“Swing
Line” means
the
credit facility for making one or more Swing Loans described in
Section 1.14 hereof.
“Swing
Line Sublimit”
means
$10,000,000, as reduced pursuant to the terms hereof.
“Swing
Loan” and
“Swing
Loans”
each is
defined in Section 1.14 hereof.
“Swing
Note”
is
defined in Section 1.10(d) hereof.
“Total
Consideration”
means
the total amount (but without duplication) of (a) cash paid in connection
with any Acquisition, plus
(b) indebtedness payable to the seller in connection with such Acquisition,
plus
(c) the fair market value of any equity securities, including any warrants
or options therefor, delivered to the seller in connection with any Acquisition,
plus
(d) the present value of covenants not to compete entered into in
connection with such Acquisition or other future payments which are required
to
be made over a period of time and are not contingent upon the Borrower or
its
Subsidiary meeting financial performance objectives (exclusive of salaries
paid
in the ordinary course of business) (discounted at the Base Rate), but only
to
the extent not included in clause (a), (b) or (c) above, plus
(e) the amount of indebtedness assumed in connection with such
Acquisition.
“Total
Funded Debt”
means,
at any time the same is to be determined, the sum (but without duplication)
of
(a) all Indebtedness for Borrowed Money of the Borrower and its
Subsidiaries at such time, plus
(b) all
Indebtedness for Borrowed Money of any other Person which is directly or
indirectly guaranteed by the Borrower or any of its Subsidiaries or which
the
Borrower or any of its Subsidiaries has agreed (contingently or otherwise)
to
purchase or otherwise acquire or in respect of which the Borrower or any
of its
Subsidiaries has otherwise assured a creditor against loss minus
(c) all Indebtedness for Borrowed Money of the Borrower in respect of
letters of credit permitted by Section 8.7(o).
“Unfunded
Vested Liabilities” means,
for any Plan at any time, the amount (if any) by which the present value
of all
vested nonforfeitable accrued benefits under such Plan exceeds the fair market
value of all Plan assets allocable to such benefits, all determined as of
the
then most recent valuation date for such Plan, but only to the extent that
such
excess represents a potential liability of a member of the Controlled Group
to
the PBGC or the Plan under Title IV of ERISA.
“Unused
Revolving Credit Commitments”
means,
at any time, the difference between the Revolving Credit Commitments then
in
effect and the aggregate outstanding principal amount of Revolving Loans
and L/C
Obligations, provided
that
Swing Loans outstanding from time to time shall be deemed to reduce the Unused
Revolving Credit Commitment of the Administrative Agent for purposes of
computing the commitment fee under Section 2.1(a) hereof.
“U.S.
Dollars”
and
“$”
each
means the lawful currency of the United States of America.
“Voting
Stock”
of any
Person means capital stock or other equity interests of any class or classes
(however designated) having ordinary power for the election of directors
or
other similar governing body of such Person, other than stock or other equity
interests having such power only by reason of the happening of a
contingency.
“Welfare
Plan”
means a
“welfare plan” as defined in Section 3(1) of ERISA.
“Wholly-owned
Subsidiary”
means a
Subsidiary of which all of the issued and outstanding shares of capital stock
(other than directors’ qualifying shares as required by law) or other equity
interests are owned by the Borrower and/or one or more Wholly-owned Subsidiaries
within the meaning of this definition.
Section 5.2. Interpretation.
The
foregoing definitions are equally applicable to both the singular and plural
forms of the terms defined. The words “hereof”,
“herein”,
and
“hereunder”
and
words
of like import when used in this Agreement shall refer to this Agreement
as a
whole and not to any particular provision of this Agreement. All references
to
time of day herein are references to Chicago, Illinois, time unless otherwise
specifically provided. Where the character or amount of any asset or liability
or item of income or expense is required to be determined or any consolidation
or other accounting computation is required to be made for the purposes of
this
Agreement, it shall be done in accordance with GAAP except where such principles
are inconsistent with the specific provisions of this Agreement.
Section 5.3. Change
in
Accounting Principles.
If,
after the date of this Agreement, there shall occur any change in GAAP from
those used in the preparation of the financial statements referred to in
Section 6.5 hereof and such change shall result in a change in the method
of calculation of any financial covenant, standard or term found in this
Agreement, either the Borrower or the Required Lenders may by notice to the
Lenders and the Borrower, respectively, require that the Lenders and the
Borrower negotiate in good faith to amend such covenants, standards, and
term so
as equitably to reflect such change in accounting principles, with the desired
result being that the criteria for evaluating the financial condition of
the
Borrower and its Subsidiaries shall be the same as if such change had not
been
made. No delay by the Borrower or the Required Lenders in requiring such
negotiation shall limit their right to so require such a negotiation at any
time
after such a change in accounting principles. Until any such covenant, standard,
or term is amended in accordance with this Section 5.3, financial covenants
shall be computed and determined in accordance with GAAP in effect prior
to such
change in accounting principles. Without limiting the generality of the
foregoing, the Borrower shall neither be deemed to be in compliance with
any
financial covenant hereunder nor out of compliance with any financial covenant
hereunder if such state of compliance or noncompliance, as the case may be,
would not exist but for the occurrence of a change in accounting principles
after the date hereof.
|
Section 6.
|
Representations
and Warranties.
|
The
Borrower represents and warrants to the Administrative Agent and the Lenders
as
follows:
Section 6.1. Organization
and Qualification.
The
Borrower is duly organized, validly existing and in good standing as a
corporation under the laws of the State of Indiana, has full and adequate
power
to own its Property and conduct its business as now conducted, and is duly
licensed or qualified and in good standing in each jurisdiction in which
the
nature of the business conducted by it or the nature of the Property owned
or
leased by it requires such licensing or qualifying, except where the failure
to
do so would not reasonably be expected to have a Material Adverse
Effect.
Section 6.2. Subsidiaries.
Each
Subsidiary is duly organized, validly existing and in good standing under
the
laws of the jurisdiction in which it is incorporated or organized, as the
case
may be, has full and adequate power to own its Property and conduct its business
as now conducted, and is duly licensed or qualified and in good standing
in each
jurisdiction in which the nature of the business conducted by it or the nature
of the Property owned or leased by it requires such licensing or qualifying,
except where the failure to do so would not reasonably be expected to have
a
Material Adverse Effect. Schedule 6.2 hereto identifies each Subsidiary,
the jurisdiction of its incorporation or organization, as the case may be,
the
percentage of issued and outstanding shares of each class of its capital
stock
or other equity interests owned by the Borrower and the other Subsidiaries
and,
if such percentage is not 100% (excluding directors’ qualifying shares as
required by law), a description of each class of its authorized capital stock
and other equity interests and the number of shares of each class issued
and
outstanding. All of the outstanding shares of capital stock and other equity
interests of each Subsidiary are validly issued and outstanding and fully
paid
and nonassessable and all such shares and other equity interests indicated
on
Schedule 6.2 as owned by the Borrower or another Subsidiary are owned,
beneficially and of record, by the Borrower or such Subsidiary free and clear
of
all Liens other than Liens not prohibited by Section 8.8(a). There are no
outstanding commitments or other obligations of any Subsidiary to issue,
and no
options, warrants or other rights of any Person to acquire, any shares of
any
class of capital stock or other equity interests of any Subsidiary.
Section 6.3. Authority
and
Validity of Obligations.
The
Borrower has full right and authority to enter into this Agreement and the
other
Loan Documents executed by it, to make the borrowings herein provided for,
to
issue its Notes in evidence thereof, and to perform all of its obligations
hereunder and under the other Loan Documents executed by it. Each Subsidiary
has
full right and authority to enter into the Loan Documents executed by it,
to
guarantee the Obligations, Hedging Liability, and Funds Transfer and Deposit
Account Liability, and to perform all of its obligations under the Loan
Documents executed by it. The Loan Documents delivered by the Borrower and
by
each Subsidiary have been duly authorized, executed, and delivered by such
Person and constitute valid and binding obligations of such Person enforceable
against it in accordance with their terms, except as enforceability may be
limited by bankruptcy, insolvency, fraudulent conveyance or similar laws
affecting creditors’ rights generally and general principles of equity
(regardless of whether the application of such principles is considered in
a
proceeding in equity or at law); and this Agreement and the other Loan Documents
do not, nor does the performance or observance by the Borrower or any Subsidiary
of any of the matters and things herein or therein provided for,
(a) contravene or constitute a default under any provision of law or any
judgment, injunction, order or decree binding upon the Borrower or any
Subsidiary or any provision of the organizational documents (e.g., charter,
articles of incorporation or by-laws, articles of association or operating
agreement, partnership agreement or other similar document) of the Borrower
or
any Subsidiary, (b) contravene or constitute a default under any covenant,
indenture or agreement of or affecting the Borrower or any Subsidiary or
any of
its Property, in each case where such contravention or default, individually
or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect
or (c) result in the creation or imposition of any Lien on any Property of
the Borrower or any Subsidiary.
Section 6.4. Use
of Proceeds; Margin Stock.
The
Borrower shall use the proceeds of the Revolving Credit for its general working
capital purposes and for such other legal and proper purposes as are consistent
with all applicable laws. Neither the Borrower nor any Subsidiary is engaged
in
the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U of the Board of Governors
of the Federal Reserve System), and no part of the proceeds of any Loan or
any
other extension of credit made hereunder will be used to purchase or carry
any
such margin stock or to extend credit to others for the purpose of purchasing
or
carrying any such margin stock. Margin stock (as hereinabove defined)
constitutes less than 25% of the assets of the Borrower and its Subsidiaries
which are subject to any limitation on sale, pledge or other restriction
hereunder.
Section 6.5. Financial
Reports.
The
consolidated balance sheet of the Borrower and its Subsidiaries as at
December 31, 2005, and the related consolidated statements of income,
retained earnings and cash flows of the Borrower and its Subsidiaries for
the
fiscal year then ended, and accompanying notes thereto, which financial
statements are accompanied by the audit report of Xxxxx Xxxxxxxx LLP,
independent public accountants, and the unaudited interim consolidated balance
sheet of the Borrower and its Subsidiaries as at April 2, 2006, and the
related consolidated statements of income, retained earnings and cash flows
of
the Borrower and its Subsidiaries for the three (3) months then ended,
heretofore furnished to the Administrative Agent and the Lenders, fairly
present
in all material respects the consolidated financial condition of the Borrower
and its Subsidiaries as at said dates and the consolidated results of their
operations and cash flows for the periods then ended in conformity with GAAP
applied on a consistent basis. Neither the Borrower nor any Subsidiary has
contingent liabilities which are material to it other than as indicated on
such
financial statements or, with respect to future periods, on the financial
statements furnished pursuant to Section 8.5 hereof.
Section 6.6. No
Material Adverse Change. Since
December 31, 2005, there has been no change in the financial condition of
the Borrower or any Subsidiary except those occurring in the ordinary course
of
business, none of which individually or in the aggregate have been materially
adverse.
Section 6.7. Full
Disclosure.
The
statements and information furnished to the Administrative Agent and the
Lenders
in connection with the negotiation of this Agreement and the other Loan
Documents and the commitments by the Lenders to provide all or part of the
financing contemplated hereby taken as a whole do not contain any untrue
statements of a material fact or omit a material fact necessary to make the
material statements contained herein or therein not misleading, the
Administrative Agent and the Lenders acknowledging that as to any projections
furnished to the Administrative Agent and the Lenders, the Borrower only
represents that the same were prepared on the basis of information and estimates
the Borrower believed to be reasonable.
Section 6.8. Trademarks,
Franchises, and Licenses.
The
Borrower and its Subsidiaries own, possess, or have the right to use all
necessary patents, licenses, franchises, trademarks, trade names, trade styles,
copyrights, trade secrets, know how, and confidential commercial and proprietary
information to conduct their businesses as now conducted, without known conflict
with any patent, license, franchise, trademark, trade name, trade style,
copyright or other proprietary right of any other Person.
Section 6.9. Governmental
Authority and Licensing.
The
Borrower and its Subsidiaries have received all licenses, permits, and approvals
of all federal, state, and local governmental authorities, if any, necessary
to
conduct their businesses, in each case where the failure to obtain or maintain
the same could reasonably be expected to have a Material Adverse Effect.
No
investigation or proceeding which, if adversely determined, could reasonably
be
expected to result in revocation or denial of any material license, permit
or
approval is pending or, to the Knowledge of the Borrower,
threatened.
Section 6.10. Good
Title.
The
Borrower and its Subsidiaries have good and defensible title to (or valid
leasehold interests in ) their assets as reflected on the most recent
consolidated balance sheet of the Borrower and its Subsidiaries furnished
to the
Administrative Agent and the Lenders (except for assets sold in the ordinary
course of business or pursuant to Dispositions permitted hereunder), subject
to
no Liens other than such thereof as are permitted by Section 8.8
hereof.
Section 6.11. Litigation
and Other Controversies.
There is
no litigation or governmental or arbitration proceeding or labor controversy
pending, nor to the Knowledge of the Borrower threatened, against the Borrower
or any Subsidiary which individually or in the aggregate, could reasonably
be
expected to have a Material Adverse Effect.
Section 6.12. Taxes.
All
income and other material tax returns required to be filed by the Borrower
or
any Subsidiary in any jurisdiction have, in fact, been filed, and all material
taxes, assessments, fees, and other governmental charges upon the Borrower
or
any Subsidiary or upon any of its Property, income or franchises, which are
shown to be due and payable in such returns, have been paid, except such
taxes,
assessments, fees and governmental charges, if any, as are being contested
in
good faith and by appropriate proceedings which prevent enforcement of the
matter under contest and as to which adequate reserves established in accordance
with GAAP have been provided. The Borrower does not know of any proposed
additional tax assessment against it or its Subsidiaries for which adequate
provisions in accordance with GAAP have not been made on their accounts.
Adequate provisions in accordance with GAAP for taxes on the books of the
Borrower and each Subsidiary have been made for all open years, and for its
current fiscal period.
Section 6.13. Approvals.
No
authorization, consent, license or exemption from, or filing or registration
with, any court or governmental department, agency or instrumentality, nor
any
approval or consent of any other Person, is or will be necessary to the valid
execution, delivery or performance by the Borrower or any Subsidiary of any
Loan
Document, except for such approvals which have been obtained prior to the
date
of this Agreement and remain in full force and effect.
Section 6.14. Affiliate
Transactions.
Neither
the Borrower nor any Subsidiary is a party to any contracts or agreements
with
any of its Affiliates (other than with Wholly-owned Subsidiaries) on terms
and
conditions which are less favorable to the Borrower or such Subsidiary than
would be usual and customary in similar contracts or agreements between Persons
not affiliated with each other.
Section 6.15. Investment
Company.
Neither
the Borrower nor any Subsidiary is an “investment company” or a company
“controlled” by an “investment company” within the meaning of the Investment
Company Act of 1940, as amended.
Section 6.16. ERISA.
The
Borrower and each other member of its Controlled Group has fulfilled its
obligations under the minimum funding standards of and is in compliance in
all
material respects with ERISA and the Code to the extent applicable to it
and has
not incurred any liability to the PBGC or a Plan under Title IV of ERISA
other than a liability to the PBGC for premiums under Section 4007 of
ERISA. Neither the Borrower nor any Subsidiary has any contingent liabilities
with respect to any post-retirement benefits under a Welfare Plan, other
than
liability for continuation coverage described in article 6 of Title I
of ERISA.
Section 6.17. Compliance
with Laws.
(a) The Borrower and its Subsidiaries are in compliance with the
requirements of all federal, state and local laws, rules and regulations
applicable to or pertaining to their Property or business operations (including,
without limitation, the Occupational Safety and Health Act of 1970, the
Americans with Disabilities Act of 1990, and laws and regulations establishing
quality criteria and standards for air, water, land and toxic or hazardous
wastes and substances), where any non-compliance with any such requirements,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(b) Without
limiting the representations and warranties set forth in Section 6.17(a)
above, except for such matters, individually or in the aggregate, which could
not reasonably be expected to result in a Material Adverse Effect, the Borrower
represents and warrants that: (i) the Borrower and its Subsidiaries, and
each of the Premises, comply in all material respects with all applicable
Environmental Laws; (ii) the Borrower and its Subsidiaries have obtained
all governmental approvals required for their operations and each of the
Premises by any applicable Environmental Law; (iii) the Borrower and its
Subsidiaries have not, and the Borrower has no Knowledge of any other Person
who
has, caused any Release, threatened Release or disposal of any Hazardous
Material at, on, about, or off any of the Premises in any material quantity
and,
to the Knowledge of the Borrower, none of the Premises are adversely affected
by
any Release, threatened Release or disposal of a Hazardous Material originating
or emanating from any other property; (iv) none of the Premises contain and
have contained any: (1) underground storage tank, (2) material amounts
of asbestos containing building material, (3) landfills or dumps,
(4) hazardous waste management facility as defined pursuant to RCRA or any
comparable state law, or (5) site on or nominated for the National Priority
List promulgated pursuant to CERCLA or any state remedial priority list
promulgated or published pursuant to any comparable state law; (v) the
Borrower and its Subsidiaries have not used a material quantity of any Hazardous
Material and have conducted no Hazardous Material Activity at any of the
Premises; (vi) the Borrower and its Subsidiaries have no material liability
for response or corrective action, natural resource damage or other harm
pursuant to CERCLA, RCRA or any comparable state law; (vii) the Borrower
and its Subsidiaries are not subject to, have no notice or Knowledge of and
are
not required to give any notice of any Environmental Claim involving the
Borrower or any Subsidiary or any of the Premises, and there are no conditions
or occurrences at any of the Premises which could reasonably be anticipated
to
form the basis for an Environmental Claim against the Borrower or any Subsidiary
or such Premises; (viii) none of the Premises are subject to any, and the
Borrower has no Knowledge of any imminent, restriction on the ownership,
occupancy, use or transferability of the Premises in connection with any
(1) Environmental Law or (2) Release, threatened Release or disposal
of a Hazardous Material; and (ix) there are no conditions or circumstances
at any of the Premises which pose an unreasonable risk to the environment
or the
health or safety of Persons.
Section 6.18. Other
Agreements.
Neither
the Borrower nor any Subsidiary is in default under the terms of any covenant,
indenture or agreement of or affecting such Person or any of its Property,
which
default if uncured could reasonably be expected to have a Material Adverse
Effect.
Section
6.19. Solvency.
The
Borrower and its Subsidiaries are solvent, able to pay their debts as they
become due, and have sufficient capital to carry on their business and all
businesses in which they are about to engage.
Section 6.20. No
Default.
No
Default or Event of Default has occurred and is continuing.
Section 6.21. Subordinated
Indebtedness.
The
subordination provisions of the Subordinated Note Documents and each of the
Subordinated Notes are enforceable against the Subordinated Noteholders and
the
Obligations constitute “Senior Debt” (or an appropriate equivalent term) under
and as defined in the Subordinated Note Documents and each of the Subordinated
Notes.
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Section 7.
|
Conditions
Precedent.
|
The
obligation of each Lender to advance, continue or convert any Loan (other
than
the continuation of, or conversion into, a Base Rate Loan) or of the L/C
Issuer
to issue, extend the expiration date (including by not giving notice of
non-renewal) of or increase the amount of any Letter of Credit under this
Agreement, shall be subject to the following conditions precedent:
Section 7.1. All
Credit
Events.
At the
time of each Credit Event hereunder:
(a) each
of
the representations and warranties set forth herein and in the other Loan
Documents shall be and remain true and correct as of said time, except to
the
extent the same expressly relate to an earlier date;
(b) the
Borrower
and each Subsidiary shall be in compliance in all material respects with
all of
the terms and conditions hereof and of the other Loan Documents, and no Default
or Event of Default shall have occurred and be continuing or would occur
as a
result of such Credit Event; and
(c) in
the
case of a Borrowing the Administrative Agent shall have received the notice
required by Section 1.5 hereof, in the case of the issuance of any Letter
of Credit, the L/C Issuer shall have received a duly completed Application
for such Letter of Credit together with any fees called for by Section 2.1
hereof, and, in the case of an extension or increase in the amount of a Letter
of Credit, a written request therefor in a form reasonably acceptable to
the
L/C Issuer together with fees called for by Section 2.1
hereof.
Each
request for a Borrowing hereunder and each request for the issuance of, increase
in the amount of, or extension of the expiration date of, a Letter of Credit
shall be deemed to be a representation and warranty by the Borrower on the
date
on such Credit Event as to the facts specified in subsections (a) through
(c), both inclusive, of this Section.
Section
7.2. Initial
Credit Event.
Before
or concurrently with the initial Credit Event:
(a) the
Administrative Agent shall have received (i) for each Lender this Agreement
duly
executed by the Borrower, Guarantors, and the Lenders and (ii) for each Lender
that has requested a Note, such Lender’s duly executed Note;
(b) the
Administrative Agent shall have received for each Lender copies of the
Borrower’s and each Guarantor’s articles of incorporation and bylaws (or
comparable organizational documents) and any amendments thereto, certified
in
each instance by its Secretary or Assistant Secretary;
(c) the
Administrative Agent shall have received for each Lender copies of resolutions
of the Borrower’s and each Guarantor’s Board of Directors (or similar governing
body) authorizing the execution, delivery and performance of this Agreement
and
the other Loan Documents to which it is a party and the consummation of the
transactions contemplated hereby and thereby, together with specimen signatures
of the persons authorized to execute such documents on the Borrower’s and each
Guarantor’s behalf, all certified in each instance by its Secretary or Assistant
Secretary;
(d) the
Administrative Agent shall have received for each Lender copies of the
certificates of good standing for the Borrower and each Guarantor (dated
no
earlier than 20 days prior to the date hereof) from the office of the secretary
of the state of its incorporation or organization and of each state in which
it
is qualified to do business as a foreign corporation or
organization;
(e) the
Administrative Agent shall have received for each Lender a list of the
Borrower’s Authorized Representatives;
(f) the
Administrative Agent shall have received for itself and for the Lenders the
initial fees called for by Section 2.1 hereof;
(g) the
Administrative Agent shall have received pay-off and lien release letters
from
secured creditors of the Borrower and each Subsidiary that is not a Foreign
Subsidiary (other than any secured creditors that hold indebtedness permitted
under Section 8.7) setting forth, among other things, the total amount of
indebtedness outstanding and owing to them (or outstanding letters of credit
issued for the account of the Borrower or any Subsidiary) and containing
an
undertaking to cause to be delivered to the Administrative Agent UCC termination
statements and any other lien release instruments necessary to release their
Liens on the assets of the Borrower and each such Subsidiary, which pay-off
and
lien release letters shall be in form and substance reasonably acceptable
to the
Administrative Agent;
(h) the
Administrative Agent shall have received for each Lender the favorable written
opinion of counsel to the Borrower and each Guarantor, in form and substance
reasonably satisfactory to the Administrative Agent; and
(i) the
Administrative Agent shall have received for the account of the Lenders such
other agreements, instruments, documents, certificates, and opinions as the
Administrative Agent may reasonably request.
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Section 8.
|
Covenants.
|
The
Borrower agrees that, so long as any credit is available to or in use by
the
Borrower hereunder, except to the extent compliance in any case or cases
is
waived in writing pursuant to the terms of Section 13.13
hereof:
Section 8.1. Maintenance
of Business.
The
Borrower shall, and shall cause each Subsidiary to, preserve and maintain
its
existence, except as otherwise provided in Section 8.10(e) hereof. The
Borrower shall, and shall cause each Subsidiary to, preserve and keep in
force
and effect all licenses, permits, franchises, approvals, patents, trademarks,
trade names, trade styles, copyrights, and other proprietary rights necessary
to
the proper conduct of its business where the failure to do so could reasonably
be expected to have a Material Adverse Effect.
Section 8.2. Maintenance
of Properties.
The
Borrower shall, and shall cause each Subsidiary to, maintain, preserve, and
keep
its material property, plant, and equipment in good repair, working order
and
condition (ordinary wear and tear excepted), and shall from time to time
make
all needful and proper repairs, renewals, replacements, additions, and
betterments thereto so that at all times the efficiency thereof shall be
fully
preserved and maintained, except to the extent that, in the reasonable business
judgment of such Person, any such Property is no longer necessary for the
proper
conduct of the business of such Person.
Section 8.3. Taxes
and
Assessments.
The
Borrower shall duly pay and discharge, and shall cause each Subsidiary to
duly
pay and discharge, all taxes, rates, assessments, fees, and governmental
charges
upon or against it or its Property, in each case before the same become
delinquent and before penalties accrue thereon, unless and to the extent
that
the same (i) could not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect or (ii) are being contested in good faith
and
by appropriate proceedings which prevent enforcement of the matter under
contest
and adequate reserves are provided therefor.
Section 8.4. Insurance.
The
Borrower shall insure and keep insured, and shall cause each Subsidiary to
insure and keep insured, with good and responsible insurance companies, all
insurable Property owned by it which is of a character usually insured by
Persons similarly situated and operating like Properties against loss or
damage
from such hazards and risks, and in such amounts, as are insured by Persons
similarly situated and operating like Properties; and the Borrower shall
insure,
and shall cause each Subsidiary to insure, such other hazards and risks
(including, without limitation, employers’ and public liability risks) with good
and responsible insurance companies as and to the extent usually insured
by
Persons similarly situated and conducting similar businesses. The Borrower
shall, upon the request of the Administrative Agent, furnish to the
Administrative Agent and the Lenders a certificate setting forth in summary
form
the nature and extent of the insurance maintained pursuant to this
Section.
Section 8.5. Financial
Reports.
The
Borrower shall, and shall cause each Subsidiary to, maintain a standard system
of accounting in accordance with GAAP and shall furnish to the Administrative
Agent, each Lender and each of their duly authorized representatives such
information respecting the business and financial condition of the Borrower
and
each Subsidiary as the Administrative Agent or such Lender may reasonably
request; and without any request, shall furnish to the Administrative Agent
and
the Lenders:
(a) as
soon
as available, and in any event within 45 days after the close of each of
the first three fiscal quarters of each fiscal year of the Borrower, a copy
of
the consolidated balance sheet of the Borrower and its Subsidiaries as of
the
last day of such fiscal quarter and the consolidated statements of income,
retained earnings, and cash flows of the Borrower and its Subsidiaries for
the
fiscal quarter and for the fiscal year-to-date period then ended, each in
reasonable detail showing in comparative form the figures for the corresponding
date and period in the previous fiscal year, prepared by the Borrower in
accordance with GAAP (subject to the absence of footnote disclosures and
year-end audit adjustments) and certified to by its chief financial officer
or
another officer of the Borrower reasonably acceptable to the Administrative
Agent;
(b) as
soon as
available, and in any event within 90 days after the close of each fiscal
year of the Borrower, a copy of the consolidated balance sheet of the Borrower
and its Subsidiaries as of the last day of the fiscal year then ended and
the
consolidated statements of income, retained earnings, and cash flows of the
Borrower and its Subsidiaries for the fiscal year then ended, and accompanying
notes thereto, each in reasonable detail showing in comparative form the
figures
for the previous fiscal year, accompanied in the case of the consolidated
financial statements by an unqualified opinion of Xxxxx Xxxxxxxx LLP or another
firm of independent public accountants of recognized national standing, selected
by the Borrower and reasonably satisfactory to the Administrative Agent,
to the
effect that the consolidated financial statements have been prepared in
accordance with GAAP and present fairly in accordance with GAAP the consolidated
financial condition of the Borrower and its Subsidiaries as of the close
of such
fiscal year and the results of their operations and cash flows for the fiscal
year then ended and that an examination of such accounts in connection with
such
financial statements has been made in accordance with generally accepted
auditing standards and, accordingly, such examination included such tests
of the
accounting records and such other auditing procedures as were considered
necessary in the circumstances; provided
that
such opinion may be limited in form, scope and substance to the extent required
by applicable accounting rules or guidelines as in effect from time to
time.
(c) within
the
period provided in subsection (b) above, the written statement of the
accountants who certified the audit report thereby required that in the course
of their audit they have obtained no knowledge of any Default or Event of
Default, or, if such accountants have obtained knowledge of any such Default
or
Event of Default, they shall disclose in such statement the nature and period
of
the existence thereof; provided
that
such written statement may be limited in form, scope and substance to the
extent
required by applicable accounting rules or guidelines as in effect from time
to
time;
(d) promptly
after receipt thereof, any additional final written reports, management letters
or other detailed information contained in writing concerning significant
aspects of the Borrower’s or any Subsidiary’s operations and financial affairs
given to it by its independent public accountants;
(e) promptly
after the sending or filing thereof, copies of each financial statement,
report,
notice or proxy statement sent by the Borrower or any Subsidiary to its
stockholders or other equity holders, and copies of each regular, periodic
or
special report, registration statement or prospectus (including all Form
10-K,
Form 10-Q and Form 8-K reports) filed by the Borrower or any Subsidiary with
any
securities exchange or the Securities and Exchange Commission or any successor
agency;
(f) promptly
after receipt thereof, a copy of each final audit made by any regulatory
agency
of the books and records of the Borrower or any Subsidiary or of notice of
any
material noncompliance with any applicable law, regulation or guideline relating
to the Borrower or any Subsidiary, or its business;
(g) as
soon as
available, and in any event within 60 days after the beginning of each
fiscal year of the Borrower, a copy of the Borrower’s consolidated business plan
for such fiscal year, such business plan to show the Borrower’s projected
consolidated revenues, expenses and balance sheet on a
quarter-by-quarter/month-by-month basis, such business plan to be in reasonable
detail prepared by the Borrower and in form reasonably satisfactory to the
Administrative Agent (which shall include a summary of all assumptions made
in
preparing such business plan);
(h) notice
of
any Change in Control;
(i) promptly
after Knowledge thereof shall have come to the attention of any Authorized
Officer of the Borrower, written notice of any threatened or pending litigation
or governmental or arbitration proceeding or labor controversy against the
Borrower or any Subsidiary which, if adversely determined, could reasonably
be
expected to have a Material Adverse Effect or of the occurrence of any Default
or Event of Default hereunder; and
(j) with
each of
the financial statements furnished to the Lenders pursuant to
subsections (a) and (b) above, a written certificate in the form attached
hereto as Exhibit F signed by the chief financial officer of the Borrower
or another officer of the Borrower reasonably acceptable to the Administrative
Agent to the effect that to the best of such officer’s Knowledge and belief no
Default or Event of Default has occurred during the period covered by such
statements or, if any such Default or Event of Default has occurred during
such
period, setting forth a description of such Default or Event of Default and
specifying the action, if any, taken by the Borrower or any Subsidiary to
remedy
the same. Such certificate shall also set forth the calculations supporting
such
statements in respect of Sections 8.22 and 8.23 hereof.
Section 8.6. Inspection.
The
Borrower shall, and shall cause each Subsidiary to, permit the Administrative
Agent, each Lender, and each of their duly authorized representatives and
agents
to visit and inspect any of its Property, corporate books, and financial
records, to examine and make copies of its books of accounts and other financial
records, and to discuss its affairs, finances, and accounts with, and to
be
advised as to the same by, its officers, employees and independent public
accountants (and by this provision the Borrower hereby authorizes such
accountants to discuss with the Administrative Agent and such Lenders the
finances and affairs of the Borrower and its Subsidiaries) at such reasonable
times and intervals as the Administrative Agent or any such Lender may designate
and, prior to the occurrence and during the continuance of an Event of Default,
in the presence of a designated representative of the Borrower or such
Subsidiary if requested by the Borrower or such Subsidiary and at the expense
of
the Administrative Agent or the Lenders, as applicable.
Section 8.7. Borrowings
and Guaranties. The
Borrower shall not, nor shall it permit any Subsidiary to, issue, incur,
assume,
create or have outstanding any Indebtedness for Borrowed Money, or be or
become
liable as endorser, guarantor, surety or otherwise for any debt, obligation
or
undertaking of any other Person, or otherwise agree to provide funds for
payment
of the obligations of another, or otherwise assure a creditor of another
against
loss, or apply for or become liable to the issuer of a letter of credit which
supports an obligation of another, or subordinate any claim or demand it
may
have to the claim or demand of any other Person if to do so would, in any
case,
cause the Borrower to violate the financial covenants set forth in Sections
8.22
or 8.23; in addition:
(a) purchase
money indebtedness and Capitalized Lease Obligations of the Borrower and
its
Subsidiaries shall not exceed in the aggregate outstanding at any time 10%
of
the book value of the assets of the Borrower and its Subsidiaries as shown
on
the Borrower’s balance sheet as of the end of the immediately preceding fiscal
year;
(b) indebtedness
from time to time owing by the Foreign Subsidiaries, taken as a whole, to
the
Borrower or any Guarantor shall not exceed in aggregate principal amount
at any
time outstanding 10% of the book value of the assets of the Borrower and
its
Subsidiaries as shown on the Borrower’s balance sheet as of the end of the
immediately preceding fiscal year; and
(c) Securitization
Attributed Indebtedness shall not exceed $25,000,000 in aggregate principal
amount outstanding at any time;
provided,
however, that
the
foregoing limitations shall not apply to or operate to prevent the incurrence
of
the indebtedness described in Schedule 8.7 hereto (including amounts available
to be drawn under the facilities described on such Schedule), and any
extensions, renewal, refunding or replacement of such indebtedness; provided
that
any
such extension, renewal, refunding or replacement is in an aggregate principal
amount not greater than the principal amount of such indebtedness so extended,
renewed, refunded or replaced.
Section 8.8. Liens.
The
Borrower shall not, nor shall it permit any Subsidiary to, create, incur
or
permit to exist any Lien of any kind on any Property owned by any such Person;
provided,
however,
that the
foregoing shall not apply to nor operate to prevent:
(a) Liens
arising by statute in connection with worker’s compensation, unemployment
insurance, old age benefits, social security obligations, taxes, assessments,
statutory obligations or other similar charges (other than material Liens
arising under ERISA), good faith cash deposits in connection with tenders,
contracts or leases to which the Borrower or any Subsidiary is a party or
other
cash deposits required to be made in the ordinary course of business, provided
in each case that the obligation is not for borrowed money and adequate reserves
have been established therefor;
(b) mechanics’,
workmen’s, materialmen’s, landlords’, carriers’ or other similar Liens arising
in the ordinary course of business with respect to obligations which are
not
overdue for longer than 60 days or which are being contested in good faith
by appropriate proceedings which prevent enforcement of the matter under
contest;
(c) judgment
liens and judicial attachment liens not constituting an Event of Default
under
Section 9.1(g) hereof and the pledge of assets for the purpose of securing
an appeal, stay or discharge in the course of any legal proceeding, provided
that the aggregate amount of such judgment liens and attachments and liabilities
of the Borrower and its Subsidiaries secured by a pledge of assets permitted
under this subsection, including interest and penalties thereon, if any,
shall
not be in excess of $10,000,000 at any one time outstanding;
(d) Liens
on
Property of the Borrower or any Subsidiary created solely for the purpose
of
securing indebtedness permitted by Section 8.7(a) hereof, representing or
incurred to finance the purchase price of Property, provided
that no
such Lien shall extend to or cover other Property of the Borrower or such
Subsidiary other than the respective Property so acquired, and the principal
amount of indebtedness secured by any such Lien shall at no time exceed the
purchase price of such Property, as reduced by repayments of principal
thereon;
(e) any
interest or title of a lessor under any operating lease;
(f) easements,
rights-of-way, restrictions, licenses and covenants and other similar
encumbrances against real property which, in the aggregate, are not substantial
in amount and which do not materially detract from the value of the Property
subject thereto or materially interfere with the ordinary conduct of the
business of the Borrower or any Subsidiary;
(g) Liens
described in Schedule 8.8 hereto and extensions, renewals, refunding and
replacements thereof; provided
that
any
such extension, renewal, refunding or replacement Lien shall be limited to
the
Property covered by the Lien extended, renewed, refunded or replaced and
that
the obligations secured by any such extension, renewal, refunding or replacement
shall be in amount not greater than the amount of the obligations then secured
by the Lien extended, renewed, refunded or replaced;
(h) any
Lien
in connection with a Permitted Acquisition on or affecting any Property (other
than capital stock) acquired by the Borrower or a Subsidiary or Property
(other
than capital stock) of any acquired Subsidiary after the date of this Agreement;
provided
that (i)
such Lien is created prior to the date on which such Person becomes a Subsidiary
or such Property is acquired by the Borrower or such Subsidiary, (ii) the
Lien
was not created in contemplation of the Acquisition, and (iii) such Lien
secures
Indebtedness permitted hereunder and the principal amount thereof has not
increased in contemplation of or since such Acquisition;
(i) Liens
representing the interest of any transferee of the Borrower’s or its
Subsidiaries’ accounts receivable and related rights in connection with a
Permitted Securitization; and
(j) Liens
not
otherwise permitted under this Section 8.8 on Property (other than (i)
shares of stock in any Subsidiary and (ii) receivables, inventory and similar
working capital assets) securing Indebtedness for Borrowed Money that is
in an
aggregate principal amount at any time not exceeding 10% of the book value
of
the assets of the Borrower and its Subsidiaries as shown on the Borrower’s
balance sheet as of the end of the immediately preceding fiscal
year.
Section 8.9. Investments,
Acquisitions, Loans and Advances.
The
Borrower shall not, nor shall it permit any Subsidiary to, directly or
indirectly, make, retain or have outstanding any investments (whether through
purchase of stock or obligations or otherwise) in, or loans or advances to,
any
other Person, or acquire all or any substantial part of the assets or business
of any other Person or division thereof; provided,
however,
that the
foregoing limitation shall not apply to nor operate to prevent:
(a) investments
in direct obligations of the United States of America or of any agency or
instrumentality thereof whose obligations constitute full faith and credit
obligations of the United States of America, provided that any such obligations
shall mature within one year of the date of issuance thereof;
(b) investments
in commercial paper rated at least P-2 by Xxxxx’x and at least A-2 by S&P
maturing within one year of the date of issuance thereof;
(c) investments
in certificates of deposit issued by any Lender or by any United States
commercial bank having capital and surplus of not less than $100,000,000
which
have a maturity of one year or less;
(d) investments
in repurchase obligations with a term of not more than 7 days for
underlying securities of the types described in subsection (a) above
entered into with any bank meeting the qualifications specified in
subsection (c) above, provided all such agreements require physical
delivery of the securities securing such repurchase agreement, except those
delivered through the Federal Reserve Book Entry System;
(e) investments
in money market funds that are rated “AA” or higher by S&P;
(f) each
of the
Borrower’s and its Subsidiaries’ investments existing on the date of this
Agreement in its respective Subsidiaries;
(g) intercompany
advances made from time to time by the Borrower and/or any Guarantor to any
one
or more Guarantors or by a Guarantor to the Borrower, in each case in the
ordinary course of business to finance working capital needs;
(h) intercompany
advances from time to time by a Foreign Subsidiary to the Borrower or one
or
more Subsidiaries, in each case in the ordinary course of business to finance
working capital needs;
(i) intercompany
advances from time to time by the Borrower or any Guarantor to any one or
more
Foreign Subsidiaries not to exceed 10% of the book value of the assets of
the
Borrower and its Subsidiaries as shown on the Borrower’s balance sheet as of the
end of the immediately preceding fiscal year in aggregate principal amount
outstanding for all such advances at any one time, in each case in the ordinary
course of business to finance working capital needs;
(j) Permitted
Acquisitions;
(k) investments
described in Schedule 8.9 hereto;
(l) investments
in stock, obligations or securities received in settlement of debts (created
in
the ordinary course of business) owing to the Borrower or any
Subsidiary;
(m) investments
in preferred stock or corporate bonds of domestic corporations all of whose
senior debt bears a rating of at least “A” by S&P or Xxxxx’x;
(n) investments
in securities received as consideration in a sale of Property permitted by
Section 8.10;
(o) investments
in the form of advances to employees in the ordinary course of business for
moving, relocation and travel expenses and other loans to employees for any
lawful purpose not to exceed $3,000,000 in the aggregate at any one time
outstanding;
(p) investments
in Subsidiaries in connection with transactions permitted under
Section 8.10(c);
(q) investments
in CTS Electronics Xxxxx Xxxx, Ltd., a Peoples’ Republic of China company, in an
aggregate amount not to exceed $10,000,000;
(r) with
respect
to any Foreign Subsidiary, investments in (i) certificates of deposits, time
deposits and interest bearing demand deposits issued by any Lender or any
commercial bank of recognized standing chartered in the country where such
Foreign Subsidiary is domiciled having capital and surplus of not less than
$100,000,000 (or its equivalent) which have a maturity of one year or less
and
(ii) direct obligations of the national government of the country where such
Foreign Subsidiary is chartered provided
that such
sovereign debt has either a (A) short-term sovereign currency rating of A-1
or
higher by S&P or (B) long-term debt rating of AA or higher by S&P, in an
amount not to exceed $50,000,000 in the aggregate at any one time outstanding
with respect to this clause (B);
(s) investment
of any acquired Subsidiary,
provided that
the
investments are made prior to the date on which such Person becomes a Subsidiary
and such investments were not made in contemplation of the Acquisition;
and
(t) other
investments, loans, and advances in addition to those otherwise permitted
by
this Section in an amount not to exceed 10% of the book value of the assets
of
the Borrower and its Subsidiaries as shown on the Borrower’s balance sheet as of
the end of the immediately preceding fiscal year in the aggregate at any
one
time outstanding.
In
determining the amount of investments, acquisitions, loans, and advances
permitted under this Section, investments and acquisitions shall always be
taken
at the original cost thereof (regardless of any subsequent appreciation or
depreciation therein), and loans and advances shall be taken at the principal
amount thereof then remaining unpaid.
Section 8.10. Mergers,
Consolidations and Sales.
The
Borrower shall not, nor shall it permit any Subsidiary to, be a party to
any
merger or consolidation, or sell, transfer, lease or otherwise dispose of
all or
any part of its Property, including any disposition of Property as part of
a
sale and leaseback transaction, or in any event sell or discount (with or
without recourse) any of its notes or sell accounts receivable; provided,
however,
that
this Section shall not apply to nor operate to prevent:
(a) the
sale or
lease of inventory in the ordinary course of business;
(b) the
sale,
transfer, lease or other disposition of Property of the Borrower and the
Guarantors to one another in the ordinary course of its business;
(c) the
sale,
transfer, lease or other disposition of Property of a Foreign Subsidiary
to the
Borrower or any Subsidiary;
(d) the
sale,
transfer, lease or other disposition of Property of the Borrower and the
Guarantors to any one or more Foreign Subsidiaries not to exceed 10% of the
book
value of the Borrower and its Subsidiaries assets as shown on the Borrower’s
balance sheet as of the end of the immediately preceding fiscal year in the
aggregate for all such transactions from the Closing Date, in each in the
ordinary course of business;
(e) the
merger of any Subsidiary with and into, the dissolution of any Subsidiary
liquidating into, or the transfer of the capital stock or other equity interest
of any Subsidiary to the Borrower or any other Subsidiary, provided
that, in
the case of any merger involving the Borrower, the Borrower is the corporation
surviving the merger provided
further
that any
merger involving a Guarantor, but not the Borrower, a Guarantor is the
corporation surviving the merger;
(f) the
sale
or discount of delinquent notes or the sale of accounts receivable in the
ordinary course of business for purposes of collection only (and not for
the
purpose of any bulk sale or securitization transaction (other than a Permitted
Securitization));
(g) the
sale,
transfer or other disposition of any tangible personal property that, in
the
reasonable business judgment of the Borrower or its Subsidiary, has become
obsolete or worn out, and which is disposed of in the ordinary course of
business;
(h) the
sale,
transfer or other disposition of Property of the Borrower which is classified
as
“held for sale” on the Borrower’s balance sheet;
(i) the
sale,
transfer or other disposition of the Borrower’s facilities located in Berne,
Indiana and in Albuquerque, New Mexico;
(j) the
sale
of investments permitted pursuant to Section 8.9(a) through (e), (l), (m)
and (n); and
(k) the
sale,
transfer, lease or other disposition of Property of the Borrower or any
Subsidiary (including any disposition of Property as part of a sale and
leaseback transaction) aggregating for the Borrower and its Subsidiaries
during
any fiscal year of the Borrower of an amount not more than 10% of the fair
market value of the assets of the Borrower and its Subsidiaries as shown
on the
Borrower’s balance sheet as of the end of the immediately preceding fiscal
year.
Section 8.11. Maintenance
of Subsidiaries.
The
Borrower shall not assign, sell or transfer, nor shall it permit any Subsidiary
to issue, assign, sell or transfer, any shares of capital stock or other
equity
interests of a Subsidiary; provided,
however,
that the
foregoing shall not operate to prevent (a) the issuance, sale, and transfer
to any person of any shares of capital stock of a Subsidiary solely for the
purpose of qualifying, and to the extent legally necessary to qualify, such
person as a director of such Subsidiary, and (b) any transaction permitted
by Section 8.10(e) or (k) above.
Section 8.12. Dividends
and Certain Other Restricted Payments.
The
Borrower shall not, nor shall it permit any Subsidiary to, (a) declare or
pay any dividends on or make any other distributions in respect of any class
or
series of its capital stock or other equity interests or (b) directly or
indirectly purchase, redeem, or otherwise acquire or retire any of its capital
stock or other equity interests or any warrants, options, or similar instruments
to acquire the same; provided,
however,
that the
foregoing shall not operate to prevent (I) the making of dividends or
distributions (i) by any Subsidiary of the Borrower or its Subsidiaries to
its parent corporation and (ii) so long as no Default or Event of Default
under Section 8.23 exists prior to or would result on a pro
forma
basis
after giving effect to such action, by the Borrower, (II) any distribution
or
redemption under the Borrower’s Shareholder Rights Plan, and (III) so long as no
Default or Event of Default has occurred and is continuing, the Borrower
may
repurchase shares of its capital stock for an aggregate purchase price not
to
exceed $110,000,000 from the Closing Date.
Section 8.13. ERISA.
The
Borrower shall, and shall cause each Subsidiary to, promptly pay and discharge
all obligations and liabilities arising under ERISA of a character which
if
unpaid or unperformed could reasonably be expected to result in the imposition
of a Lien against any of its Property. The Borrower shall, and shall cause
each
Subsidiary to, promptly notify the Administrative Agent and each Lender of:
(a) the occurrence of any reportable event (as defined in ERISA) with
respect to a Plan, (b) receipt of any notice from the PBGC of its intention
to seek termination of any Plan or appointment of a trustee therefor,
(c) its intention to terminate or withdraw from any Plan, and (d) the
occurrence of any event with respect to any Plan which would result in the
incurrence by the Borrower or any Subsidiary of any material liability, fine
or
penalty, or any material increase in the contingent liability of the Borrower
or
any Subsidiary with respect to any post-retirement Welfare Plan
benefit.
Section 8.14. Compliance
with Laws.
(a) The Borrower shall, and shall cause each Subsidiary to, comply in all
respects with the requirements of all federal, state, and local laws, rules,
regulations, ordinances and orders applicable to or pertaining to its Property
or business operations, where any non-compliance with such requirements,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect or result in a Lien upon any of its Property other
than
a Lien permitted under Section 8.8.
(b) Without
limiting the agreements set forth in Section 8.14(a) above, the Borrower
shall, and shall cause each Subsidiary to, at all times, do the following
to the
extent the failure to do so, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect: (i) comply in all material
respects with, and maintain each of the Premises in compliance in all material
respects with, all applicable Environmental Laws; (ii) require that each
tenant and subtenant, if any, of any of the Premises or any part thereof
comply
in all material respects with all applicable Environmental Laws;
(iii) obtain and maintain in full force and effect all material
governmental approvals required by any applicable Environmental Law for
operations at each of the Premises; (iv) cure any material violation by it
or at any of the Premises of applicable Environmental Laws; (v) not allow
the presence or operation at any of the Premises of any (1) landfill or
dump or (2) hazardous waste management facility or solid waste disposal
facility as defined pursuant to RCRA or any comparable state law; (vi) not
manufacture, use, generate, transport, treat, store, release, dispose or
handle
any Hazardous Material at any of the Premises except in the ordinary course
of
its business and in de
minimis amounts;
(vii) within 10 Business Days notify the Administrative Agent in
writing of and provide any reasonably requested documents upon learning of
any
of the following in connection with the Borrower or any Subsidiary or any
of the
Premises: (1) any material liability for response or corrective action,
natural resource damage or other harm pursuant to CERCLA, RCRA or any comparable
state law; (2) any material Environmental Claim; (3) any material
violation of an Environmental Law or material Release, threatened Release
or
disposal of a Hazardous Material; (4) any restriction on the ownership,
occupancy, use or transferability arising pursuant to any (x) Release,
threatened Release or disposal of a Hazardous Substance or (y) Environmental
Law; or (5) any environmental, natural resource, health or safety
condition, which could reasonably be expected to have a Material Adverse
Effect;
(viii) conduct at its expense any investigation, study, sampling, testing,
abatement, cleanup, removal, remediation or other response action necessary
to
remove, remediate, clean up or xxxxx any material Release, threatened Release
or
disposal of a Hazardous Material as required by any applicable Environmental
Law, (ix) abide by and observe any restrictions on the use of the Premises
imposed by any governmental authority as set forth in a deed or other instrument
affecting the Borrower’s or any Subsidiary’s interest therein; (x) promptly
provide or otherwise make available to the Administrative Agent any reasonably
requested environmental record concerning the Premises which the Borrower
or any
Subsidiary possesses or can reasonably obtain; and (xi) perform, satisfy,
and implement any operation or maintenance actions required by any governmental
authority or Environmental Law, or included in any no further action letter
or
covenant not to xxx issued by any governmental authority under any Environmental
Law.
Section 8.15. Burdensome
Contracts With Affiliates. The
Borrower shall not, nor shall it permit any Subsidiary to, enter into any
contract, agreement or business arrangement with any of its Affiliates on
terms
and conditions which are less favorable to the Borrower or such Subsidiary
than
would be usual and customary in similar contracts, agreements or business
arrangements between Persons not affiliated with each other.
Section 8.16. No
Changes in Fiscal Year.
The
fiscal year of the Borrower and its Subsidiaries ends on December 31 of
each year; and the Borrower shall not, nor shall it permit any Subsidiary
to,
change its fiscal year from its present basis.
Section 8.17. Formation
of
Subsidiaries.
Promptly
upon the formation or acquisition of any Subsidiary, the Borrower shall provide
the Administrative Agent and the Lenders notice thereof and timely comply
with
the requirements of Section 4 hereof (at which time Schedule 6.2 shall
be deemed amended to include reference to such Subsidiary).
Section 8.18. Change
in the
Nature of Business. The
Borrower shall not, nor shall it permit any Subsidiary to, engage in any
business or activity if, as a result, the general nature of the business
of the
Borrower or any Subsidiary would be changed in any material respect from
the
general nature of the business engaged in by it as of the Closing
Date.
Section 8.19. Use
of Loan Proceeds.
The
Borrower shall use the credit extended under this Agreement solely for the
purposes set forth in, or otherwise permitted by, Section 6.4
hereof.
Section 8.20. No
Restrictions.
Except
as provided herein and in the Subordinated Note Documents, the Borrower shall
not, nor shall it permit any Subsidiary to, directly or indirectly create
or
otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of the Borrower or
any
Subsidiary to: (a) pay dividends or make any other distribution on any
Subsidiary’s capital stock or other equity interests owned by the Borrower or
any other Subsidiary, (b) pay any indebtedness owed to the Borrower or any
other Subsidiary, (c) make loans or advances to the Borrower or any other
Subsidiary, (d) transfer any of its Property to the Borrower or any other
Subsidiary or (e) guarantee the Obligations as required by the Loan
Documents.
Section 8.21. Subordinated
Debt.
The
Borrower shall not amend, modify or supplement, or permit any Subsidiary
to
amend, modify or supplement (or consent to any amendment, modification or
supplement of), any document, agreement or instrument evidencing the
Subordinated Notes or any replacements, substitutions or renewals thereof
(including, without limitation, the Subordinated Note Documents) where such
amendment, modification or supplement provides for the following or which
has
any of the following effects:
(i) shortens
or accelerates the date upon which any installment of principal or interest
becomes due or adds any additional mandatory redemption provisions;
(ii) shortens
the
final maturity date of the Subordinated Notes or otherwise accelerates the
amortization schedule with respect to the Subordinated Notes;
(iii) increases
the rate of interest accruing on the Subordinated Notes;
(iv) provides
for
the payment of additional fees or increases existing fees;
(v) amends
or
modifies any financial or negative covenant (or covenant which prohibits
or
restricts the Borrower or a Subsidiary thereof from taking certain actions)
in a
manner which is more onerous or more restrictive in any material respect
to the
Borrower (or any Subsidiary of the Borrower) than the financial or negative
covenants contained herein or in the Subordinated Note Documents as in effect
on
the Closing Date or which is otherwise materially adverse to the Borrower
and/or
the Lenders or, in the case of adding covenants, which places material
additional restrictions on the Borrower (or a Subsidiary of the Borrower)
or
which requires the Borrower or any such Subsidiary to comply with more
restrictive financial ratios or which requires the Borrower to better its
financial performance from that set forth in the existing financial
covenants;
(vii) amends,
modifies or adds any affirmative covenant in a manner which, when taken as
a
whole, is materially adverse to the Borrower and/or the Lenders; or
(viii) amends,
modifies, suspends or supplements the subordination provisions
thereof;
provided,
however, that
nothing in this Section 8.21 shall restrict the put, redemption or
conversion rights set forth in the Subordinated Indenture, or the manner
of
settlement with respect thereto by the Borrower.
Section 8.22. Leverage
Ratio.
As of
the last day of each fiscal quarter of the Borrower, the Borrower shall not
permit the Leverage Ratio to be greater than 3.50 to 1.00.
Section 8.23. Fixed
Charge
Coverage Ratio.
As of
the last day of each fiscal quarter of the Borrower, the Borrower shall maintain
a ratio of (a) Adjusted EBITDA for the four fiscal quarters of the Borrower
then ended to (b) Fixed Charges for the same four fiscal quarters then
ended of not less than 1.25 to 1.00.
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Section 9.
|
Events
of Default and Remedies.
|
Section 9.1. Events
of
Default.
Any one
or more of the following shall constitute an “Event
of Default”
hereunder:
(a) default
in the payment (i) when due of all or any part of the principal of or
(ii) within two (2) Business Days of when due of all or any part of the
interest on any Note or Loan (whether at the stated maturity thereof or at
any
other time provided for in this Agreement) or of any Reimbursement Obligation
or
of any fee or other Obligation payable hereunder or under any other Loan
Document;
(b) default
in
the observance or performance of any covenant set forth in Sections 8.1,
8.7, 8.8, 8.9, 8.10, 8.11, 8.12, 8.21, 8.22 or 8.23 hereof;
(c) default
in the observance or performance of any other provision hereof or of any
other
Loan Document which is not remedied within 30 days after the earlier of
(i) the date on which such failure shall first become known to any
Authorized Officer of the Borrower or (ii) written notice thereof is given
to the Borrower by the Administrative Agent;
(d) any
representation or warranty made herein or in any other Loan Document or in
any
certificate furnished to the Administrative Agent or the Lenders pursuant
hereto
or thereto or in connection with any transaction contemplated hereby or thereby
proves untrue in any material respect as of the date of the issuance or making
or deemed making thereof (except to the extent that the same expressly relate
to
an earlier date);
(e) any
event
occurs or condition exists (other than those described in subsections (a)
through (d) above) which is specified as an event of default under any of
the
other Loan Documents, or any of the Loan Documents shall for any reason not
be
or shall cease to be in full force and effect or is declared to be null and
void, or any Subsidiary takes any action for the purpose of terminating,
repudiating or rescinding any Loan Document executed by it or any of its
obligations thereunder;
(f) (i) default
shall occur
under any Indebtedness for Borrowed Money (other than the Subordinated Notes,
which are addressed in clause (ii) below) issued, assumed or guaranteed by
the
Borrower or any Subsidiary aggregating in excess of $10,000,000, or under
any
indenture, agreement or other instrument under which the same may be issued,
and
such default shall continue for a period of time sufficient to permit the
acceleration of the maturity of any such Indebtedness for Borrowed Money
(whether or not such maturity is in fact accelerated), or any such Indebtedness
for Borrowed Money shall not be paid when due (whether by demand, lapse of
time,
acceleration or otherwise);
(ii) The
Borrower
or any of its Subsidiaries shall fail to make any payment when due (whether
by
scheduled maturity, required prepayment, acceleration, demand or otherwise)
with
respect to the Subordinated Notes or any other amounts owing under or pursuant
to the Subordinated Note Documents; or any breach, default or event of default
shall occur, or any other condition shall exist under any instrument, agreement
or indenture pertaining to the Subordinated Notes (including, without
limitation, an “Event
of Default”
or
“Fundamental
Change”
under
and as defined in the Subordinated Note Documents), if the effect thereof
is to
cause an acceleration, mandatory redemption, a requirement that the Borrower
offer to purchase the Subordinated Notes or other required repurchase of
the
Subordinated Notes, or permit the Subordinated Noteholders to accelerate
the
maturity of the Subordinated Notes or require a redemption or other repurchase
of the Subordinated Notes; or any amounts owing under or pursuant to the
Subordinated Notes or any other Subordinated Note Document shall be otherwise
declared to be due and payable (by acceleration or otherwise) or required
to be
prepaid, redeemed or otherwise repurchased by the Borrower or any of its
Subsidiaries (other than by a regularly scheduled required prepayment) prior
to
the stated maturity thereof; provided
that
the
redemption, purchase or conversion of the Notes by the Borrower under sections
3, 4 or 12 of the Subordinated Indenture shall constitute and of Event of
Default hereunder;
(g) any
judgment
or judgments, writ or writs or warrant or warrants of attachment, or any
similar
process or processes, shall be entered or filed against the Borrower or any
Subsidiary, or against any of its Property, in an aggregate amount in excess
of
$10,000,000 (except to the extent fully covered by insurance pursuant to
which
the insurer has accepted liability therefor in writing), and which remains
undischarged, unvacated, unbonded or unstayed for a period of 30 days;
(h) the
Borrower
or any Subsidiary, or any member of its Controlled Group, shall fail to pay
when
due an amount or amounts aggregating in excess of $10,000,000 which it shall
have become liable to pay to the PBGC or to a Plan under Title IV of ERISA;
or notice of intent to terminate a Plan or Plans having aggregate Unfunded
Vested Liabilities in excess of $10,000,000 (collectively, a “Material
Plan”)
shall
be filed under Title IV of ERISA by the Borrower or any Subsidiary, or any
other member of its Controlled Group, any plan administrator or any combination
of the foregoing; or the PBGC shall institute proceedings under Title IV of
ERISA to terminate or to cause a trustee to be appointed to administer any
Material Plan or a proceeding shall be instituted by a fiduciary of any Material
Plan against the Borrower or any Subsidiary, or any member of its Controlled
Group, to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding
shall not have been dismissed within 30 days thereafter; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated;
(i) any
Change of
Control shall occur;
(j) the
Borrower or any Subsidiary shall (i) have entered involuntarily against it
an order for relief under the United States Bankruptcy Code, as amended,
(ii) not pay, or admit in writing its inability to pay, its debts generally
as they become due, (iii) make an assignment for the benefit of creditors,
(iv) apply for, seek, consent to or acquiesce in, the appointment of a
receiver, custodian, trustee, examiner, liquidator or similar official for
it or
any substantial part of its Property, (v) institute any proceeding seeking
to have entered against it an order for relief under the United States
Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it,
(vi) take any corporate action in furtherance of any matter described in
parts (i) through (v) above, or (vii) fail to contest in good faith
any appointment or proceeding described in Section 9.1(k) hereof;
or
(k) a
custodian,
receiver, trustee, examiner, liquidator or similar official shall be appointed
for the Borrower or any Subsidiary, or any substantial part of any of its
Property, or a proceeding described in Section 9.1(j)(v) shall be
instituted against the Borrower or any Subsidiary, and such appointment
continues undischarged or such proceeding continues undismissed or unstayed
for
a period of 60 days.
Section 9.2. Non-Bankruptcy
Defaults.
When any
Event of Default other than those described in subsection (j) (other than
clause (ii) thereof) or (k) of Section 9.1 hereof has occurred and is
continuing, the Administrative Agent shall, by written notice to the Borrower:
(a) if so directed by the Required Lenders, terminate the remaining
Revolving Credit Commitments on the date stated in such notice (which may
be the
date thereof); (b) if so directed by the Required Lenders, declare the
principal of and the accrued interest on all outstanding Loans to be forthwith
due and payable and thereupon all outstanding Loans, including both principal
and interest thereon, shall be and become immediately due and payable together
with all other amounts payable under the Loan Documents without further demand,
presentment, protest or notice of any kind; and (c) if so directed by the
Required Lenders, demand that the Borrower immediately pay to the Administrative
Agent the full amount then available for drawing under each or any Letter
of
Credit, and the Borrower agrees to immediately make such payment and
acknowledges and agrees that the Lenders would not have an adequate remedy
at
law for failure by the Borrower to honor any such demand and that the
Administrative Agent, for the benefit of the Lenders, shall have the right
to
require the Borrower to specifically perform such undertaking whether or
not any
drawings or other demands for payment have been made under any Letter of
Credit.
The Administrative Agent, after giving notice to the Borrower pursuant to
Section 9.1(c) or this Section 9.2, shall also promptly send a copy of
such notice to the other Lenders, but the failure to do so shall not impair
or
annul the effect of such notice.
Section 9.3. Bankruptcy
Defaults.
When
any Event of Default described in subsections (j) (other than clause (ii)
thereof) or (k) of Section 9.1 hereof has occurred and is continuing, then
all outstanding Loans shall immediately become due and payable together with
all
other amounts payable under the Loan Documents without presentment, demand,
protest or notice of any kind, the obligation of the Lenders to extend further
credit pursuant to any of the terms hereof shall immediately terminate and
the
Borrower shall immediately pay to the Administrative Agent the full amount
then
available for drawing under all outstanding Letters of Credit, the Borrower
acknowledging and agreeing that the Lenders would not have an adequate remedy
at
law for failure by the Borrower to honor any such demand and that the Lenders,
and the Administrative Agent on their behalf, shall have the right to require
the Borrower to specifically perform such undertaking whether or not any
draws
or other demands for payment have been made under any of the Letters of
Credit.
Section 9.4. Collateral
for Undrawn Letters of Credit.
(a) If the prepayment of the amount available for drawing under any or all
outstanding Letters of Credit is required under Section 1.8(b) or under
Section 9.2 or 9.3 above, the Borrower shall forthwith pay the amount
required to be so prepaid, to be held by the Administrative Agent as provided
in
subsection (b) below.
(b) All
amounts prepaid pursuant to subsection (a) above shall be held by the
Administrative Agent in one or more separate collateral accounts (each such
account, and the credit balances, properties, and any investments from time
to
time held therein, and any substitutions for such account, any certificate
of
deposit or other instrument evidencing any of the foregoing and all proceeds
of
and earnings on any of the foregoing being collectively called the “Collateral
Account”)
as
security for, and for application by the Administrative Agent (to the extent
available) to, the reimbursement of any payment under any Letter of Credit
then
or thereafter made by the Administrative Agent, and to the payment of the
unpaid
balance of any other Obligations. The Collateral Account shall be held in
the
name of and subject to the exclusive dominion and control of the Administrative
Agent for the benefit of the Administrative Agent, the Lenders, and the L/C
Issuer. If and when requested by the Borrower, the Administrative Agent shall
invest funds held in the Collateral Account from time to time in direct
obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America with a remaining
maturity of one year or less, provided
that the
Administrative Agent is irrevocably authorized to sell investments held in
the
Collateral Account when and as required to make payments out of the Collateral
Account for application to amounts due and owing from the Borrower to the
L/C
Issuer, the Administrative Agent or the Lenders; provided,
however,
that if
(i) the Borrower shall have made payment of all such obligations referred
to in subsection (a) above, (ii) all relevant preference or other
disgorgement periods relating to the receipt of such payments have passed,
and
(iii) no Letters of Credit, Revolving Credit Commitments, Loans or other
Obligations remain outstanding hereunder, then the Administrative Agent shall
release to the Borrower any remaining amounts held in the Collateral
Account.
Section 9.5. Notice
of Default.
The
Administrative Agent shall give notice to the Borrower under Section 9.1(c)
hereof promptly upon being requested to do so by any Lender and shall thereupon
notify all the Lenders thereof.
Section 9.6. Expenses.
The
Borrower agrees to pay to the Administrative Agent and each Lender, and any
other holder of any Note outstanding hereunder, all costs and expenses
reasonably incurred or paid by the Administrative Agent and such Lender or
any
such holder, including reasonable attorneys’ fees and court costs, in connection
with any Event of Default by the Borrower hereunder or in connection with
the
enforcement of any of the Loan Documents (including all such costs and expenses
incurred in connection with any proceeding under the United States Bankruptcy
Code involving the Borrower or any Subsidiary as a debtor
thereunder).
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Section 10.
|
Change
in Circumstances.
|
Section 10.1. Change
of Law.
Notwithstanding any other provisions of this Agreement or any Note, if at
any
time any change in applicable law or regulation or in the interpretation
thereof
makes it unlawful for any Lender to make or continue to maintain any Eurodollar
Loans or to perform its obligations as contemplated hereby, such Lender shall
promptly give notice thereof to the Borrower and such Lender’s obligations to
make or maintain Eurodollar Loans under this Agreement shall be suspended
until
it is no longer unlawful for such Lender to make or maintain Eurodollar Loans.
The Borrower shall prepay on demand the outstanding principal amount of any
such
affected Eurodollar Loans, together with all interest accrued thereon and
all
other amounts then due and payable to such Lender under this Agreement;
provided,
however,
subject
to all of the terms and conditions of this Agreement, the Borrower may then
elect to borrow the principal amount of the affected Eurodollar Loans from
such
Lender by means of Base Rate Loans from such Lender, which Base Rate Loans
shall
not be made ratably by the Lenders but only from such affected
Lender.
Section 10.2. Unavailability
of Deposits or Inability to Ascertain, or Inadequacy of, LIBOR.
If on
or prior to the first day of any Interest Period for any Borrowing of Eurodollar
Loans:
(a) the
Administrative Agent determines that deposits in U.S. Dollars (in the applicable
amounts) are not being offered to it in the interbank eurodollar market for
such
Interest Period, or that by reason of circumstances affecting the interbank
eurodollar market adequate and reasonable means do not exist for ascertaining
the applicable LIBOR, or
(b) the
Required Lenders advise the Administrative Agent that (i) LIBOR as determined
by
the Administrative Agent will not adequately and fairly reflect the cost
to such
Lenders of funding their Eurodollar Loans for such Interest Period or (ii)
that
the making or funding of Eurodollar Loans become impracticable,
then
the
Administrative Agent shall forthwith give notice thereof to the Borrower
and the
Lenders, whereupon until the Administrative Agent notifies the Borrower that
the
circumstances giving rise to such suspension no longer exist, the obligations
of
the Lenders to make Eurodollar Loans shall be suspended.
Section 10.3. Increased
Cost and Reduced Return.
(a) If, on or after the date hereof, the adoption of any applicable law,
rule or regulation, or any change therein, or any change in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof,
or
compliance by any Lender (or its Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank
or
comparable agency:
(i) shall
subject
any Lender (or its Lending Office) to any tax, duty or other charge with
respect
to its Eurodollar Loans, its Notes, its Letter(s) of Credit, or its
participation in any thereof, any Reimbursement Obligations owed to it or
its
obligation to make Eurodollar Loans, issue a Letter of Credit, or to participate
therein, or shall change the basis of taxation of payments to any Lender
(or its
Lending Office) of the principal of or interest on its Eurodollar Loans,
Letter(s) of Credit, or participations therein or any other amounts due under
this Agreement or any other Loan Document in respect of its Eurodollar Loans,
Letter(s) of Credit, any participation therein, any Reimbursement Obligations
owed to it, or its obligation to make Eurodollar Loans, or issue a Letter
of
Credit, or acquire participations therein (except for changes in the rate
or
calculation of tax on the overall net income of (or franchise taxes imposed
in
lieu of such income taxes on) such Lender or its Lending Office imposed by
the
jurisdiction in which such Lender is organized or maintains its principal
executive office or Lending Office); or
(ii) shall
impose, modify or deem applicable any reserve, special deposit or similar
requirement (including, without limitation, any such requirement imposed
by the
Board of Governors of the Federal Reserve System, but excluding with respect
to
any Eurodollar Loans any such requirement included in an applicable Eurodollar
Reserve Percentage) against assets of, deposits with or for the account of,
or
credit extended by, any Lender (or its Lending Office) or shall impose on
any
Lender (or its Lending Office) or on the interbank market any other condition
affecting its Eurodollar Loans, its Notes, its Letter(s) of Credit, or its
participation in any thereof, any Reimbursement Obligation owed to it, or
its
obligation to make Eurodollar Loans, or to issue a Letter of Credit, or to
participate therein;
and
the
result of any of the foregoing is to increase the cost to such Lender (or
its
Lending Office) of making or maintaining any Eurodollar Loan, issuing or
maintaining a Letter of Credit, or participating therein, or to reduce the
amount of any sum received or receivable by such Lender (or its Lending Office)
under this Agreement or under any other Loan Document with respect thereto,
by
an amount deemed by such Lender to be material, then, within 15 days after
demand by such Lender (with a copy to the Administrative Agent), the Borrower
shall be obligated to pay to such Lender such additional amount or amounts
as
will compensate such Lender for such increased cost or reduction.
(b) If,
after
the date hereof, any Lender or the Administrative Agent shall have determined
that the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or its Lending Office) or any corporation controlling such
Lender
with any request or directive regarding capital adequacy (whether or not
having
the force of law) of any such authority, central bank or comparable agency,
has
had the effect of reducing the rate of return on such Lender’s or such
corporation’s capital as a consequence of its obligations hereunder to a level
below that which such Lender or such corporation could have achieved but
for
such adoption, change or compliance (taking into consideration such Lender’s or
such corporation’s policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, within
15 days after demand by such Lender (with a copy to the Administrative
Agent), the Borrower shall pay to such Lender such additional amount or amounts
as will compensate such Lender for such reduction.
(c) Notwithstanding
any
provision hereof to the contrary, the Borrower shall not be required to
compensate any Lender or the L/C Issuer pursuant to this Section 10.3 for
any increased capital costs incurred more than 180 days prior to the date
such
Lender or L/C Issuer notifies the Borrower of the event giving rise to such
increased capital cost and of such Lender’s or the L/C Issuer’s intention to
claim compensation therefor; provided
further, however, that
such
180-day limitation shall not apply to any costs that are applicable
retroactively so long as the applicable Lender or the L/C Issuer notifies
the
Borrower of such cost within 180 days of a responsible officer of such Lender
or
the L/C Issuer receiving actual knowledge thereof.
(d) A
certificate
of a Lender claiming compensation under this Section 10.3 and setting forth
the additional amount or amounts to be paid to it hereunder shall be conclusive
if reasonably determined. In determining such amount, such Lender may use
any
reasonable averaging and attribution methods.
Section 10.4. Lending
Offices.
Each
Lender may, at its option, elect to make its Loans hereunder at the branch,
office or affiliate specified on the appropriate signature page hereof (each
a
“Lending
Office”)
for
each type of Loan available hereunder or at such other of its branches, offices
or affiliates as it may from time to time elect and designate in a written
notice to the Borrower and the Administrative Agent. To the extent reasonably
possible, a Lender shall designate an alternative branch or funding office
with
respect to its Eurodollar Loans to reduce any liability of the Borrower to
such
Lender under Section 10.3 hereof or to avoid the unavailability of
Eurodollar Loans under Section 10.2 hereof, so long as such designation is
not otherwise disadvantageous to the Lender.
Section 10.5. Discretion
of Lender as to Manner of Funding.
Notwithstanding any other provision of this Agreement, each Lender shall
be
entitled to fund and maintain its funding of all or any part of its Loans
in any
manner it sees fit, it being understood, however, that for the purposes of
this
Agreement all determinations hereunder with respect to Eurodollar Loans shall
be
made as if each Lender had actually funded and maintained each Eurodollar
Loan
through the purchase of deposits in the interbank eurodollar market having
a
maturity corresponding to such Loan’s Interest Period, and bearing an interest
rate equal to LIBOR for such Interest Period.
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Section 11.
|
The
Administrative Agent.
|
Section 11.1. Appointment
and Authorization of Administrative Agent.
Each
Lender hereby appoints Xxxxxx X.X. as the Administrative Agent under the
Loan
Documents and hereby authorizes the Administrative Agent to take such action
as
Administrative Agent on its behalf and to exercise such powers under the
Loan
Documents as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto. The Lenders
expressly agree that the Administrative Agent is not acting as a fiduciary
of
the Lenders in respect of the Loan Documents, the Borrower or otherwise,
and
nothing herein or in any of the other Loan Documents shall result in any
duties
or obligations on the Administrative Agent or any of the Lenders except as
expressly set forth herein.
Section 11.2. Administrative
Agent
and its Affiliates.
The
Administrative Agent shall have the same rights and powers under this Agreement
and the other Loan Documents as any other Lender and may exercise or refrain
from exercising such rights and power as though it were not the Administrative
Agent, and the Administrative Agent and its affiliates may accept deposits
from,
lend money to, and generally engage in any kind of business with the Borrower
or
any Affiliate of the Borrower as if it were not the Administrative Agent
under
the Loan Documents. The term “Lender”
as used
herein and in all other Loan Documents, unless the context otherwise clearly
requires, includes the Administrative Agent in its individual capacity as
a
Lender. References in Section 1 hereof to the Administrative Agent’s Loans,
or to the amount owing to the Administrative Agent for which an interest
rate is
being determined, refer to the Administrative Agent in its individual capacity
as a Lender.
Section 11.3. Action
by Administrative Agent.
If the
Administrative Agent receives from the Borrower a written notice of an Event
of
Default pursuant to Section 8.5 hereof, the Administrative Agent shall
promptly give each of the Lenders written notice thereof. The obligations
of the
Administrative Agent under the Loan Documents are only those expressly set
forth
therein. Without limiting the generality of the foregoing, the Administrative
Agent shall not be required to take any action hereunder with respect to
any
Default or Event of Default, except as expressly provided in Sections 9.2
and 9.5. Unless and until the Required Lenders give such direction, the
Administrative Agent may (but shall not be obligated to) take or refrain
from
taking such actions as it deems appropriate and in the best interest of all
the
Lenders. In no event, however, shall the Administrative Agent be required
to
take any action in violation of applicable law or of any provision of any
Loan
Document, and the Administrative Agent shall in all cases be fully justified
in
failing or refusing to act hereunder or under any other Loan Document unless
it
first receives any further assurances of its indemnification from the Lenders
that it may require, including prepayment of any related expenses and any
other
protection it requires against any and all costs, expense, and liability
which
may be incurred by it by reason of taking or continuing to take any such
action.
The Administrative Agent shall be entitled to assume that no Default or Event
of
Default exists unless notified in writing to the contrary by a Lender or
the
Borrower. In all cases in which the Loan Documents do not require the
Administrative Agent to take specific action, the Administrative Agent shall
be
fully justified in using its discretion in failing to take or in taking any
action thereunder. Any instructions of the Required Lenders, or of any other
group of Lenders called for under the specific provisions of the Loan Documents,
shall be binding upon all the Lenders and the holders of the Obligations.
Section 11.4. Consultation
with Experts.
The
Administrative Agent may consult with legal counsel, independent public
accountants, and other experts selected by it and shall not be liable for
any
action taken or omitted to be taken by it in good faith in accordance with
the
advice of such counsel, accountants or experts.
Section 11.5. Liability
of
Administrative Agent; Credit Decision.
Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or not taken by it in connection with
the
Loan Documents: (i) with the consent or at the request of the Required
Lenders or (ii) in the absence of its own gross negligence or willful
misconduct. Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be responsible for or have any duty to ascertain,
inquire into or verify: (i) any statement, warranty or representation made
in connection with this Agreement, any other Loan Document or any Credit
Event;
(ii) the performance or observance of any of the covenants or agreements of
the Borrower or any Subsidiary contained herein or in any other Loan Document;
(iii) the satisfaction of any condition specified in Section 7 hereof,
except receipt of items required to be delivered to the Administrative Agent;
or
(iv) the validity, effectiveness, genuineness, enforceability, perfection,
value, worth or collectibility hereof or of any other Loan Document or of
any
other documents or writing furnished in connection with any Loan Document;
and
the Administrative Agent makes no representation of any kind or character
with
respect to any such matter mentioned in this sentence. The Administrative
Agent
may execute any of its duties under any of the Loan Documents by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, the Borrower, or any other Person for the default or misconduct
of any
such agents or attorneys-in-fact selected with reasonable care. The
Administrative Agent shall not incur any liability by acting in reliance
upon
any notice, consent, certificate, other document or statement (whether written
or oral) believed by it to be genuine or to be sent by the proper party or
parties. In particular and without limiting any of the foregoing, the
Administrative Agent shall have no responsibility for confirming the accuracy
of
any compliance certificate or other document or instrument received by it
under
the Loan Documents. The Administrative Agent may treat the payee of any Note
as
the holder thereof until written notice of transfer shall have been filed
with
the Administrative Agent signed by such payee in form satisfactory to the
Administrative Agent. Each Lender acknowledges that it has independently
and
without reliance on the Administrative Agent or any other Lender, and based
upon
such information, investigations and inquiries as it deems appropriate, made
its
own credit analysis and decision to extend credit to the Borrower in the
manner
set forth in the Loan Documents. It shall be the responsibility of each Lender
to keep itself informed as to the creditworthiness of the Borrower and its
Subsidiaries, and the Administrative Agent shall have no liability to any
Lender
with respect thereto.
Section 11.6. Indemnity.
The
Lenders shall ratably, in accordance with their respective Revolver Percentages,
indemnify and hold the Administrative Agent, and its directors, officers,
employees, agents, and representatives harmless from and against any
liabilities, losses, costs or expenses suffered or incurred by it under any
Loan
Document or in connection with the transactions contemplated thereby, regardless
of when asserted or arising, except to the extent they are promptly reimbursed
for the same by the Borrower and except to the extent that any event giving
rise
to a claim was caused by the gross negligence or willful misconduct of the
party
seeking to be indemnified. The obligations of the Lenders under this Section
shall survive termination of this Agreement. The Administrative Agent shall
be
entitled to offset amounts received for the account of a Lender under this
Agreement against unpaid amounts due from such Lender to the Administrative
Agent hereunder (whether as fundings of participations, indemnities or
otherwise), but shall not be entitled to offset against amounts owed to the
Administrative Agent by any Lender arising outside of this Agreement and
the
other Loan Documents.
Section 11.7. Resignation
of Administrative Agent and Successor Administrative Agent.
The
Administrative Agent may resign at any time by giving written notice thereof
to
the Lenders and the Borrower. Upon any such resignation of the Administrative
Agent, the Required Lenders shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been
so
appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent’s giving of notice
of resignation then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which may be any Lender
hereunder or any commercial bank organized under the laws of the United States
of America or of any State thereof and having a combined capital and surplus
of
at least $200,000,000. Upon the acceptance of its appointment as the
Administrative Agent hereunder, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights and duties of
the
retiring Administrative Agent under the Loan Documents, and the retiring
Administrative Agent shall be discharged from its duties and obligations
thereunder. After any retiring Administrative Agent’s resignation hereunder as
Administrative Agent, the provisions of this Section 11 and all protective
provisions of the other Loan Documents shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent,
but no successor Administrative Agent shall in any event be liable or
responsible for any actions of its predecessor. If the Administrative Agent
resigns and no successor is appointed, the rights and obligations of such
Administrative Agent shall be automatically assumed by the Required Lenders
and
the Borrower shall be directed to make all payments due each Lender hereunder
directly to such Lender.
Section 11.8. L/C
Issuer.
The
L/C Issuer shall act on behalf of the Lenders with respect to any Letters
of Credit issued by it and the documents associated therewith. The
L/C Issuer shall have all of the benefits and immunities (i) provided
to the Administrative Agent in this Section 11 with respect to any acts
taken or omissions suffered by the L/C Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and the Applications
pertaining to such Letters of Credit as fully as if the term “Administrative
Agent”, as used in this Section 11, included the L/C Issuer with
respect to such acts or omissions and (ii) as additionally provided in this
Agreement with respect to such L/C Issuer.
Section 11.9. Designation
of Additional Agents.
The
Administrative Agent shall have the continuing right, for purposes hereof,
at
any time and from time to time to designate one or more of the Lenders (and/or
its or their Affiliates) as “syndication agents,” “documentation agents,”
“arrangers,” or other designations for purposes hereto, but such designation
shall have no substantive effect, and such Lenders and their Affiliates shall
have no additional powers, duties or responsibilities as a result
thereof.
|
Section 12.
|
The
Guarantees.
|
Section 12.1. The
Guarantees.
To
induce the Lenders to provide the credits described herein and in consideration
of benefits expected to accrue to the Borrower by reason of the Revolving
Credit
Commitments and for other good and valuable consideration, receipt of which
is
hereby acknowledged, each Subsidiary listed on the signature pages hereto
and
each other Material Subsidiary (individually a “Guarantor”
and
collectively the “Guarantors,”
including Material Subsidiaries formed or acquired after the Closing Date
executing an Additional Guarantor Supplement) hereby unconditionally and
irrevocably guarantee jointly and severally to the Administrative Agent,
the
Lenders, and their Affiliates, the due and punctual payment of all present
and
future Obligations, Hedging Liability, and Funds Transfer and Deposit Account
Liability, including, but not limited to, the due and punctual payment of
principal of and interest on the Notes, the Reimbursement Obligations, and
the
due and punctual payment of all other Obligations now or hereafter owed by
the
Borrower under the Loan Documents as and when the same shall become due and
payable, whether at stated maturity, by acceleration, or otherwise, according
to
the terms hereof and thereof. In case of failure by the Borrower or any
Subsidiary punctually to pay any Obligations, Hedging Liability, or Funds
Transfer and Deposit Account Liability guaranteed hereby, each Guarantor
hereby
unconditionally agrees to make such payment or to cause such payment to be
made
punctually as and when the same shall become due and payable, whether at
stated
maturity, by acceleration, or otherwise, and as if such payment were made
by the
Borrower or such Subsidiary.
Section 12.2. Guarantee
Unconditional.
The
obligations of each Guarantor under this Section 12 shall be unconditional
and absolute and, without limiting the generality of the foregoing, shall
not be
released, discharged, or otherwise affected by:
(a) any
extension, renewal, settlement, compromise, waiver, or release in respect
of any
obligation of the Borrower or of any other guarantor under this Agreement
or any
other Loan Document or by operation of law or otherwise;
(b) any
modification or amendment of or supplement to this Agreement or any other
Loan
Document;
(c) any
change in the corporate existence, structure, or ownership of, or any
insolvency, bankruptcy, reorganization, or other similar proceeding affecting,
the Borrower, any other guarantor, or any of their respective assets, or
any
resulting release or discharge of any obligation of the Borrower or of any
other
guarantor contained in any Loan Document;
(d) the
existence of any claim, set-off, or other rights which the Borrower or any
other
guarantor may have at any time against the Administrative Agent, any Lender,
or
any other Person, whether or not arising in connection herewith;
(e) any
failure to assert, or any assertion of, any claim or demand or any exercise
of,
or failure to exercise, any rights or remedies against the Borrower, any
other
guarantor, or any other Person or Property;
(f) any
application of any sums by whomsoever paid or howsoever realized to any
obligation of the Borrower, regardless of what obligations of the Borrower
remain unpaid;
(g) any
invalidity or unenforceability relating to or against the Borrower or any
other
guarantor for any reason of this Agreement or of any other Loan Document
or any
provision of applicable law or regulation purporting to prohibit the payment
by
the Borrower or any other guarantor of the principal of or interest on any
Note
or any Reimbursement Obligation or any other amount payable under the Loan
Documents; or
(h) any
other
act or omission to act or delay of any kind by the Administrative Agent,
any
Lender, or any other Person or any other circumstance whatsoever that might,
but
for the provisions of this paragraph, constitute a legal or equitable discharge
of the obligations of any Guarantor under this Section 12.
Section 12.3. Discharge
Only upon Payment in Full; Reinstatement in Certain
Circumstances.
Each
Guarantor’s obligations under this Section 12 shall remain in full force
and effect until the Revolving Credit Commitments are terminated, all Letters
of
Credit have expired, and the principal of and interest on the Notes and all
other amounts payable by the Borrower and the Guarantors under this Agreement
and all other Loan Documents and, if then outstanding and unpaid, all Hedging
Liability and Funds Transfer and Deposit Account Liability shall have been
paid
in full. If at any time any payment of the principal of or interest on any
Note
or any Reimbursement Obligation or any other amount payable by the Borrower
or
any Guarantor under the Loan Documents is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy, or reorganization of
the
Borrower or of any guarantor, or otherwise, each Guarantor’s obligations under
this Section 12 with respect to such payment shall be reinstated at such
time as though such payment had become due but had not been made at such
time.
Section 12.4. Subrogation.
Each
Guarantor agrees it will not exercise any rights which it may acquire by
way of
subrogation by any payment made hereunder, or otherwise, until all the
Obligations, Hedging Liability, and Funds Transfer and Deposit Account Liability
shall have been paid in full subsequent to the termination of all the Revolving
Credit Commitments and expiration of all Letters of Credit. If any amount
shall
be paid to a Guarantor on account of such subrogation rights at any time
prior
to the later of (x) the payment in full of the Obligations, Hedging
Liability, and Funds Transfer and Deposit Account Liability and all other
amounts payable by the Borrower hereunder and the other Loan Documents and
(y) the termination of the Revolving Credit Commitments and expiration of
all Letters of Credit, such amount shall be held in trust for the benefit
of the
Administrative Agent and the Lenders and shall forthwith be paid to the
Administrative Agent for the benefit of the Lenders or be credited and applied
upon the Obligations, Hedging Liability, and Funds Transfer and Deposit Account
Liability, whether matured or unmatured, in accordance with the terms of
this
Agreement.
Section 12.5. Waivers.
Each
Guarantor irrevocably waives acceptance hereof, presentment, demand, protest,
and any notice not provided for herein, as well as any requirement that at
any
time any action be taken by the Administrative Agent, any Lender, or any
other
Person against the Borrower, another guarantor, or any other Person except
where
such action is expressly required by the Loan Documents.
Section 12.6. Limit
on Recovery.
Notwithstanding any other provision hereof, the right of recovery against
each
Guarantor under this Section 12 shall not exceed $1.00 less than the lowest
amount which would render such Guarantor’s obligations under this Section 12
void or voidable under applicable law, including, without limitation, fraudulent
conveyance law.
Section 12.7. Stay
of
Acceleration.
If
acceleration of the time for payment of any amount payable by the Borrower
under
this Agreement or any other Loan Document, or under any agreement establishing
Hedging Liability or Funds Transfer and Deposit Account Liability, is stayed
upon the insolvency, bankruptcy or reorganization of the Borrower, all such
amounts otherwise subject to acceleration under the terms of this Agreement
or
the other Loan Documents, or under any agreement establishing Hedging Liability
or Funds Transfer and Deposit Account Liability, shall nonetheless be payable
by
the Guarantors hereunder forthwith on demand by the Administrative Agent
made at
the request of the Required Lenders.
Section 12.8. Benefit
to
Guarantors.
All of
the Guarantors are engaged in related businesses and integrated to such an
extent that the financial strength and flexibility of the Borrower and each
Guarantor has a direct impact on the success of each Guarantor. Each Guarantor
will derive substantial direct and indirect benefit from the extension of
credit
hereunder.
Section
12.9. Guarantor
Covenants.
Each
Guarantor shall take such action as the Borrower is required by this Agreement
to cause such Guarantor to take, and shall refrain from taking such action
as
the Borrower is required by this Agreement to prohibit such Guarantor from
taking.
Section 13. Miscellaneous.
Section 13.1. Withholding
Taxes.
(a) Payments
Free of Withholding.
Except
as otherwise required by law and subject to Section 13.1(b) hereof, each
payment by the Borrower under this Agreement or the other Loan Documents
shall
be made without withholding for or on account of any present or future taxes,
other than taxes on the net income (or franchise taxes in lieu thereof) of
any
Lender or the Administrative Agent imposed by a jurisdiction in which such
Lender or Administrative Agent is organized, maintains its principal office
or
the relevant Lending Office (or any political subdivision of any such
jurisdiction) (such nonexcluded taxes being referred to herein as “Taxes”).
Except
as otherwise provided in Section 13.1(b), if any withholding of Taxes is
required, the Borrower shall make the withholding, pay the amount withheld
to
the appropriate governmental authority before penalties attach thereto or
interest accrues thereon and forthwith pay such additional amount as may
be
necessary to ensure that the net amount actually received by each Lender
and the
Administrative Agent free and clear of such Taxes (including such Taxes on
such
additional amount) is equal to the amount which that Lender or the
Administrative Agent (as the case may be) would have received had such
withholding not been made. If the Administrative Agent or any Lender pays
any
amount in respect of any such Taxes, including penalties or interest, the
Borrower shall reimburse the Administrative Agent or such Lender for that
payment on demand in the currency in which such payment was made, except
to the
extent that any penalties or interest result from such Lender’s or the
Administrative Agent’s gross negligence or willful delay. If the Borrower pays
any such Taxes, penalties or interest, it shall deliver official tax receipts
evidencing that payment or certified copies thereof to the Lender or
Administrative Agent on whose account such withholding was made (with a copy
to
the Administrative Agent if not the recipient of the original) or, if such
official receipt is not received from the relevant governmental authority,
such
other evidence of payment as may be reasonably acceptable to the Administrative
Agent on or before the thirtieth day after payment. If any Lender or the
Administrative Agent receives a refund in respect of any Taxes for which
such
Lender or the Administrative Agent has received payment from the Borrower
hereunder, it shall promptly apply such refund (including any interest received
by such Lender or the Administrative Agent from the taxing authority with
respect to the refund with respect to such Taxes) to the Obligations of the
Borrower; provided
that
the
Borrower, upon the request of such Lender or the Administrative Agent, agrees
to
reimburse such refund (plus penalties, interest or other charges) to such
Lender
or the Administrative Agent in the event such Lender or the Administrative
Agent
is required to repay such refund.
(b) U.S.
Withholding Tax.
Each
Lender that is not a United States person (as such term is defined in
Section 7701(a)(30) of the Code) (a “Foreign
Lender”)
shall
submit to the Borrower and the Administrative Agent on or before the date
the
initial Credit Event is made hereunder or, if later, the date such financial
institution becomes a Lender hereunder, two duly completed and signed copies
of
(i) either Form W-8 BEN (relating to such Lender and entitling it to a
complete exemption from withholding under the Code on all amounts to be received
by such Lender, including fees, pursuant to the Loan Documents and the
Obligations) or Form W-8 ECI (relating to all amounts to be received
by such Lender, including fees, pursuant to the Loan Documents and the
Obligations) of the United States Internal Revenue Service and (ii) solely
if such Lender is claiming exemption from United States withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of “portfolio
interest”, a certificate representing that such Lender is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder
(within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower
and is not a controlled foreign corporation related to the Borrower (within
the
meaning of Section 864(d)(4) of the Code). Any Foreign Lender that fails to
comply with the requirements of the preceding sentence shall not be entitled
to
the benefits of Section 13.1(a) hereof. Thereafter and from time to time,
each Foreign Lender shall submit to the Borrower and the Administrative Agent
such additional duly completed and signed copies of one or the other of such
Forms (or such successor forms as shall be adopted from time to time by the
relevant United States taxing authorities) and such other certificates as
such Foreign Lender may be entitled to submit under then-current United States
law or regulations to avoid or reduce United States withholding taxes on
payments in respect of all amounts to be received by such Foreign Lender,
including fees, pursuant to the Loan Documents or the Obligations. Upon the
request of the Borrower or the Administrative Agent, each Lender that is
a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) shall submit to the Borrower and the Administrative Agent a certificate
to
the effect that it is such a United States person.
(c) Inability
of Lender to Submit Forms.
If any
Lender determines, as a result of any change in applicable law, regulation
or
treaty, or in any official application or interpretation thereof, that it
is
unable to submit to the Borrower or the Administrative Agent any form or
certificate that such Lender is obligated to submit pursuant to
subsection (b) of this Section 13.1 or that such Lender is required to
withdraw or cancel any such form or certificate previously submitted or any
such
form or certificate otherwise becomes ineffective or inaccurate, such Lender
shall promptly notify the Borrower and Administrative Agent of such fact
and the
Lender shall to that extent not be obligated to provide any such form or
certificate and will be entitled to withdraw or cancel any affected form
or
certificate, as applicable.
Section 13.2. No
Waiver,
Cumulative Remedies.
No delay
or failure on the part of the Administrative Agent or any Lender or on the
part
of the holder or holders of any of the Obligations in the exercise of any
power
or right under any Loan Document shall operate as a waiver thereof or as
an
acquiescence in any default, nor shall any single or partial exercise of
any
power or right preclude any other or further exercise thereof or the exercise
of
any other power or right. The rights and remedies hereunder of the
Administrative Agent, the Lenders and of the holder or holders of any of
the
Obligations are cumulative to, and not exclusive of, any rights or remedies
which any of them would otherwise have.
Section 13.3. Non-Business
Days.
If any
payment hereunder becomes due and payable on a day which is not a Business
Day,
the due date of such payment shall be extended to the next succeeding Business
Day on which date such payment shall be due and payable. In the case of any
payment of principal falling due on a day which is not a Business Day, interest
on such principal amount shall continue to accrue during such extension at
the
rate per annum then in effect, which accrued amount shall be due and payable
on
the next scheduled date for the payment of interest.
Section 13.4. Documentary
Taxes.
The
Borrower agrees to pay on demand any documentary, stamp or similar taxes
payable
in respect of this Agreement or any other Loan Document, including interest
and
penalties, in the event any such taxes are assessed, irrespective of when
such
assessment is made and whether or not any credit is then in use or available
hereunder.
Section 13.5. Survival
of Representations.
All
representations and warranties made herein or in any other Loan Document
or in
certificates given pursuant hereto or thereto shall survive the execution
and
delivery of this Agreement and the other Loan Documents, and shall continue
in
full force and effect with respect to the date as of which they were made
as
long as any Credit is in use or available hereunder.
Section 13.6. Survival
of
Indemnities.
All
indemnities and other provisions relative to reimbursement to the Lenders
of
amounts sufficient to protect the yield of the Lenders with respect to the
Loans
and Letters of Credit, including, but not limited to, Sections 1.11, 10.3,
and 13.15 hereof, shall survive the termination of this Agreement and the
other
Loan Documents and the payment of the Obligations.
Section 13.7. Sharing
of
Set-Off.
Each
Lender agrees with each other Lender a party hereto that if such Lender shall
receive and retain any payment, whether by set-off or application of deposit
balances or otherwise, on any of the Loans or Reimbursement Obligations in
excess of its ratable share of payments on all such Obligations then outstanding
to the Lenders, then such Lender shall purchase for cash at face value, but
without recourse, ratably from each of the other Lenders such amount of the
Loans or Reimbursement Obligations, or participations therein, held by each
such
other Lenders (or interest therein) as shall be necessary to cause such Lender
to share such excess payment ratably with all the other Lenders; provided,
however,
that if
any such purchase is made by any Lender, and if such excess payment or part
thereof is thereafter recovered from such purchasing Lender, the related
purchases from the other Lenders shall be rescinded ratably and the purchase
price restored as to the portion of such excess payment so recovered, but
without interest. For purposes of this Section, amounts owed to or recovered
by
the L/C Issuer in connection with Reimbursement Obligations in which Lenders
have been required to fund their participation shall be treated as amounts
owed
to or recovered by the L/C Issuer as a Lender hereunder.
Section 13.8. Notices.
Except
as otherwise specified herein, all notices hereunder and under the other
Loan
Documents shall be in writing (including, without limitation, notice by
telecopy) and shall be given to the relevant party at its address or telecopier
number set forth below, or such other address or telecopier number as such
party
may hereafter specify by notice to the Administrative Agent and the Borrower
given by courier, by United States certified or registered mail, by telecopy
or
by other telecommunication device capable of creating a written record of
such
notice and its receipt. Notices under the Loan Documents to the Lenders and
the
Administrative Agent shall be addressed to their respective addresses or
telecopier numbers set forth in its Administrative Questionnaire, and to
the
Borrower to:
CTS
Corporation
000
Xxxx
Xxxxxxxxx Xxxxx
Xxxxxxx,
Xxxxxxx 00000
Attention: Xxxx
Xxxx, Treasurer
Telephone: (000)
000-0000
Telecopy: (000)
000-0000
Each
such
notice, request or other communication shall be effective (i) if given by
telecopier, when such telecopy is transmitted to the telecopier number specified
in this Section or on the signature pages hereof and a confirmation of such
telecopy has been received by the sender, (ii) if given by mail, five
(5) days after such communication is deposited in the mail, certified or
registered with return receipt requested, addressed as aforesaid or
(iii) if given by any other means, when delivered at the addresses
specified in this Section or on the Administrative Questionnaire; provided
that any
notice given pursuant to Section 1 hereof shall be effective only upon
receipt.
Section 13.9. Counterparts.
This
Agreement may be executed in any number of counterparts, and by the different
parties hereto on separate counterpart signature pages, and all such
counterparts taken together shall be deemed to constitute one and the same
instrument.
Section 13.10. Successors
and Assigns.
This
Agreement shall be binding upon the Borrower and the Guarantors and their
successors and assigns, and shall inure to the benefit of the Administrative
Agent and each of the Lenders and the benefit of their respective successors
and
assigns, including any subsequent holder of any of the Obligations. The Borrower
may not assign any of its rights or obligations under any Loan Document without
the written consent of all of the Lenders.
Section 13.11. Participants.
Each
Lender shall have the right at its own cost to grant participations (to be
evidenced by one or more agreements or certificates of participation) in
the
Loans made and Reimbursement Obligations and/or Commitments held by such
Lender
at any time and from time to time to one or more other Persons; provided
that no
such participation shall relieve any Lender of any of its obligations under
this
Agreement, and, provided, further that no such participant shall have any
rights
under this Agreement except as provided in this Section, and the Administrative
Agent shall have no obligation or responsibility to such participant. Any
agreement pursuant to which such participation is granted shall provide that
the
granting Lender shall retain the sole right and responsibility to enforce
the
obligations of the Borrower under this Agreement and the other Loan Documents
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of the Loan Documents, except that such agreement
may
provide that such Lender will not agree to any modification, amendment or
waiver
of the Loan Documents that would reduce the amount of or postpone any fixed
date
for payment of any Obligation in which such participant has an interest.
Any
party to which such a participation has been granted shall have the benefits
of
Section 1.11 and Section 10.3 hereof. The Borrower authorizes each
Lender to disclose to any participant or prospective participant under this
Section any financial or other information pertaining to the Borrower or
any
Subsidiary.
Section 13.12. Assignments.
(a) Any Lender may at any time assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all
or a
portion of its Revolving Credit Commitment and the Loans at the time owing
to
it); provided
that any
such assignment shall be subject to the following conditions:
(i) Minimum
Amounts.
(A) In the case of an assignment of the entire remaining amount of the
assigning Lender’s Revolving Credit Commitment and the Loans and participation
interest in L/C Obligations and Swing Loans at the time owing to it or in
the
case of an assignment to a Lender, an Affiliate of a Lender or an Approved
Fund,
no minimum amount need be assigned; and (B) in any case not described in
subsection (a)(i)(A) of this Section, the aggregate amount of the Revolving
Credit Commitment (which for this purpose includes Loans and participation
interest in L/C Obligations and Swing Loans outstanding thereunder) or, if
the
applicable Revolving Credit Commitment is not then in effect, the principal
outstanding balance of the Loans and participation interest in L/C Obligations
and Swing Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to
such
assignment is delivered to the Administrative Agent or, if “Effective Date” is
specified in the Assignment and Acceptance, as of the Effective Date) shall
not
be less than $5,000,000, unless each of the Administrative Agent and, so
long as
no Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or
delayed);
(ii) Proportionate
Amounts.Each
partial assignment shall be made as an assignment of a proportionate part
of all
the assigning Lender’s rights and obligations under this Agreement with respect
to the Loan or the Revolving Credit Commitment assigned.
(iii) Required
Consents.The
following consents shall be required for any assignment in addition to the
extent required by Section 13.12(a)(i)(B):
(a) the
consent of the Borrower (such consent not to be unreasonably withheld or
delayed) shall be required unless (x) an Event of Default has
occurred and is continuing at the time of such assignment or (y) such assignment
is to a Lender, an Affiliate of a Lender or an Approved Fund;
(b) the
consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) shall be required for assignments if such assignment
is to
a Person that is not a Lender with a Revolving Credit Commitment in respect
of
such facility, an Affiliate of such Lender or an Approved Fund with respect
to
such Lender; and
(c) the
consent of the L/C Issuer (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment that increases the obligation
of
the assignee to participate in exposure under one or more Letters of Credit
(whether or not then outstanding).
(iv) Assignment
and Acceptance.The
parties to each assignment shall execute and deliver to the Administrative
Agent
an Assignment and Acceptance, together with a processing and recordation
fee of
$3,500, and the assignee, if it is not a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
(v) No
Assignment
to Borrower or Parent.
No such
assignment shall be made to the Borrower or any of its Affiliates or
Subsidiaries.
(vi) No
Assignment
to Natural Xxxxxxx.Xx
such
assignment shall be made to a natural person.
Subject
to acceptance and recording thereof by the Administrative Agent pursuant
to
Section 13.12(b) hereof, from and after the “Effective
Date”
specified in each Assignment and Acceptance, the assignee thereunder shall
be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent
of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 13.6 and 13.15 with respect to
facts and circumstances occurring prior to the “Effective
Date”
of such
assignment. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this paragraph shall be treated
for purposes of this Agreement as a sale by such Lender of a participation
in
such rights and obligations in accordance with Section 13.11
hereof.
(b) Register.
The
Administrative Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at one of its offices in Chicago, Illinois, a copy
of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Revolving
Credit
Commitments of, and principal amounts of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”).
The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder
for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender,
at
any reasonable time and from time to time upon reasonable prior
notice.
(c) Any
Lender may at any time pledge or grant a security interest in all or any
portion
of its rights under this Agreement to secure obligations of such Lender,
including any such pledge or grant to a Federal Reserve Bank, and this Section
shall not apply to any such pledge or grant of a security interest; provided
that no
such pledge or grant of a security interest shall release a Lender from any
of
its obligations hereunder or substitute any such pledgee or secured party
for
such Lender as a party hereto; provided
further, however,
the
right of any such pledgee or grantee (other than any Federal Reserve Bank)
to
further transfer all or any portion of the rights pledged or granted to it,
whether by means of foreclosure or otherwise, shall be at all times subject
to
the terms of this Agreement.
Section 13.13. Amendments.
Any
provision of this Agreement or the other Loan Documents may be amended or
waived
if, but only if, such amendment or waiver is in writing and is signed by
(a) the
Borrower, (b) the Required Lenders, and (c) if the rights or duties of the
Administrative Agent or the L/C Issuer are affected thereby, the Administrative
Agent or such L/C Issuer; provided that:
(i) no
amendment
or waiver pursuant to this Section 13.13 shall (A) increase any
Revolving Credit Commitment of any Lender without the consent of such Lender
or
(B) reduce the amount of or postpone the date for any scheduled payment of
any principal of or interest on any Loan or of any Reimbursement Obligation
or
of any fee payable hereunder without the consent of the Lender to which such
payment is owing or which has committed to make such Loan or Letter of Credit
(or participate therein) hereunder; and
(ii) no
amendment
or waiver pursuant to this Section 13.13 shall, unless signed by each
Lender, change the definitions of Revolving Credit Termination Date or Required
Lenders, change the provisions of this Section 13.13, release any guarantor
that
is a Material Subsidiary (except as otherwise provided for in the Loan
Documents), or affect the number of Lenders required to take any action
hereunder or under any other Loan Document.
Section 13.14. Headings.
Section
headings used in this Agreement are for reference only and shall not affect
the
construction of this Agreement.
Section 13.15. Costs
and Expenses; Indemnification.
The
Borrower agrees to pay all reasonable costs and expenses of the Administrative
Agent in connection with the preparation, negotiation, syndication, and
administration of the Loan Documents, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent,
in
connection with the preparation and execution of the Loan Documents, and
any
amendment, waiver or consent related thereto, whether or not the transactions
contemplated herein are consummated. The Borrower further agrees to indemnify
the Administrative Agent, each Lender, and their respective directors, officers,
employees, agents, financial advisors, and consultants against all losses,
claims, damages, penalties, judgments, liabilities and reasonable expenses
(including, without limitation, all reasonable expenses of litigation or
preparation therefor, whether or not the indemnified Person is a party thereto,
or any settlement arrangement arising from or relating to any such litigation)
which any of them may pay or incur arising out of or relating to any Loan
Document or any of the transactions contemplated thereby or the direct or
indirect application or proposed application of the proceeds of any Loan
or
Letter of Credit, other than those which arise from the gross negligence
or
willful misconduct of the party claiming indemnification. The Borrower, upon
demand by the Administrative Agent or a Lender at any time, shall reimburse
the
Administrative Agent or such Lender for any legal or other expenses incurred
in
connection with investigating or defending against any of the foregoing
(including any settlement costs relating to the foregoing) except if the
same is
due to the gross negligence or willful misconduct of the party to be
indemnified. The obligations of the Borrower under this Section shall survive
the termination of this Agreement.
Section 13.16. Set-off.
In
addition to any rights now or hereafter granted under applicable law and
not by
way of limitation of any such rights, upon the occurrence of any Event of
Default, each Lender and each subsequent holder of any Obligation is hereby
authorized by the Borrower and each Guarantor at any time or from time to
time,
without notice to the Borrower or such Guarantor or to any other Person,
any
such notice being hereby expressly waived, to set-off and to appropriate
and to
apply any and all deposits (general or special, including, but not limited
to,
indebtedness evidenced by certificates of deposit, whether matured or unmatured,
but not including trust accounts, and in whatever currency denominated) and
any
other indebtedness at any time held or owing by that Lender or that subsequent
holder to or for the credit or the account of the Borrower or such Guarantor,
whether or not matured, against and on account of the Obligations of the
Borrower or such Guarantor to that Lender or that subsequent holder under
the
Loan Documents, including, but not limited to, all claims of any nature or
description arising out of or connected with the Loan Documents, irrespective
of
whether or not (a) that Lender or that subsequent holder shall have made
any demand hereunder or (b) the principal of or the interest on the Loans
or Notes and other amounts due hereunder shall have become due and payable
pursuant to Section 9 and although said obligations and liabilities, or any
of them, may be contingent or unmatured.
Section 13.17. Entire
Agreement.
The
Loan Documents constitute the entire understanding of the parties thereto
with
respect to the subject matter thereof and any prior agreements, whether written
or oral, with respect thereto are superseded hereby.
Section 13.18. Governing
Law.
This
Agreement and the other Loan Documents, and the rights and duties of the
parties
hereto, shall be construed and determined in accordance with the internal
laws
of the State of Illinois.
Section 13.19. Severability
of Provisions.
Any
provision of any Loan Document which is unenforceable in any jurisdiction
shall,
as to such jurisdiction, be ineffective to the extent of such unenforceability
without invalidating the remaining provisions hereof or affecting the validity
or enforceability of such provision in any other jurisdiction. All rights,
remedies and powers provided in this Agreement and the other Loan Documents
may
be exercised only to the extent that the exercise thereof does not violate
any
applicable mandatory provisions of law, and all the provisions of this Agreement
and other Loan Documents are intended to be subject to all applicable mandatory
provisions of law which may be controlling and to be limited to the extent
necessary so that they will not render this Agreement or the other Loan
Documents invalid or unenforceable.
Section 13.20. Excess
Interest.
Notwithstanding any provision to the contrary contained herein or in any
other
Loan Document, no such provision shall require the payment or permit the
collection of any amount of interest in excess of the maximum amount of interest
permitted by applicable law to be charged for the use or detention, or the
forbearance in the collection, of all or any portion of the Loans or other
obligations outstanding under this Agreement or any other Loan Document
(“Excess
Interest”).
If any
Excess Interest is provided for, or is adjudicated to be provided for, herein
or
in any other Loan Document, then in such event (a) the provisions of this
Section shall govern and control, (b) neither the Borrower nor any
guarantor or endorser shall be obligated to pay any Excess Interest,
(c) any Excess Interest that the Administrative Agent or any Lender may
have received hereunder shall, at the option of the Administrative Agent,
be
(i) applied as a credit against the then outstanding principal amount of
Obligations hereunder and accrued and unpaid interest thereon (not to exceed
the
maximum amount permitted by applicable law), (ii) refunded to the Borrower,
or (iii) any combination of the foregoing, (d) the interest rate
payable hereunder or under any other Loan Document shall be automatically
subject to reduction to the maximum lawful contract rate allowed under
applicable usury laws (the “Maximum
Rate”),
and
this Agreement and the other Loan Documents shall be deemed to have been,
and
shall be, reformed and modified to reflect such reduction in the relevant
interest rate, and (e) neither the Borrower nor any guarantor or endorser
shall have any action against the Administrative Agent or any Lender for
any
damages whatsoever arising out of the payment or collection of any Excess
Interest. Notwithstanding the foregoing, if for any period of time interest
on
any of Borrower’s Obligations is calculated at the Maximum Rate rather than the
applicable rate under this Agreement, and thereafter such applicable rate
becomes less than the Maximum Rate, the rate of interest payable on the
Borrower’s Obligations shall remain at the Maximum Rate until the Lenders have
received the amount of interest which such Lenders would have received during
such period on the Borrower’s Obligations had the rate of interest not been
limited to the Maximum Rate during such period.
Section 13.21. Lender’s
Obligations Several.
The
obligations of the Lenders hereunder are several and not joint. Nothing
contained in this Agreement and no action taken by the Lenders pursuant hereto
shall be deemed to constitute the Lenders a partnership, association, joint
venture or other entity.
Section 13.22. Submission
to Jurisdiction; Waiver of Jury Trial.
The
Borrower and the Guarantors hereby submit to the nonexclusive jurisdiction
of
the United States District Court for the Northern District of Illinois and
of
any Illinois State court sitting in the City of Chicago for purposes of all
legal proceedings arising out of or relating to this Agreement, the other
Loan
Documents or the transactions contemplated hereby or thereby. The Borrower
and
the Guarantors irrevocably waive, to the fullest extent permitted by law,
any
objection which they may now or hereafter have to the laying of the venue
of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum. The
Borrower, the Guarantors, the Administrative Agent, and the Lenders hereby
irrevocably waive any and all right to trial by jury in any legal proceeding
arising out of or relating to any Loan Document or the transactions contemplated
thereby.
Section 13.23 Confidentiality.
Each of
the Administrative Agent, L/C Issuer and each Lender agrees to keep confidential
any nonpublic information provided to it by or on behalf of the Borrower
pursuant to or in connection with this Agreement and identified as such;
provided
that
nothing
herein shall prevent any of the Administrative Agent, L/C Issuer or any Lender
from disclosing any such information (i) to the Administrative Agent, L/C
Issuer, or any other Lender, (ii) to any participant or assignee or
prospective participant or assignee so long as such participant or assignee
or
prospective participant or assignee agrees in writing to the requirement
that
such information be kept confidential in the manner contemplated by this
Section 13.23, (iii) to its employees involved in the administration
of this Agreement, directors, attorneys, accountants and other professional
advisors (each of which shall be instructed to hold the same in confidence),
(iv) in response to the request or demand of any governmental authority,
(v) in response to any order of any court or other governmental authority
or as may otherwise be required pursuant to any law, regulation or legal
process; provided,
however, that
such
Lender, to the extent legally permitted to do so, will use its best efforts
to
notify the Borrower prior to any disclosure of information contemplated by
this
subparagraph (v), (vi) which has been publicly disclosed other than in
breach of this Agreement, (vii) in connection with the exercise of any
remedy hereunder or under any Credit Document, (viii) subject to an
agreement containing provisions substantially the same as those of this Section,
to (A) any assignee of or participant in, or any prospective assignee of or
participant in, any of its rights or obligations under this Agreement or
(B) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower or any Subsidiary and its
obligations, (ix) with the prior written consent of the Borrower,
(x) to the extent such information (A) becomes publicly available
other than as a result of a breach of this Section or (B) becomes available
to the Administrative Agent, any Lender or the L/C Issuer on a non-confidential
basis from a source other than the Borrower or any Subsidiary or any of their
directors, officers, employees or agents, including accountants, legal counsel
and other advisors, (xi) to rating agencies if requested or required by such
agencies in connection with a rating relating to the Loans or Commitments
hereunder, or (xii) to entities which compile and publish information about
the
syndicated loan market, provided
that
only basic information about the pricing and structure of the transaction
evidenced hereby may be disclosed pursuant to this subsection (xii).
Section 13.24. USA
Patriot
Act.
Each
Lender that is subject to the requirements of the USA Patriot Act (Title
III of
Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”)
hereby
notifies the Borrower that pursuant to the requirements of the Act, it is
required to obtain, verify, and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance
with the Act.
[Signature
Pages to Follow]
This
Agreement is entered into between us for the uses and purposes hereinabove
set
forth as of the date first above written.
“Borrower”
CTS
Corporation,
an
Indiana
corporation
By
/s/
Xxxxxxx X. Long______________
Name:
Xxxxxxx X. Xxxx
Title:
Treasurer
“Guarantors”
CTS
Corporation,
a
Delaware
corporation
By
/s/
Xxxxxxx X. Long______________
Name:
Xxxxxxx X. Xxxx
Title:
Treasurer
CTS
Electronics Components, Inc.
By
/s/
Xxxxxxx X. Cutter______________
Name:
Xxxxxxx X. Xxxxxx
Title:
Vice President & Secretary
Dynamics
Corporation of America
By
/s/
Xxxxxxx X. Long______________
Name:
Xxxxxxx X. Xxxx
Title:
Vice President & Treasurer
LTB
Investment Corporation
By
/s/
Xxxxxxx X. Long______________
Name:
Xxxxxxx X. Xxxx
Title:
Vice President & Treasurer
CTS
Electronics Manufacturing Solutions, Inc.
By
/s/
Xxxxxxx X. Cutter______________
Name:
Xxxxxxx X. Xxxxxx
Title:
Vice President & Secretary
CTS
Electronics Manufacturing Solutions (Santa Xxxxx), Inc.
By
/s/
Xxxxxxx X. Cutter______________
Name:
Xxxxxxx X. Xxxxxx
Title:
Vice President & Secretary
CTS
Electronics Manufacturing Solutions (Moorpark), Inc.
By
/s/
Xxxxxxx X. Cutter______________
Name:
Xxxxxxx X. Xxxxxx
Title:
Vice President & Secretary
“Lenders”
Xxxxxx
X.X.,
in its
individual capacity as a Lender, as L/C Issuer, and as Administrative
Agent
By
/s/
Xxxx X. Rasche________________
Name:
Xxxx X. Xxxxxx
Title:
Director
National
City Bank of Indiana
By
/s/
Xxxxx X. Thornton_______________
Name:
Xxxxx X. Xxxxxxxx
Title:
Vice President
The
Northern Trust Company
By
/s/
Jared Hall_____________________
Name:
Xxxxx Xxxx
Title:
Vice President
Comerica
Bank
By
/s/
Xxxxxxxxx Xxxxxxx Young________
Name:
Xxxxxxxxx Xxxxxxx Xxxxx
Title:
Vice President
LaSalle
Bank National Association
By
/s/
Xxxx X. Beardslee______________
Name:
Xxxx X. Xxxxxxxxx
Title:
Senior Vice President
