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EXHIBIT 10(k)
MULTI-YEAR REVOLVING CREDIT AGREEMENT
among
POLARIS INDUSTRIES INC.
as Borrower,
AND
CERTAIN SUBSIDIARIES OF THE BORROWER
as Guarantors,
AND
THE LENDERS IDENTIFIED HEREIN,
AND
BANK OF AMERICA, N.A.,
as Administrative Agent
AND
U.S. BANK N.A.,
as Syndication Agent and Issuing Lender
DATED AS OF JUNE 14, 0000
XXXX XX XXXXXXX SECURITIES LLC
as Sole Book Manager and Co-Arranger
U.S. BANK N.A.
as Co-Arranger
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TABLE OF CONTENTS
SECTION 1 DEFINITIONS AND ACCOUNTING TERMS...................................................................... 1
1.1 Definitions.................................................................................... 1
1.2 Computation of Time Periods and Other Definitional Provisions..................................21
1.3 Accounting Terms...............................................................................21
1.4 Time...........................................................................................22
SECTION 2 CREDIT FACILITIES.....................................................................................22
2.1 Loans..........................................................................................22
2.2 Letter of Credit Subfacility...................................................................24
2.3 Continuations and Conversions..................................................................30
2.4 Minimum Amounts................................................................................30
SECTION 3 GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT..........................................30
3.1 Interest.......................................................................................30
3.2 Place and Manner of Payments...................................................................31
3.3 Prepayments....................................................................................31
3.4 Fees...........................................................................................32
3.5 Payment in full at Maturity....................................................................34
3.6 Computations of Interest and Fees..............................................................34
3.7 Pro Rata Treatment.............................................................................35
3.8 Sharing of Payments............................................................................36
3.9 Capital Adequacy...............................................................................37
3.10 Inability To Determine Interest Rate...........................................................37
3.11 Illegality.....................................................................................38
3.12 Requirements of Law............................................................................38
3.13 Taxes..........................................................................................39
3.14 Compensation...................................................................................42
3.15 Determination and Survival of Provisions.......................................................42
SECTION 4 GUARANTY..............................................................................................43
4.1 Guaranty of Payment............................................................................43
4.2 Obligations Unconditional......................................................................43
4.3 Modifications..................................................................................44
4.4 Waiver of Rights...............................................................................44
4.5 Reinstatement..................................................................................45
4.6 Remedies.......................................................................................45
4.7 Limitation of Guaranty.........................................................................45
4.8 Rights of Contribution.........................................................................45
SECTION 5 CONDITIONS PRECEDENT..................................................................................46
5.1 Closing Conditions.............................................................................46
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5.2 Conditions to All Extensions of Credit.........................................................48
SECTION 6 REPRESENTATIONS AND WARRANTIES........................................................................49
6.1 Organization and Good Standing.................................................................49
6.2 Due Authorization..............................................................................49
6.3 Enforceable Obligations........................................................................49
6.4 No Conflicts...................................................................................49
6.5 Consents.......................................................................................50
6.6 Financial Condition............................................................................50
6.7 No Material Change.............................................................................50
6.8 Disclosure.....................................................................................51
6.9 No Default.....................................................................................51
6.10 Litigation.....................................................................................51
6.11 Taxes..........................................................................................51
6.12 Compliance with Law............................................................................51
6.13 Licenses, etc..................................................................................52
6.14 Title to Properties............................................................................52
6.15 Insurance......................................................................................52
6.16 Use of Proceeds................................................................................52
6.17 Government Regulation..........................................................................52
6.18 No Burdensome Restrictions.....................................................................53
6.19 ERISA..........................................................................................53
6.20 Environmental Matters..........................................................................54
6.21 Intellectual Property..........................................................................56
6.22 Subsidiaries...................................................................................56
6.23 Solvency.......................................................................................56
6.24 Indebtedness...................................................................................56
6.25 Investments; Liens.............................................................................56
6.26 Force Majeure..................................................................................57
SECTION 7 AFFIRMATIVE COVENANTS.................................................................................57
7.1 Information Covenants..........................................................................57
7.2 Financial Covenants............................................................................60
7.3 Preservation of Existence and Franchises.......................................................61
7.4 Books and Records..............................................................................61
7.5 Compliance with Law............................................................................61
7.6 Payment of Taxes and Other Indebtedness........................................................61
7.7 Insurance......................................................................................61
7.8 Maintenance of Property........................................................................62
7.9 Performance of Obligations.....................................................................62
7.10 Use of Proceeds................................................................................62
7.11 Audits/Inspections.............................................................................62
7.12 Additional Credit Parties......................................................................63
SECTION 8 NEGATIVE COVENANTS....................................................................................63
8.1 Indebtedness...................................................................................63
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8.2 Guaranty Obligations...........................................................................65
8.3 Liens..........................................................................................65
8.4 Nature of Business.............................................................................66
8.5 Consolidation and Merger.......................................................................66
8.6 Sale or Lease of Assets........................................................................66
8.7 Sale Leasebacks................................................................................67
8.8 Investments....................................................................................67
8.9 Foreign Subsidiaries...........................................................................67
8.10 Transactions with Affiliates...................................................................67
8.11 Fiscal Year; Accounting; Organizational Documents..............................................68
8.12 No Limitations.................................................................................68
8.13 No Other Negative Pledges......................................................................68
8.14 Retail Credit Subsidiaries.....................................................................68
SECTION 9 EVENTS OF DEFAULT.....................................................................................68
9.1 Events of Default..............................................................................68
9.2 Acceleration; Remedies.........................................................................72
9.3 Allocation of Payments After Event of Default..................................................73
SECTION 10 AGENCY PROVISIONS....................................................................................74
10.1 Appointment....................................................................................74
10.2 Delegation of Duties...........................................................................75
10.3 Exculpatory Provisions.........................................................................75
10.4 Reliance on Communications.....................................................................75
10.5 Notice of Default..............................................................................76
10.6 Non-Reliance on Administrative Agent and Other Lenders.........................................76
10.7 Indemnification................................................................................77
10.8 Administrative Agent in Its Individual Capacity................................................78
10.9 Successor Agent................................................................................78
SECTION 11 MISCELLANEOUS........................................................................................79
11.1 Notices........................................................................................79
11.2 Right of Set-Off, Automatic Debits.............................................................79
11.3 Benefit of Agreement...........................................................................80
11.4 No Waiver; Remedies Cumulative.................................................................83
11.5 Payment of Expenses; Indemnification...........................................................84
11.6 Amendments, Waivers and Consents...............................................................84
11.7 Counterparts/Telecopy..........................................................................85
11.8 Headings.......................................................................................86
11.9 Defaulting Lender..............................................................................86
11.10 Survival of Indemnification and Representations and Warranties.................................86
11.11 Governing Law; Jurisdiction....................................................................86
11.12 Waiver of Jury Trial; Waiver of Consequential Damages..........................................86
11.13 Severability...................................................................................87
11.14 Further Assurances.............................................................................87
11.15 Confidentiality................................................................................87
11.16 Entirety.......................................................................................87
11.17 Binding Effect; Continuing Agreement...........................................................87
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MULTI-YEAR REVOLVING CREDIT AGREEMENT
THIS MULTI-YEAR REVOLVING CREDIT AGREEMENT (this "Credit Agreement"),
is entered into as of June 14, 2001 among POLARIS INDUSTRIES INC., a Minnesota
corporation (the "Borrower"), certain of the Subsidiaries of the Borrower
(individually a "Guarantor" and collectively the "Guarantors"), the Lenders (as
defined herein), U.S. BANK N.A., as Issuing Lender, and BANK OF AMERICA, N.A.,
as Administrative Agent for the Lenders.
RECITALS
WHEREAS, the Borrower and the Guarantors have requested the Lenders to
provide a senior credit facility to the Borrower in an aggregate principal
amount of up to $150,000,000; and
WHEREAS, the Lenders party hereto have agreed to make the requested
senior credit facility available to the Borrower on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 DEFINITIONS.
As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular:
"Acceptance Partnership" means Polaris Acceptance, an Illinois
general partnership.
"Acceptance Partnership Agreement" means that certain
Partnership Agreement, dated as of February 7, 1996, between PAI and
Transamerica Joint Ventures, Inc., pursuant to which the Acceptance
Partnership was created, as the same may be amended, restated or
otherwise modified from time to time.
"Acquisition" means the acquisition by any Person of (a) all
or substantially all of the Capital Stock of another Person, (b) all or
substantially all of the assets of another Person or (c) all or
substantially all of a line of business of another Person, in each case
whether or not involving a merger or consolidation with such other
Person.
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"Additional Credit Party" means each Person that becomes a
Guarantor after the Closing Date, as provided in Section 7.12 or
otherwise.
"Adjusted Eurodollar Rate" means, with respect to Eurodollar
Loans, the Eurodollar Rate plus the Applicable Percentage.
"Adjusted Leverage Ratio" means, as of the last day of each
fiscal quarter, the ratio of (a) the quotient of (i) the sum of all
Funded Debt for each day during the period of four fiscal quarters
ending on such date, divided by (ii) the number of days in such period
to (b) EBITDA for the period of four fiscal quarters ending on such
date.
"Administrative Agent" means Bank of America, N.A. (or any
successor thereto) or any successor administrative agent appointed
pursuant to Section 10.9.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling (including but not limited to
all directors and officers of such Person), controlled by or under
direct or indirect common control with such Person. A Person shall be
deemed to control a corporation if such Person possesses, directly or
indirectly, the power (a) to vote 10% or more of the securities having
ordinary voting power for the election of directors of such corporation
or (b) to direct or cause direction of the management and policies of
such corporation, whether through the ownership of voting securities,
by contract or otherwise.
"Agency Services Address" means Bank of America, N.A., 0000
Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx, Attn: Credit Services, or such
other address as may be identified by written notice from the
Administrative Agent to the Borrower.
"Agent-Related Person" means the Administrative Agent
(including any successor administrative agent), together with its
Affiliates (including, in the case of Bank of America in its capacity
as the Administrative Agent, BAS), and their respective officers,
directors, employees, agents, counsel and attorneys-in-fact.
"Applicable Percentage" means the appropriate applicable
percentages corresponding to the Adjusted Leverage Ratio in effect as
of the most recent Calculation Date as shown below:
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================================================================================================
Applicable Applicable Percentage Applicable
Pricing Adjusted Leverage Percentage for for Letter of Credit Percentage for
Level Ratio Eurodollar Loans Fees Facility Fee
------------------------------------------------------------------------------------------------
< .50 to 1.0
-
I .475% .475% .150%
------------------------------------------------------------------------------------------------
> .50 to 1.0 but
II < 1.25 to 1.0 .575% .575% .175%
-
------------------------------------------------------------------------------------------------
> 1.25 to 1.0 but
III < 2.0 to 1.0 .800% .800% .200%
-
------------------------------------------------------------------------------------------------
IV > 2.0 to 1.0 1.000% 1.000% .250%
================================================================================================
The Applicable Percentage for Loans, the Letter of Credit Fees and the
Facility Fees shall, in each case, be determined and adjusted quarterly
on the date (each a "Calculation Date") five Business Days after the
date by which the Borrower is required to provide the officer's
certificate in accordance with the provisions of Section 7.1(c);
provided that the initial Applicable Percentage for Loans, the Letter
of Credit Fees and the Facility Fees shall be based on Pricing Level II
(as shown above) and shall remain at Pricing Level II until the first
Calculation Date subsequent to the Closing Date and, thereafter, the
Pricing Level shall be determined by the Adjusted Leverage Ratio
calculated as of the most recent fiscal quarter end; provided further
that if the Borrower fails to provide the officer's certificate
required by Section 7.1(c) on or before the most recent Calculation
Date, the Applicable Percentage for Loans, the Letter of Credit Fees
and the Facility Fees from such Calculation Date shall be based on
Pricing Level IV (and the Borrower may be subject to a default rate of
interest, if applicable, pursuant to Section 3.1(b)) until such time as
an appropriate officer's certificate is provided whereupon the Pricing
Level shall be determined by the then current Adjusted Leverage Ratio.
Each Applicable Percentage shall be effective from one Calculation Date
until the next Calculation Date. Any adjustment in the Applicable
Percentage shall be applicable to all existing Loans and Letters of
Credit as well as any new Loans made or Letters of Credit issued.
"Attorney Costs" means all reasonable fees and disbursements
of any law firm or other external counsel and the reasonable allocated
cost of internal legal services and all disbursements of internal
counsel.
"Authorized Officer" means any of the president, chief
financial officer, vice president of finance, treasurer or assistant
treasurer of the Borrower.
"Bank of America" means Bank of America, N.A. or any successor
thereto.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
"BAS" means Banc of America Securities LLC.
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"Base Rate" means, for any day, the rate per annum equal to
the greater of (a) the Federal Funds Rate in effect on such day plus
1/2 of 1% or (b) the Prime Rate in effect on such day. If for any
reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is
unable after due inquiry to ascertain the Federal Funds Rate for any
reason, including the inability or failure of the Administrative Agent
to obtain sufficient quotations in accordance with the terms hereof,
the Base Rate shall be determined without regard to clause (a) of the
first sentence of this definition until the circumstances giving rise
to such inability no longer exist. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Rate shall be effective
at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Base Rate.
"Borrower" means Polaris Industries Inc., a Minnesota
corporation, together with any successors and permitted assigns.
"Business Day" means any day other than a Saturday, a Sunday,
a legal holiday or a day on which banking institutions are authorized
or required by law or other governmental action to close in San
Francisco, California, Dallas, Texas or Chicago, Illinois; provided
that in the case of Eurodollar Loans, such day is also a day on which
dealings between banks are carried on in Dollar deposits in the London
interbank market.
"Calculation Date" has the meaning set forth in the definition
of Applicable Percentage.
"Capital Expenditures" means all expenditures of the Borrower
and its Subsidiaries on a consolidated basis which, in accordance with
GAAP, would be classified as capital expenditures, including, without
limitation, Capital Leases.
"Capital Lease" means, as applied to any Person, any lease of
any property (whether real, personal or mixed) by that Person as lessee
which, in accordance with GAAP, is or should be accounted for as a
capital lease on the balance sheet of that Person and the amount of
such obligation shall be the capitalized amount thereof determined in
accordance with GAAP.
"Capital Stock" means (a) in the case of a corporation, all
classes of capital stock of such corporation, (b) in the case of a
partnership, partnership interests (whether general or limited), (c) in
the case of a limited liability company, membership interests and (d)
any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
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"Cash Equivalents" means (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support thereof)
having maturities of not more than twelve months from the date of
acquisition, (b) Dollar denominated time and demand deposits,
certificates of deposit and banker's acceptances of (i) any Lender,
(ii) any domestic commercial bank having capital and surplus in excess
of $500,000,000 or (iii) any bank whose short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or from
Xxxxx'x is at least P-1 or the equivalent thereof (any such bank being
an "Approved Bank"), in each case with maturities of not more than 270
days from the date of acquisition, (c) commercial paper and variable or
fixed rate notes issued by any Approved Bank (or by the parent company
thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by
S&P or P-1 (or the equivalent thereof) or better by Moody's and
maturing within six months of the date of acquisition, (d) repurchase
agreements with a bank or trust company (including any of the Lenders)
or recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by
the United States of America in which the Borrower shall have a
perfected first priority security interest (subject to no other Liens)
and having, on the date of purchase thereof, a fair market value of at
least 100% of the amount of the repurchase obligations, (e) Investments
in tax-exempt municipal bonds rated AA (or the equivalent thereof) or
better by S&P or Aa2 (or the equivalent thereof) or better by Moody's
and (f) Investments, classified in accordance with GAAP as current
assets, in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are administered by
reputable financial institutions having capital of at least
$500,000,000 and the portfolios of which are limited to Investments of
the character described in the foregoing subdivisions (a) through (e).
"Change of Control" means either of the following events:
(a) any "person" or "group" (within the meaning of
Section 13(d) or 14(d) of the Exchange Act) has become,
directly or indirectly, the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act), by way of
merger, consolidation or otherwise of 25% or more of the
Voting Stock of the Borrower on a fully-diluted basis, after
giving effect to the conversion and exercise of all
outstanding warrants, options and other securities of the
Borrower convertible into or exercisable for Voting Stock of
the Borrower (whether or not such securities are then
currently convertible or exercisable); or
(b) during any period of twelve calendar months,
individuals who at the beginning of such period constituted
the board of directors of the Borrower together with any new
members of such board of directors whose elections by such
board or board of directors or whose nomination for election
by the stockholders of the Borrower was approved by a vote of
a majority of the
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members of such board of directors then still in office who
either were directors at the beginning of such period or whose
election or nomination for election was previously so approved
cease for any reason to constitute a majority of the directors
of the Borrower then in office.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986 and the rules
and regulations promulgated thereunder, as amended, modified, succeeded
or replaced from time to time.
"Commitment Percentage" means, for each Lender, the percentage
identified as its Commitment Percentage on Schedule 1.1(a), as such
percentage may be modified in connection with any assignment made in
accordance with the provisions of Section 11.3.
"Commitments" means (a) with respect to each Lender, the
Commitment Percentage of such Lender multiplied by the Revolving
Committed Amount and (b) with respect to the Issuing Lender, the LOC
Commitment.
"Credit Documents" means this Credit Agreement, the Notes, any
Joinder Agreement, the LOC Documents, any Notice of Borrowing, and all
other related agreements and documents issued or delivered hereunder or
thereunder or pursuant hereto or thereto other than Hedging Agreements.
"Credit Exposure" has the meaning set forth in the definition
of Required Lenders in this Section 1.1.
"Credit Parties" means the Borrower and the Guarantors and
"Credit Party" means any one of them.
"Credit Party Obligations" means, without duplication, (a) all
of the obligations of the Credit Parties to the Lenders (including the
Issuing Lender) and the Administrative Agent, whenever arising, under
this Credit Agreement, the Notes, or any of the other Credit Documents
to which any Credit Party is a party and (b) all liabilities and
obligations owing from such Credit Party to any Lender, or any
Affiliate of a Lender, arising under Hedging Agreements.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, (a)
has failed to make a Loan or purchase a Participation Interest required
pursuant to the terms of this Credit Agreement (but only for so long as
such Loan is not made or such Participation Interest is not purchased),
(b) has failed to pay to the Administrative Agent or any Lender an
amount
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owed by such Lender pursuant to the terms of this Credit Agreement (but
only for so long as such amount has not been repaid) or (c) has been
deemed insolvent or has become subject to a bankruptcy or insolvency
proceeding or to a receiver, trustee or similar official.
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Domestic Subsidiary" means each direct and indirect
Subsidiary of the Borrower that (a) is domiciled or organized under the
laws of any State of the United States or the District of Columbia or
(b) maintains the major portion of its assets in the United States of
America.
"EBIT" means, for any period, with respect to the Borrower and
its Subsidiaries on a consolidated basis, (a) Net Income for such
period (excluding the effect of any extraordinary or other
non-recurring gains (including any gain from the sale of property))
plus (b) an amount which, in the determination of Net Income for such
period, has been deducted for (i) Interest Expense for such period and
(ii) total Federal, state, foreign or other income taxes for such
period.
"EBITDA" means, for any period, with respect to the Borrower
and its Subsidiaries on a consolidated basis, the sum of (a) EBIT for
such period plus (b) an amount which, in the determination of Net
Income for such period has been deducted for all depreciation and
amortization for such period.
"Effective Date" means the date on which the conditions set
forth in Section 5.1 shall have been fulfilled (or waived in the sole
discretion of the Lenders) and on which the initial Loans shall have
been made and/or the initial Letters of Credit shall have been issued.
"Eligible Assets" means any assets or any business (or any
substantial part thereof) used or useful in the same or a similar line
of business as the Borrower and its Subsidiaries are engaged on the
Closing Date.
"Eligible Assignee" means, unless an assignment to such Person
would result in any increased cost to the Borrower under Section 3.9,
Section 3.12 or Section 3.13 on the date of such assignment, (a) a
Lender; (b) an Affiliate of a Lender; and (c) any other Person approved
by the Administrative Agent, the Issuing Lender and the Borrower (such
approval not to be unreasonably withheld or delayed); provided that (i)
the Borrower's consent is not required during the existence and
continuation of a Default or an Event of Default, (ii) approval by the
Borrower shall be deemed given if no objection is received by the
assigning Lender and the Administrative Agent from the Borrower within
five Business Days after notice of such proposed assignment has been
delivered to the Borrower; and (iii) neither the Borrower nor an
Affiliate of the Borrower shall qualify as an Eligible Assignee.
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"Environmental Claim" means any investigation, written notice,
violation, written demand, written allegation, action, suit,
injunction, judgment, order, consent decree, penalty, fine, lien,
proceeding, or written 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 assessment,
abatement, removal, remedial, corrective, or other response action in
connection with an Environmental Law or other 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 Laws" means any current or future legal
requirement of any Governmental Authority 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 and groundwater or
(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 or toxic substance or material or (e) pollution
(including any release to land surface water and groundwater) and
includes, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq., Solid
Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984,
42 USC 6901 et seq., Federal Water Pollution Control Act, as amended by
the Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act of
1966, as amended, 42 USC 7401 et seq., Toxic Substances Control Act of
1976, 15 USC 2601 et seq., Hazardous Materials Transportation Act, 49
USC App. 1801 et seq., Occupational Safety and Health Act of 1970, as
amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et
seq., Emergency Planning and Community Right-to-Know Act of 1986, 42
USC 11001 et seq., National Environmental Policy Act of 1969, 42 USC
4321 et seq., Safe Drinking Water Act of 1974, as amended, 42 USC
300(f) et seq., any analogous implementing or successor law, and any
amendment, rule, regulation, order, or directive issued thereunder.
"Equity Issuance" means any issuance for cash by the Borrower
or any of its Subsidiaries to any Person of (a) shares of its Capital
Stock or other equity interests, (b) any shares of its Capital Stock or
other equity interests pursuant to the exercise of options or warrants
or (c) any shares of its Capital Stock or other equity interests
pursuant to the conversion of any debt securities to equity; provided
that "Equity Issuance" shall not include an issuance of equity by such
Person pursuant to the exercise of employee stock options.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, all as the same may be in effect
from time to time. References to sections of ERISA shall be construed
also to refer to any successor sections.
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"ERISA Affiliate" means an entity, whether or not
incorporated, which is under common control with the Borrower or any
Subsidiary of the Borrower within the meaning of Section 4001(a)(14) of
ERISA, or is a member of a group which includes the Borrower or any
Subsidiary of the Borrower and which is treated as a single employer
under Sections 414(b), (c), (m) or (o) of the Code.
"ERISA Event" means (a) with respect to any Single Employer or
Multiple Employer Plan, the occurrence of a Reportable Event or the
substantial cessation of operations (within the meaning of Section
4062(e) of ERISA); (b) the withdrawal of the Borrower, any Subsidiary
of the Borrower or any ERISA Affiliate from a Multiple Employer Plan
during a plan year in which it was a substantial employer (as such term
is defined in Section 4001(a)(2) of ERISA), or the termination of a
Multiple Employer Plan; (c) the distribution of a notice of intent to
terminate or the actual termination of a Plan pursuant to Section
4041(a)(2) or 4041A of ERISA; (d) the institution of proceedings to
terminate or the actual termination of any Plan by the PBGC under
Section 4042 of ERISA; (e) any event or condition which might
constitute grounds under Section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any Plan; (f) the
complete or partial withdrawal of the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (g) the
conditions for imposition of a lien under Section 302(f) of ERISA exist
with respect to any Plan; or (h) the adoption of an amendment to any
Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA.
"Eurodollar Loan" means a Loan bearing interest based at a
rate determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including
conversions, extensions and renewals), a per annum interest rate
(rounded upwards to the nearest 1/100 of 1%) determined pursuant to the
following formula:
Eurodollar Rate = London Interbank Offered Rate
---------------------------------
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D, as such regulation may be amended from time to
time or any successor regulation, as the maximum reserve requirement
(including, without limitation, any basic, supplemental, emergency,
special, or marginal reserves) applicable with respect to Eurocurrency
liabilities as that term is defined in Regulation D (or against any
other category of liabilities that includes deposits by
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reference to which the interest rate of Eurodollar Loans is
determined), whether or not a Lender has any Eurocurrency liabilities
subject to such reserve requirement at that time. Eurodollar Loans
shall be deemed to constitute Eurocurrency liabilities and as such
shall be deemed subject to reserve requirements without benefits of
credits for proration, exceptions or offsets that may be available from
time to time to a Lender. The Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Event of Default" shall have the meaning given such term in
Section 9.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as
amended, modified, succeeded or replaced from time to time.
"Existing Credit Agreement" means that certain Credit
Agreement, dated as of May 8, 1995, among the Borrower, as borrower,
the banks signatories thereto, and First Bank National Association, as
administrative agent, as amended, supplemented, extended, renewed,
restated or replaced from time to time.
"Extension of Credit" means, as to any Lender, the making of a
Loan by such Lender (or a participation therein by a Lender) or the
issuance of, or participation in, a Letter of Credit by such Lender.
"Facility Fees" means the fees payable to the Lenders pursuant
to Section 3.4(a).
"Federal Funds Rate" means for any day the rate per annum
(rounded upwards to the nearest 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers
on such day, as published by the Federal Reserve Bank of New York on
the Business Day next succeeding such day; provided that (a) if such
day is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day and
(b) if no such rate is so published on such next preceding Business
Day, the Federal Funds Rate for such day shall be the average rate
quoted to the Administrative Agent on such day on such transactions as
determined by the Administrative Agent.
"Fee Letter" means that certain letter agreement, dated as of
April 16, 2001, among the Borrower, BAS and Bank of America.
"Foreign Subsidiary" means any Subsidiary of the Borrower that
is not a Domestic Subsidiary.
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"Fuji Contract" means that certain Shareholder Agreement,
dated as of February 3, 1995, between Fuji Heavy Industries, Ltd. and
the Borrower, providing for the Borrower's acquisition of 40% of the
shares of Xxxxx Manufacturing U.S.A. Inc.
"Funded Debt" means, without duplication, the sum of (a) the
principal amount of all obligations of the Borrower and its
Subsidiaries for borrowed money, (b) all purchase money Indebtedness of
the Borrower and its Subsidiaries, (c) the principal portion of all
obligations of the Borrower and its Subsidiaries under Capital Leases
and (d) all drawn but unreimbursed amounts under all letters of credit
(other than letters of credit supporting trade payables in the ordinary
course of business) issued for the account of the Borrower or any of
its Subsidiaries.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to Section 1.3.
"Governmental Authority" means any Federal, state, local,
provincial or foreign court or governmental agency, authority,
instrumentality or regulatory body.
"Guarantor" means each of the Domestic Subsidiaries of the
Borrower and each Additional Credit Party, together with their
successors and assigns.
"Guaranty" means the guaranty of the Credit Party Obligations
provided by the Guarantors pursuant to Section 4.
"Guaranty Obligations" means, with respect to any Person,
without duplication, any obligations (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing any Indebtedness of any other Person in any
manner, whether direct or indirect, and including without limitation
any obligation, whether or not contingent, (a) to purchase any such
Indebtedness or other obligation or any property constituting security
therefor, (b) to advance or provide funds or other support for the
payment or purchase of such Indebtedness or obligation or to maintain
working capital, solvency or other balance sheet condition of such
other Person (including, without limitation, maintenance agreements,
comfort letters, take or pay arrangements, put agreements or similar
agreements or arrangements) for the benefit of the holder of
Indebtedness of such other Person, (c) to lease or purchase property,
securities or services primarily for the purpose of assuring the owner
of such Indebtedness or (d) to otherwise assure or hold harmless the
owner of such Indebtedness or obligation against loss in respect
thereof. The amount of any Guaranty Obligation hereunder shall (subject
to any limitations set forth therein) be deemed to be an amount equal
to the outstanding principal amount (or maximum principal amount, if
larger) of the Indebtedness in respect of which such Guaranty
Obligation is made, or, if less, the maximum amount for which such
Person may be liable under the terms of the instruments evidencing such
Guaranty Obligation.
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"Hazardous Materials" means any substance, material or waste
defined in or regulated under any Environmental Laws.
"Hedging Agreements" means, collectively, interest rate
protection agreements, foreign currency exchange agreements, commodity
purchase or option agreements or other interest or exchange rate or
commodity price hedging agreements, in each case, entered into or
purchased by a Credit Party.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (c)
all obligations of such Person under conditional sale or other title
retention agreements relating to property purchased by such Person to
the extent of the value of such property (other than customary
reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business), (d) all obligations,
other than intercompany items, of such Person issued or assumed as the
deferred purchase price of property or services purchased by such
Person which would appear as liabilities on a balance sheet of such
Person, (e) all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed, (f)
all Guaranty Obligations of such Person, (g) the principal portion of
all obligations of such Person under (i) Capital Leases and (ii) any
synthetic lease, tax retention operating lease, off-balance sheet loan
or similar off-balance sheet financing product of such Person where
such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease in accordance with
GAAP (collectively, "Synthetic Leases"), (h) all obligations of such
Person to repurchase any securities which repurchase obligation is
related to the issuance thereof, including, without limitation,
obligations commonly known as residual equity appreciation potential
shares, (i) all net obligations of such Person in respect of Hedging
Agreements, (j) the maximum amount of all performance and standby
letters of credit issued or bankers' acceptances facilities created for
the account of such Person and, without duplication, all drafts drawn
thereunder (to the extent unreimbursed), and (k) the aggregate amount
of uncollected accounts receivable of such Person subject at such time
to a sale of receivables (or similar transaction) unless such
transaction is effected without recourse to such Person. The
Indebtedness of any Person shall include the Indebtedness of any
partnership or unincorporated joint venture to the extent such
Indebtedness is recourse to such Person.
"Indemnified Liabilities" has the meaning set forth in Section
11.5.
"Interest Coverage Ratio" means, as of the last day of each
fiscal quarter, the ratio of (a) EBIT for the period of four fiscal
quarters ending on such date to (b) Interest Expense for the period of
four fiscal quarters ending on such date.
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"Interest Expense" means, for any period, with respect to the
Borrower and its Subsidiaries on a consolidated basis, all interest
expense including the interest component under Capital Leases, as
determined in accordance with GAAP.
"Interest Payment Date" means (a) as to Base Rate Loans, the
last Business Day of each calendar month and the Maturity Date and (b)
as to Eurodollar Loans, the last day of each applicable Interest Period
and the Maturity Date and in addition, where the applicable Interest
Period for a Eurodollar Loan is greater than three months, then also
the date three months from the beginning of the Interest Period and
each three months thereafter.
"Interest Period" means, as to Eurodollar Loans, a period of
one, two, three or six months' duration, as the Borrower may elect,
commencing, in each case, on the date of the borrowing (including
continuations and conversions thereof); provided, however, (a) if any
Interest Period would end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day
(except that where the next succeeding Business Day falls in the next
succeeding calendar month, then on the next preceding Business Day),
(b) no Interest Period shall extend beyond the Maturity Date and (c)
where an Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month in which the
Interest Period is to end, such Interest Period shall end on the last
Business Day of such calendar month.
"Investment" in any Person means (a) the acquisition (whether
for cash, property, services, assumption of Indebtedness, securities or
otherwise, but excluding Capital Expenditures and acquisitions of
inventory in the ordinary course of business) of assets, shares of
Capital Stock, bonds, notes, debentures, partnership, joint ventures or
other ownership interests or other securities of such other Person or
(b) any deposit with, or advance, loan or other extension of credit to,
such Person (other than deposits made in connection with the lease or
purchase of equipment, inventory or other assets in the ordinary course
of business) or (c) any other capital contribution to or investment in
such Person, including, without limitation, any Guaranty Obligation
(including any support for a letter of credit issued on behalf of such
Person) incurred for the benefit of such Person.
"Issuing Lender" means U.S. Bank N.A. (or any successor
thereto).
"Issuing Lender Fees" has the meaning set forth in Section
3.4(c).
"Joinder Agreement" means a Joinder Agreement substantially in
the form of Exhibit 7.12.
"Lender" means any of the Persons identified as a "Lender" on
the signature pages hereto, and any Eligible Assignee which may become
a Lender by way of assignment in accordance with the terms hereof,
together with their successors and permitted assigns.
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"Lending Office" means, as to any Lender, the office or
offices of such Lender described as such on Schedule 1.1(a), or such
other office or offices as a Lender may from time notify to the
Borrower and the Administrative Agent.
"Letter of Credit" means any letter of credit issued for the
account of the Borrower by the Issuing Lender pursuant to Section 2.2,
as such letter of credit may be amended, modified, extended, renewed or
replaced.
"Leverage Ratio" means, as of the last day of each fiscal
quarter, the ratio of (a) Funded Debt on such date to (b) EBITDA for
the period of four fiscal quarters ending on such date.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind, including,
without limitation, any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, and any lease in
the nature thereof.
"Loan" or "Loans" means the Loans (or a portion of any Loan),
individually or collectively, as appropriate, made to the Borrower
pursuant to Section 2.1.
"LOC Commitment" means the commitment of the Issuing Lender to
issue Letters of Credit for the account of the Borrower in an aggregate
face amount any time outstanding (together with the amounts of any
unreimbursed drawings thereon) of up to the LOC Committed Amount.
"LOC Committed Amount" means TEN MILLION DOLLARS
($10,000,000).
"LOC Documents" means, with respect to any Letter of Credit,
such Letter of Credit, any amendments thereto, any documents delivered
in connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing or
providing for (a) the rights and obligations of the parties concerned
or at risk or (b) any collateral security for such obligations.
"LOC Obligations" means, at any time, the sum, without
duplication, of (a) the maximum amount which is, or at any time
thereafter may become, available to be drawn under Letters of Credit
then outstanding, assuming compliance with all requirements for
drawings referred to in such Letters of Credit plus (b) the aggregate
amount of all drawings under Letters of Credit honored by the Issuing
Lender but not theretofore reimbursed.
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"LOC Participants" means the Lenders.
"London Interbank Offered Rate" means, with respect to any
Eurodollar Loan for the Interest Period applicable thereto, the rate of
interest per annum (rounded upwards to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars at approximately 11:00
A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Telerate Page
3750, the applicable rate shall be the arithmetic mean of all such
rates. If, for any reason, such rate is not available, the term "London
Interbank Offered Rate" shall mean, with respect to any Eurodollar Loan
for the Interest Period applicable thereto, the rate of interest per
annum (rounded upwards to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 A.M. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to
such Interest Period; provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates.
"Mandatory Borrowing" has the meaning set forth in Section
2.2(e).
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, liabilities (actual or contingent),
operations, condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole, (b) the ability of the
Borrower, or of the Credit Parties taken as a whole, to perform its or
their obligations under this Credit Agreement or any of the other
Credit Documents, or (c) the validity or enforceability of this Credit
Agreement or any of the other Credit Documents, or the material rights
and remedies of the Lenders hereunder or thereunder taken as a whole.
"Maturity Date" means June 14, 2004.
"Moody's" means Xxxxx'x Investors Service, Inc., or any
successor or assignee of the business of such company in the business
of rating securities.
"Multiemployer Plan" means a Plan which is a multiemployer
plan as defined in Sections 3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Plan covered by Title IV of
ERISA (other than a Multiemployer Plan) in which the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate and at least one
employer other than the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate are contributing sponsors.
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"Net Cash Proceeds" means the aggregate cash proceeds received
from an Equity Issuance net of (a) reasonably identifiable transaction
costs payable to third parties, and (b) actual taxes paid or payable
with respect to such proceeds.
"Net Income" means, for any period, the net income after taxes
for such period of the Borrower and its Subsidiaries on a consolidated
basis, as determined in accordance with GAAP.
"Net Worth" means, as of any date, the shareholder's equity or
net worth of the Borrower and its Subsidiaries, on a consolidated
basis, as determined in accordance with GAAP.
"Note" or "Notes" means the promissory notes of the Borrower
in favor of each of the Lenders evidencing the Loans provided pursuant
to Section 2.1, individually or collectively, as appropriate, as such
promissory notes may be amended, modified, supplemented, extended,
renewed or replaced from time to time and as evidenced in the form of
Exhibit 2.1(e).
"Notice of Borrowing" means a request by the Borrower for a
Loan, in the form of Exhibit 2.1(b).
"Notice of Continuation/Conversion" means a request by the
Borrower to continue an existing Eurodollar Loan to a new Interest
Period or to convert a Eurodollar Loan to a Base Rate Loan or a Base
Rate Loan to a Eurodollar Loan, in the form of Exhibit 2.3.
"PAI" means Polaris Acceptance, Inc., a Minnesota corporation.
"Participation Interest" means the Extension of Credit by a
Lender by way of a purchase of a participation in Letters of Credit or
LOC Obligations as provided in Section 2.2 or in any Loans as provided
in Section 3.8.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereto.
"Permitted Acquisition" means an Acquisition by a Credit Party
or any of its Subsidiaries for consideration no greater than the fair
market value of the Capital Stock or property acquired; provided that
(a) the property acquired (or the property of the Person acquired) in
such Acquisition constitutes Eligible Assets (or goodwill associated
therewith), (b) in the case of an Acquisition of the Capital Stock of
another Person, the board of directors (or other comparable governing
body) of such other Person shall have duly approved such Acquisition,
(c) if the aggregate consideration to be paid for such Acquisition
equals or exceeds $25,000,000 (including, without limitation, the
amount of any Indebtedness assumed in connection with such
Acquisition), the Borrower shall
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have delivered to the Administrative Agent, prior to the closing of
such Acquisition, a certificate of an Authorized Officer of the
Borrower (i) providing calculations on a pro forma basis of each of the
financial covenants set forth in Section 7.2 by giving effect to such
Acquisition both (A) as of the actual date of such Acquisition and (B)
as of the first day of the most recently ended fiscal quarter, which
calculations shall demonstrate that, as of each such date, the Credit
Parties are or would have been in compliance with all of the financial
covenants set forth in Section 7.2 and (ii) both before and after
giving effect to such Acquisition, no Default or Event of Default
exists, (d) the representations and warranties made by the Credit
Parties in any Credit Document shall be true and correct in all
material respects at and as if made as of the date of such Acquisition
(after giving effect thereto) except to the extent such representations
and warranties expressly relate to an earlier date, (e) subsequent to
March 31, 2001, (i) the aggregate consideration paid and Investments
made with respect to all Acquisitions (including, without limitation,
Indebtedness assumed in connection with such Acquisitions) shall not
exceed $300,000,000 and (ii) the aggregate amount of Indebtedness
assumed in connection with all Acquisitions shall not exceed
$150,000,000, (f) if such Acquisition involves the formation of a new
Subsidiary of the Borrower, such Subsidiary shall comply with Section
7.12 and (g) such Acquisition is undertaken in accordance with all
laws, rules, regulations, orders, writs, judgments, injunctions,
decrees and awards to which any party to such Acquisition may be
subject.
"Permitted Investments" means Investments which are, without
duplication, (a) cash or Cash Equivalents, (b) trade accounts
receivable created, acquired or made in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms,
(c) inventory, raw materials and general intangibles acquired in the
ordinary course of business, (d) Investments by a Credit Party in
another Credit Party, (e) Permitted Acquisitions, (f) travel advances
to management personnel and employees in the ordinary course of
business, (g) Investments existing as of the Closing Date and set forth
on Schedule 8.8, (h) additional Investments in Foreign Subsidiaries
that do not exceed $25,000,000 in the aggregate during the term of this
Credit Agreement, (i) additional Investments made pursuant to the Fuji
Contract or pursuant to an expansion of the engine manufacturing
facility contemplated thereby that do not exceed $10,000,000 in the
aggregate during the term of this Credit Agreement, (j) in accordance
with Section 8.2, the existing Investments on Schedule 8.2(d) plus
additional Investments in the form of capital contributions by PAI in
Acceptance Partnership (or by the Borrower in PAI to make such capital
contributions) in an amount not to exceed $10,000,000 in the aggregate,
during the term of this Credit Agreement; it being understood that the
Borrower may not have or make any Investments in Acceptance Partnership
or PAI that constitute Guaranty Obligations (other than the obligation
regarding capital contributions as set forth herein), (k) Investments
in joint ventures formed for the purpose of providing retail credit in
an amount not to exceed $20,000,000, in the aggregate, during the term
of this Credit Agreement and (l) additional Investments (in addition to
those set forth above) not to exceed, in the aggregate, $12,500,000
during the term of this Credit Agreement.
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"Permitted Liens" means (a) Liens securing Credit Party
Obligations, (b) Liens for taxes not yet due or Liens for taxes being
contested in good faith by appropriate proceedings for which adequate
reserves determined in accordance with GAAP have been established (and
as to which the property subject to any such Lien is not yet subject to
foreclosure, sale, collection, levy or loss on account thereof), (c)
Liens in respect of property imposed by law arising in the ordinary
course of business such as materialmen's, mechanics', warehousemen's,
carrier's, landlords' and other nonconsensual statutory Liens which are
not yet due and payable or which are being contested in good faith by
appropriate proceedings for which adequate reserves determined in
accordance with GAAP have been established (and as to which the
property subject to any such Lien is not yet subject to foreclosure,
sale or loss on account thereof), (d) Liens (other than Liens imposed
under ERISA) consisting of pledges or deposits made in the ordinary
course of business to secure payment of worker's compensation
insurance, unemployment insurance, pensions or social security
programs, (e) Liens arising from good faith deposits in connection with
or to secure performance of tenders, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations incurred in the ordinary course of business (other than
obligations in respect of the payment of borrowed money), (f) Liens
arising from good faith deposits in connection with or to secure
performance of statutory obligations and surety and appeal bonds, (g)
easements, rights-of-way, restrictions (including zoning restrictions),
matters of plat, minor defects or irregularities in title and other
similar charges or encumbrances not, in any material respect, impairing
the use of the encumbered property for its intended purposes, (h)
judgment Liens that would not constitute an Event of Default, (i) Liens
in connection with Indebtedness permitted by Sections 8.1(d), (j) Liens
arising by virtue of any statutory or common law provision relating to
banker's liens, rights of setoff or similar rights as to deposit
accounts or other funds maintained with a creditor depository
institution, and (k) Liens existing on the date hereof and identified
on Schedule 8.3 and any renewals and extensions thereof not otherwise
prohibited by this Credit Agreement; provided that, with respect to
Liens identified on Schedule 8.3, (i) no such Lien shall extend to any
property other than the property subject thereto on the Closing Date
and (ii) the principal amount of the Indebtedness secured by such Liens
shall not be increased.
"Person" means any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust or
other enterprise (whether or not incorporated), or any Governmental
Authority.
"Plan" means any employee benefit plan (as defined in Section
3(3) of ERISA) which is covered by ERISA and with respect to which the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate is (or,
if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" within the meaning of Section 3(5)
of ERISA.
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"Prime Rate" means the per annum rate of interest established
from time to time by the Administrative Agent at its principal office
in Charlotte, North Carolina (or such other principal office of the
Administrative Agent as communicated in writing to the Borrower and the
Lenders) as its Prime Rate. Any change in the interest rate resulting
from a change in the Prime Rate shall become effective as of 12:01 a.m.
of the Business Day on which each change in the Prime Rate is announced
by the Administrative Agent. The Prime Rate is a reference rate used by
the Administrative Agent in determining interest rates on certain loans
and is not intended to be the lowest rate of interest charged on any
extension of credit to any debtor.
"Real Property" has the meaning given thereto in Section 6.20.
"Regulation A, D, T, U or X" means Regulation A, D, T, U or X,
respectively, of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion
thereof.
"Reportable Event" means any of the events set forth in
Section 4043(c) of ERISA, other than those events as to which the
notice requirement has been waived by regulation or by the PBGC.
"Required Lenders" means Lenders whose aggregate Credit
Exposure (as hereinafter defined) constitutes more than 50% of the
Credit Exposure of all Lenders at such time; provided, however, that if
any Lender shall be a Defaulting Lender at such time then there shall
be excluded from the determination of Required Lenders the aggregate
principal amount of Credit Exposure of such Lender at such time. For
purposes hereof, the term "Credit Exposure" as applied to each Lender
shall mean (a) at any time prior to the termination of the Commitments,
the sum of the Commitment Percentage of such Lender multiplied by the
Revolving Committed Amount and (b) at any time after the termination of
the Commitments, the sum of (i) the principal balance of the
outstanding Loans of such Lender plus (ii) such Lender's Participation
Interests in the face amount of the outstanding Letters of Credit.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation or final, non-appealable determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or
binding upon such Person or to which any of its material property is
subject.
"Revolving Committed Amount" means ONE HUNDRED FIFTY MILLION
DOLLARS ($150,000,000) or such lesser amount to which the Revolving
Committed Amount may be reduced pursuant to Section 2.1(d).
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"S&P" means Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. or any successor or assignee of the
business of such division in the business of rating securities.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder, as amended,
modified, succeeded or replaced from time to time.
"Short Term Credit Agreement" means that certain 364-Day
Revolving Credit Agreement, dated as of the Closing Date, among the
Borrower, the Guarantors, the Administrative Agent, as administrative
agent, and the lenders party thereto, as amended, modified,
supplemented, extended, renewed, restated or replaced from time to
time.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan or a Multiple
Employer Plan.
"Solvent" means, with respect to any Person as of a particular
date, that on such date (a) such Person is able to pay its debts and
other liabilities, contingent obligations and other commitments as they
mature in the normal course of business, (b) such Person does not
intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and
liabilities mature in their ordinary course, (c) such Person is not
engaged in a business or a transaction, and is not about to engage in a
business or a transaction, for which such Person's assets would
constitute unreasonably small capital after giving due consideration to
the prevailing practice in the industry in which such Person is engaged
or is to engage, (d) the fair value of the assets of such Person is
greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person and (e) the present
fair saleable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured. In computing
the amount of contingent liabilities at any time, it is intended that
such liabilities will be computed at the amount which, in light of all
the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability.
"Subsidiary" means, as to any Person, (a) any corporation more
than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time, any class
or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by
such Person directly or indirectly through Subsidiaries, and (b) any
partnership, association, joint venture or other entity in which such
person directly or indirectly through Subsidiaries has more than a 50%
equity interest at any time.
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"Synthetic Leases" has the meaning set forth in the definition
of Indebtedness in this Section 1.1.
"Tangible Net Worth" means, as of any date, Net Worth less the
book value of those assets on the balance sheet of the Borrower and its
Subsidiaries, on a consolidated basis, that would, in accordance with
GAAP, be treated as intangibles, it being understood that deferred tax
assets do not constitute intangible assets under GAAP.
"Total Assets" means all items that in accordance with GAAP
would be classified as assets of the Borrower and its Subsidiaries on a
consolidated basis.
"Total Commitment" means the sum of (a) the Revolving
Committed Amount plus (b) the total committed amount under the Short
Term Credit Agreement, in each case as such amounts may be reduced
pursuant to the terms of this Credit Agreement and the Short Term
Credit Agreement, respectively.
"Total Utilization" means, as of any date, the sum of the
principal amounts of (a) Loans outstanding under this Credit Agreement
on such date plus (b) LOC Obligations outstanding under this Credit
Agreement on such date plus (c) loans outstanding under the Short Term
Credit Agreement on such date plus (d) the sum, without duplication, of
the stated amounts of all letters of credit, if any, outstanding on
such date under the Short Term Credit Agreement plus all drawn but
unreimbursed amounts on such date under such letters of credit.
"Utilization Fees" means the fees payable to the Lenders
pursuant to Section 3.4(b).
"Voting Stock" means all classes of the Capital Stock of such
Person then outstanding and normally entitled to vote in the election
of directors (or similar governing authority).
1.2 COMPUTATION OF TIME PERIODS AND OTHER DEFINITIONAL PROVISIONS.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding." References in this Credit Agreement to "Articles", "Sections",
"Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits
of or to this Credit Agreement unless otherwise specifically provided.
1.3 ACCOUNTING TERMS.
Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis. All calculations made for the purposes of determining compliance
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with this Credit Agreement shall (except as otherwise expressly provided herein)
be made by application of GAAP applied on a basis consistent with the most
recent annual or quarterly financial statements delivered pursuant to Section
7.1 (or, prior to the delivery of the first financial statements pursuant to
Section 7.1, consistent with the financial statements delivered pursuant to
Section 5.1(d)); provided, however, if (a) the Borrower shall object to
determining such compliance on such basis at the time of delivery of such
financial statements due to any change in GAAP or the rules promulgated with
respect thereto or (b) the Administrative Agent or the Required Lenders shall so
object in writing within 30 days after delivery of such financial statements,
then such calculations shall be made on a basis consistent with GAAP as in
effect as of the date of the most recent financial statements delivered by the
Borrower to the Lenders to which no such objection shall have been made.
1.4 TIME.
All references to time herein shall be references to Eastern Standard
Time or Eastern Daylight time, as the case may be, unless specified otherwise.
SECTION 2
CREDIT FACILITIES
2.1 LOANS.
(a) Loan Commitment. Subject to the terms and conditions set
forth herein, including but not limited to Section 5.2, each Lender
severally agrees to make revolving loans (each a "Loan" and
collectively the "Loans") to the Borrower, in Dollars, at any time and
from time to time, during the period from and including the Effective
Date to but not including the Maturity Date (or such earlier date if
the Revolving Committed Amount has been terminated as provided herein);
provided, however, that (i) the sum of the aggregate amount of Loans
outstanding plus the aggregate amount of LOC Obligations outstanding
shall not exceed the Revolving Committed Amount and (ii) with respect
to each individual Lender, the Lender's pro rata share of outstanding
Loans plus such Lender's pro rata share of outstanding LOC Obligations
shall not exceed such Lender's Commitment Percentage of the Revolving
Committed Amount. Subject to the terms of this Credit Agreement
(including Section 3.3), the Borrower may borrow, repay and reborrow
Loans.
(b) Method of Borrowing for Loans. By no later than 11:00 a.m.
(i) on the date of the requested borrowing of Loans that will be Base
Rate Loans or (ii) three Business Days prior to the date of the
requested borrowing of Loans that will be Eurodollar Loans, the
Borrower shall provide telephonic notice to the Administrative Agent,
followed promptly by a written Notice of Borrowing in the form of
Exhibit 2.1(b) (which may be submitted by telecopy), each of such
telephonic notice and such written Notice of
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Borrowing setting forth (A) the amount requested, (B) whether such
Loans shall accrue interest at the Base Rate or the Adjusted Eurodollar
Rate, (C) with respect to Loans that will be Eurodollar Loans, the
Interest Period applicable thereto and (D) certification that the
Borrower has complied in all respects with Section 5.2. All Loans made
on the Effective Date shall be Base Rate Loans. Thereafter, all or any
portion of such Loans may be converted into Eurodollar Loans in
accordance with Section 2.3
(c) Funding of Loans. Upon receipt of a Notice of Borrowing,
the Administrative Agent shall promptly inform the Lenders as to the
terms thereof. Each Lender shall make its Commitment Percentage of the
requested Loans available to the Administrative Agent by 1:00 p.m. on
the date specified in the Notice of Borrowing by deposit, in Dollars,
of immediately available funds at the Agency Services Address. The
amount of the requested Loans will then be made available to the
Borrower by the Administrative Agent as directed by the Borrower, to
the extent the amount of such Loans are made available to the
Administrative Agent.
No Lender shall be responsible for the failure or delay by any
other Lender in its obligation to make Loans hereunder; provided,
however, that the failure of any Lender to fulfill its obligations
hereunder shall not relieve any other Lender of its obligations
hereunder. Unless the Administrative Agent shall have been notified by
any Lender prior to the date of any such Loan that such Lender does not
intend to make available to the Administrative Agent its portion of the
Loans to be made on such date, the Administrative Agent may assume that
such Lender has made such amount available to the Administrative Agent
on the date of such Loans, and the Administrative Agent in reliance
upon such assumption, may (in its sole discretion but without any
obligation to do so) make available to the Borrower a corresponding
amount. If such corresponding amount is not in fact made available to
the Administrative Agent, the Administrative Agent shall be able to
recover such corresponding amount from such Lender. If such Lender does
not pay such corresponding amount upon the Administrative Agent's
demand therefor, the Administrative Agent will promptly notify the
Borrower, and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent. The Administrative Agent shall also
be entitled to recover from such Lender or the Borrower, as the case
may be, interest on such corresponding amount in respect of each day
from the date such corresponding amount was made available by the
Administrative Agent to the Borrower to the date such corresponding
amount is recovered by the Administrative Agent at a per annum rate
equal to (i) from the Borrower at the applicable rate for such Loan
pursuant to the Notice of Borrowing or (ii) from such Lender, at a rate
per annum equal to, during the period to but excluding the date two
Business Days after demand therefor, the Federal Funds Rate, and,
thereafter, the Base Rate plus two percent (2%) per annum.
(d) Reductions of Revolving Committed Amount. Upon at least
three Business Days' prior written notice, the Borrower shall have the
right to permanently reduce, without premium or penalty, all or part of
the aggregate unused amount of the Revolving
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Committed Amount at any time or from time to time; provided that (i)
each partial reduction shall be in an aggregate amount at least equal
to $5,000,000 and in integral multiples of $1,000,000 above such amount
and (ii) no reduction shall be made which would reduce the Revolving
Committed Amount to an amount less than the aggregate amount of
outstanding Loans plus the aggregate amount of outstanding LOC
Obligations. Any reduction in (or termination of) the Revolving
Committed Amount pursuant to this Section 2.1(d) shall be permanent and
may not be reinstated. The Administrative Agent shall immediately
notify the Lenders of any reduction in the Revolving Committed Amount
pursuant to this Section 2.1(d).
(e) Notes. The Loans made by each Lender shall be evidenced by
a duly executed promissory note of the Borrower to each Lender in
substantially the form of Exhibit 2.1(e).
2.2 LETTER OF CREDIT SUBFACILITY.
(a) Issuance. Subject to the terms and conditions hereof and
of the LOC Documents, if any, and any other terms and conditions which
the Issuing Lender may reasonably require (so long as such terms and
conditions do not impose any financial obligation on or require any
Lien (not otherwise contemplated by this Credit Agreement) to be given
by any Credit Party or conflict with any obligation of, or detract from
any action which may be taken by, any Credit Party or their
Subsidiaries under this Credit Agreement), the Issuing Lender agrees,
in reliance upon the agreements of the other Lenders set forth in this
Section 2.2, from time to time upon request, in its reasonable
discretion, to issue (from the Effective Date to the Maturity Date and
in a form reasonably acceptable to the Issuing Lender), in Dollars, and
the LOC Participants shall participate in, Letters of Credit for the
account of the Borrower; provided, however, that (i) the aggregate
amount of LOC Obligations shall not at any time exceed the LOC
Committed Amount, (ii) the sum of the aggregate amount of LOC
Obligations outstanding plus Loans outstanding shall not exceed the
Revolving Committed Amount and (iii) with respect to each individual
LOC Participant, the LOC Participant's pro rata share of outstanding
Loans plus its pro rata share of outstanding LOC Obligations shall not
exceed such LOC Participant's Commitment Percentage of the Revolving
Committed Amount. The Issuing Lender may require the issuance and
expiry date of each Letter of Credit to be a Business Day. Each Letter
of Credit shall be either (A) a standby letter of credit issued to
support the obligations (including pension or insurance obligations),
contingent or otherwise, of the Borrower or any of its Subsidiaries, or
(B) a commercial letter of credit in respect of the purchase of goods
or services by the Borrower or any of its Subsidiaries in the ordinary
course of business. Except as otherwise expressly agreed upon by all
the LOC Participants, no Letter of Credit shall have an original expiry
date more than one year from the date of issuance nor, as extended,
shall have an expiry date beyond the Maturity Date. Each Letter of
Credit shall comply with the related LOC Documents.
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(b) Notice and Reports. The request for the issuance of a
Letter of Credit shall be submitted to the Issuing Lender at least
three Business Days prior to the requested date of issuance. The
Issuing Lender will, at least quarterly and more frequently upon
request, provide to the Administrative Agent for dissemination to the
Lenders a report specifying the Letters of Credit which are then issued
and outstanding. The Issuing Lender will further provide to the
Administrative Agent, promptly upon request, copies of the Letters of
Credit and the other LOC Documents.
(c) Participations. Each LOC Participant, upon issuance of a
Letter of Credit, shall be deemed to have purchased without recourse a
risk participation from the Issuing Lender in such Letter of Credit and
each LOC Document related thereto and the rights and obligations
arising thereunder and any collateral relating thereto, in each case in
an amount equal to its Commitment Percentage of the obligations under
such Letter of Credit, and shall absolutely, unconditionally and
irrevocably assume, as primary obligor and not as surety, and be
obligated to pay to the Issuing Lender therefor and discharge when due,
its Commitment Percentage of the obligations arising under such Letter
of Credit. Without limiting the scope and nature of each LOC
Participant's participation in any Letter of Credit, to the extent that
the Issuing Lender has not been reimbursed as required hereunder or
under any such Letter of Credit, each such LOC Participant shall pay to
the Issuing Lender its Commitment Percentage of such unreimbursed
drawing in same day funds on the day of notification by the Issuing
Lender of an unreimbursed drawing pursuant to the provisions of
subsection (d) or (e) hereof. The obligation of each LOC Participant to
so reimburse the Issuing Lender shall be absolute and unconditional and
shall not be affected by the occurrence of a Default, an Event of
Default or any other occurrence or event. Any such reimbursement shall
not relieve or otherwise impair the obligation of the Borrower or any
other Credit Party to reimburse the Issuing Lender under any Letter of
Credit, together with interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any
Letter of Credit, the Issuing Lender will promptly notify the Borrower.
Unless the Borrower shall immediately notify the Issuing Lender of its
intent to otherwise reimburse the Issuing Lender, the Borrower shall be
deemed to have requested a Loan at the Base Rate in the amount of the
drawing, the proceeds of which will be used to satisfy the
reimbursement obligations. The Borrower shall reimburse the Issuing
Lender on the day of drawing under any Letter of Credit either with the
proceeds of such Loan obtained hereunder or otherwise in same day funds
as provided herein or in the LOC Documents. The Borrower's
reimbursement obligations hereunder shall be absolute and unconditional
under all circumstances irrespective of (but without waiver of) any
rights of set-off, counterclaim or defense to payment the applicable
account party or the Borrower may claim or have against the Issuing
Lender, the Administrative Agent, the Lenders, the beneficiary of the
Letter of Credit drawn upon or any other Person, including without
limitation, any defense based on any failure of the applicable account
party, the Borrower or any other Credit Party to receive consideration
or the legality, validity, regularity or unenforceability of the Letter
of Credit.
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The Issuing Lender will promptly notify the LOC Participants of the
amount of any unreimbursed drawing and each LOC Participant shall
promptly pay to the Issuing Lender, in Dollars and in immediately
available funds, the amount of such LOC Participant's Commitment
Percentage of such unreimbursed drawing. Such payment shall be made on
the day such notice is received by such Lender from the Issuing Lender
if such notice is received at or before 12:00 Noon, otherwise such
payment shall be made at or before 2:00 p.m. on the Business Day next
succeeding the day such notice is received. If such LOC Participant
does not pay such amount to the Issuing Lender in full upon such
request, such LOC Participant shall, on demand, pay to the Issuing
Lender interest on the unpaid amount during the period from the date
the LOC Participant received the notice regarding the unreimbursed
drawing until such LOC Participant pays such amount to the Issuing
Lender in full at a rate per annum equal to, if paid within two
Business Days of the date of drawing, the Federal Funds Rate and
thereafter at a rate equal to the Base Rate. Each LOC Participant's
obligation to make such payment to the Issuing Lender, and the right of
the Issuing Lender to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever and
without regard to the termination of this Credit Agreement or the
Commitments hereunder, the existence of a Default or Event of Default
or the acceleration of the obligations hereunder and shall be made
without any offset, abatement, withholding or reduction whatsoever.
Simultaneously with the making of each such payment by a LOC
Participant to the Issuing Lender, such LOC Participant shall,
automatically and without any further action on the part of the Issuing
Lender or such LOC Participant, acquire a participation in an amount
equal to such payment (excluding the portion of such payment
constituting interest owing to the Issuing Lender) in the related
unreimbursed drawing portion of the LOC Obligation and in the interest
thereon and in the related LOC Documents, and shall have a claim
against the Borrower and the other Credit Parties with respect thereto.
(e) Repayment with Loans. On any day on which the Borrower
shall have requested, or been deemed to have requested, a Loan
borrowing to reimburse a drawing under a Letter of Credit (as set forth
in clause (d) above), the Administrative Agent shall give notice to the
Lenders that a Loan has been requested or deemed requested in
connection with a drawing under a Letter of Credit, in which case a
Loan borrowing comprised solely of Base Rate Loans (each such
borrowing, a "Mandatory Borrowing") shall be immediately made from all
Lenders (without giving effect to any termination of the Commitments
pursuant to Section 9.2) pro rata based on each Lender's respective
Commitment Percentage and the proceeds thereof shall be paid directly
to the Issuing Lender for application to the respective LOC
Obligations. Each Lender hereby irrevocably agrees to make such Loans
immediately upon any such request or deemed request on account of each
such Mandatory Borrowing in the amount and in the manner specified in
the preceding sentence and on the same such date notwithstanding (i)
the amount of Mandatory Borrowing may not comply with the minimum
amount for borrowings of Loans otherwise required hereunder, (ii)
whether any conditions specified in Section 5.2 are then satisfied,
(iii) whether a Default or Event of Default then exists, (iv) failure
of any such
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request or deemed request for Loans to be made by the time otherwise
required hereunder, (v) the date of such Mandatory Borrowing, or (vi)
any reduction in the Revolving Committed Amount or any termination of
the Commitments. In the event that any Mandatory Borrowing cannot for
any reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a proceeding
under the Bankruptcy Code with respect to the Borrower or any other
Credit Party), then each such Lender hereby agrees that it shall
forthwith fund (as of the date the Mandatory Borrowing would otherwise
have occurred, but adjusted for any payments received from the Borrower
on or after such date and prior to such purchase) its Participation
Interest in the outstanding LOC Obligations in accordance with the
terms of subsection (d) above; provided, further, that in the event any
Lender shall fail to fund its Participation Interest on the day the
Mandatory Borrowing would otherwise have occurred, then the amount of
such Lender's unfunded Participation Interest therein shall bear
interest payable to the Issuing Lender upon demand, at the rate equal
to, if paid within two Business Days of such date, the Federal Funds
Rate, and thereafter at a rate equal to the Base Rate.
(f) Modification and Extension. The issuance of any
supplement, modification, amendment, renewal, or extensions to any
Letter of Credit shall, for purposes hereof, be treated in all respects
the same as the issuance of a new Letter of Credit hereunder.
(g) Uniform Customs and Practice. The Issuing Lender may have
the Letters of Credit be subject to The Uniform Customs and Practice
for Documentary Credits, including the International Chamber of
Commerce decision by the Commission on Banking Technique and Practice
of April 6, 1998 regarding the European Single Currency (euro), (the
"UCP") or the International Standby Practices 1998 (the "ISP98"), in
either case as published as of the date of issue by the International
Chamber of Commerce, in which case the UCP or the ISP98, as applicable,
may be incorporated therein and deemed in all respects to be a part
thereof.
(h) Responsibility of Issuing Lender.
(i) It is expressly understood and agreed as between
the Lenders that the obligations of the Issuing Lender
hereunder to the LOC Participants are only those expressly set
forth in this Credit Agreement and that the Issuing Lender
shall be entitled to assume that the conditions precedent set
forth in Section 5.2 have been satisfied unless it shall have
acquired actual knowledge that any such condition precedent
has not been satisfied; provided, however, that nothing set
forth in this Section 2.2 shall be deemed to prejudice the
right of any LOC Participant to recover from the Issuing
Lender any amounts made available by such LOC Participant to
the Issuing Lender pursuant to this Section 2.2 in the event
that it is determined by a court of competent jurisdiction
that the payment with respect to a Letter of Credit
constituted gross negligence or willful misconduct on the part
of the Issuing Lender.
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(ii) The Issuing Lender shall be under no obligation
to issue any Letter of Credit if (a) any order, judgment or
decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the Issuing Lender
from issuing such Letter of Credit, (b) any Requirement of Law
applicable to the Issuing Lender or any request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over the Issuing Lender shall
prohibit, or request that the Issuing Lender refrain from, the
issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the Issuing Lender
with respect to such Letter of Credit any restriction, reserve
or capital requirement (for which the Issuing Lender is not
otherwise compensated hereunder) not in effect on the Closing
Date, or shall impose upon the Issuing Lender any unreimbursed
loss, cost or expense which was not applicable on the Closing
Date and which the Issuing Lender in good xxxxx xxxxx material
to it, or (c) the issuance of such Letter of Credit would
violate one or more policies of the Issuing Lender.
(i) Conflict with LOC Documents. In the event of any conflict
between this Credit Agreement and any LOC Document, this Credit
Agreement shall govern.
(j) Indemnification of Issuing Lender.
(i) In addition to its other obligations under this
Credit Agreement, the Credit Parties hereby agree to protect,
indemnify, pay and save the Issuing Lender harmless from and
against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable
Attorney Costs) that the Issuing Lender may incur or be
subject to as a consequence, direct or indirect, of (A) the
issuance of any Letter of Credit or (B) the failure of the
Issuing Lender to honor a drawing under a Letter of Credit as
a result of any act or omission, whether rightful or wrongful,
of any present or future de jure or de facto Governmental
Authority (all such acts or omissions, herein called
"Government Acts").
(ii) As between a Credit Party and the Issuing
Lender, such Credit Party shall assume all risks of the acts,
omissions or misuse of any Letter of Credit by the beneficiary
thereof. The Issuing Lender shall not be responsible for
(except in the case of (A), (B) and (C) below if the Issuing
Lender has actual knowledge to the contrary): (A) the form,
validity, sufficiency, accuracy, genuineness or legal effect
of any document submitted by any party in connection with the
application for and issuance of any Letter of Credit, even if
it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (B) the
validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, that may prove to be invalid or
ineffective for any reason; (C) errors, omissions,
interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in
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cipher; (D) errors in interpretation of technical terms; (E)
any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under a Letter of
Credit or of the proceeds thereof; and (F) any consequences
arising from causes beyond the control of the Issuing Lender,
including, without limitation, any Government Acts. None of
the above shall affect, impair, or prevent the vesting of the
Issuing Lender's rights or powers hereunder.
(iii) In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth,
any action taken or omitted by the Issuing Lender, under or in
connection with any Letter of Credit or the related
certificates, if taken or omitted in good faith, shall not put
the Issuing Lender under any resulting liability to the
Borrower or any other Credit Party. It is the intention of the
parties that this Credit Agreement shall be construed and
applied to protect and indemnify the Issuing Lender against
any and all risks involved in the issuance of the Letters of
Credit, all of which risks are hereby assumed by the Borrower,
including, without limitation, any and all risks of the acts
or omissions, whether rightful or wrongful, of any present or
future Government Acts. The Issuing Lender shall not, in any
way, be liable for any failure by the Issuing Lender or anyone
else to pay any drawing under any Letter of Credit as a result
of any Government Acts or any other cause beyond the control
of the Issuing Lender.
(iv) Nothing in this subsection (j) is intended to
limit the reimbursement obligation of the Credit Parties
contained in this Section 2.2. The obligations of the Credit
Parties under this subsection (j) shall survive the
termination of this Credit Agreement. No act or omission of
any current or prior beneficiary of a Letter of Credit shall
in any way affect or impair the rights of the Issuing Lender
to enforce any right, power or benefit under this Credit
Agreement.
(v) Notwithstanding anything to the contrary
contained in this subsection (j), the Credit Parties shall
have no obligation to indemnify the Issuing Lender in respect
of any liability incurred by the Issuing Lender arising solely
out of the gross negligence or willful misconduct of the
Issuing Lender, as determined by a court of competent
jurisdiction.
(k) Designation of other Persons as Account Parties.
Notwithstanding anything to the contrary set forth in this Credit
Agreement, including without limitation Section 2.2(a) hereof, a Letter
of Credit issued hereunder may contain a statement to the effect that
such Letter of Credit is issued for the account of a Subsidiary of the
Borrower; provided that notwithstanding such statement, the Borrower
shall be the actual account party for all purposes of this Credit
Agreement for such Letter of Credit and such statement shall not affect
the Borrower's reimbursement obligations hereunder with respect to such
Letter of Credit.
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2.3 CONTINUATIONS AND CONVERSIONS.
Subject to the terms below, the Borrower shall have the option, on any
Business Day, to continue existing Eurodollar Loans for a subsequent Interest
Period, to convert Base Rate Loans into Eurodollar Loans or to convert
Eurodollar Loans into Base Rate Loans. By no later than 11:00 a.m. (a) on the
date of the requested conversion of a Eurodollar Loan to a Base Rate Loan or (b)
three Business Days prior to the date of the requested continuation of a
Eurodollar Loan or conversion of a Base Rate Loan to a Eurodollar Loan, the
Borrower shall provide telephonic notice to the Administrative Agent, followed
promptly by a written Notice of Continuation/Conversion, in the form of Exhibit
2.3 setting forth (i) whether the Borrower wishes to continue or convert such
Loans and (ii) if the request is to continue a Eurodollar Loan or convert a Base
Rate Loan to a Eurodollar Loan, the Interest Period applicable thereto.
Notwithstanding anything herein to the contrary, (A) except as provided in
Section 3.11, Eurodollar Loans may only be continued or converted into Base Rate
Loans on the last day of the Interest Period applicable thereto, (B) Eurodollar
Loans may not be continued nor may Base Rate Loans be converted into Eurodollar
Loans during the existence and continuation of a Default or an Event of Default
and (C) any request to continue a Eurodollar Loan that fails to comply with the
terms hereof or any failure to request a continuation of a Eurodollar Loan at
the end of an Interest Period shall constitute a conversion to a Base Rate Loan
on the last day of the applicable Interest Period.
2.4 MINIMUM AMOUNTS.
Each request for a borrowing, conversion or continuation shall be
subject to the requirements that (a) each Eurodollar Loan shall be in a minimum
amount of $5,000,000 and in integral multiples of $1,000,000 in excess thereof,
(b) each Base Rate Loan shall be in a minimum amount of the lesser of $5,000,000
(and integral multiples of $1,000,000 in excess thereof) or the remaining amount
available under the Revolving Committed Amount and (c) no more than ten (10)
Eurodollar Loans shall be outstanding hereunder at any one time. For the
purposes of this Section 2.4, all Eurodollar Loans with the same Interest
Periods that begin and end on the same date shall be considered as one
Eurodollar Loan, but Eurodollar Loans with different Interest Periods, even if
they begin on the same date, shall be considered as separate Eurodollar Loans.
SECTION 3
GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT
3.1 INTEREST.
(a) Interest Rate. Subject to Section 3.1(b), all Base Rate
Loans shall accrue interest at the Base Rate and all Eurodollar Loans
shall accrue interest at the Adjusted Eurodollar Rate.
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(b) Default Rate of Interest. Upon the occurrence, and during
the continuation, of an Event of Default, the principal of and, to the
extent permitted by law, interest on the Loans and any other amounts
owing hereunder or under the other Credit Documents (including without
limitation fees and expenses) shall bear interest, payable on demand,
at a per annum rate equal to 2% plus the rate which would otherwise be
applicable (or if no rate is applicable, then the Base Rate plus two
percent (2%) per annum).
(c) Interest Payments. Interest on Loans shall be due and
payable in arrears on each Interest Payment Date. If an Interest
Payment Date falls on a date which is not a Business Day, such Interest
Payment Date shall be deemed to be the next succeeding Business Day,
except that in the case of Eurodollar Loans where the next succeeding
Business Day falls in the next succeeding calendar month, then on the
next preceding Business Day.
3.2 PLACE AND MANNER OF PAYMENTS.
All payments of principal, interest, fees, expenses and other amounts
to be made by a Credit Party under this Credit Agreement shall be made
unconditionally and without any setoff, deduction, counterclaim, defense,
recoupment or withholding of any kind and received not later than 2:00 p.m. on
the date when due, in Dollars and in immediately available funds, by the
Administrative Agent at the Agency Services Address. Payments received after
such time shall be deemed to have been received on the next Business Day. The
Borrower shall, at the time it makes any payment under this Credit Agreement,
specify to the Administrative Agent the Loans, Letters of Credit, fees or other
amounts payable by the Borrower hereunder to which such payment is to be applied
(and in the event that it fails to specify, or if such application would be
inconsistent with the terms hereof, the Administrative Agent shall, subject to
Section 3.7, distribute such payment to the Lenders in such manner as the
Administrative Agent may reasonably deem appropriate). The Administrative Agent
will distribute such payments to the Lenders on the same Business Day if any
such payment is received at or before 2:00 p.m.; otherwise the Administrative
Agent will distribute such payment to the Lenders on the next succeeding
Business Day. Whenever any payment hereunder shall be stated to be due on a day
which is not a Business Day, the due date thereof shall be extended to the next
succeeding Business Day (subject to accrual of interest and fees for the period
of such extension), except that, in the case of Eurodollar Loans, if the
extension would cause the payment to be made in the next following calendar
month, then such payment shall instead be made on the next preceding Business
Day.
3.3 PREPAYMENTS.
(a) Voluntary Prepayments. The Borrower shall have the right
to prepay Loans in whole or in part from time to time without premium
or penalty; provided, however, that (i) Eurodollar Loans may only be
prepaid on three Business Days' prior written notice to the
Administrative Agent and any prepayment of Eurodollar Loans will be
subject to Section 3.14, (ii) each such partial prepayment of
Eurodollar Loans shall be in the minimum
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principal amount of $5,000,000 and integral multiples of $1,000,000 and
(iii) each such partial prepayment of Base Rate Loans shall be in the
minimum principal amount of $5,000,000 and integral multiples of
$1,000,000. Amounts prepaid pursuant to this Section 3.3(a) shall be
applied as the Borrower may elect; however, if the Borrower fails to
specify, such prepayment will be applied in the manner set forth in
Section 3.3(c) below.
(b) Mandatory Prepayments. If at any time the sum of the
aggregate amount of Loans outstanding plus LOC Obligations outstanding
exceeds the Revolving Committed Amount, the Borrower shall immediately
make a principal payment to the Administrative Agent in the manner and
in an amount such that the sum of the aggregate amount of Loans
outstanding plus LOC Obligations outstanding is less than or equal to
the Revolving Committed Amount.
(c) Application of Prepayments. All amounts paid pursuant to
Section 3.3(a), if the Borrower has not otherwise elected an
application of such amounts, and all amounts required to be prepaid
pursuant to Section 3.3(b) shall be applied first to Loans and second
to a cash collateral account in respect of LOC Obligations. Within the
parameters of the applications set forth above, prepayments shall be
applied first to Base Rate Loans and then to Eurodollar Loans in direct
order of Interest Period maturities. All prepayments hereunder shall be
subject to Section 3.14.
3.4 FEES.
(a) Facility Fees. In consideration of the Revolving Committed
Amount being made available by the Lenders hereunder, the Borrower
agrees to pay to the Administrative Agent, for the pro rata benefit of
each Lender (based on such Lender's Commitment Percentage of the
Revolving Committed Amount), a per annum fee equal to the Applicable
Percentage for Facility Fees (the "Facility Fees"). The Facility Fees
shall commence to accrue on the Effective Date and shall be due and
payable in arrears on the last Business Day of each fiscal quarter of
the Borrower (as well as on the Maturity Date and on any date that the
Revolving Committed Amount is reduced) for the immediately preceding
fiscal quarter (or portion thereof), beginning with the first of such
dates to occur after the Closing Date.
(b) Utilization Fees.
(i) For each day from the Effective Date to June 30,
2001, the Borrower shall pay to the Administrative Agent, for
the pro rata benefit of each Lender (based on such Lender's
Commitment Percentage), a per annum fee equal to (A) .250%
multiplied by (B) the sum of the principal amount of Loans
outstanding on such day plus the principal amount of LOC
Obligations outstanding on such day.
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(ii) For each day after June 30, 2001, that Total
Utilization exceeds an amount equal to thirty-three percent
(33%) of the Total Commitment but is less than or equal to
fifty percent (50%) of the Total Commitment, the Borrower
shall pay to the Administrative Agent, for the pro rata
benefit of each Lender (based on such Lender's Commitment
Percentage), a per annum fee equal to (A) .125% multiplied by
(B) the sum of the principal amount of Loans outstanding on
such day plus the principal amount of LOC Obligations
outstanding on such day.
(iii) For each day after June 30, 2001, that Total
Utilization exceeds an amount equal to fifty percent (50%) of
the Total Commitment, the Borrower shall pay to the
Administrative Agent, for the pro rata benefit of each Lender
(based on such Lender's Commitment Percentage), a per annum
fee equal to (A) .250% multiplied by (B) the sum of the
principal amount of Loans outstanding on such day plus the
principal amount of LOC Obligations outstanding on such day
(such fees, together with the fees described in paragraphs
(b)(i) and (b)(ii) above, the "Utilization Fees").
(iv) The Utilization Fees, if any, shall commence to
accrue on the Effective Date and shall be due and payable in
arrears on the last Business Day of each fiscal quarter of the
Borrower (as well as on the Maturity Date, on any date that
the Revolving Committed Amount is reduced and on any date that
the commitments of the Lenders under the Short Term Credit
Agreement are reduced) for the immediately preceding fiscal
quarter (or portion thereof), beginning with the first of such
dates to occur after the Closing Date.
(c) Letter of Credit Fees.
(i) Letter of Credit Fees. In consideration of the
issuance of Letters of Credit hereunder, the Borrower agrees
to pay to the Administrative Agent, for the pro rata benefit
of each Lender (based on each Lender's Commitment Percentage),
a per annum fee (the "Letter of Credit Fees") equal to the
Applicable Percentage for the Letter of Credit Fees on the
average daily maximum amount available to be drawn under each
such Letter of Credit from the date of issuance to the date of
expiration. The Letter of Credit Fees will be payable in
arrears on the last Business Day of each fiscal quarter of the
Borrower (as well as on the Maturity Date) for the immediately
preceding fiscal quarter (or portion thereof), beginning with
the first of such dates to occur after the Closing Date.
(ii) Issuing Lender Fees. In addition to the Letter
of Credit Fees payable pursuant to subsection (i) above, the
Borrower shall pay to the Issuing Lender for its own account,
without sharing by the other Lenders, (A) the customary,
incidental and/or out of pocket charges from time to time to
the Issuing Lender for its services in connection with the
issuance, amendment, payment, transfer, administration,
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cancellation and conversion of, and drawings under, Letters of
Credit and (B) a letter of credit fronting fee of 0.15% per
annum of the face amount of each Letter of Credit
(collectively, the "Issuing Lender Fees").
(d) Other Fees. The Borrower agrees to pay (i) to the
Administrative Agent, for its own account, an annual fee and (ii) to
the Administrative Agent, for the account of each of the Lenders,
upfront fees on the Closing Date, in each case in accordance with the
terms of the Fee Letter.
3.5 PAYMENT IN FULL AT MATURITY.
On the Maturity Date, the entire outstanding principal balance of all
Loans and all LOC Obligations, together with accrued but unpaid interest and all
other sums owing with respect thereto, shall be due and payable in full, unless
accelerated sooner pursuant to Section 9.
3.6 COMPUTATIONS OF INTEREST AND FEES.
(a) Except for Base Rate Loans that are based upon the Prime
Rate, in which case interest shall be computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as the
case may be, all computations of interest and fees hereunder shall be
made on the basis of the actual number of days elapsed over a year of
360 days. Interest shall accrue from and include the date of borrowing
(or continuation or conversion) but exclude the date of payment.
(b) It is the intent of the Lenders and the Credit Parties to
conform to and contract in strict compliance with applicable usury law
from time to time in effect. All agreements between the Lenders and the
Credit Parties are hereby limited by the provisions of this paragraph
which shall override and control all such agreements, whether now
existing or hereafter arising and whether written or oral. In no way,
nor in any event or contingency (including but not limited to
prepayment or acceleration of the maturity of any obligation), shall
the interest taken, reserved, contracted for, charged, or received
under this Credit Agreement, under the Notes or otherwise, exceed the
maximum nonusurious amount permissible under applicable law. If, from
any possible construction of any of the Credit Documents or any other
document, interest would otherwise be payable in excess of the maximum
nonusurious amount, any such construction shall be subject to the
provisions of this paragraph and such documents shall be automatically
reduced to the maximum nonusurious amount permitted under applicable
law, without the necessity of execution of any amendment or new
document. If any Lender shall ever receive anything of value which is
characterized as interest on the Loans under applicable law and which
would, apart from this provision, be in excess of the maximum
nonusurious amount, an amount equal to the amount which would have been
excessive interest shall, without penalty, be applied to the reduction
of the principal amount owing on the Loans and not to the payment of
interest, or refunded to the Borrower or the other payor thereof if and
to the extent such amount which
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would have been excessive exceeds such unpaid principal amount of the
Loans. The right to demand payment of the Loans or any other
Indebtedness evidenced by any of the Credit Documents does not include
the right to accelerate the payment of any interest which has not
otherwise accrued on the date of such demand, and the Lenders do not
intend to charge or receive any unearned interest in the event of such
demand. All interest paid or agreed to be paid to the Lenders with
respect to the Loans shall, to the extent permitted by applicable law,
be amortized, prorated, allocated, and spread throughout the full
stated term (including any renewal or extension) of the Loans so that
the amount of interest on account of such Indebtedness does not exceed
the maximum nonusurious amount permitted by applicable law.
3.7 PRO RATA TREATMENT.
Except to the extent otherwise provided herein:
(a) Loans. Each Loan borrowing (including, without limitation,
each Mandatory Borrowing), each payment or prepayment of principal of
any Loan, each payment of fees (other than the Issuing Lender Fees
retained by the Issuing Lender for its own account and the
Administrative Fees retained by the Administrative Agent for its own
account), each reduction of the Revolving Committed Amount, and each
conversion or continuation of any Loan, shall (except as otherwise
provided in Section 3.11) be allocated pro rata among the relevant
Lenders in accordance with the respective Commitment Percentages of
such Lenders (or, if the Commitments of such Lenders have expired or
been terminated, in accordance with the respective principal amounts of
the outstanding Loans and Participation Interests of such Lenders);
provided that, if any Lender shall have failed to pay its applicable
pro rata share of any Loan, then any amount to which such Lender would
otherwise be entitled pursuant to this subsection (a) shall instead be
payable to the Administrative Agent until the share of such Loan not
funded by such Lender has been repaid; provided further, that in the
event any amount paid to any Lender pursuant to this subsection (a) is
rescinded or must otherwise be returned by the Administrative Agent,
each Lender shall, upon the request of the Administrative Agent, repay
to the Administrative Agent the amount so paid to such Lender, with
interest for the period commencing on the date such payment is returned
by the Administrative Agent until the date the Administrative Agent
receives such repayment at a rate per annum equal to, during the period
to but excluding the date two Business Days after such request, the
Federal Funds Rate, and thereafter, the Base Rate plus two percent (2%)
per annum; and
(b) Letters of Credit. Each payment of unreimbursed drawings
in respect of LOC Obligations shall be allocated to each LOC
Participant pro rata in accordance with its Commitment Percentage;
provided that, if any LOC Participant shall have failed to pay its
applicable pro rata share of any drawing under any Letter of Credit,
then any amount to which such LOC Participant would otherwise be
entitled pursuant to this subsection (b) shall instead be payable to
the Issuing Lender until the share of such unreimbursed drawing
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not funded by such Lender has been repaid; provided further, that in
the event any amount paid to any LOC Participant pursuant to this
subsection (b) is rescinded or must otherwise be returned by the
Issuing Lender, each LOC Participant shall, upon the request of the
Issuing Lender, repay to the Administrative Agent for the account of
the Issuing Lender the amount so paid to such LOC Participant, with
interest for the period commencing on the date such payment is returned
by the Issuing Lender until the date the Issuing Lender receives such
repayment at a rate per annum equal to, during the period to but
excluding the date two Business Days after such request, the Federal
Funds Rate, and thereafter, the Base Rate plus two percent (2%) per
annum.
3.8 SHARING OF PAYMENTS.
The Lenders agree among themselves that, except to the extent otherwise
provided herein, in the event that any Lender shall obtain payment in respect of
any Loan, unreimbursed drawing with respect to any LOC Obligations or any other
obligation owing to such Lender under this Credit Agreement through the exercise
of a right of setoff, banker's lien or counterclaim, or pursuant to a secured
claim under Section 506 of the Bankruptcy Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, in excess of its pro rata share of such payment as provided for
in this Credit Agreement, such Lender shall promptly pay in cash or purchase
from the other Lenders a participation in such Loans, LOC Obligations, and other
obligations in such amounts, and make such other adjustments from time to time,
as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this Credit
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by payment in cash or a repurchase of a participation
theretofore sold, return its share of that benefit (together with its share of
any accrued interest payable with respect thereto) to each Lender whose payment
shall have been rescinded or otherwise restored. The Borrower agrees that any
Lender so purchasing such a participation may, to the fullest extent permitted
by law, exercise all rights of payment, including setoff, banker's lien or
counterclaim, with respect to such participation as fully as if such Lender were
a holder of such Loan, LOC Obligation or other obligation in the amount of such
participation. Except as otherwise expressly provided in this Credit Agreement,
if any Lender or the Administrative Agent shall fail to remit to any other
Lender an amount payable by such Lender or the Administrative Agent to such
other Lender pursuant to this Credit Agreement on the date when such amount is
due, such payments shall be made together with interest thereon for each date
from the date such amount is due until the date such amount is paid to the
Administrative Agent or such other Lender at a rate per annum equal to the
Federal Funds Rate. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section 3.8 applies, such Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the
rights of the Lenders under this Section 3.8 to share in the benefits of any
recovery on such secured claim.
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3.9 CAPITAL ADEQUACY.
(a) If, after the date thereof, the adoption or the becoming
effective of, or any change in, any law, rule or regulation or other
Requirement of Law regarding capital adequacy or any change therein or
in the interpretation thereof, or compliance by any Lender (or its
Lending Office) therewith, has or would have the effect of reducing the
rate of return on the capital or assets of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with
respect to capital adequacy and such Lender's desired return on
capital), then from time to time within 10 days of demand of such
Lender setting forth in reasonable detail such change in law and the
calculation of such reduced rate of return (with a copy of such demand
to the Administrative Agent), the Borrower shall pay to such Lender
such additional amounts as will compensate such Lender for such
reduction.
(b) The Borrower shall not be required to compensate a Lender
pursuant to this Section 3.9 for any additional amounts incurred more
than 180 days prior to the date that such Lender notifies the Borrower
of the change in law giving rise to such additional amounts and of such
Lender's intention to claim compensation therefor.
3.10 INABILITY TO DETERMINE INTEREST RATE.
If the Administrative Agent determines (which determination shall be
conclusive and binding upon the Borrower) in connection with any request for a
Eurodollar Loan or a conversion to or continuation thereof that (a) Dollar
deposits are not being offered to banks in the applicable offshore Dollar market
for the applicable amount and Interest Period of such Eurodollar Loan, (b)
adequate and reasonable means do not exist for determining the Eurodollar Rate
for such Eurodollar Loan, or (c) the Eurodollar Rate for such Eurodollar Loan
does not adequately and fairly reflect the cost to the Lenders of funding such
Eurodollar Loan, the Administrative Agent will promptly notify the Borrower and
all the Lenders. Thereafter, the obligation of the Lenders to make or maintain
Eurodollar Loans shall be suspended until the Administrative Agent revokes such
notice. Upon receipt of such notice, the Borrower may revoke any pending Notice
of Borrowing or Notice of Continuation/Conversion with respect to Eurodollar
Loans or, failing that, will be deemed to have converted such request into a
request for a borrowing of or conversion into a Base Rate Loan in the amount
specified therein. The Administrative Agent will withdraw such determination
pursuant to this Section 3.10 promptly as circumstances allow and no such
suspension shall affect the Eurodollar Rate for any Eurodollar Loan outstanding
at the time such suspension is imposed.
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3.11 ILLEGALITY.
If any Requirement of Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurodollar Loans, then, on
notice thereof by such Lender to the Borrower through the Administrative Agent,
any obligation of such Lender to make or continue Eurodollar Loans or to convert
Base Rate Loans to Eurodollar Loans shall be suspended until such Lender
notifies the Administrative Agent and the Borrower that the circumstances giving
rise to such determination no longer exist. Upon receipt of such notice, the
Borrower shall, upon demand from such Lender (with a copy to the Administrative
Agent), convert all Eurodollar Loans of such Lender to Base Rate Loans, either
on the last day of the Interest Period thereof, if such Lender may lawfully
continue to maintain such Eurodollar Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such Eurodollar Loans. Upon any
such conversion, the Borrower shall also pay interest on the amount so
converted, together with any amounts due with respect thereto pursuant to
Section 3.14. Each Lender agrees to designate a different Lending Office if such
designation will avoid the need for such notice and will not, in the good faith
judgment of such Lender, otherwise be materially disadvantageous to such Lender.
3.12 REQUIREMENTS OF LAW.
(a) If, after the date hereof, as a result of the introduction
of or any change in, or in the interpretation of, any Requirement of
Law, or a Lender's compliance therewith, there shall be any increase in
the cost to such Lender of agreeing to make or making, funding or
maintaining Eurodollar Loans or (as the case may be) issuing or
participating in Letters of Credit, or a reduction in the amount
received or receivable by such Lender in connection with any of the
foregoing (excluding for purposes of this subsection (a) any such
increased costs or reduction in amount resulting from (i) Taxes or
Other Taxes (as to which Section 3.13 shall govern) and (ii) reserve
requirements utilized in the determination of the Eurodollar Rate),
then from time to time, within 10 days of demand of such Lender (with a
copy of such demand to the Administrative Agent), the Borrower shall
pay to such Lender such additional amounts as will compensate such
Lender for such increased cost or reduction in yield.
(b) Each Lender shall promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Lender to compensation
pursuant to this Section 3.12 and will designate a different Lending
Office if such designation will avoid the need for, or reduce the
amount of, such compensation and will not, in the reasonable judgment
of such Lender, be otherwise materially disadvantageous to it. Any
Lender claiming compensation under this Section 3.12 shall furnish to
the Borrower and the Administrative Agent a statement setting forth in
reasonable detail the additional amount or amounts to be paid to it
hereunder which shall be conclusive absent manifest error.
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(c) The Borrower shall not be required to compensate a Lender
pursuant to this Section 3.12 for any increased costs or reductions
incurred more than 180 days prior to the date that such Lender notifies
the Borrower of the change of law giving rise to such increased costs
or reductions and of such Lender's intention to claim compensation
therefor.
3.13 TAXES.
(a) Any and all payments by a Credit Party to or for the
account of the Administrative Agent or any Lender under any Credit
Document shall be made free and clear of and without deduction for any
and all present or future income, stamp or other taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, but excluding, in
the case of the Administrative Agent and each Lender, taxes imposed on
or measured by its net income, and franchise taxes imposed on it (in
lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the laws of which the Administrative Agent
or such Lender, as the case may be, is organized or maintains its
Lending Office (all such non-excluded taxes, duties, levies, imposts,
deductions, assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as "Taxes"). If a Credit
Party shall be required by any Requirement of Law to deduct any Taxes
from or in respect of any sum payable under any Credit Document to the
Administrative Agent or any Lender, (i) the sum payable shall be
increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 3.13(a)), the Administrative Agent and such Lender receives an
amount equal to the sum it would have received had no such deductions
been made, (ii) such Credit Party shall make such deductions, (iii)
such Credit Party shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable
Requirements of Law, and (iv) within 30 days after the date of such
payment, such Credit Party shall furnish to the Administrative Agent
(which shall forward the same to such Lender) the original or a
certified copy of a receipt evidencing payment thereof. Notwithstanding
the foregoing, no additional sums shall be payable pursuant to this
Section 3.13(a) with respect to Taxes (A) that are attributable to a
Lender's failure to comply with Section 3.13(e) or (B) that are United
States withholding taxes imposed on amounts payable to such Lender at
the time the Lender becomes a party to this Credit Agreement.
(b) In addition, each Credit Party agrees to pay any and all
present or future stamp, court or documentary taxes and any other
excise or property taxes or charges or similar levies which arise from
any payment made under any Credit Document or from the execution,
delivery, performance, enforcement or registration of, or otherwise
with respect to, any Credit Document (hereinafter referred to as "Other
Taxes").
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(c) If a Credit Party shall be required to deduct or pay any
Taxes or Other Taxes from or in respect of any sum payable under any
Credit Document to the Administrative Agent or any Lender, such Credit
Party shall also pay to the Administrative Agent (for the account of
such Lender) or to such Lender, at the time interest is paid, such
additional amount that such Lender specifies as necessary to preserve
the after-tax yield (after factoring in all taxes, including taxes
imposed on or measured by net income) such Lender would have received
if such Taxes or Other Taxes had not been imposed.
(d) Each Credit Party agrees to indemnify the Administrative
Agent and each Lender for (i) the full amount of Taxes and Other Taxes
(including any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section 3.13(d)) paid by the
Administrative Agent and such Lender, (ii) amounts payable under
Section 3.13(c) and (iii) any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto, in each case
whether or not such Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority.
(e) Each Lender that is a "foreign corporation, partnership or
trust" within the meaning of the Code shall deliver to the
Administrative Agent, prior to receipt of any payment subject to
withholding under the Code (or after accepting an assignment of an
interest herein), two duly signed completed copies of either IRS Form
W-8BEN or any successor thereto (relating to such Lender and entitling
it to an exemption from, or reduction of, withholding tax on all
payments to be made to such Lender by a Credit Party pursuant to this
Agreement) or IRS Form W-8ECI or any successor thereto (relating to all
payments to be made to such Lender by a Credit Party pursuant to this
Agreement) or such other evidence satisfactory to the Borrower and the
Administrative Agent that such Lender is entitled to an exemption from,
or reduction of, U.S. withholding tax. Thereafter and from time to
time, each such Lender shall (i) promptly submit to the Administrative
Agent such additional duly completed and signed copies of one of such
forms (or such successor forms as shall be adopted from time to time by
the relevant United States taxing authorities) as may then be available
under then current United States laws and regulations to avoid, or such
evidence as is satisfactory to the Borrower and the Administrative
Agent of any available exemption from or reduction of, United States
withholding taxes in respect of all payments to be made to such Lender
by a Credit Party pursuant to this Agreement, (ii) promptly notify the
Agent of any change in circumstances which would modify or render
invalid any claimed exemption or reduction, and (iii) take such steps
as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including
the re-designation of its Lending Office) to avoid any Requirement of
Law that the Credit Parties make any deduction or withholding for taxes
from amounts payable to such Lender. If such Lender fails to deliver
the above forms or other documentation, then the Administrative Agent
may withhold from any interest payment to such Lender an amount
equivalent to the applicable withholding tax imposed by Sections 1441
and 1442 of the
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Code, without reduction. If any Governmental Authority asserts that the
Administrative Agent did not properly withhold any tax or other amount
from payments made in respect of such Lender, such Lender shall
indemnify the Administrative Agent therefor, including all penalties
and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent under this Section 3.13(e), and
costs and expenses (including Attorney Costs) of the Administrative
Agent. The obligation of the Lenders under this Section 3.13(e) shall
survive the payment of all Obligations and the resignation or
replacement of the Administrative Agent.
(f) For any period with respect to which a Lender required to
do so has failed to provide the Borrower and the Administrative Agent
with the appropriate form pursuant to Section 3.13(e) (unless such
failure is due to a change in treaty, law or regulation occurring
subsequent to that date on which a form originally was required to be
provided), such Lender shall not be entitled to indemnification under
Section 3.13(a) or 3.13(b) with respect to Taxes imposed by the United
States of America; provided however, that should a Lender that is
otherwise exempt from withholding tax become subject to Taxes because
of its failure to deliver a form required hereunder, the Borrower shall
take such steps as such Lender shall reasonably request to assist such
Lender to recover such Taxes.
(g) If any Credit Party is required to pay any additional
amounts to or for the account of any Lender pursuant to this Section
3.13, then such Lender shall use reasonable efforts to change the
jurisdiction of its Lending Office so as to eliminate or reduce any
such additional payment which may thereafter accrue if such change, in
the judgment of such Lender, is not otherwise materially
disadvantageous to such Lender.
(h) If the Administrative Agent or any Lender receives a
refund with respect to Taxes paid by the Borrower that, in the good
faith judgment of such Lender, is allocable to such payment, the
Administrative Agent or such Lender, respectively, shall promptly pay
the amount of such refund, together with any other amounts paid by the
Borrower in connection with such refunded Taxes to the extent such
other amounts are received by the Administrative Agent or such Lender,
to the Borrower, net of all out-of-pocket expenses of such Lender
incurred in obtaining such refund, provided, however, that the Borrower
agrees to promptly return such refund and such other amounts to the
Administrative Agent or such Lender, as applicable, if it receives
notice from the Administrative Agent or such Lender that the
Administrative Agent or such Lender is required to repay such refund to
the applicable taxing authority. The Administrative Agent and each
Lender agrees that it will contest such Taxes or liabilities if the
Administrative Agent or such Lender determined, in its reasonable
judgment, that it would not be disadvantaged or prejudiced as a result
of such contest.
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3.14 COMPENSATION.
Upon the written demand of any Lender, the Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any
Eurodollar Loan on a day other than the last day of the Interest Period
for such Eurodollar Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise); or
(b) any failure by the Borrower (for a reason other than the
failure of such Lender to make a Eurodollar Loan) to prepay, borrow,
continue or convert any Eurodollar Loan on the date or in the amount
previously requested or notified by the Borrower.
The amount each such Lender shall be compensated pursuant to this Section 3.14
shall include (a) any loss incurred by such Lender in connection with the
re-employment of funds prepaid, repaid, not borrowed or paid, as the case may
be, and the amount of such loss shall be the excess, if any, of (i) interest or
other cost to such Lender of the deposit or other source of funding used to make
any such Eurodollar Loan over (ii) the interest earned (or to be earned) by such
Lender upon the re-lending or other re-employment of the amount of such
Eurodollar Loan for the remainder of its respective Interest Period plus (b) any
other loss of anticipated profits and any loss or expense arising from the
liquidation or re-employment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained
plus (c) $250 plus (d) any reasonable out-of-pocket expenses (including Attorney
Costs) incurred and reasonably attributable thereto. Any Lender claiming
compensation under this Section 3.14 shall furnish to the Borrower and the
Administrative Agent a statement setting forth in reasonable detail the
calculations of amounts to be paid hereunder, and the Borrower shall not be
required to compensate a Lender pursuant to this Section 3.14 for any such loss,
cost or expense incurred more than 180 days prior to the date that such Lender
notifies the Borrower of the incurrence of such loss, cost or expense.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this Section 3.14, each Lender may deem that it funded each Eurodollar Loan made
by it at the Eurodollar Rate for such Eurodollar Loan by a matching deposit or
other borrowing in the applicable offshore Dollar interbank market for a
comparable amount and for a comparable period, whether or not such Eurodollar
Loan was in fact so funded.
3.15 DETERMINATION AND SURVIVAL OF PROVISIONS.
All determinations by the Administrative Agent or a Lender of amounts
owing under Sections 3.9 through 3.14, inclusive, shall, absent manifest error,
be conclusive and binding on the parties hereto. In determining such amount, the
Administrative Agent or such Lender may
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use any reasonable averaging and attribution methods. Section 3.9 through 3.14,
inclusive, shall survive the termination of this Credit Agreement and the
payment of all Credit Party Obligations.
SECTION 4
GUARANTY
4.1 GUARANTY OF PAYMENT.
Subject to Section 4.7 below, each of the Guarantors hereby, jointly
and severally, unconditionally guarantees to each Lender, each Affiliate of
Lender that enters into a Hedging Agreement and the Administrative Agent the
prompt payment of the Credit Party Obligations in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration or otherwise) and
the timely performance of all other obligations under the Credit Documents and
such Hedging Agreements. This Guaranty is a guaranty of payment and not of
collection and is a continuing guaranty and shall apply to all Credit Party
Obligations whenever arising.
4.2 OBLIGATIONS UNCONDITIONAL.
The obligations of the Guarantors hereunder are absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or
enforceability of any of the Credit Documents or the Hedging Agreements, or any
other agreement or instrument referred to therein, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor. Each Guarantor agrees that this Guaranty may be enforced by
the Lenders without the necessity at any time of resorting to or exhausting any
other security or collateral and without the necessity at any time of having
recourse to the Notes or any other of the Credit Documents or any collateral, if
any, hereafter securing the Credit Party Obligations or otherwise and each
Guarantor hereby waives the right to require the Lenders to proceed against the
Borrower or any other Person (including a co-guarantor) or to require the
Lenders to pursue any other remedy or enforce any other right. Each Guarantor
further agrees that it shall have no right of subrogation, indemnity,
reimbursement or contribution against the Borrower or any other Guarantor of the
Credit Party Obligations for amounts paid under this Guaranty until such time as
the Lenders (and any Affiliates of Lenders entering into Hedging Agreements)
have been paid in full, all Commitments under the Credit Agreement have been
terminated and no Person or Governmental Authority shall have any right to
request any return or reimbursement of funds from the Lenders in connection with
monies received under the Credit Documents. Each Guarantor further agrees that
nothing contained herein shall prevent the Lenders from suing on the Notes or
any of the other Credit Documents or any of the Hedging Agreements or
foreclosing its security interest in or Lien on any collateral, if any, securing
the Credit Party Obligations or from exercising any other rights available to it
under this Credit Agreement, the Notes, any other of the Credit Documents, or
any other instrument of security, if any, and the exercise of any of the
aforesaid rights and the completion of any foreclosure
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proceedings shall not constitute a discharge of any of any Guarantor's
obligations hereunder; it being the purpose and intent of each Guarantor that
its obligations hereunder shall be absolute, independent and unconditional under
any and all circumstances. Neither any Guarantor's obligations under this
Guaranty nor any remedy for the enforcement thereof shall be impaired, modified,
changed or released in any manner whatsoever by an impairment, modification,
change, release or limitation of the liability of the Borrower or by reason of
the bankruptcy or insolvency of the Borrower. Each Guarantor waives any and all
notice of the creation, renewal, extension or accrual of any of the Credit Party
Obligations and notice of or proof of reliance of by the Administrative Agent or
any Lender upon this Guarantee or acceptance of this Guarantee. The Credit Party
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this Guarantee. All dealings between the Borrower and any of the
Guarantors, on the one hand, and the Administrative Agent and the Lenders, on
the other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon this Guarantee. The Guarantors further agree to all
rights of set-off and automatic debits as set forth in Section 11.2.
4.3 MODIFICATIONS.
Each Guarantor agrees that (a) all or any part of the collateral, if
any, now or hereafter held for the Credit Party Obligations, if any, may be
exchanged, compromised or surrendered from time to time; (b) the Lenders shall
not have any obligation to protect, perfect, secure or insure any such security
interests, liens or encumbrances now or hereafter held, if any, for the Credit
Party Obligations or the properties subject thereto; (c) the time or place of
payment of the Credit Party Obligations may be changed or extended, in whole or
in part, to a time certain or otherwise, and may be renewed or accelerated, in
whole or in part; (d) the Borrower and any other party liable for payment under
the Credit Documents may be granted indulgences generally; (e) any of the
provisions of the Notes or any of the other Credit Documents may be modified,
amended or waived; (f) any party (including any co-guarantor) liable for the
payment thereof may be granted indulgences or be released; and (g) any deposit
balance for the credit of the Borrower or any other party liable for the payment
of the Credit Party Obligations or liable upon any security therefor may be
released, in whole or in part, at, before or after the stated, extended or
accelerated maturity of the Credit Party Obligations, all without notice to or
further assent by such Guarantor, which shall remain bound thereon,
notwithstanding any such exchange, compromise, surrender, extension, renewal,
acceleration, modification, indulgence or release.
4.4 WAIVER OF RIGHTS.
Each Guarantor expressly waives to the fullest extent permitted by
applicable law: (a) notice of acceptance of this Guaranty by the Lenders and of
all extensions of credit to the Borrower by the Lenders; (b) presentment and
demand for payment or performance of any of the Credit Party Obligations; (c)
protest and notice of dishonor or of default (except as specifically required in
the Credit Agreement) with respect to the Credit Party Obligations or with
respect to any security therefor; (d) notice of the Lenders obtaining, amending,
substituting for, releasing, waiving or
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modifying any security interest, lien or encumbrance, if any, hereafter securing
the Credit Party Obligations, or the Lenders' subordinating, compromising,
discharging or releasing such security interests, liens or encumbrances, if any;
and (e) all other notices to which such Guarantor might otherwise be entitled.
4.5 REINSTATEMENT.
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Credit Party Obligations is
rescinded or must be otherwise restored by any holder of any of the Credit Party
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Administrative Agent and each Lender on demand for all reasonable costs and
expenses (including, without limitation, reasonable Attorney Costs) incurred by
the Administrative Agent or such Lender in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
4.6 REMEDIES.
The Guarantors agree that, as between the Guarantors, on the one hand,
and the Administrative Agent and the Lenders, on the other hand, the Credit
Party Obligations may be declared to be forthwith due and payable as provided in
Section 9 (and shall be deemed to have become automatically due and payable in
the circumstances provided in Section 9) notwithstanding any stay, injunction or
other prohibition preventing such declaration (or preventing such Credit Party
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or such Credit Party
Obligations being deemed to have become automatically due and payable), such
Credit Party Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors.
4.7 LIMITATION OF GUARANTY.
Notwithstanding any provision to the contrary contained herein or in
any of the other Credit Documents, to the extent the obligations of any
Guarantor shall be adjudicated to be invalid or unenforceable for any reason
(including, without limitation, because of any applicable state or federal law
relating to fraudulent conveyances or transfers) then the obligations of such
Guarantor hereunder shall be limited to the maximum amount that is permissible
under applicable law (whether federal or state or otherwise and including,
without limitation, the Bankruptcy Code).
4.8 RIGHTS OF CONTRIBUTION.
The Credit Parties agree among themselves that, in connection with
payments made hereunder, each Credit Party shall have contribution rights
against the other Credit Parties as
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permitted under applicable law. Such contribution rights shall be subordinate
and subject in right of payment to the obligations of the Credit Parties under
the Credit Documents and no Credit Party shall exercise such rights of
contribution until all Credit Party Obligations have been paid in full and the
Commitments terminated.
SECTION 5
CONDITIONS PRECEDENT
5.1 CLOSING CONDITIONS.
The obligation of the Lenders to enter into this Credit Agreement and
make the initial Extension of Credit is subject to satisfaction (or waiver) of
the following conditions:
(a) Executed Credit Documents. Receipt by the Administrative
Agent of duly executed copies of: (i) this Credit Agreement; (ii) the
Notes; and (iii) all other Credit Documents, each in form and substance
reasonably acceptable to the Lenders in their sole discretion.
(b) Authority Documents. Receipt by the Administrative Agent
of the following with respect to each Credit Party:
(i) Organizational Documents. Copies of the articles
or certificates of incorporation or other organizational
documents of each Credit Party certified to be true and
complete as of a recent date by the appropriate Governmental
Authority of the state or other jurisdiction of its formation
and certified by a secretary or assistant secretary of such
Credit Party to be true and correct as of the Closing Date.
(ii) Bylaws. A copy of the bylaws or other governing
documents of each Credit Party certified by a secretary or
assistant secretary of such Credit Party to be true and
correct as of the Closing Date.
(iii) Resolutions. Copies of resolutions of the Board
of Directors or other governing body of each Credit Party
approving and adopting the Credit Documents to which it is a
party, the transactions contemplated therein and authorizing
execution and delivery thereof, certified by a secretary or
assistant secretary of such Credit Party to be true and
correct and in full force and effect as of the Closing Date.
(iv) Good Standing. Copies of certificates of good
standing, existence or its equivalent with respect to each
Credit Party certified as of a recent date by the appropriate
Governmental Authority of the state or other jurisdiction of
its formation and each other jurisdiction in which the failure
to qualify and be in good standing would have a Material
Adverse Effect on the business or operations of such Credit
Party.
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(v) Incumbency. An incumbency certificate of each
Credit Party certified by a secretary or assistant secretary
of such Credit Party to be true and correct as of the Closing
Date.
(c) Opinion of Counsel. Receipt by the Administrative Agent of
opinions reasonably satisfactory to the Administrative Agent, addressed
to the Administrative Agent on behalf of the Lenders and dated as of
the Closing Date.
(d) Financial Statements. Receipt by the Lenders of (i) the
annual consolidated financial statements (including balance sheets,
income statements and cash flow statements) of the Borrower and its
Subsidiaries for the fiscal year 2000 audited by independent public
accountants of recognized national standing, together with the
"management letter" submitted by such accountants in connection with
such financial statements, (ii) the consolidated financial statements
(including balance sheets, income statements and cash flow statements)
of the Borrower and its Subsidiaries for the fiscal quarter ended March
31, 2001 and (iii) such other financial information regarding the
Borrower and its Subsidiaries as the Administrative Agent or a Lender
may request.
(e) Consents. Receipt by the Administrative Agent of evidence
that all necessary governmental, shareholder and third party consents
and approvals, if any, have been received and no condition or
Requirement of Law exists which would reasonably be likely to restrain,
prevent or impose any material adverse conditions on the transactions
contemplated hereby.
(f) Officer's Certificates. The Administrative Agent shall
have received a certificate or certificates executed by an Authorized
Officer of the Borrower as of the Closing Date stating that (i) the
Credit Parties and each of their Subsidiaries are in compliance with
all existing material financial obligations, (ii) no action, suit,
investigation or proceeding is pending or, to the knowledge of any
Credit Party, threatened in any court or before any arbitrator or
Governmental Authority that purports to affect the Credit Parties, any
of their Subsidiaries or any transaction contemplated by the Credit
Documents, if such action, suit, investigation or proceeding would have
or would reasonably be expected to have a Material Adverse Effect,
(iii) the financial statements and information delivered to the
Administrative Agent on or before the Closing Date were prepared in
good faith and in accordance with GAAP and (iv) immediately after
giving effect to this Credit Agreement, the other Credit Documents and
all the transactions contemplated herein or therein to occur on such
date, (A) each Credit Party and each of their Subsidiaries is Solvent,
(B) no Default or Event of Default exists, (C) all representations and
warranties contained herein and in the other Credit Documents are true
and correct in all material respects, and (D) the Credit Parties are in
compliance with each of the financial covenants set forth in Section
7.2, including calculation thereof as of March 31, 2001.
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(g) Other Indebtedness. Receipt by the Administrative Agent of
evidence satisfactory to it that all of the Indebtedness of the Credit
Parties under the Existing Credit Agreement has been paid in full (or
will be paid in full with the proceeds of the initial Loans made
herein), all documents executed or delivered in connection therewith
have been terminated and all Liens, if any, granted in connection
therewith have been released or are agreed to be released upon such
repayment in full.
(h) Fees and Expenses. Payment by the Credit Parties of all
fees and expenses owed by them to the Administrative Agent or the
Lenders, including, without limitation, as set forth in the Fee Letter.
(i) Other. Receipt by the Lenders of such other documents,
instruments, agreements or information as reasonably and timely
requested by any Lender.
5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
In addition to the conditions precedent stated elsewhere herein, the
Lenders shall not be obligated to make Loans nor shall the Issuing Lender be
required to issue or extend a Letter of Credit unless:
(a) Notice. (i) In the case of any new Loan, the Borrower
shall have delivered a Notice of Borrowing, duly executed and
completed, by the time specified in Section 2.1 and (ii) in the case of
any Letter of Credit, the Borrower shall have delivered to the Issuing
Lender an appropriate request for issuance in accordance with the
provisions of Section 2.2.
(b) Representations and Warranties. The representations and
warranties made by the Credit Parties in any Credit Document are true
and correct in all material respects at and as if made as of such date
except to the extent they expressly and exclusively relate to an
earlier date.
(c) No Default. No Default or Event of Default shall exist and
be continuing either prior to or after giving effect thereto.
(d) Availability. Immediately after giving effect to the
making of such Loan (and the application of the proceeds thereof) or to
the issuance of such Letter of Credit, as the case may be, the sum of
the principal amount of Loans outstanding plus LOC Obligations
outstanding shall not exceed the Revolving Committed Amount.
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The delivery of each Notice of Borrowing and each request for a Letter of Credit
shall constitute a representation and warranty by the Borrower of the
correctness of the matters specified in subsections (b), (c), and (d) above.
SECTION 6
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent to the Administrative Agent and
each Lender that:
6.1 ORGANIZATION AND GOOD STANDING.
Each Credit Party (a) is either a partnership, a corporation or a
limited liability company duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (b) is duly qualified
and in good standing as a foreign organization and authorized to do business in
every other jurisdiction where its ownership or operation of property or the
conduct of its business would require it to be qualified, in good standing and
authorized, unless the failure to be so qualified, in good standing or
authorized would not have or would not reasonably be expected to have a Material
Adverse Effect and (c) has the power and authority to own and operate its
properties and to carry on its business as now conducted and as currently
proposed to be conducted.
6.2 DUE AUTHORIZATION.
Each Credit Party (a) has the power and authority to execute, deliver
and perform this Credit Agreement and the other Credit Documents to which it is
a party and to incur the obligations herein and therein provided for and (b) has
duly taken all necessary action to authorize, and is duly authorized, to
execute, deliver and perform this Credit Agreement and the other Credit
Documents to which it is a party.
6.3 ENFORCEABLE OBLIGATIONS.
Each Credit Party has duly executed this Credit Agreement and each
other Credit Document to which such Credit Party is a party and this Credit
Agreement and such other Credit Documents constitute legal, valid and binding
obligations of such Credit Party enforceable against such Credit Party in
accordance with their respective terms, except as may be limited by bankruptcy
or insolvency laws or similar laws affecting creditors' rights generally or by
general equitable principles.
6.4 NO CONFLICTS.
Neither the execution and delivery of the Credit Documents to which it
is a party, nor the consummation of the transactions contemplated herein and
therein, nor the performance of or
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compliance with the terms and provisions hereof and thereof by a Credit Party
will (a) violate, contravene or conflict with any provision of such Credit
Party's organizational documents, (b) violate, contravene or conflict with any
Requirement of Law (including, without limitation, Regulations T, U or X),
order, writ, judgment, injunction, decree, license or permit applicable to such
Credit Party, (c) violate, contravene or conflict with contractual provisions
of, or cause an event of default under, any indenture, loan agreement, mortgage,
deed of trust, contract or other agreement or instrument to which such Credit
Party is a party or by which it or its properties may be bound, or (d) result in
or require the creation of any Lien upon or with respect to the properties of
such Credit Party.
6.5 CONSENTS.
Except for consents, approvals and authorizations which have been
obtained, no consent, approval, authorization or order of, or filing,
registration or qualification with, any Governmental Authority, equity owner or
third party in respect of any Credit Party is required in connection with the
execution, delivery or performance of this Credit Agreement or any of the other
Credit Documents, or the consummation of any transaction contemplated herein or
therein by such Credit Party.
6.6 FINANCIAL CONDITION.
The financial statements delivered to the Administrative Agent and the
Lenders pursuant to Section 5.1(d) and Sections 7.1(a) and (b): (a) have been
prepared in accordance with GAAP and (b) present fairly the consolidated
financial condition, results of operations and cash flows of the Borrower and
its Subsidiaries as of such date and for such periods. Since December 31, 2000,
there has been no sale, transfer or other disposition by the Borrower or any of
its Subsidiaries of any material part of the business or property of the
Borrower and its Subsidiaries, taken as a whole, or purchase or other
acquisition by any such Person of any business or property (including any
Capital Stock of any other Person) material in relation to the consolidated
financial condition of the Borrower and its Subsidiaries, taken as a whole, in
each case, which, is not (i) reflected in the most recent financial statements
delivered to the Lenders pursuant to Section 5.1(d) and Section 7.1 or in the
notes thereto or (ii) otherwise permitted by the terms of this Credit Agreement
and communicated to the Administrative Agent and the Lenders.
6.7 NO MATERIAL CHANGE.
Since December 31, 2000, there has been no development or event
relating to or affecting any Credit Party or any of its Subsidiaries which has
had or would reasonably be expected to have a Material Adverse Effect.
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6.8 DISCLOSURE.
Neither this Credit Agreement, nor any other Credit Document, nor any
financial statements delivered to the Administrative Agent or the Lenders nor
any other document, certificate or statement furnished to the Administrative
Agent or the Lenders by or on behalf of any Credit Party in connection with the
transactions contemplated hereby contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
contained therein or herein not misleading.
6.9 NO DEFAULT.
No Credit Party nor any of its Subsidiaries is in default under any
contract, lease, loan agreement, indenture, mortgage, security agreement or
other agreement or obligation to which it is a party or by which any of its
properties is bound, which default has had or would reasonably be expected to
have a Material Adverse Effect.
6.10 LITIGATION.
There are no actions, suits or legal, equitable, arbitration or
administrative proceedings, pending or, to the knowledge of any Credit Party,
threatened against, any Credit Party or any of its Subsidiaries or with respect
to its properties or revenues which (a) purport to affect or pertain to this
Credit Agreement or the other Credit Documents or the transactions contemplated
herein and therein or (b) would have or would reasonably be expected to have a
Material Adverse Effect.
6.11 TAXES.
Each Credit Party and each of its Subsidiaries has filed, or caused to
be filed, all material tax returns (federal, state, local and foreign) required
to be filed and has paid (a) all amounts of taxes shown thereon to be due
(including interest and penalties) and (b) all other material taxes, fees,
assessments and other governmental charges (including mortgage recording taxes,
documentary stamp taxes and intangibles taxes) owing by it, except for such
taxes (i) which are not yet delinquent or (ii) that are being contested in good
faith and by proper proceedings, and against which adequate reserves are being
maintained in accordance with GAAP. No Credit Party is aware of any proposed
material tax assessments against any Credit Party or any of its Subsidiaries.
6.12 COMPLIANCE WITH LAW.
Each Credit Party and each of its Subsidiaries is in compliance with
all material Requirements of Law (including, without limitation, Environmental
Laws and ERISA) and all material orders, writs, injunctions and decrees
applicable to it, or to its properties.
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6.13 LICENSES, ETC.
Each Credit Party and each of its Subsidiaries has obtained, and holds
in full force and effect, all franchises, licenses, permits, certificates,
authorizations, qualifications, accreditations, easements, rights of way,
intellectual property rights and other rights, consents and approvals which are
necessary for the operation of its business as presently conducted, except for
such exceptions as would not have or would not reasonably be expected to have a
Material Adverse Effect.
6.14 TITLE TO PROPERTIES.
Each Credit Party, and each of its Subsidiaries, is the owner of, and
has good and marketable title to, or has a valid license or lease to use, all of
its properties and assets (except for minor defects in title, licenses or leases
that do not materially interfere with its ability to conduct its business or to
utilize its properties or assets for their intended purposes) and none of such
properties or assets is subject to any Liens other than Permitted Liens.
6.15 INSURANCE.
The properties of each Credit Party and each of its Subsidiaries are
insured with financially sound and reputable insurance companies that are not
Affiliates of the Borrower, in such amounts, with such deductibles and covering
such risks, as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Credit Parties
or their Subsidiaries operate.
6.16 USE OF PROCEEDS.
The proceeds of the Loans will be used solely for the purposes
specified in Section 7.10. No proceeds of the Loans will be used for the
Acquisition of another Person unless such Acquisition is a Permitted
Acquisition.
6.17 GOVERNMENT REGULATION.
(a) No part of the Letters of Credit or proceeds of the Loans
will be used, directly or indirectly, for the purpose of purchasing or
carrying any "margin stock" within the meaning of Regulation U, or for
the purpose of purchasing or carrying or trading in any securities. No
Indebtedness being reduced or retired out of the proceeds of the Loans
was or will be incurred for the purpose of purchasing or carrying any
margin stock within the meaning of Regulation U or any "margin
security" within the meaning of Regulation T. "Margin stock" within the
meaning of Regulation U does not constitute more than 25% of the value
of the consolidated assets of the Borrower and its Subsidiaries. None
of the transactions contemplated by the Credit Documents (including,
without limitation, the direct or indirect use of the proceeds of the
Loans) will violate or result in a violation of (i) the Securities Act,
(ii) the Exchange Act or (iii) Regulations T, U or X.
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(b) No Credit Party nor any of its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act or the Investment Company Act of 1940, each as
amended.
6.18 NO BURDENSOME RESTRICTIONS.
No Credit Party nor any of its Subsidiaries is a party to any agreement
or instrument or subject to any other obligation or any charter or corporate
restriction or any provision of any applicable law, rule or regulation which,
individually or in the aggregate, would have or would reasonably be expected to
have a Material Adverse Effect.
6.19 ERISA.
Except as would not result in or would not reasonably be expected to
result in a Material Adverse Effect:
(a) (i) No ERISA Event has occurred, and, to the best
knowledge of the Credit Parties, each of their Subsidiaries and each
ERISA Affiliate, no event or condition has occurred or exists as a
result of which any ERISA Event could reasonably be expected to occur,
with respect to any Plan; (ii) no "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA and Section 412 of the
Code, whether or not waived, has occurred with respect to any Plan and
no application for a funding waiver or an extension of any amortization
period pursuant to Section 412 of the Code has been made with respect
to any Plan; (iii) each Plan has been maintained, operated, and funded
in compliance with its own terms and in material compliance with the
provisions of ERISA, the Code, and any other applicable federal or
state laws; (iv) each Plan that is intended to qualify under Section
401(a) of the Code has received a favorable determination letter from
the IRS or an application for such a letter is currently being
processed by the IRS with respect thereto and, to the best knowledge of
the Credit Parties, each of their Subsidiaries and each ERISA
Affiliate, nothing has occurred which would prevent, or cause the loss
of, such qualification; and (v) no Lien in favor or the PBGC or a Plan
has arisen or is reasonably likely to arise on account of any Plan.
(b) The actuarial present value of all "benefit liabilities"
(as defined in Section 4001(a)(16) of ERISA), whether or not vested,
under each Single Employer Plan, as of the last annual valuation date
prior to the date on which this representation is made or deemed made
(determined, in each case, in accordance with Financial Accounting
Standards Board Statement 87, utilizing the actuarial assumptions used
in such Plan's most recent actuarial valuation report), did not exceed
as of such valuation date the fair market value of the assets of such
Plan allocated to such accrued liabilities.
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(c) No Credit Party nor any Subsidiary of a Credit Party nor
any ERISA Affiliate has incurred, or, to the best of each such party's
knowledge, is reasonably expected to incur, any liability under Title
IV of ERISA with respect to any Single Employer Plan, or any withdrawal
liability under ERISA to any Multiemployer Plan or Multiple Employer
Plan. No Credit Party nor any Subsidiary of a Credit Party nor any
ERISA Affiliate would become subject to any withdrawal liability under
ERISA if any such party were to withdraw completely from all
Multiemployer Plans and Multiple Employer Plans as of the valuation
date most closely preceding the date on which this representation is
made or deemed made. No Credit Party nor any Subsidiary of a Credit
Party nor any ERISA Affiliate has received any notification that any
Multiemployer Plan is in reorganization (within the meaning of Section
4241 of ERISA), is insolvent (within the meaning of Section 4245 of
ERISA), or has been terminated (within the meaning of Title IV of
ERISA), and no Multiemployer Plan is, to the best of each such Person's
knowledge, reasonably expected to be in reorganization, insolvent, or
terminated. No Credit Party nor any Subsidiary of a Credit Party nor
any ERISA Affiliate has engaged in a transaction that could be subject
to Sections 4069 or 4212(c) of ERISA.
(d) No prohibited transaction (within the meaning of Section
406 of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility has occurred with respect to a Plan which has subjected
or may subject a Credit Party, any Subsidiary of a Credit Party or any
ERISA Affiliate to any liability under Sections 406, 409, 502(i), or
502(l) of ERISA or Section 4975 of the Code, or under any agreement or
other instrument pursuant to which a Credit Party, any Subsidiary of a
Credit Party or any ERISA Affiliate has agreed or is required to
indemnify any person against any such liability. There are no pending
or, to the best knowledge of the Credit Parties, each of their
Subsidiaries and each ERISA Affiliate, threatened claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any
Plan that could reasonably be expected to have a Material Adverse
Effect.
(e) No Credit Party nor any Subsidiary of a Credit Party nor
any ERISA Affiliate has any material liability with respect to
"expected post-retirement benefit obligations" within the meaning of
the Financial Accounting Standards Board Statement 106. Each Plan that
is a welfare plan (as defined in Section 3(1) of ERISA) to which
Sections 601-609 of ERISA and Section 4980B of the Code apply has been
administered in compliance in all material respects with such sections.
6.20 ENVIRONMENTAL MATTERS.
(a) Except as would not result in or would not reasonably be
expected to result in a Material Adverse Effect:
(i) Each of the real properties owned, leased or
operated by a Credit Party or any of its Subsidiaries (the
"Real Properties") and all operations at the Real Properties
are in compliance with all applicable Environmental Laws, and
there is
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no violation of any Environmental Law with respect to the Real
Properties or the businesses operated by the Credit Parties or
any of their Subsidiaries (the "Businesses"), and there are no
conditions relating to the Businesses or Real Properties that
would reasonably be expected to give rise to liability under
any applicable Environmental Laws.
(ii) No Credit Party has received any written notice
of, or inquiry from any Governmental Authority regarding, any
violation, alleged violation, non-compliance, liability or
potential liability regarding Hazardous Materials or
compliance with Environmental Laws with regard to any of the
Real Properties or the Businesses, nor, to the knowledge of a
Credit Party or any of its Subsidiaries, is any such notice
being threatened.
(iii) Hazardous Materials have not been transported
or disposed of from the Real Properties, or generated,
treated, stored or disposed of at, on or under any of the Real
Properties or any other location, in each case by, or on
behalf or with the permission of, a Credit Party or any of its
Subsidiaries in a manner that would give rise to liability
under any applicable Environmental Laws.
(iv) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of a
Credit Party or any of its Subsidiaries, threatened, under any
Environmental Law to which a Credit Party or any of its
Subsidiaries is or will be named as a party, nor are there any
consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental
Law with respect to a Credit Party or any of its Subsidiaries,
the Real Properties or the Businesses.
(v) There has been no release (including, without
limitation, disposal) or threat of release of Hazardous
Materials at or from the Real Properties, or arising from or
related to the operations of a Credit Party or any of its
Subsidiaries in connection with the Real Properties or
otherwise in connection with the Businesses where such release
constituted a violation of, or would give rise to liability
under, any applicable Environmental Laws.
(vi) None of the Real Properties contains, or has
previously contained, any Hazardous Materials at, on or under
the Real Properties in amounts or concentrations that, if
released, constitute or constituted a violation of, or could
give rise to liability under, Environmental Laws.
(vii) No Credit Party, nor any of its Subsidiaries,
has assumed any liability of any Person (other than another
Credit Party, or one of its Subsidiaries) under any
Environmental Law.
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(b) The Credit Parties have adopted procedures that are
designed to (i) ensure that each Credit Party, any of its operations
and each of the Real Properties complies with applicable Environmental
Laws and (ii) minimize any liabilities or potential liabilities that
each Credit Party, any of its operations and each of the Real
Properties may have under applicable Environmental Laws.
6.21 INTELLECTUAL PROPERTY.
Each Credit Party and each of its Subsidiaries owns, or has the legal
right to use, all patents, trademarks, tradenames, copyrights, technology,
know-how and processes (the "Intellectual Property") necessary for each of them
to conduct its business as currently conducted, except where failure to own or
have such legal right to use would not have or would not reasonably be expected
to have a Material Adverse Effect. No claim has been asserted and is pending by
any Person challenging or questioning the use of any Intellectual Property owned
by any Credit Party or any of its Subsidiaries or that any Credit Party or any
of its Subsidiaries has a right to use or the validity or effectiveness of any
such Intellectual Property, nor does any Credit Party or any of its Subsidiaries
have knowledge of any such claim, and, to the knowledge of the Credit Parties
and their Subsidiaries, the use of any Intellectual Property by the Credit
Parties and their Subsidiaries does not infringe on the rights of any Person,
except for such claims and infringements that in the aggregate, would not have
or would not reasonably be expected to have a Material Adverse Effect.
6.22 SUBSIDIARIES.
Set forth on Schedule 6.22 is a complete and accurate list of all
Subsidiaries of each Credit Party. Schedule 6.22 may be updated from time to
time by the Borrower by giving written notice thereof to the Administrative
Agent.
6.23 SOLVENCY.
Each Credit Party is and, after consummation of the transactions
contemplated by this Credit Agreement, will be Solvent.
6.24 INDEBTEDNESS.
The Credit Parties and their Subsidiaries have no Indebtedness except
(a) as set forth on Schedule 6.24 and (b) as otherwise permitted by Section 8.1.
6.25 INVESTMENTS; LIENS.
All Investments of each Credit Party and its Subsidiaries are Permitted
Investments. All Liens on the property or assets of the Credit Parties and their
Subsidiaries are Permitted Liens.
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6.26 FORCE MAJEURE.
Since the date of the financial statements delivered in accordance with
Section 5.1(d) or, if later, the date of the most recent financial statements
delivered in accordance with Section 7.1(a) or Section 7.1(b), no event or
condition has occurred that results from fire or other casualty, strike, lockout
or other labor disruption, embargo, sabotage, confiscation, condemnation, riot,
civil disturbance, activity of armed forces or act of God that has had or would
reasonably be expected to have a Material Adverse Effect.
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect and until the Loans and LOC Obligations, together
with interest and fees and other obligations then due and payable hereunder,
have been paid in full and the Commitments and Letters of Credit hereunder shall
have terminated:
7.1 INFORMATION COVENANTS.
The Credit Parties will furnish, or cause to be furnished, to the
Administrative Agent:
(a) Annual Financial Statements. As soon as available, and in
any event within 90 days after the close of each fiscal year of the
Borrower, a consolidated balance sheet and income statement of the
Borrower and its Subsidiaries, as of the end of such fiscal year,
together with related consolidated statements of operations, retained
earnings, changes in shareholders' equity and cash flows for such
fiscal year, setting forth in comparative form consolidated figures for
the preceding fiscal year, all such consolidated financial information
described above to be in reasonable form and detail and audited by
independent certified public accountants of recognized national
standing reasonably acceptable to the Administrative Agent and whose
opinion shall be to the effect that such financial statements have been
prepared in accordance with GAAP and shall not be limited as to the
scope of the audit or qualified in any manner.
(b) Quarterly Financial Statements. As soon as available, and
in any event within 45 days after the close of each of the first three
fiscal quarters of the Borrower, an unaudited consolidated balance
sheet and income statement of the Borrower and its Subsidiaries, as of
the end of such fiscal quarter, together with related consolidated
statements of operations and consolidated statements of retained
earnings and of cash flows for such fiscal quarter in each case setting
forth in comparative form consolidated figures for the corresponding
period of the preceding fiscal year, all such financial information
described above to be in reasonable form and detail and reasonably
acceptable to the
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Administrative Agent, and accompanied by a certificate of an Authorized
Officer of the Borrower to the effect that such quarterly financial
statements fairly present in all material respects the consolidated
financial condition of the Borrower and its Subsidiaries and have been
prepared in accordance with GAAP, subject to changes resulting from
audit and normal year-end audit adjustments.
(c) Officer's Certificate. At the time of delivery of the
financial statements provided for in Sections 7.1(a) and 7.1(b) above,
a certificate of an Authorized Officer of the Borrower substantially in
the form of Exhibit 7.1(c), (i) demonstrating compliance with the
financial covenants contained in Section 7.2 by calculation thereof as
of the end of each such fiscal period, (ii) demonstrating compliance
with any other terms of this Credit Agreement as reasonably requested
by the Administrative Agent, (iii) stating that no Default or Event of
Default exists, or if any Default or Event of Default does exist,
specifying the nature and extent thereof and what action the Borrower
proposes to take with respect thereto and (iv) calculating the Adjusted
Leverage Ratio as of the end of such fiscal period.
(d) Annual Business Plan and Budgets. Within 90 days after the
end of each fiscal year of the Borrower, an annual business plan and
budget (including budgeted Capital Expenditures) of the Borrower and
its Subsidiaries on a consolidated basis containing, among other
things, pro forma financial projections for the next fiscal year
(including income statements, balance sheets and cash flow statements).
(e) Reports. Promptly upon transmission or receipt thereof,
(a) copies of any filings and registrations with, and reports to or
from, the Securities and Exchange Commission, or any successor agency,
and copies of all financial statements, proxy statements, notices and
reports as a Credit Party or any of its Subsidiaries shall send to its
shareholders generally and (b) upon the written request of the
Administrative Agent, all reports and written information to and from
the United States Environmental Protection Agency, or any state or
local agency responsible for environmental matters, the United States
Occupational Safety and Health Administration, or any state or local
agency responsible for health and safety matters, or any successor
agencies or authorities concerning environmental, health or safety
matters.
(f) Accountant's Certificate. Within the period for delivery
of the annual financial statements provided in Section 7.1(a), a
certificate of the accountants conducting the annual audit stating that
they have reviewed this Credit Agreement and stating further whether,
in the course of their audit, they have become aware that the Borrower
is not in compliance with any of the affirmative or negative covenants
set forth in Section 7 or Section 8 of this Credit Agreement, insofar
as such covenants relate to accounting matters or are calculated based
upon audited financial information.
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(g) Auditor's Reports. Promptly upon receipt thereof, a copy
of any other report or "management letter" submitted or presented by
independent accountants to any Credit Party or any of its Subsidiaries
in connection with any annual, interim or special audit of the books of
such Person.
(h) Notices. Upon a Credit Party obtaining knowledge thereof,
the Borrower will give written notice to the Administrative Agent
promptly (and in any event within two Business Days) of (a) the
occurrence of an event or condition consisting of a Default or Event of
Default, specifying the nature and existence thereof and what action
the Borrower proposes to take with respect thereto, (b) the occurrence
of any of the following with respect to any Credit Party or any of its
Subsidiaries (i) the pendency or commencement of any litigation,
arbitration or governmental proceeding against a Credit Party or any of
its Subsidiaries which, if adversely determined, would have or would
reasonably be expected to have a Material Adverse Effect, (ii) material
non-compliance with, or the institution of any proceedings against a
Credit Party or any of its Subsidiaries with respect to, or the receipt
of written notice by such Person of potential liability or
responsibility for violation, or alleged violation of, any Requirement
of Law (including, without limitation, Environmental Laws) the
violation of which would have or would reasonably be expected to have a
Material Adverse Effect and (iii) non-compliance with any contractual
obligation of a Credit Party or any of its Subsidiaries which would
have or would reasonably be expected to have a Material Adverse Effect
and (c) any change to the financial information used to calculate the
Adjusted Leverage Ratio for the most recently occurring Calculation
Date that would have the effect of changing the existing Pricing Level
pursuant to the definition of "Applicable Percentage" set forth in
Section 1.1.
(i) ERISA. Upon a Credit Party, any Subsidiary of a Credit
Party or any ERISA Affiliate obtaining knowledge thereof, such Person
shall give written notice to the Administrative Agent and each of the
Lenders promptly (and in any event within two Business Days) of: (i)
any event or condition, including, but not limited to, any Reportable
Event, that constitutes, or might reasonably lead to, an ERISA Event;
(ii) with respect to any Multiemployer Plan, the receipt of notice as
prescribed in ERISA or otherwise of any withdrawal liability assessed
against a Credit Party, any Subsidiary of a Credit Party or any ERISA
Affiliate, or of a determination that any Multiemployer Plan is in
reorganization or insolvent (both within the meaning of Title IV of
ERISA); (iii) the failure to make full payment on or before the due
date (including extensions) thereof of all amounts which a Credit
Party, any Subsidiary of a Credit Party or any ERISA Affiliate is
required to contribute to each Plan pursuant to its terms and as
required to meet the minimum funding standard set forth in ERISA and
the Code with respect thereto; or (iv) any change in the funding status
of any Plan that could have a Material Adverse Effect; in each case
together with a description of any such event or condition or a copy of
any such notice and a statement by an Authorized Officer of the
Borrower briefly setting forth the details regarding such event,
condition, or notice, and the action, if any, which has been or is
being taken or is proposed to be taken by such Person with respect
thereto. Promptly upon
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request, the Credit Parties shall furnish the Administrative Agent and
the Lenders with such additional information concerning any Plan as may
be reasonably requested, including, but not limited to, copies of each
annual report/return (Form 5500 series), as well as all schedules and
attachments thereto required to be filed with the Department of Labor
and/or the Internal Revenue Service pursuant to ERISA and the Code,
respectively, for each "plan year" (within the meaning of Section 3(39)
of ERISA).
(j) Environmental. During the existence of an Event of
Default, and upon the written request of Administrative Agent, the
Credit Parties will furnish or cause to be furnished to the
Administrative Agent, at the Credit Parties' expense, a report of an
environmental assessment of reasonable scope, form and depth,
including, where appropriate, invasive soil or groundwater sampling, by
a consultant reasonably acceptable to the Administrative Agent
regarding any release or threat of release of Hazardous Materials on
any property owned, leased or operated by a Credit Party and the
compliance by the Credit Parties with Environmental Laws. If the Credit
Parties fail to deliver such an environmental report within
seventy-five (75) days after receipt of such written request, then the
Administrative Agent may arrange for same, and the Credit Parties
hereby grant to the Administrative Agent and its representatives access
to the Real Properties and a license of a scope reasonably necessary to
undertake such an assessment (including, where appropriate, invasive
soil or groundwater sampling). The reasonable cost of any assessment
arranged for by the Administrative Agent pursuant to this provision
will be payable by the Credit Parties on demand.
(k) Other Information. With reasonable promptness upon any
such request, such other information regarding the business, properties
or financial condition of the Credit Parties and their Subsidiaries as
the Administrative Agent may reasonably request.
7.2 FINANCIAL COVENANTS.
(a) Tangible Net Worth. Tangible Net Worth shall at all times
be greater than or equal to the sum of (i) $150,000,000 plus (ii) 25%
of Net Income (without deduction for losses) earned for each fiscal
quarter of the Borrower (beginning with the quarter ending September
30, 2001) including the most recent fiscal quarter ending prior to the
date of determination plus (iii) 50% of the amount of Net Cash Proceeds
from any Equity Issuance occurring from the Effective Date to the last
day of the most recent fiscal quarter ending prior to the date of
determination.
(b) Leverage Ratio. The Leverage Ratio, as of the last day of
each fiscal quarter of the Borrower, shall be less than or equal to
2.25 to 1.0.
(c) Interest Coverage Ratio. The Interest Coverage Ratio, as
of the last day of each fiscal quarter of the Borrower, shall be
greater than or equal to 4.0 to 1.0.
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7.3 PRESERVATION OF EXISTENCE AND FRANCHISES.
Each of the Credit Parties will, and will cause its Subsidiaries to, do
all things necessary to preserve and keep in full force and effect its existence
and all material rights, franchises, intellectual property and authority except
as permitted by Section 8.5.
7.4 BOOKS AND RECORDS.
Each of the Credit Parties will, and will cause its Subsidiaries to,
keep complete and accurate books and records of its transactions in accordance
with GAAP (including the establishment and maintenance of appropriate reserves).
7.5 COMPLIANCE WITH LAW.
Each of the Credit Parties will, and will cause its Subsidiaries to,
comply with all material Requirements of Law, and all material restrictions
imposed by all Governmental Authorities, applicable to it and its property
(including, without limitation, Environmental Laws and ERISA).
7.6 PAYMENT OF TAXES AND OTHER INDEBTEDNESS.
Each of the Credit Parties will, and will cause its Subsidiaries to,
pay, settle or discharge (a) all material taxes, assessments and governmental
charges or levies imposed upon it, or upon its income or profits, or upon any of
its properties, before they shall become delinquent, (b) all lawful claims
(including claims for labor, materials and supplies) which, if unpaid, might
give rise to a Lien upon any of its properties, and (c) all of its other
Indebtedness as it shall become due (to the extent such repayment is not
otherwise prohibited by this Credit Agreement); provided, however, that a Credit
Party shall not be required to pay any such tax, assessment, charge, levy, claim
or Indebtedness which is being contested in good faith by appropriate
proceedings and as to which adequate reserves therefor have been established in
accordance with GAAP, unless the failure to make any such payment (i) would give
rise to an immediate right to foreclose or collect on a Lien securing such
amounts or (ii) would have or would reasonably be expected to have a Material
Adverse Effect.
7.7 INSURANCE.
Each of the Credit Parties will, and will cause each of its
Subsidiaries to, at all times maintain in full force and effect insurance
(including liability, casualty and business interruption insurance) with
reputable national companies that are not Affiliates of the Borrower, in such
amounts, covering such risks and liabilities and with such deductibles and
self-insurance retentions as are in accordance with normal industry practice;
provided that the Borrower may maintain a program of self-insurance with respect
to products liability and worker's compensation liability.
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7.8 MAINTENANCE OF PROPERTY.
Each of the Credit Parties will, and will cause its Subsidiaries to,
maintain and preserve its properties and equipment in good repair, working order
and condition, normal wear and tear and damages from casualty excepted, and will
make, or cause to be made, in such properties and equipment from time to time
all repairs, renewals, replacements, extensions, additions, betterments and
improvements thereto as may be needed or proper, to the extent and in the manner
customary for companies in similar businesses.
7.9 PERFORMANCE OF OBLIGATIONS.
Each of the Credit Parties will, and will cause its Subsidiaries to,
perform in all material respects all of its obligations under the terms of all
material contracts, agreements, indentures, mortgages, security agreements or
other debt instruments to which it is a party or by which it or its properties
may be bound.
7.10 USE OF PROCEEDS.
The Credit Parties will use the proceeds of the Loans solely (a) to
repay Indebtedness of the Borrower identified in Section 5.1(g), (b) to provide
working capital for the Borrower and (c) for general corporate purposes of the
Borrower. The Borrower will use the Letters of Credit solely for the purposes
set forth in Section 2.2(a).
7.11 AUDITS/INSPECTIONS.
Upon reasonable notice and during normal business hours, at the Credit
Parties' expense, each Credit Party will, and will cause each of its
Subsidiaries to, permit representatives appointed by the Administrative Agent or
any Lender, including, without limitation, independent accountants, agents,
attorneys and appraisers to visit and inspect such Credit Party's or
Subsidiary's property, including its books and records, its accounts receivable
and inventory, its facilities and its other business assets, and to make
photocopies or photographs thereof and to write down and record any information
such representative obtains and shall permit the Administrative Agent, any
Lender or its representatives to investigate and verify the accuracy of
information provided to the Administrative Agent or the Lenders and to discuss
all such matters with the officers, employees and representatives of the Credit
Parties and/or their Subsidiaries; provided however that, unless an Event of
Default shall exist and be continuing, the Administrative Agent and the Lenders
shall not, in the aggregate, exercise their rights under this Section 7.11 more
than two times during any calendar year and only one such time shall be at the
Credit Parties' expense. Notwithstanding the foregoing, no information protected
by an attorney-client privilege shall be required to be disclosed pursuant to
this Section 7.11; provided however that in the event any Credit Party claims
that any materials requested for review, investigation or discussion by the
Administrative Agent or any Lender, or any of its representatives pursuant to
this Section 7.11 is protected by an attorney-client privilege, then such Credit
party shall (a) provide the Administrative Agent or such Lender with a
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reasonably acceptable basis for the assertion of the privilege, (b) remove or
redact only those portions of the materials deemed to be privileged and (c)
reasonably cooperate with the Administrative Agent or such Lender to determine a
method by which the information which the Administrative Agent or such Lender
reasonably deemed necessary to review, investigate or discuss may be obtained by
the Administrative Agent in an alternative method which will not jeopardize any
attorney-client privilege.
7.12 ADDITIONAL CREDIT PARTIES.
At the time any Person becomes a Domestic Subsidiary, the Borrower
shall so notify the Administrative Agent and promptly thereafter (but in any
event within 30 days) shall cause such Person to (a) execute a Joinder Agreement
in substantially the same form as Exhibit 7.12, (b) deliver such other
documentation as the Administrative Agent may reasonably request in connection
with the foregoing, including, without limitation, certified resolutions and
other organizational and authorizing documents of such Person and favorable
opinions of counsel to such Person (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the documentation
referred to above), all in form, content and scope reasonably satisfactory to
the Administrative Agent and (c) update such schedules to the Credit Agreement
as appropriate to reflect the joinder of such new Domestic Subsidiary.
SECTION 8
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect and until the Loans and LOC Obligations, together
with interest, fees and other obligations then due and payable hereunder, have
been paid in full and the Commitments and Letters of Credit hereunder shall have
terminated:
8.1 INDEBTEDNESS.
Subject to Section 8.2, no Credit Party will, nor will it permit any of
its Subsidiaries to, contract, create, incur, assume or permit to exist any
Indebtedness, other than:
(a) Indebtedness arising under (i) this Credit Agreement and
the other Credit Documents and (ii) the Short Term Credit Agreement and
the documents, instruments and agreements executed in connection
therewith;
(b) Indebtedness in respect of current accounts payable and
accrued expenses incurred in the ordinary course of business and to the
extent not current, accounts payable and accrued expenses that are
subject to bona fide dispute and against which adequate reserves have
been established in accordance with GAAP;
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(c) Indebtedness owing by a Credit Party to another Credit
Party;
(d) purchase money Indebtedness (including Capital Leases) to
finance the purchase of fixed assets (including equipment); provided
that (i) the sum of (A) the total amount of all such Indebtedness
outstanding for the Credit Parties and their Subsidiaries plus (B) the
aggregate amount of Synthetic Leases outstanding pursuant to clause (e)
below shall not exceed an aggregate principal amount of $30,000,000 at
any one time outstanding; (ii) such Indebtedness when incurred shall
not exceed the purchase price of the asset(s) financed; and (iii) no
such Indebtedness shall be refinanced for a principal amount in excess
of the principal balance outstanding thereon at the time of such
refinancing;
(e) Indebtedness comprised of Synthetic Leases; provided that
the sum of (i) the total amount of all such Indebtedness for the Credit
Parties and their Subsidiaries outstanding plus (ii) the aggregate
amount of purchase money Indebtedness outstanding pursuant to clause
(d) above shall not exceed an aggregate principal amount of $30,000,000
at any one time outstanding.
(f) Indebtedness owing by a Foreign Subsidiary to another
Foreign Subsidiary or to a Credit Party;
(g) Indebtedness of the Foreign Subsidiaries in addition to
clause (f) above in an amount not to exceed $25,000,000 in the
aggregate at any one time outstanding;
(h) reimbursement obligations with respect to draws under
letters of credit issued to (i) provide for, or to ensure, the payment
of the purchase prices of goods acquired by a Credit Party or any of
its Subsidiaries or (viii) support obligations of a Credit Party or any
of its Subsidiaries provided that such reimbursement obligations are
paid in full on the dates the financial institutions that issued such
letters of credit pay the draws;
(i) Guaranty Obligations permitted by Section 8.2;
(j) Indebtedness evidenced by Hedging Agreements entered into
in the ordinary course of business and not for speculative purposes;
(k) Indebtedness set forth on Schedule 6.24; and
(l) other unsecured Funded Debt of a Credit Party; provided
that the principal amount of such unsecured Funded Debt, if deemed
included in the calculation of the Leverage Ratio as of the last day of
the most recently ended fiscal quarter, would not cause the Leverage
Ratio to exceed 2.25 to 1.0 on such date.
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8.2 GUARANTY OBLIGATIONS.
Notwithstanding anything in Section 8.1 to the contrary, no Credit
Party will, nor will it permit its Subsidiaries to contract, create, incur,
assume or permit to exist any Guaranty Obligation other than:
(a) the obligation of such Person to purchase the property of
another Person from a creditor of such other Person who has repossessed
such property as a result of a default by such other Person under a
dealer floor-plan financing arrangement with such creditor, pursuant to
those repurchase agreements existing on the Closing Date as set forth
on Schedule 8.2(a);
(b) Guaranty Obligations of any Subsidiary of the Borrower
with respect to any Hedging Agreement entered into by the Borrower with
a Lender or an Affiliate of a Lender;
(c) Guaranty Obligations of any Subsidiary of the Borrower
with respect to any letter of credit that is issued by a Lender or an
Affiliate of a Lender for the account of the Borrower;
(d) the liability, or potential liability, of (i) PAI as a
general partner of Acceptance Partnership and (ii) the Borrower and PAI
consisting of obligations to make capital contributions, in an amount
not to exceed the sum of (A) the existing obligations set forth on
Schedule 8.2(d) plus (B) an additional $10,000,000 incurred during the
term of this Credit Agreement; and
(e) the liability, or potential liability, of (i) a Subsidiary
of the Borrower (the "New Retail Credit Subsidiary") formed for the
purpose of owning the equity of a new retail credit joint venture (the
"New Retail Credit Joint Venture") as a general partner of the New
Retail Credit Joint Venture and (ii) the Borrower or the New Retail
Credit Subsidiary consisting of obligations to make capital
contributions in an amount not to exceed the maximum amount permitted
by clause (k) of the definition of Permitted Investments.
(f) other Guaranty Obligations of the Credit Parties in an
aggregate amount not to exceed $10,000,000.
8.3 LIENS.
No Credit Party will, nor will it permit its Subsidiaries to, contract,
create, incur, assume or permit to exist any Lien with respect to any of its
property or assets of any kind (whether real or personal, tangible or
intangible), whether now owned or after acquired, other than Permitted Liens.
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8.4 NATURE OF BUSINESS.
No Credit Party will, nor will it permit its Subsidiaries to, alter the
character of its business from that conducted as of the Effective Date or engage
in any business other than the business conducted as of the Effective Date and
activities which are substantially similar or related thereto.
8.5 CONSOLIDATION AND MERGER.
No Credit Party will, nor will it permit any Subsidiary to, enter into
any transaction of merger or consolidation or liquidate, wind up or dissolve
itself, or suffer any such liquidation, wind-up or dissolution; provided that a
Credit Party or a Subsidiary of a Credit Party may merge or consolidate with or
into another Person if the following conditions are satisfied:
(a) the Administrative Agent is given prior written notice of
such action;
(b) if the merger or consolidation involves a Credit Party,
the surviving entity of such merger or consolidation shall either (i)
be such Credit Party or (ii) be a Subsidiary of the Borrower and
expressly assumes in writing all of the obligations of such Credit
Party under the Credit Documents; provided that if the transaction is
between the Borrower and another Person, the Borrower must be the
surviving entity;
(c) the Credit Parties execute and deliver such documents,
instruments and certificates as the Administrative Agent may request;
(d) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing; and
(e) the Borrower delivers to the Administrative Agent an
officer's certificate and an opinion of counsel stating that such
consolidation or merger, and any written agreement entered into in
connection therewith, comply with this Section 8.5.
8.6 SALE OR LEASE OF ASSETS.
No Credit Party will, nor will it permit its Subsidiaries to, convey,
sell, lease, transfer or otherwise voluntarily dispose of, in one transaction or
a series of transactions, all or any part of its business or assets whether now
owned or hereafter acquired, including, without limitation, inventory,
receivables, equipment, real property interests (whether owned or leasehold) and
securities, other than a sale, lease, transfer or other disposal (a) by a Credit
Party of any or all of its assets to another Credit Party; (b) of inventory in
the ordinary course of business; (c) of obsolete, slow-moving, idle or worn-out
assets no longer used or useful in the business of such Credit Party or the
trade-in of equipment for equipment in better condition or of better quality;
(d) which
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constitutes a Permitted Investment in the ordinary course of business; (e) by
PAI of its partnership interest in Acceptance Partnership if required by Section
3.4 of the Acceptance Partnership Agreement (without regard to any amendment of
such section); (f) of accounts receivable pursuant to the financing contracts
set forth on Schedule 8.6 or any replacement arrangement with the same economic
effect; and (g) of assets of the Credit Parties and their Subsidiaries after the
Closing Date, in addition to those permitted above in this Section 8.6; provided
that (i) the transfer is for fair market value, (ii) no Default or Event of
Default exists either prior to or after giving effect thereto and (iii) after
giving effect thereto, the aggregate amount of all such transfers, calculated on
a net book value basis, does not exceed ten percent (10%) of Total Assets, as
determined on the last day of the most recently ended fiscal year of the
Borrower.
8.7 SALE LEASEBACKS.
No Credit Party will, nor will it permit its Subsidiaries to, directly
or indirectly become or remain liable as lessee or as guarantor or other surety
with respect to any lease of any property (whether real or personal or mixed),
whether now owned or hereafter acquired, (a) which such Credit Party or its
Subsidiary has sold or transferred or is to sell or transfer to any other Person
other than a Credit Party or (b) which such Credit Party or its Subsidiary
intends to use for substantially the same purpose as any other property which
has been sold or is to be sold or transferred by such Credit Party to any Person
in connection with such lease, other than such transactions permitted by the
Lenders.
8.8 INVESTMENTS.
No Credit Party will, nor will it permit its Subsidiaries to, make or
permit to exist any Investments except for Permitted Investments.
8.9 FOREIGN SUBSIDIARIES.
No Credit Party will, nor will it permit its Subsidiaries to, permit
the aggregate amount of assets owned by the Foreign Subsidiaries, at any time,
to constitute more than fifteen percent (15%) of Total Assets.
8.10 TRANSACTIONS WITH AFFILIATES.
No Credit Party will, nor will it permit its Subsidiaries to, enter
into any transaction or series of transactions, whether or not in the ordinary
course of business, with any officer, director, shareholder, Subsidiary or
Affiliate other than the normal compensation, indemnification and reimbursement
of expenses of officers, employees and directors and transactions on terms and
conditions substantially as favorable as would be obtainable in a comparable
arm's-length transaction with a Person other than an officer, director,
shareholder, Subsidiary or Affiliate.
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8.11 FISCAL YEAR; ACCOUNTING; ORGANIZATIONAL DOCUMENTS.
No Credit Party will, nor will it permit its Subsidiaries to, (a)
change its fiscal year, (b) change its accounting procedures, except as a result
of changes in GAAP and in accordance with Section 1.3 or (c) in any manner that
would reasonably be likely to adversely affect the rights of the Lenders, change
its organizational or governing documents.
8.12 NO LIMITATIONS.
No Credit Party will, nor will it permit its Subsidiaries to, directly
or indirectly, create or otherwise cause, incur, assume, suffer or permit to
exist or become effective any consensual encumbrance or restriction of any kind
on the ability of any such Person to (a) pay dividends or make any other
distribution on any of such Person's Capital Stock, (b) pay any Indebtedness
owed to any other Credit Party, (c) make loans or advances to any other Credit
Party or (d) transfer any of its property to any other Credit Party, except for
encumbrances or restrictions existing under or by reason of (i) customary
non-assignment provisions in any lease governing a leasehold interest and (ii)
this Credit Agreement and the other Credit Documents.
8.13 NO OTHER NEGATIVE PLEDGES.
No Credit Party will, nor will it permit its Subsidiaries to, enter
into, assume or become subject to any agreement prohibiting or otherwise
restricting the creation or assumption of any Lien upon its properties or
assets, whether now owned or hereafter acquired, or requiring the grant of any
security for such obligation if security is given for some other obligation
except as set forth in the Credit Documents.
8.14 RETAIL CREDIT SUBSIDIARIES.
No Credit Party will, nor will it permit any Subsidiary to, (a) allow
PAI to own any assets other than equity interests in Acceptance Partnership or
(b) allow the New Retail Credit Subsidiary to own any assets other than equity
interests in the New Retail Joint Venture (as such terms are defined in Section
8.2(e)).
SECTION 9
EVENTS OF DEFAULT
9.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence, and during the
continuation, of any of the following specified events (each an "Event of
Default"):
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(a) Payment. Any Credit Party shall default in the payment (i)
when due of any principal of any of the Loans or any reimbursement
obligation arising from drawings under Letters of Credit or (ii) within
three Business Days of when due of any interest on the Loans or any
fees or other amounts owing hereunder, under any of the other Credit
Documents or in connection herewith.
(b) Representations. Any representation, warranty or statement
made or deemed to be made by any Credit Party herein, in any of the
other Credit Documents, or in any statement or certificate delivered or
required to be delivered pursuant hereto or thereto shall prove untrue
in any material respect on the date as of which it was made or deemed
to have been made.
(c) Covenants. Any Credit Party shall:
(i) default in the due performance or observance of
any term, covenant or agreement contained in Sections 7.2,
7.3, 7.5, 7.10, 7.11 or 7.12 or Section 8 inclusive;
(ii) default in the due performance or observance by
it of any term, covenant or agreement contained in Section 7.1
and such default shall continue unremedied for a period of
five Business Days; or
(iii) default in the due performance or observance by
it of any term, covenant or agreement (other than those
referred to in subsections (a), (b) or (c)(i) or (ii) of this
Section 9.1) contained in this Credit Agreement and such
default shall continue unremedied for a period of at least 30
days after the earlier of the President, Chief Executive
Officer, Chief Financial Officer or Treasurer of the Borrower
becoming aware of such default or notice thereof given by the
Administrative Agent.
(d) Other Credit Documents. (i) Any Credit Party shall default
in the due performance or observance of any term, covenant or agreement
in any of the other Credit Documents and such default shall continue
unremedied for a period of at least 30 days after the earlier of an
officer of a Credit Party becoming aware of such default or notice
thereof given by the Administrative Agent, (ii) any Credit Document
shall fail to be in full force and effect or any Credit Party shall so
assert or (iii) any Credit Document shall fail to give the
Administrative Agent and/or the Lenders the liens, rights, powers and
privileges purported to be created by such Credit Document.
(e) Guaranties. The guaranty given by the Credit Parties
hereunder or by any Additional Credit Party or any provision thereof
shall cease to be in full force and effect, or any Guarantor or any
Person acting by or on behalf of such Guarantor shall deny or
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disaffirm such Guarantor's obligations under such guaranty or such
Guarantor shall default in the due payment or performance of such
guaranty.
(f) Bankruptcy, etc. The occurrence of any of the following
with respect to a Credit Party or any of its Subsidiaries (i) a court
or governmental agency having jurisdiction in the premises shall enter
a decree or order for relief in respect of a Credit Party or any of its
Subsidiaries in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appoint
a receiver, liquidator, assignee, custodian, trustee, sequestrator,
administrator or similar official of a Credit Party or any of its
Subsidiaries or for any substantial part of its property or ordering
the winding up or liquidation of, or an administrator in respect of,
its affairs; or (ii) an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect
is commenced against a Credit Party or any of its Subsidiaries and such
petition remains unstayed and in effect for a period of 60 consecutive
days; or (iii) a Credit Party or any of its Subsidiaries shall commence
a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such law, or consent
to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator, administrator or similar
official of such Person or any substantial part of its property or make
any general assignment for the benefit of creditors; or (iv) a Credit
Party or any of its Subsidiaries shall fail generally, or shall admit
in writing its inability, to pay its debts as they become due or any
action shall be taken by such Person in furtherance of any of the
aforesaid purposes.
(g) Defaults under Other Agreements.
(i) A Credit Party or any of its Subsidiaries shall
default in the due performance or observance (beyond any
applicable grace period with respect thereto) of any material
obligation or condition of any contract or lease to which it
is a party, including, but not limited to, any Hedging
Agreement; or
(ii) With respect to any Indebtedness in excess of
$10,000,000 (other than Indebtedness outstanding under this
Credit Agreement) of a Credit Party or any of its Subsidiaries
(A) such Person shall (x) default in any payment (beyond the
applicable grace period with respect thereto, if any) with
respect to any such Indebtedness, or (y) default (after giving
effect to any applicable grace period) in the observance or
performance relating to such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating
thereto, or any other event or condition shall occur or
condition exist, the effect of which default or other event or
condition is to cause, or permit, the holder or holders of
such Indebtedness (or trustee or agent on behalf of such
holders, if any) to require (determined without regard to
whether any notice or lapse of time is required) any such
Indebtedness to become due prior to its stated maturity; or
(B) any such Indebtedness shall be declared due and payable,
or required to be prepaid other than by a regularly
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scheduled required prepayment prior to the stated maturity thereof; or
(C) any such Indebtedness shall mature and remain unpaid.
(h) Judgments. One or more judgments, orders, or decrees shall
be entered against any one or more of the Credit Parties and their
Subsidiaries involving a liability of $10,000,000 or more, in the
aggregate, (to the extent not paid or covered by insurance provided by
a carrier who has acknowledged coverage) and such judgments, orders or
decrees (i) are the subject of any enforcement proceeding commenced by
any creditor or (ii) shall continue unsatisfied, undischarged and
unstayed for a period ending on the first to occur of (A) the last day
on which such judgment, order or decree becomes final and unappealable
or (B) 60 days.
(i) ERISA. The occurrence of any of the following events or
conditions: (i) any "accumulated funding deficiency," as such term is
defined in Section 302 of ERISA and Section 412 of the Code, whether or
not waived, shall exist with respect to any Plan, or any Lien shall
arise on the assets of a Credit Party, any Subsidiary of a Credit Party
or any ERISA Affiliate in favor of the PBGC or a Plan; (ii) an ERISA
Event shall occur with respect to a Single Employer Plan, which is, in
the reasonable opinion of the Administrative Agent, likely to result in
the termination of such Plan for purposes of Title IV of ERISA; (iii)
an ERISA Event shall occur with respect to a Multiemployer Plan or
Multiple Employer Plan, which is, in the reasonable opinion of the
Administrative Agent, likely to result in (A) the termination of such
Plan for purposes of Title IV of ERISA, or (B) a Credit Party, any
Subsidiary of a Credit Party or any ERISA Affiliate incurring any
liability in connection with a withdrawal from, reorganization of
(within the meaning of Section 4241 of ERISA), or insolvency (within
the meaning of Section 4245 of ERISA) of such Plan; (iv) any prohibited
transaction (within the meaning of Section 406 of ERISA or Section 4975
of the Code) or breach of fiduciary responsibility shall occur which
may subject a Credit Party, any Subsidiary of a Credit Party or any
ERISA Affiliate to any liability under Sections 406, 409, 502(i), or
502(l) of ERISA or Section 4975 of the Code, or under any agreement or
other instrument pursuant to which a Credit Party, any Subsidiary of a
Credit Party or any ERISA Affiliate has agreed or is required to
indemnify any Person against any such liability; or (v) a Credit Party,
any Subsidiary of a Credit Party or any ERISA Affiliate fails to pay
when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount
in excess of $500,000.
(j) Short Term Credit Agreement. An Event of Default shall
occur under the Short Term Credit Agreement.
(k) Ownership. There shall occur a Change of Control.
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(l) Condemnation. All or substantially all of the property of
a Credit Party or any of its Subsidiaries shall become subject to a
condemnation, taking or other appropriation action by any Governmental
Authority.
9.2 ACCELERATION; REMEDIES.
Upon the occurrence and during the continuation of an Event of Default,
the Administrative Agent may or shall, upon the request and direction of the
Required Lenders, take the following actions without prejudice to the rights of
the Administrative Agent or any Lender to enforce its claims against the Credit
Parties, except as otherwise specifically provided for herein:
(a) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(b) Acceleration of Loans. Declare the unpaid principal of and
any accrued interest in respect of all Loans, any reimbursement
obligations arising from drawings under Letters of Credit and any and
all other Indebtedness or obligations of any and every kind owing by a
Credit Party to any of the Lenders under the Credit Documents to be due
whereupon the same shall be immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Credit Parties.
(c) Cash Collateral. Direct the Borrower to pay (and the
Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default under Section 9.1(f), they will
immediately pay) to the Administrative Agent additional cash, to be
held by the Administrative Agent, for the benefit of the Lenders, in a
cash collateral account as additional security for the LOC Obligations
in respect of subsequent drawings under all then outstanding Letters of
Credit in an amount equal to the maximum aggregate amount which may be
drawn under all Letters of Credits then outstanding.
(d) Enforcement of Rights. Enforce any and all rights and
interests created and existing under the Credit Documents, including,
without limitation, all rights and remedies against a Guarantor and all
rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(f) shall occur, then the Commitments shall automatically terminate and all
Loans, all reimbursement obligations under Letters of Credit, all accrued
interest in respect thereof, all accrued and unpaid fees and other indebtedness
or obligations owing to the Lenders hereunder shall immediately become due and
payable without the giving of any notice or other action by the Administrative
Agent or the Lenders, which notice or other action is expressly waived by the
Credit Parties.
Notwithstanding the fact that enforcement powers reside primarily with the
Administrative Agent, each Lender has, to the extent permitted by law, a
separate right of payment and shall be considered
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a separate "creditor" holding a separate "claim" within the meaning of Section
101(5) of the Bankruptcy Code or any other insolvency statute.
9.3 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT.
Notwithstanding any other provisions of this Credit Agreement, after
the occurrence and during the continuation of an Event of Default, all amounts
collected or received by the Administrative Agent or any Lender on account of
amounts outstanding under any of the Credit Documents shall be paid over or
delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable Attorney Costs)
of the Administrative Agent or any of the Lenders in connection with
enforcing the rights of the Lenders under the Credit Documents, pro
rata as set forth below;
SECOND, to payment of any fees owed to the Administrative
Agent, the Issuing Lender or any Lender, pro rata as set forth below;
THIRD, to the payment of all accrued interest payable to the
Lenders hereunder, pro rata as set forth below;
FOURTH, to the payment of the outstanding principal amount of
the Loans and unreimbursed drawings under Letters of Credit, and to the
payment or cash collateralization of the outstanding LOC Obligations,
pro rata as set forth below;
FIFTH, to all other obligations which shall have become due
and payable under the Credit Documents and not repaid pursuant to
clauses "FIRST" through "FOURTH" above;
SIXTH, to any principal amounts outstanding under Hedging
Agreements between a Credit Party and a Lender or Affiliate of a
Lender, pro rata as set forth below; and
SEVENTH, to the payment of the surplus, if any, to whoever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (b) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans, and
LOC Obligations held by such Lender bears to the aggregate then outstanding
Loans and LOC Obligations, or, in the case of clause "SIXTH" above, the
proportion of then outstanding obligations under Hedging Agreements) of amounts
available to be applied; and (c) to the extent that any amounts available for
distribution pursuant to clause "FOURTH" above are attributable to the issued
but undrawn amount of outstanding Letters of Credit, such amounts shall be held
by the Administrative Agent in a cash collateral account and applied (i) first,
to reimburse the Issuing
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Lender from time to time for any drawings under such Letters of Credit and (ii)
then, following the expiration of all Letters of Credit, to all other
obligations of the types described in clauses "FOURTH" and "FIFTH" above in the
manner provided in this Section 9.3.
SECTION 10
AGENCY PROVISIONS
10.1 APPOINTMENT.
(a) Each Lender hereby irrevocably appoints, designates and
authorizes the Administrative Agent to take such action on its behalf
under the provisions of this Credit Agreement and each other Credit
Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Credit Agreement or any
other Credit Document, together with such powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Credit Document, the
Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall the Administrative
Agent have or be deemed to have any fiduciary or trustee relationship
with any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into
this Credit Agreement or any other Credit Document or otherwise exist
against the Administrative Agent. Without limiting the generality of
the foregoing sentence, the use of the term "agent" herein and in the
other Credit Documents with reference to the Administrative Agent is
not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship
between independent contracting parties.
(b) The Issuing Lender shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents
associated therewith until such time (and except for so long) as the
Administrative Agent may agree at the request of the Required Lenders
to act for the Issuing Lender with respect thereto; provided, however,
that the Issuing Lender shall have all of the benefits and immunities
(i) provided to the Administrative Agent in this Section 10 with
respect to any acts taken by or omissions of the Issuing Lender in
connection with Letters of Credit issued by it or proposed to be issued
by it and the application and agreements for letters of credit
pertaining to the Letters of Credit as fully as if the term
"Administrative Agent" as used in this Section 10 included the Issuing
Lender with respect to such acts or omissions, and (ii) as additionally
provided herein with respect to the Issuing Lender.
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(c) U.S. Bank N.A., in its capacity as Syndication Agent shall
have no duties or obligations whatsoever under this Credit Agreement or
the other Credit Documents.
10.2 DELEGATION OF DUTIES.
The Administrative Agent may execute any of its duties under this
Credit Agreement or any other Credit Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects with reasonable care.
10.3 EXCULPATORY PROVISIONS.
No Agent-Related Person shall (a) be liable for any action taken or
omitted to be taken by any of them under or in connection with this Credit
Agreement or any other Credit Document or the transactions contemplated hereby
(except for its own gross negligence or willful misconduct in connection with
its duties expressly set forth herein), or (b) be responsible in any manner to
any Lender or participant for any recital, statement, representation or warranty
made by any Credit Party or any officer thereof, contained herein or in any
other Credit Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative Agent
under or in connection with, this Credit Agreement or any other Credit Document,
or the validity, effectiveness, genuineness, enforceability or sufficiency of
this Credit Agreement or any other Credit Document, or for any failure of any
Credit Party or any other party to any Credit Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Credit Agreement or any other Credit Document, or to inspect the
properties, books or records of any Credit Party or any Affiliate thereof.
10.4 RELIANCE ON COMMUNICATIONS.
(a) The Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, communication,
signature, resolution, representation, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal counsel
(including counsel to any Credit Party), independent accountants and
other experts selected by the Administrative Agent. The Administrative
Agent may deem and treat each Lender as the owner of its interests
hereunder for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been delivered to the
Administrative Agent in accordance with Section 11.3(b). The
Administrative Agent shall be fully justified in failing or refusing to
take any action under any Credit Document unless it shall first receive
such advice or
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concurrence of the Required Lenders as it deems appropriate and, if it
so requests, it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting,
or in refraining from acting, under this Credit Agreement or any other
Credit Document in accordance with a request or consent of the Required
Lenders or all the Lenders, if required hereunder, and such request and
any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders and participants, and their respective successors
and assigns. Where this Credit Agreement expressly permits or prohibits
an action unless the Required Lenders otherwise determine, the
Administrative Agent shall, and in all other instances, the
Administrative Agent may, but shall not be required to, initiate any
solicitation for the consent or a vote of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 5.1, each Lender that has signed this Credit
Agreement shall be deemed to have consented to, approved or accepted or
to be satisfied with, each document or other matter either sent by the
Administrative Agent to such Lender for consent, approval, acceptance
or satisfaction, or required thereunder to be consented to or approved
by or acceptable or satisfactory to a Lender.
10.5 NOTICE OF DEFAULT.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default, except with respect
to defaults in the payment of principal, interest and fees required to be paid
to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or the
Borrower referring to this Credit Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." The
Administrative Agent will notify the Lenders of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as may be reasonably directed by the Required Lenders in
accordance with Section 9.2; provided, however, that unless and until the
Administrative Agent has received any such direction, the Administrative Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of Default as it shall deem
advisable or in the best interest of the Lenders.
10.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereinafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Credit Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative
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Agent that it has, independently and without reliance upon any Agent-Related
Person or any other Lender and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Credit Parties and their respective Affiliates, and all
applicable bank or other regulatory laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Credit
Agreement and to extend credit to the Borrower hereunder. Each Lender also
represents that it will, independently and without reliance upon any
Agent-Related Person or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Credit Agreement and the other Credit Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent herein, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any of the Credit Parties or any of their
respective Affiliates which may come into the possession of any Agent-Related
Person, it being understood that the Administrative Agent shall forward to the
Lenders information it receives pursuant to Section 7.1.
10.7 INDEMNIFICATION.
Whether or not the transactions contemplated hereby are consummated,
the Lenders shall indemnify upon demand each Agent-Related Person (to the extent
not reimbursed by or on behalf of any Credit Party and without limiting the
obligation of any Credit Party to do so), pro rata, and hold harmless each
Agent-Related Person from and against any and all Indemnified Liabilities
incurred by it; provided, however, that no Lender shall be liable for the
payment to any Agent-Related Person of any portion of such Indemnified
Liabilities resulting from such Agent-Related Person's gross negligence or
willful misconduct; it being understood that no action taken in accordance with
the directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section 10.7. Without
limitation of the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Administrative Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Credit Agreement, any other Credit Document, or any document contemplated
by or referred to herein, to the extent that the Administrative Agent is not
reimbursed for such expenses by or on behalf of the Credit Parties. The
undertaking in this Section 10.7 shall survive termination of the Commitments,
the payment of all Obligations hereunder and the resignation or replacement of
the Administrative Agent.
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10.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with each of the Credit Parties and their respective
Affiliates as though Bank of America were not the Administrative Agent or the
Issuing Lender hereunder and without notice to or consent of the Lenders. The
Lenders acknowledge that, pursuant to such activities, Bank of America or its
Affiliates may receive information regarding any Credit Party or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of such Credit Party or such Affiliate) and that the Administrative Agent
shall be under no obligation to provide such information to them. With respect
to its Loans, Bank of America shall have the same rights and powers under this
Credit Agreement as any other Lender and may exercise such rights and powers as
though it were not the Administrative Agent or the Issuing Lender, and the terms
"Lender" and "Lenders" include Bank of America in its individual capacity.
10.9 SUCCESSOR AGENT.
The Administrative Agent may resign as Administrative Agent upon 30
days' notice to the Lenders. If the Administrative Agent resigns under this
Credit Agreement, the Required Lenders shall appoint from among the Lenders a
successor administrative agent for the Lenders which successor administrative
agent (such appointment, absent the existence of an Event of Default, to be
subject to the consent of the Borrower, which consent of the Borrower shall not
be unreasonably withheld or delayed). If no successor administrative agent is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint, after consulting with the Lenders
and the Borrower, a successor administrative agent from among the Lenders. Upon
the acceptance of its appointment as successor administrative agent hereunder,
such successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor administrative agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Section 10 and Sections 11.5 and
11.10 shall continue to inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Credit Agreement.
If no successor administrative agent has accepted appointment as Administrative
Agent by the date which is 30 days following a retiring Administrative Agent's
notice of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and the Lenders shall perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above.
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SECTION 11
MISCELLANEOUS
11.1 NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device) to the
number set out below, (c) the Business Day following the day on which the same
has been delivered prepaid (or subject to an invoice arrangement) to a reputable
national overnight air courier service, or (d) the third Business Day following
the day on which the same is sent by certified or registered mail, postage
prepaid, in each case to the respective parties at the address or telecopy
numbers set forth on Schedule 11.1, or at such other address as such party may
specify by written notice to the other parties hereto.
11.2 RIGHT OF SET-OFF, AUTOMATIC DEBITS.
(a) In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any such
rights, upon the occurrence of an Event of Default and the commencement
of remedies described in Section 9.2, each Lender is authorized at any
time and from time to time, without presentment, demand, protest or
other notice of any kind (all of which rights being hereby expressly
waived), to set-off and to appropriate and apply any and all deposits
(general or special) and any other indebtedness at any time held or
owing by such Lender (including, without limitation, branches, agencies
or Affiliates of such Lender wherever located) to or for the credit or
the account of any Credit Party against obligations and liabilities of
such Credit Party to the Lenders hereunder, under the Notes, the other
Credit Documents or otherwise, irrespective of whether the
Administrative Agent or the Lenders shall have made any demand
hereunder and although such obligations, liabilities or claims, or any
of them, may be contingent or unmatured, and any such set-off shall be
deemed to have been made immediately upon the occurrence of an Event of
Default even though such charge is made or entered on the books of such
Lender subsequent thereto. The Credit Parties hereby agree that any
Person purchasing a participation in the Loans and Commitments
hereunder pursuant to Sections 11.3(e) or 3.8 may exercise all rights
of set-off with respect to its participation interest as fully as if
such Person were a Lender hereunder.
(b) In addition to clause (a) above, with respect to any
principal or interest payment, fee, or any other cost or expense
(including Attorney Costs), due and payable to the Administrative Agent
or the Lenders under the Credit Documents, the Credit Parties hereby
irrevocably authorize and direct the Administrative Agent to debit any
deposit account of the Credit Parties with the Administrative Agent (as
one of the Lenders) in an amount such that the aggregate amount debited
from all such deposit accounts does not
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exceed such payment, fee, or other cost or expense. If there are
insufficient funds in such deposit accounts to cover the amount of the
payment, fee, other cost or expense then due, such debits will be
reversed (in whole or in part, in the Administrative Agent's sole
discretion) and such amount not debited shall be deemed to be unpaid.
No such debit under this Section 11.2(b) shall be deemed a set-off.
11.3 BENEFIT OF AGREEMENT.
(a) Generally. This Credit Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided that none of the Credit
Parties may assign and transfer any of its interests (except as
permitted by Section 8.5 or 8.6) without the prior written consent of
the Lenders; and provided further that the rights of each Lender to
transfer, assign or grant participations in its rights and/or
obligations hereunder shall be limited as set forth below in this
Section 11.3.
(b) Assignments. Each Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under
this Credit Agreement (including, without limitation, all or a portion
of its Loans, its Notes, and its Commitment); provided, however, that:
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except (A) in the case of an assignment to
another Lender, (B) in the case of an assignment of all of a
Lender's rights and obligations under this Credit Agreement,
or (C) with the consent of the Administrative Agent and the
Borrower, any such partial assignment shall be in an amount at
least equal to $5,000,000 (or, if less, the remaining amount
of the Commitment of such assigning Lender) or an integral
multiple of $1,000,000 in excess thereof;
(iii) each such assignment by a Lender shall be of a
constant, and not varying, percentage of all of its rights and
obligations under this Credit Agreement and the Notes; and
(iv) the parties to such assignment shall execute and
deliver to the Administrative Agent for its acceptance an
Assignment Agreement in substantially the form of Exhibit
11.3(b), together with a processing fee from the assignor of
$3,500.
Upon execution, delivery, and acceptance of such Assignment Agreement,
the assignee thereunder shall be a party hereto and, to the extent of
such assignment, have the obligations, rights, and benefits of a Lender
hereunder and the assigning Lender shall, to the extent of such
assignment, relinquish its rights and be released from its obligations
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under this Credit Agreement. Upon the consummation of any assignment
pursuant to this Section 11.3(b), the assignor, the Administrative
Agent and the Borrower shall make appropriate arrangements so that, if
required, new Notes are issued to the assignor and the assignee. If the
assignee is not incorporated under the laws of the United States of
America or a state thereof, it shall deliver to the Borrower and the
Administrative Agent certification as to exemption from deduction or
withholding of taxes in accordance with Section 3.13.
By executing and delivering an assignment agreement in accordance with
this Section 11.3(b), the assigning Lender thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each other and
the other parties hereto as follows: (A) such assigning Lender warrants
that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim and the assignee
warrants that it is an Eligible Assignee; (B) except as set forth in
clause (A) above, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Credit
Agreement, any of the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto, or the execution,
legality, validity, enforceability, genuineness, sufficiency or value
of this Credit Agreement, any of the other Credit Documents or any
other instrument or document furnished pursuant hereto or thereto or
the financial condition of any Credit Party or the performance or
observance by any Credit Party of any of its obligations under this
Credit Agreement, any of the other Credit Documents or any other
instrument or document furnished pursuant hereto or thereto; (C) such
assignee represents and warrants that it is legally authorized to enter
into such assignment agreement; (D) such assignee confirms that it has
received a copy of this Credit Agreement, the other Credit Documents
and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into such
assignment agreement; (E) such assignee will independently and without
reliance upon the Administrative Agent, such assigning Lender or any
other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Credit Agreement and the
other Credit Documents; (F) such assignee appoints and authorizes the
Administrative Agent to take such action on its behalf and to exercise
such powers under this Credit Agreement or any other Credit Document as
are delegated to the Administrative Agent by the terms hereof or
thereof, together with such powers as are reasonably incidental
thereto; and (G) such assignee agrees that it will perform in
accordance with their terms all the obligations which by the terms of
this Credit Agreement and the other Credit Documents are required to be
performed by it as a Lender.
(c) Register. The Administrative Agent shall maintain a copy
of each Assignment Agreement delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders
and the Commitment of, and principal amount of the Loans owing to, each
Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest
error, and the
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Borrower, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for
all purposes of this Credit Agreement. The Register shall be available
for inspection by the Borrower or any Lender at any reasonable time and
from time to time upon reasonable prior notice.
(d) Acceptance. Upon its receipt of an Assignment Agreement
executed by the parties thereto, together with any Note subject to such
assignment and payment of the processing fee, the Administrative Agent
shall, if such Assignment Agreement has been completed and is in
substantially the form of Exhibit 11.3(b), (i) accept such Assignment
Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the parties thereto.
(e) Participations. Each Lender may sell participations to one
or more Persons in all or a portion of its rights, obligations or
rights and obligations under this Credit Agreement (including all or a
portion of its Commitment and its Loans); provided, however, that (i)
such Lender's obligations under this Credit Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) the
participant shall be entitled to the benefit of the yield protection
provisions contained in Sections 3.9 through 3.15, inclusive, and of
the right of set-off contained in Section 11.2, (iv) the Borrower shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Credit Agreement,
and (v) such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to its Loans and its Notes and to
approve any amendment, modification, or waiver of any provision of this
Credit Agreement (other than amendments, modifications, or waivers
decreasing the amount of principal of or the rate at which interest is
payable on such Loans or Notes, extending any scheduled principal
payment date or date fixed for the payment of interest on such Loans or
Notes, extending its Commitment or releasing the Borrower or all or
substantially all of the Guarantors from its or their respective
obligations under the Credit Documents).
(f) Unrestricted Assignments. Notwithstanding any other
provision set forth in this Credit Agreement, any Lender may at any
time assign and pledge all or any portion of its Loans and its Notes to
any Federal Reserve Bank as collateral security pursuant to Regulation
A and any Operating Circular issued by such Federal Reserve Bank. No
such assignment shall release the assigning Lender from its obligations
hereunder.
(g) Information. Any Lender may furnish any information
concerning the Credit Parties or any of their Subsidiaries in the
possession of such Lender from time to time to assignees and
participants (including prospective assignees and participants),
subject, however, to the provisions of Section 11.15.
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(h) SPC's. Notwithstanding anything to the contrary contained
herein, any Lender, (a "Granting Lender") may grant to a special
purpose funding vehicle (an "SPC") the option to fund all or any part
of any Loan that such Granting Lender would otherwise be obligated to
fund pursuant to this Credit Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to fund any Loan, (ii)
if an SPC elects not to exercise such option or otherwise fails to fund
all or any part of such Loan, the Granting Lender shall be obligated to
fund such Loan pursuant to the terms hereof, (iii) no SPC shall have
any voting rights pursuant to Section 11.6 (all such voting rights
shall be retained by the Granting Lenders) and (iv) with respect to
notices, payments and other matters hereunder, the Credit Parties, the
Administrative Agent and the Lenders shall not be obligated to deal
with an SPC, but may limit their communications and other dealings
relevant to such SPC to the applicable Granting Lender. The funding of
a Loan by an SPC hereunder shall utilize the Loan Commitment of the
Granting Lender to the same extent that, and as if, such Loan were
funded by such Granting Lender. Each party hereto hereby agrees that no
SPC shall be liable for any indemnity or payment under this Credit
Agreement for which a Lender would otherwise be liable for so long as,
and to the extent, the Granting Lender provides such indemnity or makes
such payment. In furtherance of the foregoing, each party hereto hereby
agrees (which agreements shall survive termination of this Credit
Agreement) that, prior to the date that is one year and one day after
the payment in full of all outstanding commercial paper or other senior
indebtedness of any SPC, it will not institute against, or join any
other Person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any State thereof.
Notwithstanding anything to the contrary contained in this Credit
Agreement, any SPC may disclose on a confidential basis any non-public
information relating to its funding of Loans to any rating agency,
commercial paper dealer or provider of any surety or guarantee to such
SPC. This clause (h) may not be amended without the prior written
consent of each Granting Lender, all or any part of whose Loan is being
funded by an SPC at the time of such amendment.
11.4 NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Administrative Agent or any
Lender in exercising any right, power or privilege hereunder or under any other
Credit Document and no course of dealing between the Borrower or any Credit
Party and the Administrative Agent or any Lender shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies provided herein are cumulative
and not exclusive of any rights or remedies which the Administrative Agent or
any Lender would otherwise have. No notice to or demand on any Credit Party in
any case shall entitle any Credit Party to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the rights of the
Administrative Agent or the Lenders to any other or further action in any
circumstances without notice or demand.
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11.5 PAYMENT OF EXPENSES; INDEMNIFICATION.
The Credit Parties agree to: (a) pay all reasonable out-of-pocket costs
and expenses of (i) the Agent-Related Persons in connection with (A) the
negotiation, preparation, execution and delivery and syndication of this Credit
Agreement and the other Credit Documents and the documents and instruments
referred to therein (including, without limitation, the reasonable fees and
expenses of Xxxxx & Xxx Xxxxx, special counsel to the Administrative Agent) and
(B) any amendment, waiver or consent relating hereto and thereto including, but
not limited to, any such amendments, waivers or consents resulting from or
related to any work-out, renegotiation or restructure relating to the
performance by the Credit Parties under this Credit Agreement, and (ii) the
Agent-Related Persons and the Lenders in connection with (A) enforcement of the
Credit Documents and the documents and instruments referred to therein,
including, without limitation, in connection with any such enforcement, the
reasonable Attorneys' Costs of the Administrative Agent and each of the Lenders
and (B) any bankruptcy or insolvency proceeding of any Credit Party or any of
its Subsidiaries and (b) indemnify the Agent-Related Persons and each Lender,
its officers, directors, employees, representatives, counsel and agents from and
hold each of them harmless against any and all losses, liabilities, claims,
damages or expenses incurred by any of them as a result of, or arising out of,
or in any way related to, or by reason of, any investigation, litigation or
other proceeding (whether or not such Agent-Related Person or any Lender is a
party thereto) related to the entering into and/or performance of any Credit
Document or the use of proceeds of any Loans (including other extensions of
credit) hereunder or the consummation of any other transactions contemplated in
any Credit Document, including, without limitation, reasonable Attorneys' Costs
incurred in connection with any such investigation, litigation or other
proceeding (but excluding any such losses, liabilities, claims, damages or
expenses to the extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified or from the material
breach by the Person to be indemnified of its obligations under the Credit
Documents ) (all of the foregoing, collectively, "Indemnified Liabilities"). The
agreements in this Section 11.5 shall survive the termination of the Commitments
and the repayment of the Credit Party Obligations.
11.6 AMENDMENTS, WAIVERS AND CONSENTS.
Neither this Credit Agreement nor any other Credit Document nor any of
the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing and signed by the Required Lenders and the then Credit Parties; provided
that no such amendment, change, waiver, discharge or termination shall without
the consent of all the Lenders:
(a) extend the Maturity Date, or postpone or extend the time
for any payment or prepayment of principal;
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(b) reduce the rate or extend the time of payment of interest
(other than as a result of waiving the applicability of any
post-default increase in interest rates) thereon or fees hereunder;
(c) reduce or waive the principal amount of any Loan;
(d) increase or extend the Commitment of a Lender (it being
understood and agreed that a waiver of any Default or Event of Default
or a waiver of any mandatory reduction in the Commitments shall not
constitute a change in the terms of any Commitment of any Lender);
(e) release the Borrower from its obligations or consent to
the assignment or transfer by the Borrower of any of its rights and
obligations under (or in respect of) the Credit Documents or release
all or substantially all of the Guarantors from their respective
obligations under the Credit Documents;
(f) amend, modify or waive any provision of this Section 11.6
or Section 3.4(a), 3.4(b), 3.4(c)(i), 3.7, 3.8, 9.1(a), 11.2, 11.3 or
11.5; or
(g) reduce any percentage specified in, or otherwise modify,
the definition of Required Lenders.
Notwithstanding the above, (i) no provisions of Section 10 may be amended or
modified without the consent of the Administrative Agent and (ii) no provisions
of Section 2.2 may be amended or modified without the consent of the Issuing
Lender.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any reorganization plan that affects the Loans or the
Letters of Credit, and each Lender acknowledges that the provisions of Section
1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set
forth herein and (y) the Required Lenders may consent to allow a Credit Party to
use cash collateral in the context of a bankruptcy or insolvency proceeding.
11.7 COUNTERPARTS/TELECOPY.
This Credit Agreement may be executed in any number of counterparts,
each of which where so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. Delivery of executed
counterparts by telecopy shall be as effective as an original and shall
constitute a representation that an original will be delivered.
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11.8 HEADINGS.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 DEFAULTING LENDER.
Each Lender understands and agrees that if such Lender is a Defaulting
Lender then notwithstanding the provisions of Section 11.6 it shall not be
entitled to vote on any matter requiring the consent of the Required Lenders or
to object to any matter requiring the consent of all the Lenders; provided,
however, that all other benefits and obligations under the Credit Documents
shall apply to such Defaulting Lender.
11.10 SURVIVAL OF INDEMNIFICATION AND REPRESENTATIONS AND WARRANTIES.
All indemnities set forth herein and all representations and warranties
made herein shall survive the execution and delivery of this Credit Agreement,
the making of the Loans, the issuance of the Letters of Credit and the repayment
of the Loans, LOC Obligations and other obligations and the termination of the
Commitments hereunder.
11.11 GOVERNING LAW; JURISDICTION.
THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Each Credit Party irrevocably consents to the service of process in any action
or proceeding with respect to this Credit Agreement or any other Credit Document
by the mailing of copies thereof by registered or certified mail, postage
prepaid, to it at the address for notices pursuant to Section 11.1, such service
to become effective 10 days after such mailing. Nothing herein shall affect the
right of a Lender to serve process in any other manner permitted by law.
11.12 WAIVER OF JURY TRIAL; WAIVER OF CONSEQUENTIAL DAMAGES.
EACH OF THE PARTIES TO THIS CREDIT AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED HEREBY. Each Credit Party agrees not to assert any
claim against the Administrative Agent, the Issuing Lenders, any Lender, any of
their Affiliates, or any of their respective directors, officers, employees,
attorneys or agents, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to any of
the transactions contemplated herein.
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11.13 SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.14 FURTHER ASSURANCES.
The Credit Parties agree, upon the request of the Administrative Agent,
to promptly take such actions, as reasonably requested, as is necessary to carry
out the intent of this Credit Agreement and the other Credit Documents.
11.15 CONFIDENTIALITY.
Each Lender agrees that it will use its reasonable best efforts to keep
confidential and to cause any representative designated under Section 7.11 to
keep confidential any non-public information from time to time supplied to it
under any Credit Document; provided, however, that nothing herein shall prevent
the disclosure of any such information to (a) the extent a Lender in good faith
believes such disclosure is required by Requirement of Law, (b) counsel for a
Lender or to its accountants, (c) bank examiners or auditors or comparable
Persons, (d) any Affiliate of a Lender, (e) any other Lender, or any assignee,
transferee or participant, or any potential assignee, transferee or participant,
of all or any portion of any Lender's rights under this Credit Agreement who is
notified of the confidential nature of the information or (f) any other Person
in connection with any litigation to which any one or more of the Lenders is a
party. No Lender shall have any obligation under this Section 11.15 to the
extent any such information becomes available on a non-confidential basis from a
source other than a Credit Party or that any information becomes publicly
available other than by a breach of this Section 11.15 by any Lender or
representative thereof.
11.16 ENTIRETY.
This Credit Agreement together with the other Credit Documents and the
Fee Letter represent the entire agreement of the parties hereto and thereto, and
supersede all prior agreements and understandings, oral or written, if any,
including any commitment letters or correspondence relating to the Credit
Documents or the transactions contemplated herein and therein.
11.17 BINDING EFFECT; CONTINUING AGREEMENT.
(a) This Credit Agreement shall become effective at such time
when all of the conditions set forth in Section 5.1 have been satisfied
or waived by the Lenders and it shall have been executed by the
Borrower, the Guarantors and the Administrative Agent, and the
Administrative Agent shall have received copies hereof (telefaxed or
otherwise)
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which, when taken together, bear the signatures of each Lender, and
thereafter this Credit Agreement shall be binding upon and inure to the
benefit of the Borrower, the Guarantors, the Administrative Agent and
each Lender and their respective successors and assigns.
(b) This Credit Agreement shall be a continuing agreement and
shall remain in full force and effect until all Loans, LOC Obligations,
interest, fees and other Credit Party Obligations have been paid in
full and all Commitments and Letters of Credit have been terminated.
Upon termination, the Credit Parties shall have no further obligations
(other than the indemnification provisions that survive) under the
Credit Documents; provided that should any payment, in whole or in
part, of the Credit Party Obligations be rescinded or otherwise
required to be restored or returned by the Administrative Agent or any
Lender, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, then the Credit Documents shall
automatically be reinstated and all amounts required to be restored or
returned and all costs and expenses incurred by the Administrative
Agent or any Lender in connection therewith shall be deemed included as
part of the Credit Party Obligations.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above written.
BORROWER:
POLARIS INDUSTRIES INC.,
a Minnesota corporation
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer, Treasurer,
Secretary and Vice President-Finance
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Signature Page to Polaris Industries Inc.
Multi-Year Credit Agreement
GUARANTORS: POLARIS REAL ESTATE CORPORATION OF
---------- IOWA, INC., a Delaware corporation
POLARIS REAL ESTATE CORPORATION,
a Delaware corporation
POLARIS ACCEPTANCE INC.,
a Minnesota corporation
POLARIS SALES INC., a Minnesota corporation
POLARIS DIRECT INC., a Minnesota corporation
POLARIS INDUSTRIES INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer, Treasurer,
Secretary and Vice President-Finance
of each of the foregoing entities
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Signature Page to Polaris Industries Inc.
Multi-Year Credit Agreement
LENDERS:
--------
BANK OF AMERICA, N.A.,
individually in its capacity as a Lender and in
its capacity as Administrative Agent
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
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Signature Page to Polaris Industries Inc.
Multi-Year Credit Agreement
U.S. BANK N.A., individually in its capacity
as a Lender and in its capacity as Issuing Lender
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
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Signature Page to Polaris Industries Inc.
Multi-Year Credit Agreement
THE FUJI BANK, LIMITED
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President & Group Head
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Signature Page to Polaris Industries Inc.
Multi-Year Credit Agreement
THE INDUSTRIAL BANK OF JAPAN, LTD.
By: /s/ Xxxxxx Xxxxx
------------------------------------------
Name: Xxxxxx Xxxxx
Title: Joint General Manager
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Signature Page to Polaris Industries Inc.
Multi-Year Credit Agreement
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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Signature Page to Polaris Industries Inc.
Multi-Year Credit Agreement
M&I XXXXXXXX & XXXXXX BANK
By: /s/ Xxxx Xxxxxx /s/ Xxxx Xxxxxx
------------------------------------------
Name: Xxxx Xxxxxx Xxxx Xxxxxx
Title: Vice President Vice President
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Signature Page to Polaris Industries Inc.
Multi-Year Credit Agreement
COMERICA BANK
By: /s/ Xxxxxxx X'Xxxxxx
------------------------------------------
Name: Xxxxxxx X'Xxxxxx
Title: Vice President
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Signature Page to Polaris Industries Inc.
Multi-Year Credit Agreement
BANCA NAZIONALE DEL LAVORO S.P.A.
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: First Vice President
103
Signature Page to Polaris Industries Inc.
Multi-Year Credit Agreement
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Assistant Vice President
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
104
Signature Page to Polaris Industries Inc.
Multi-Year Credit Agreement
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By: /s/ Xxxxxxx XxXxx
------------------------------------------
Name: Xxxxxxx XxXxx
Title: Vice President & Manager
