364-DAY REVOLVING CREDIT AGREEMENT dated as of November 20, 2001 among CARPENTER TECHNOLOGY CORPORATION, as a Borrower and as Guarantor, and CERTECH INTERNATIONAL LIMITED, CARPENTER TECHNOLOGY (EUROPE) S.A., CARPENTER POWDER PRODUCTS AB, and CARPENTER...
364-DAY
REVOLVING
CREDIT AGREEMENT
dated as of November 20, 2001
among
XXXXXXXXX TECHNOLOGY CORPORATION,
as a Borrower and as Guarantor,
and
CERTECH INTERNATIONAL LIMITED,
XXXXXXXXX TECHNOLOGY (EUROPE) S.A.,
CARPENTER POWDER PRODUCTS AB,
and
XXXXXXXXX TECHNOLOGY (UK) LIMITED,
as Borrowers,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
FIRST UNION NATIONAL BANK,
as Administrative Agent
and
JPMORGAN CHASE BANK,
as Syndication Agent
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
364 DAY REVOLVING
CREDIT AGREEMENT
This 364 Day Revolving Credit Agreement is dated as of November 20, 2001 and is among XXXXXXXXX TECHNOLOGY CORPORATION, a Delaware corporation ("Xxxxxxxxx"), XXXXXXXXX TECHNOLOGY (UK) LIMITED, a company organized and existing under the laws of England and Wales ("Carpenter UK"), CERTECH INTERNATIONAL LIMITED, a company organized and existing under the laws of England and Wales ("Certech"), XXXXXXXXX POWDER PRODUCTS AB, a company organized and existing under the laws of Sweden ("Xxxxxxxxx Powder"), and XXXXXXXXX TECHNOLOGY (EUROPE) S.A., a company organized and existing under the laws of Belgium ("Xxxxxxxxx Belgium"), the banks and other financial institutions from time to time party hereto (the "Lenders"), and FIRST UNION NATIONAL BANK, as Administrative Agent.
The Borrowers have requested the Lenders to provide a revolving credit facility to the Borrowers in the aggregate principal amount of $75,000,000 for the purposes hereinafter set forth. The Lenders are willing to make the requested credit facility available to the Borrowers on the terms and conditions set forth herein. Accordingly, in consideration of the mutual agreements set forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
- the rate per annum equal to the rate determined by the Administrative
Agent to be the offered rate that appears on the page of the Telerate screen (or any
successor thereto) that displays the average British Bankers Association Interest
Settlement Rate for deposits in the relevant currency (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period, determined as of
approximately 11:00 A.M. (London time) two Business Days prior to the first day of such
Interest Period; or
- if the rate referenced in clause (i) above does not appear on
such page or service or such page or service shall cease to be available, the rate per
annum equal to the rate determined by the Administrative Agent to be the offered rate that
appears on such other page or service that displays an average British Bankers Association
Interest Settlement Rate for deposits in the relevant currency (for delivery on the first
day of such Interest Period) with a term equivalent to such Interest Period, determined as
of approximately 11:00 A.M. (London time) two Business Days prior to the first day of such
Interest Period; or
- if the rates referenced in the preceding clauses (i) and (ii)
are not available, the rate per annum determined by the Administrative Agent as the rate
of interest (rounded upwards to the next 1/16th of 1%) at which deposits in the relevant
currency for delivery on the first day of such Interest Period in same day funds in the
approximate amount of the Eurocurrency Loan being made, continued or converted by First
Union National Bank and with a term equivalent to such Interest Period would be offered by
First Union National Bank's London branch to major banks in the offshore market for the
relevant currency at their request at approximately 11:00 A.M. (London time) two Business
Days prior to the first day of such Interest Period.
- if such day relates to a borrowing of, a payment or
prepayment of principal of or interest on, or the Interest Period for, a Eurodollar Loan,
or a notice by Xxxxxxxxx with respect to any such borrowing, payment, prepayment or
Interest Period, such day shall also be a day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London;
- if such day relates to a borrowing of, a payment or prepayment of
principal of or interest on, or the Interest Period for, an Alternative Currency Loan
denominated in an Available Alternative Currency other than the Euro, or a notice by
Xxxxxxxxx with respect to any such borrowing, payment, prepayment or Interest Period or
issuance, drawing under or reimbursement obligation, such day shall also be a day on which
commercial banks are open for international business (including dealings in deposits on
such Alternative Currency) in both London and in the Principal Financial Center for such
Available Foreign Currency; and
- if such day relates to a borrowing of, a payment or prepayment of
principal of or interest on, or the Interest Period for, an Alternative Currency Loan, or
a notice by Xxxxxxxxx Borrower with respect to any such borrowing, payment, prepayment or
Interest Period, such day shall also be a day on which the Trans-European Automated
Real-Time Gross Settlement Expense Transfer payment system is operating.
- 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;
- Dollar-denominated certificates of deposit of (A) any Lender, (B) any
United States commercial bank of recognized standing having capital and surplus in excess
of $500,000,000 or (C) any bank whose (or whose parent company's) 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 Lender"),
in each case with maturities of not more than 270 days from the date of acquisition;
- commercial paper and variable or fixed rate notes issued by any
Approved Lender (or by the parent company thereof) or any variable rate notes issued by,
or guaranteed by, any domestic corporation not an Affiliate of Xxxxxxxxx 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;
- 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 Xxxxxxxxx or one or more of its Subsidiaries 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;
and
- 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 clauses (i) through (iv).
- any "person" or "group" (within the
meaning of Section 13(d) and 14(d) of the Exchange Act) has become the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a
Person shall be deemed to have "beneficial ownership" of all securities that any
such Person has the right to acquire, whether such right is exercisable immediately or
only after the passage of time), by way of merger, consolidation or otherwise, of 25% or
more of the Equity Interests of such Person on a fully-diluted basis after giving effect
to the conversion and exercise of all outstanding Equity Equivalents (whether or not such
Equity Equivalents are then currently convertible or exercisable); or
- during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of such Person cease to be composed of individuals (A) who were members of that board or equivalent governing body on the first day of such period, (B) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (ii)(A) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (C) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (ii)(A) and (B) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.
- with respect to Dollar-Denominated Loans, the aggregate
outstanding principal amount thereof after giving effect to any Borrowings, conversions,
continuations and prepayments or repayments of such Loans occurring on such date; and
- with respect to Alternative Currency Loans, the Dollar Equivalent of
the aggregate outstanding principal amount thereof after giving effect to any Borrowings,
continuations and prepayments or repayments of such Loans occurring on such date.
- any Interest Period which would otherwise end on a day
which is not a Business Day for the relevant currency shall be extended to the next
succeeding Business Day for such currency unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next preceding
Business Day for such currency;
- any Interest Period which begins on the last Business Day for the
relevant currency in a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period) shall end on
the last Business Day for the relevant currency of a calendar month; and
- any Interest Period which would otherwise end after the Maturity Date
shall end on the Maturity Date.
- all principal of and interest (including, without
limitation, any interest which accrues after the commencement of any Bankruptcy Event,
whether or not allowed or allowable as a claim under any applicable Debtor Relief Law) on
any Loan under, or any Note issued pursuant to, this Agreement or any other Loan Document;
- all fees, expenses, indemnification obligations, foreign currency
exchange obligations and other amounts of whatever nature now or hereafter payable by the
Borrowers (including, without limitation, any amounts which accrue after the commencement
of any Bankruptcy Event, whether or not allowed or allowable as a claim under any
applicable Debtor Relief Law) pursuant to this Agreement or any other Loan Document;
- all expenses of the Agents as to which one or more of the Agents have
a right to reimbursement under Section 11.04 of this Agreement;
- all Indemnified Liabilities and other amounts paid by any Indemnitee
as to which such Indemnitee has the right to payment or reimbursement under Section
11.05 of this Agreement or under any other similar provision of any other Loan
Document; and
- in the case of Xxxxxxxxx pursuant to the provisions of Article X, all amounts now or hereafter payable by Xxxxxxxxx and all other obligations or liabilities now existing or hereafter arising or incurred (including, without limitation, any amounts which accrue after the commencement of any Bankruptcy Event with respect to any Borrower, whether or not allowed or allowable as a claim under any applicable Debtor Relief Law) on the part of Xxxxxxxxx pursuant to the provisions of Article X;
"Administrative Agent" means First Union National Bank, in its capacity as administrative agent for the Lenders hereunder and under the other Loan Documents, and its successor or successors in such capacity.
"Administrative Agent's Office" means the Administrative Agent's address and, as appropriate, account as set forth on Schedule 10.02, or such other address and account as the Administrative Agent may from time to time notify to Xxxxxxxxx and the Lenders.
"Affiliate" means, as to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. A Person shall be deemed to be "controlled by" any other Person if such other Person possesses, directly or indirectly, power (i) to vote 10% or more of the securities (on a fully diluted basis) having ordinary voting power for the election of directors or managing general partners or (ii) to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise.
"Agent" means the Administrative Agent or the Syndication Agent and any successors and assigns in such capacity, and "Agents" means each of them together.
"Agent-Related Persons" means any Agent, together with its Affiliates, and the officers, directors, employees, agents and attorneys-in-fact of such Person and its Affiliates.
"Agreed Alternative Currency" means at any time any of the respective lawful currencies of the United Kingdom, Canada, Mexico, Sweden and the European Economic Union, and such other currencies as Xxxxxxxxx and the Administrative Agent may mutually agree from time to time, so long as at such time (i) such currency is dealt in the London interbank deposit market or, in the case of Euros, the European interbank deposit market, (ii) such currency is fully transferable and convertible into Dollars in the London foreign exchange market or, in the case of Euros, the European foreign exchange market and (iii) no central bank or other governmental authorization in the country of issue of such currency is required to permit the use of such currency by any Lender for making or maintaining any Loan hereunder and/or to permit the Borrower to borrow and repay the principal thereof and to pay the interest thereon, unless such authorization has been obtained and is in full force and effect.
"Agreement" means this Agreement, as amended, restated, supplemented or otherwise modified from time to time.
"Agreement Currency" has the meaning set forth in Section 2.14.
"Alternative Currency Loan" means a Loan that is made in an Available Alternative Currency in accordance with the applicable Notice of Borrowing.
"Applicable Interbank Offered Rate" for any Eurocurrency Loan for the Interest Period applicable thereto means:
"Applicable Lending Office" means with respect to any Lender and for each Type of Loan, the "Lending Office" of such Lender (or of an Affiliate of such Lender) designated for such Type of Loan on Schedule 10.02 or such other office of such Lender (or of an Affiliate of such Lender) as such Lender may from time to time specify to the Administrative Agent and the Borrower as the office by which its Loans of such Type are to be made and maintained; provided, that any Lender may from time to time by notice to the Borrower and the Administrative Agent designate separate Eurocurrency Lending Offices for loans in different currencies, in which case all references herein to the Applicable Lending Office of such Lender shall, with respect to its Eurocurrency Loans, be deemed to refer to any or all of such offices, as the context may require.
"Applicable Margin" means, for purposes of calculating (i) the applicable interest rate for any day for any Base Rate Loans or Eurocurrency Loans or (ii) the applicable rate for the Facility Fee for any day for purposes of Section 2.10(a), the appropriate applicable percentage set forth below corresponding to then current Xxxxxxxxx'x Ratings:
Xxxxxxxxx'x Ratings (S&P/Moody's) |
Applicable |
Applicable
Percentage for |
Applicable |
|
| Category A: | A-/A3 or higher | .100% |
0% |
.400% |
| Category B: | BBB+/Baa1 | .125% |
0% |
.500% |
| Category C: | BBB/Baa2 | .150% |
0% |
.600% |
| Category D: | BBB-/Baa3 | .175% |
0% |
.700% |
| Category E: | lower than BBB-/Baa3 |
.200% |
0% |
.925% |
Initially, the Applicable Margins for Base Rate Loans and Eurocurrency Loans and the applicable rate for Facility Fees shall be based upon Xxxxxxxxx'x Ratings specified in the certificate delivered pursuant to Section 4.01(d)(ii) of this Agreement. Thereafter, each change in the Applicable Margins for Base Rate Loans and Eurocurrency Loans and the applicable rate for Facility Fees shall be effective, in the case of an upgrade in ratings, during the period commencing on the date of delivery by Xxxxxxxxx to the Administrative Agent of notice thereof pursuant to Section 6.01(e)(ii)(G) and ending on the date immediately preceding the effective date of the next such change and, in the case of a downgrade in ratings, during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change. In the event a rating differential of one level exists, Xxxxxxxxx'x Ratings shall be deemed to be the higher of the two ratings. In the event a rating of more than one level exists, Xxxxxxxxx'x Ratings shall be deemed to be one level above the lower of the two ratings.
"Approved Fund" means (i) with respect to any Lender, an entity (whether a corporation, partnership, limited liability company, trust or otherwise) that is engaged in making, purchasing, holding or otherwise investing in bank loans and similar extensions of credit in the ordinary course of its business and is managed by such Lender or an Affiliate of such Lender, (ii) with respect to any Lender that is a fund that invests in bank loans and similar extensions of credit, any other fund that invests in bank loans and similar extensions of credit and is managed by the same investment advisor as such Lender or by an Affiliate of such investment advisor and (iii) any special purpose funding vehicle described in Section 11.06(h).
"Assignment and Acceptance" means an Assignment and Acceptance, substantially in the form of Exhibit C hereto, under which an interest of a Lender hereunder is transferred to an Eligible Assignee pursuant to Section 11.06(b).
"Attorney Costs" means all reasonable fees and disbursements of any law firm or other external counsel.
"Attributable Indebtedness" means, at any date (i) in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, (ii) in respect of any Synthetic Lease Obligation of any Person, the capitalized or principal amount of the remaining payments under the relevant lease or other agreement that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease or other agreement were accounted for as a Capital Lease and (iii) in respect of any Sale/Leaseback Transaction, the lesser of (A) the present value, discounted in accordance with GAAP at the debt rate implicit in the related lease, of the obligations of the lessee for rental payments over the remaining term of such lease (including any period for which such lease has been extended or may, at the option of the lessor be extended) and (B) the fair market value of the assets subject to such transaction.
"Available Alternative Currency" means at any time, any Agreed Alternative Currency and any other currency (other than Dollars) that Xxxxxxxxx requests, by notice to the Lenders through the Administrative Agent, be included as an additional Alternative Currency for purposes of this Agreement, in each case so long as at such time (A) such currency is dealt in the London interbank deposit market or the European interbank deposit market, (B) such currency is freely transferable and convertible into Dollars in the London foreign exchange market or the European foreign exchange market, as applicable, (C) no central bank or other governmental authorization in the country of issue of such currency is required to permit the use of such currency by any Lender for making any Loan hereunder and/or to permit the Borrower to borrow and repay the principal thereof and to pay interest thereon, unless such authorization has been obtained and (D) no Lender shall have objected to the inclusion of such currency as an Available Alternative Currency by notice to Xxxxxxxxx and the Administrative Agent given within five Business Days of such Lender's receipt of the notice referred to above.
"Bankruptcy Event" means, with respect to any Person, (i) a court or governmental agency having jurisdiction in the premises shall enter a decree or order for relief in respect of such Person in an involuntary case under any Debtor Relief Law now or hereafter in effect, or appoint a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of such Person or for any substantial part of its property or ordering the winding up or liquidation of its affairs, (ii) an involuntary case under any applicable Debtor Relief Law now or hereafter in effect is commenced against such Person and such petition remains unstayed and in effect for a period of 60 consecutive days, (iii) such Person shall commence a voluntary case under any applicable Debtor Relief 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 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) such Person shall admit in writing its inability to pay its debts generally as they become due or any action shall be taken by such Person in furtherance of any of the aforesaid purposes.
"Base Rate" means, for any day, a rate per annum equal to the higher of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal Funds Rate for such day. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Rate shall be effective on the effective date of such change in the Prime Rate or the Federal Funds Rate.
"Base Rate Loan" means a Loan which bears interest at the Base Rate pursuant to the applicable Notice of Borrowing, Notice of Extension/Conversion or the provisions of Article III.
"Board" means the Board of Governors of the Federal Reserve System of the United States of America.
"Borrower" means, as applicable, (i) Carpenter, (ii) Certech, (iii) Xxxxxxxxx Belgium, (iv) Carpenter UK, (v) Xxxxxxxxx Powder and (vi) each other material Subsidiary of Carpenter that is acceptable to the Administrative Agent and that becomes a party to this Agreement as a Borrower, together with their respective successors, and "Borrowers" shall mean each such Borrower collectively.
"Borrowing" has the meaning set forth in Section 1.04.
"Business Day" means any day except a Saturday, Sunday or other day on which commercial banks are authorized or required to close, under the laws of, or are in fact closed in, the state where the Administrative Agent's Office is located, except that:
"Calculation Date" means, in respect of any Eurocurrency Borrowing or Group of outstanding Eurocurrency Loans, (A) the date falling two Business Days prior to the date of such Borrowing, (B) the date falling two Business Days prior to the last day of the current Interest Period for such Group of Loans, (C) any date on which such Group of Loans is automatically converted to Loans in Dollars pursuant to the terms of this Agreement and (D) any other day specified by the Administrative Agent from time to time.
"Capital Lease" of any Person means any lease of property (whether real, personal or mixed) by such Person as lessee which would, in accordance with GAAP, be required to be accounted for as a capital lease on the balance sheet of such Person.
"Capital Lease Obligations" means, with respect to any Person, all obligations of such Person as lessee under Capital Leases, in each case taken at the amount thereof accounted for as liabilities in accordance with GAAP.
"Carpenter" is defined in the preamble.
"Xxxxxxxxx Powder" is defined in the preamble.
"Carpenter UK" is defined in the preamble.
"Xxxxxxxxx Sweden" is defined in the preamble.
"Xxxxxxxxx'x 2001 Form 10-K" means the Xxxxxxxxx'x annual report on Form 10-K for the fiscal year ended June 30, 2001, as filed with the Securities and Exchange Commission pursuant to the Exchange Act.
"Xxxxxxxxx'x Latest Form 10-Q" means the Xxxxxxxxx'x quarterly report on Form 10-Q for the quarter ended September 30, 2001, as filed with the Securities and Exchange Commission pursuant to the Exchange Act.
"Xxxxxxxxx'x Ratings" means the ratings from Moody's and S&P with respect to the senior, unsecured, long-term indebtedness for borrowed money of Xxxxxxxxx that is not guaranteed by any other Person or subject to any other credit enhancement.
"Cash Equivalents" means:
"Certech" is defined in the preamble.
"Change of Control" means, with respect to any Person, an event or series of events by which:
"Closing Date" means the date on or after the Effective Date when the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 4.01.
"Code" means the Internal Revenue Code of 1986, as amended, and any successor statute thereto, as interpreted by the rules and regulations issued thereunder, in each case as in effect from time to time.
"Commitment" means with respect to each Lender, its Revolving Commitment in the respective amount set forth on Schedule 1.01A or in the applicable Assignment and Acceptance as its Commitment, as any such amount may be increased or decreased from time to time pursuant to this Agreement.
"Consolidated Capitalization" means the sum of, without duplication, (i) Consolidated Indebtedness and (ii) the consolidated shareowner's equity (determined in accordance with GAAP) of the common and preferred stockholders of Xxxxxxxxx recorded on Xxxxxxxxx'x consolidated financial statements.
"Consolidated EBITDA" means for any period the sum of (i) Consolidated Net Income for such period plus (ii) an amount which, in the determination of Consolidated Net Income for such period, has been deducted for (A) Consolidated Interest Expense, (B) provisions for Federal, state, local and foreign income, value added and similar taxes, and (C) depreciation, amortization (including, without limitation, amortization of goodwill and other intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash expense excluding any such non-cash expense to the extent that it represents amortization of a prepaid cash expense that was paid in a prior period or an accrual of, or a reserve for, cash charges or expenses in any future period.
"Consolidated Indebtedness" means at any date the Indebtedness of Xxxxxxxxx and its Consolidated Subsidiaries, determined on a consolidated basis as of such date.
"Consolidated Interest Expense" means, for any period, the total interest expense, including the interest component of all payments under Capital Lease Obligations and the implied interest component of Synthetic Lease Obligations (regardless of whether accounted for as interest expense under GAAP), all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers' acceptances that are typically treated as interest expense in accordance with GAAP, of Xxxxxxxxx and its Consolidated Subsidiaries, in each case as determined in accordance with GAAP and as determined on a consolidated basis for such period.
"Consolidated Net Income" means, for any period, the net income (or net loss) after taxes of Xxxxxxxxx and its Consolidated Subsidiaries for such period, as determined in accordance with GAAP; provided that there shall be excluded from the calculation of Consolidated Net Income non-operating, non-recurring gains and losses and extraordinary gains and losses of Xxxxxxxxx and its Consolidated Subsidiaries.
"Consolidated Subsidiary" means with respect to any Person at any date any Subsidiary of such Person or other entity the accounts of which would be consolidated with those of such Person in its consolidated financial statements if such statements were prepared as of such date in accordance with GAAP.
"Consolidated Tangible Net Worth" means at any date the consolidated stockholders' equity of Xxxxxxxxx and its Consolidated Subsidiaries, less intangible assets and goodwill of Xxxxxxxxx and its Consolidated Subsidiaries, in each case as determined in accordance with GAAP.
"Contractual Obligation" means, as to any Person, any provision of any instrument, including a security, issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
"Credit Exposure" has the meaning set forth in the definition of "Required Lenders" in this Section 1.01.
"Creditor" means each Lender, each Agent and each Indemnitee and their respective successors and assigns, and "Creditors" means any two or more of such Creditors.
"Debt to Capital Ratio" means the ratio of Consolidated Indebtedness to Consolidated Capitalization.
"Debtor Relief Laws" means the Bankruptcy Reform Act of 1978, as amended, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the United States of America or other applicable jurisdiction from time to time affecting the rights of creditors generally.
"Default" means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default.
"Defaulting Lender" means at any time any Lender that, within one Business Day of when due, has failed to pay to any Agent or any Lender an amount owed by such Lender pursuant to the terms of this Agreement or any other Loan Document unless such amount is subject to a good faith dispute or (iii) has been deemed insolvent or has become subject to a Bankruptcy Event.
"Derivatives Agreement" means (i) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement and (ii) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement or any other master agreement.
"Derivatives Obligations" of any Person means all obligations (including, without limitation, any amounts which accrue after the commencement of any Bankruptcy Event with respect to such Person, whether or not allowed or allowable as a claim under any applicable Debtor Relief Laws) of such Person in respect of any Derivatives Agreement, excluding any amounts which such Person is entitled to set-off against its obligations under applicable law.
"Disposition" or "Dispose" means the sale, transfer, license or other disposition (including any Sale/Leaseback Transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes, accounts receivable or payment intangible or any rights or claims associated therewith.
"Disqualified Stock" of any Person means (i) any Equity Interest of such Person which by its terms (or by the terms of any security for which it is convertible or for which it is exchangeable or exercisable), or upon the happening of any event or otherwise (including an event which would constitute a Change of Control), (A) matures or is mandatorily redeemable or subject to any mandatory repurchase requirement, pursuant to a sinking fund or otherwise, (B) is convertible into or exchangeable for Indebtedness or Disqualified Stock or (C) is redeemable or subject to any repurchase requirement arising at the option of the holder thereof, in whole or in part, on or prior to the first anniversary of the Maturity Date and (ii) if such Person is a Subsidiary of Xxxxxxxxx, any Preferred Stock of such Person.
"Dollar Amount" means at any time:
"Dollar-Denominated Loan" means any Loan that is made in Dollars in accordance with the applicable Notice of Borrowing.
"Dollar Equivalent" means, on any date of determination, the equivalent in Dollars of an amount denominated in a currency other than Dollars determined by the Administrative Agent pursuant to Section 1.05 using the applicable Exchange Rate.
"Dollars" and the sign "$" means lawful money of the United States of America.
"EEMU Legislation" means the legislative measures of the European Economic and Monetary Union for the introduction of, changeover to, or operation of, the Euro in one or more member states.
"Effective Date" means the date this Agreement becomes effective in accordance with Section 11.18.
"Eligible Assignee" means (i) any Lender, (ii) any Affiliate of a Lender, (iii) any Approved Fund and (iv) any other Person (other than a natural Person) approved by (A) the Administrative Agent and (B) unless (x) such Person is taking delivery of an assignment in connection with physical settlement of a credit derivatives transaction or (y) an Event of Default has occurred and is continuing at the time any assignment is effected pursuant to Section 11.06(b), Xxxxxxxxx (each such approval not to be unreasonably withheld or delayed and any such approval required of Xxxxxxxxx to be deemed given by Xxxxxxxxx if no objection from Xxxxxxxxx is received by the assigning Lender and the Administrative Agent within two Business Days after notice of such proposed assignment has been provided by the assigning Lender to Xxxxxxxxx); provided, however, that Xxxxxxxxx and its Affiliates shall not qualify as Eligible Assignees.
"Environmental Laws" means any current or future legal requirement of any Governmental Authority pertaining to (i) the protection of health, safety, and the environment, (ii) the conservation, management or use of natural resources and wildlife, (iii) the protection or use of surface water and groundwater or (iv) 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 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 Amendment 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 Equivalents" means with respect to any Person any rights, warrants, options, convertible securities, exchangeable securities, indebtedness or other rights, in each case exercisable for or convertible or exchangeable into, directly or indirectly, Equity Interests of such Person or securities exercisable for or convertible or exchangeable into Equity Interests of such Person, whether at the time of issuance or upon the passage of time or the occurrence of some future event.
"Equity Interests" means all shares of capital stock, partnership interests (whether general or limited), limited liability company membership interests, beneficial interests in a trust and any other interest or participation that confers on a Person the right to receive a share of profits or losses, or distributions of assets, of an issuing Person, but excluding any debt securities convertible into such Equity Interests.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute thereto, as interpreted by the rules and regulations issued thereunder, in each case as in effect from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated) under common control with Xxxxxxxxx within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means: (i) a Reportable Event with respect to a Pension Plan; (ii) a withdrawal by Xxxxxxxxx or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA); (iii) a complete or partial withdrawal by Xxxxxxxxx or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (iv) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (v) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (vi) the imposition of any liability under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Xxxxxxxxx or any ERISA Affiliate.
"Euro" means the lawful currency of the European Economic and Monetary Union as constituted by the Treaty on European and Monetary Union and as referred to in the EEMU Legislation.
"Eurocurrency Loan" means a Loan which is either a Eurodollar Loan or an Alternative Currency Loan.
"Eurocurrency Rate" means, for each Interest Period for each Eurocurrency Loan comprising the same Group, (i) with respect to any Eurocurrency Loans not denominated in Dollars or Euros, the Applicable Interbank Offered Rate for the applicable currency for such Interest Period, (ii) with respect to any Eurocurrency Loans denominated in Dollars, the quotient obtained (rounded upward, if necessary, to the next higher 1/100th of 1%) by dividing (A) the Applicable Interbank Offered Rate for Dollars for such Interest Period by (B) 1.00 minus the Eurocurrency Reserve Percentage and (iii) with respect to Eurocurrency Loans denominated in Euros, the Applicable Interbank Offered Rate for Euros for such Interest Period.
"Eurocurrency Reserve Percentage" means for any day that percentage (expressed as a decimal) which is in effect on such day, as prescribed by the Board (or any other entity succeeding to the functions currently performed thereby) for determining the maximum reserve requirement for a member bank of the Federal Reserve System in New York City with deposits exceeding five billion Dollars in respect of "Eurocurrency liabilities" (or in respect of any other category of liabilities which includes deposits by reference to which the interest rate on Eurodollar Loans is determined or any category of extensions of credit or other assets which includes loans by a non-United States office of any Lender to United States residents), whether or not a Lender has any Eurocurrency liabilities subject to such reserve requirement at that time. Eurocurrency Loans shall be deemed to constitute Eurocurrency liabilities and as such shall be deemed subject to reserve requirements without benefits of credits for prorations, exceptions or offsets that may be available from time to time to a Lender. The Eurocurrency Rate shall be adjusted automatically on and as of the effective date of any change in the Eurocurrency Reserve Percentage.
"Eurodollar Loan" means a Loan denominated in Dollars which bears interest at a Eurocurrency Rate pursuant to the applicable Notice of Borrowing or Notice of Extension/Conversion.
"Event of Default" has the meaning set forth in Section 8.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and any successor statute thereto, together with the rules and regulations promulgated thereunder.
"Exchange Rate" means on any day, with respect to any currency other than Dollars, the rate at which such currency may be exchanged into Dollars (or for purposes of any provision of this Agreement requiring or permitting the conversion of Loans denominated in a currency other than Dollars to Dollar-Denominated Loans, the rate at which Dollars may be exchanged into such currency), which shall be the quoted spot rate of exchange of the Administrative Agent in the market where the Administrative Agent's foreign currency exchange operations in respect of such currency are then being conducted, prior to 4:00 P.M. local time in such market, on such date for the purchase of Dollars (or such other currency, as the case may be) for delivery two Business Days later; provided that if at the time of any such determination, for any reason, no such spot rate is being quoted, the Administrative Agent may use any method it deems reasonably appropriate to determine such rate, and such determination shall be presumed correct absent manifest error.
"Existing Debt" has the meaning set forth in Section 7.01(a)(i).
"Facility Fee" has the meaning set forth in Section 2.10(a).
"Failed Loan" has the meaning set forth in Section 2.02(e).
"Federal Funds Rate" means for any day the rate per annum (rounded upward, if necessary, to the nearest 1/100th 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 (i) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (ii) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate quoted to First Union National Bank on such day on such transactions as determined by the Administrative Agent.
"Five-Year Facility" means the Five-Year Revolving Credit Agreement dated as of November 20, 2001 among the Borrowers, the lending institutions party thereto from time to time and First Union National Bank, as Administrative Agent, Issuing Lender and Swingline Lender, as amended, restated, supplemented or otherwise modified.
"Foreign Subsidiary" means with respect to any Person any Subsidiary of such Person that is organized outside the United States and conducts substantially all of its business outside the United States.
"GAAP" means at any time generally accepted accounting principles as then in effect in the United States, applied on a basis consistent (except for changes with which Xxxxxxxxx'x independent public accountants have concurred) with the most recent audited consolidated financial statements of Xxxxxxxxx and its Consolidated Subsidiaries previously delivered to the Lenders.
"Governmental Authority" means any federal, state, local, provincial or foreign government, authority, agency, central bank, quasi-governmental or regulatory authority, court or other body or entity, and any arbitrator with authority to bind a party at law.
"Granting Lender" has the meaning set forth in Section 11.06(h).
"Group of Loans" means at any time a group of Loans consisting of (i) all Loans which are Base Rate Loans at such time or (ii) all Loans which are Eurocurrency Loans denominated in the same currency and having the same Interest Period at such time; provided that, if a Loan of any particular Lender is converted to or made as a Base Rate Loan pursuant to Article III, such Loan shall be included in the same Group or Group of Loans from time to time as it would have been had it not been so converted or made.
"Guaranteed Obligations" has the meaning set forth in Section 10.01.
"Guaranty Obligation" means, with respect to any Person, without duplication, any obligation (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection) guarantying, intended to guaranty, or having the economic effect of guarantying, any Indebtedness of any other Person in any manner, whether direct or indirect, and including without limitation any obligation, whether or not contingent, (i) to purchase any such Indebtedness or other obligation or any property constituting security therefor, (ii) 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, (iii) to lease or purchase property, securities or services primarily for the purpose of assuring the owner of such Indebtedness or (iv) 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.
"Indebtedness" of any Person means at any date, without duplication, (i) all obligations of such Person for borrowed money, including, without limitation, obligations for borrowed money incurred by any Person in respect of any asset securitization transaction, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) 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), (iv) all obligations, other than intercompany items, of such Person to pay the deferred purchase price of property or services (other than trade accounts payable arising in the ordinary course of business), (v) the Attributable Debt of such Person in respect of Capital Lease Obligations and Synthetic Lease Obligations (regardless of whether accounted for as indebtedness under GAAP), (vi) all obligations of such Person to purchase securities or other property which arise out of or in connection with the sale of the same or substantially similar securities or property, (vii) all non-contingent obligations (and, for purposes of Section 7.01 and Section 8.01(f), all contingent obligations) of such Person to reimburse any bank or other Person in respect of amounts paid under a letter of credit, bankers' acceptance or similar instrument, (viii) all Guaranty Obligations of such Person, (ix) all Disqualified Stock of such Person and (x) the Indebtedness of any other Person (including any partnership in which such Person is a general partner and any unincorporated joint venture in which such Person is a joint venturer) to the extent such Person would be liable therefor under applicable law or any agreement or instrument by virtue of such Person's ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such person shall not be liable therefor.
"Indemnified Liabilities" has the meaning set forth in Section 11.05.
"Indemnitee" has the meaning set forth in Section 11.05.
"Interest Coverage Ratio" means for any period the ratio of (i) Consolidated EBITDA to (ii) Consolidated Interest Expense for such period.
"Interest Payment Date" means (i) as to Base Rate Loans, the last day of each fiscal quarter of Xxxxxxxxx and the Maturity Date and (ii) as to Eurocurrency Loans, the last day of each applicable Interest Period and the Maturity Date, and, where the applicable Interest Period for a Eurocurrency Loan is greater than three months, also the date three months from the beginning of the Interest Period and each three months thereafter.
"Interest Period" means, with respect to each Eurocurrency Loan, a period commencing on the date of borrowing specified in the applicable Notice of Borrowing or on the date specified in the applicable Notice of Extension/Conversion and ending one, two, three or six months and, if available, one week, thereafter, as the Borrower may elect in the applicable notice; provided that:
"Investment" in any Person means (i) the acquisition (whether for cash, property, services, assumption of Indebtedness, securities or otherwise) of assets, shares of Capital Stock, bonds, notes, debentures, time deposits or other securities of such other Person, (ii) any deposit with, or advance, loan or other extension of credit to or for the benefit of such Person (other than deposits made in connection with the purchase of equipment or inventory in the ordinary course of business) or (iii) any other capital contribution to or investment in such Person, including by way of Guaranty Obligations of any obligation of such Person, any support for a letter of credit issued on behalf of such Person incurred for the benefit of such Person or in the case of any Subsidiary of Xxxxxxxxx, any release, cancellation, compromise or forgiveness in whole or in part of any Indebtedness owing by such Subsidiary.
"Judgment Currency" has the meaning set forth in Section 2.14(b).
"Law" means any international, foreign, Federal, state or local statute, treaty, rule, guideline, regulation, ordinance, code, or administrative or judicial precedent or authority, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
"Lender" means each bank or other lending institution identified on Schedule 1.01A as having a Revolving Commitment and each Eligible Assignee that becomes a Lender and acquires a Revolving Commitment or a Loan pursuant to Section 11.06(b), and their respective successors.
"Lien" means, with respect to any asset, any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of any financing statement under the Uniform Commercial Code or comparable Laws of any jurisdiction), including the interest of a purchaser of accounts receivable, chattel paper, payment intangibles or promissory notes; provided, however, such term does not mean the grant of a security interest created in connection with merchandise delivered to Xxxxxxxxx or any of its Subsidiaries on consignment until such time as any such merchandise is taken out of consignment and sold to, used and consumed by Xxxxxxxxx or any of its Subsidiaries in their manufacturing processes.
"Loan" means a revolving loan made under Section 2.01, and "Loans" mean one or more of such revolving loans, collectively.
"Loan Documents" means this Agreement and the Notes, in each case as the same may be amended, restated, modified or supplemented from time to time.
"Material Adverse Effect" means (i) any material adverse effect upon the business, operations, business, properties, condition (financial or otherwise) or prospects of Xxxxxxxxx and its Consolidated Subsidiaries taken as a whole, (ii) a material impairment of the ability of Xxxxxxxxx to perform any of its obligations under any Loan Document to which it is a party or (iii) a material impairment of the rights and benefits of the Lenders under any Loan Document, which materially impairs the rights or benefits of the Lenders under the Loan Documents, taken as a whole.
"Maturity Date" means the date 364 days from the date of this Agreement or such later date to which the Maturity Date may be extended pursuant to Section 2.09(d) or, if any such day is not a Business Day for the relevant currency, the next preceding Business Day for such currency. Unless the context otherwise requires, references to the Maturity Date are to the Maturity Date determined by reference to Loans denominated in Dollars.
"Xxxxx'x" means Xxxxx'x Investors Service, Inc., a Delaware corporation, and its successors or, absent any such successor, such nationally recognized statistical rating organization as Xxxxxxxxx and the Administrative Agent may select.
"Multiemployer Plan" means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA to which Xxxxxxxxx or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding three calendar years, has made or been obligated to make contributions.
"Note" means a promissory note, substantially in the form of Exhibit B hereto, evidencing the obligation of the Borrower to repay outstanding Loans, as such Note may be amended, modified, supplemented, extended, renewed or replaced from time to time.
"Notice of Borrowing" has the meaning set forth in Section 2.02.
"Notice of Extension/Conversion" has the meaning set forth in Section 2.06(a).
"Obligations" means, without duplication:
together in each case with all renewals, modifications, consolidations or extensions thereof.
"Operating Lease" means, as applied to any Person, a lease (including a lease which may be terminated by the lessee at any time) of any property (whether real, personal or mixed) by such Person as lessee which is not a Capital Lease.
"Organization Documents" means: (i) with respect to any corporation, the certificate or articles of incorporation and the bylaws; (ii) with respect to any limited liability company, the articles of formation and operating agreement; and (iii) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation with the secretary of state or other department in the state of its formation, in each case as amended from time to time.
"Other Taxes" has the meaning set forth in Section 3.01.
"PBGC" means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA or any entity succeeding to any or all of its functions under ERISA.
"Pension Plan" means an "employee pension benefit plan" (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by Xxxxxxxxx or any ERISA Affiliate or to which Xxxxxxxxx or any ERISA Affiliate contributes or has an obligation to contribute, in which in the case of a multiple employer plan (as described in Section 4064(a) of ERISA) has made contributions at any time during the immediately preceding five plan years.
"Permit" means any license, permit, franchise, right or privilege, certificate of authority or order, or any waiver of the foregoing, issued or issuable by any Governmental Authority.
"Permitted Lien" has the meaning set forth in Section 7.02.
"Person" means an individual, a corporation, a partnership, an association, a limited liability company, a trust or an unincorporated association or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
"Preferred Stock" means, as applied to the Equity Interests of a Person, Equity Interests of any class or classes (however designated) which is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over the Equity Interests of any other class of such Person.
"Prime Rate" means for any day the rate of interest publicly announced by First Union National Bank in Charlotte, North Carolina (or such other principal office of the Administrative Agent as communicated in writing to Xxxxxxxxx and the Lenders) from time to time as its Prime Rate for Dollars loaned in the United States. It is a rate set by First Union National Bank based upon a variety of factors, including First Union National Bank's costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such announced rate. Any change in the interest rate resulting from a change in the Prime Rate shall take effect at the opening of business on the day specified in the public announcement of such change.
"Principal Financial Center" means (i) in the case of each currency identified in Section 1.4(a)(i)(A) of the 1991 ISDA Definitions (as amended and supplemented by the 1998 Supplement to the 1991 ISDA Definitions and the 1998 ISDA Euro Definitions) published by the International Swaps and Derivates Association, Inc., the financial center identified in said Section opposite such currency and (ii) in the case of any other currency, the principal financial center of the country that issues such currency, as determined by the Administrative Agent.
"Purchase Money Indebtedness" means Indebtedness of Xxxxxxxxx or any Subsidiary incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property used in the business of Xxxxxxxxx or such Subsidiary; provided that such Indebtedness is incurred within 90 days after such property is acquired or, in the case of improvements, constructed.
"Register" has the meaning set forth in Section 11.06(d).
"Regulation D, O, T, U or X" means Regulation D, O, T, U or X, respectively, of the Board as amended, or any successor regulation, in each case together with all interpretations of staff opinions issued in connection therewith.
"Remaining Lenders" has the meaning set forth in Section 2.09(d)(ii)(B).
"Replacement Date" has the meaning set forth in Section 2.09(c).
"Reportable Event" means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30-day notice period has been waived.
"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 such Lender and the aggregate principal Dollar Amount of Credit Exposure of such Lender at such time. For purposes of the preceding sentence, the term "Credit Exposure" as applied to each Lender shall mean (i) at any time prior to the termination of the Commitments, the Revolving Commitment Percentage of such Lender multiplied by the Revolving Committed Amount, and (ii) at any time after the termination of the Commitments, the Dollar Amount of the outstanding Loans of such Lender.
"Reset Date" has the meaning set forth in Section 1.05.
"Responsible Officer" means the president, chief financial officer, treasurer or assistant treasurer of Xxxxxxxxx. Any document delivered hereunder that is signed by a Responsible Officer of Xxxxxxxxx shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of Xxxxxxxxx and such Responsible Officer shall be conclusively presumed to have acted on behalf of Xxxxxxxxx.
"Restricted Payment" means (i) any dividend or other distribution, direct or indirect, on account of any class of Equity Interests or Equity Equivalents of Xxxxxxxxx or any Subsidiary, now or hereafter outstanding, (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any class of Equity Interests or Equity Equivalents of Xxxxxxxxx or any Subsidiary, now or hereafter outstanding or (iii) any payment made to retire, or to obtain the surrender of, any Equity Interests or Equity Equivalents of or now or hereafter outstanding.
"Revolving Borrowing" means a Borrowing comprised of Loans and identified as such in the Notice of Borrowing with respect thereto.
"Revolving Commitment" means, with respect to any Lender, the commitment of such Lender, in an aggregate principal amount at any time outstanding of up to such Lender's Revolving Commitment Percentage of the Revolving Committed Amount, to make Loans in accordance with the provisions of Section 2.01.
"Revolving Committed Amount" means $75,000,000 or such lesser amount to which the Revolving Committed Amount may be reduced pursuant to Section 2.09.
"Revolving Commitment Percentage" means, for each Lender, the percentage identified as its Revolving Commitment Percentage on Schedule 1.01A hereto, as such percentage may be modified in connection with any assignment made in accordance with the provisions of Section 11.06(b).
"Revolving Outstandings" means at any date the Dollar Amount of the aggregate outstanding principal amount of all Loans.
"Sale/Leaseback Transaction" means any direct or indirect arrangement with any Person or to which any such Person is a party providing for the leasing to Xxxxxxxxx or any of its Subsidiaries of any property, whether owned by Xxxxxxxxx or any of its Subsidiaries as of the Closing Date or later acquired, which has been or is to be sold or transferred by Xxxxxxxxx or any of its Subsidiaries to such Person or to any other Person from whom funds have been, or are to be, advanced by such Person on the security of such property.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill, Inc., a New York corporation, and its successor or, absent any such successor, such nationally recognized statistical rating organization as Xxxxxxxxx and the Administrative Agent may select.
"Securities Act" means the Securities Act of 1933, as amended, and any successor statute thereto, together with the rules and regulations promulgated thereunder.
"SPC" has the meaning set forth in Section 11.06(h).
"Subsidiary" means with respect to any Person any corporation, partnership, limited liability company, association or other business entity of which (i) if a corporation, more than 50% of the total voting power of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, limited liability company, association or business entity other than a corporation, more than 50% of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have more than 50% ownership interest in a partnership, limited liability company, association or other business entity if such Person or Persons shall be allocated more than 50% of partnership, association or other business entity gains or losses or shall be or control the managing director, manager or a general partner of such partnership, association or other business entity.
"Synthetic Lease Obligation" means the monetary obligation of a Person under (i) a so-called synthetic, off-balance sheet or tax retention lease or (ii) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such person (without regard to accounting treatment).
"Taxes" has the meaning set forth in Section 3.01.
"Type" has the meaning set forth in Section 1.04.
"Unfunded Pension Liability" means at any date the excess of a Pension Plan's benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan's assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
"United States" means the United States of America, including the states and the District of Columbia, but excluding its territories and possessions.
"Wholly-Owned Subsidiary" means, with respect to any Person at any date, any Subsidiary of such Person all of the shares of capital stock or other ownership interests of which (except directors' qualifying shares) are at the time directly or indirectly owned by such Person.
Section 1.06 Redenomination of Certain Foreign Currencies.
- Each obligation of the Borrower to make a payment denominated in the
national currency unit of any member state of the European Economic and Monetary Union
that adopts the Euro as its lawful currency after the date hereof shall be redenominated
into Euros at the time of such adoption (in accordance with the EEMU Legislation). If, in
relation to the currency of any such member state, the basis of accrual of interest
expressed in this Agreement in respect of that currency shall be inconsistent with any
convention or practice in the London interbank market for the basis of accrual of interest
in respect of the Euro, such expressed basis shall be replaced by such convention or
practice with effect from the date on which such member state adopts the Euro as its
lawful currency; provided that if any Borrowing in the currency of such member
state is outstanding immediately prior to such date, such replacement shall take effect,
with respect to such Borrowing, at the end of the then current Interest Period.
- Without prejudice and in addition to any method of conversion or
rounding prescribed by any EEMU Legislation and without limiting the liability of the
Borrower for any amount due under this Agreement or any other Loan Document, all
references in this Agreement to minimum amounts (or integral multiples thereof)
denominated in the national currency unit of any member state of the European Economic and
Monetary Union that adopts the Euro as its lawful currency after the date hereof shall,
immediately upon such adoption, be replaced by references to such reasonably comparable
and convenient amounts (or integral multiples hereof) in the Euro as the Administrative
Agent may specify.
- Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Economic and Monetary Union and any relevant market conventions or practices relating to the Euro.
ARTICLE II
THE CREDIT FACILITIES
Section 2.01 Commitments to Lend. Each Lender severally agrees, on the terms and conditions set forth in this Agreement, to make Loans denominated in Dollars or Available Alternative Currencies to the Borrower pursuant to this Section 2.01 from time to time prior to the Maturity Date in amounts such that the aggregate Dollar Amount of its Revolving Outstandings shall not exceed (after giving effect to all Loans repaid concurrently with the making of any Loans) its Revolving Commitment; provided that, immediately after giving effect to each such Loan, the aggregate Dollar Amount of the Revolving Outstandings shall not exceed the aggregate amount of the Revolving Commitments. Each Revolving Borrowing shall be in an aggregate principal Dollar Amount of $2,000,000 or any larger multiple of $1,000,000 (except that any such Borrowing may be in the aggregate amount of the unused Revolving Commitments) and shall be made from the several Lenders ratably in proportion to their respective Revolving Commitments. Within the foregoing limits, the Borrower may borrow under this Section 2.01, repay, or, to the extent permitted by Section 2.08, prepay, Loans and reborrow under this Section 2.01.
Section 2.02 Notice of Borrowings. The Borrower shall give the Administrative Agent notice of each Borrowing substantially in the form of Exhibit A-1 hereto (a "Notice of Borrowing") not later than 11:30 A.M. on (i) the date of each Base Rate Borrowing, (ii) the third Business Day before each Eurodollar Borrowing and (iii) the fourth Business Day before each Eurocurrency Borrowing in an Alternative Currency. Each such notice shall be irrevocable and shall specify:
- the name of the applicable Borrower;
- the date of such Borrowing, which shall be a Business Day for the
relevant currency;
- the currency, the aggregate amount (in the applicable currency) and
the Dollar Amount, if applicable, of such Borrowing;
- whether the Loans comprising such Borrowing are to bear interest
initially at the Base Rate or the Eurocurrency Rate; and
- in the case of a Eurocurrency Borrowing, the duration of the initial Interest Period applicable thereto, subject to the provisions of the definition of Interest Period and to Section 2.05(a).
Section 2.03 Notice to Lenders; Funding of Loans.
- Notice to Lenders. Upon receipt of a Notice of Borrowing, the
Administrative Agent shall promptly notify each Lender of such Lender's ratable share (if
any) of the Borrowing referred to therein, and such Notice of Borrowing shall not
thereafter be revocable by the Borrower.
- Funding of Loans. On the date of each Borrowing, each Lender
participating therein shall: (i) if such Borrowing is to be made in Dollars, make
available its share of such Borrowing in Dollars not later than 2:00 P.M., in Federal or
other funds immediately available, to the Administrative Agent at the Administrative
Agent's Office; or (ii) if such Borrowing is to be made in an Alternative Currency, make
available its share of such Borrowing in such Alternative Currency (in such funds as may
then be customary for the settlement of international transactions in such Alternative
Currency) to the account of the Administrative Agent at such time and place as shall have
been notified by the Administrative Agent to the Lenders by at least two Business Days'
notice. Unless the Administrative Agent determines that any applicable condition specified
in Article IV has not been satisfied, the Administrative Agent will make the funds so
received from the Lenders available to the Borrower at the Administrative Agent's Office.
- Funding by the Administrative Agent in Anticipation of Amounts Due
from the Lenders. Unless the Administrative Agent shall have received notice from
a Lender prior to the date of any Borrowing (except in the case of a Base Rate Borrowing,
in which case prior to the time of such Borrowing) that such Lender will not make
available to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available to the
Administrative Agent on the date of such Borrowing in accordance with Section 2.03(b)
above, and the Administrative Agent may, in reliance upon such assumption, make available
to the Borrower on such date a corresponding amount. If and to the extent that such Lender
shall not have so made such share available to the Administrative Agent, such Lender and
the Borrower severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount, together with interest thereon for each day from the date such
amount is made available to the Borrower until the date such amount is repaid to the
Administrative Agent at (i) a rate per annum equal to the higher of the Federal Funds Rate
(if such Borrowing is in Dollars) or the rate then applicable to such Loan in accordance
with Section 2.05, in the case of the Borrower, and (ii) the Federal Funds Rate (if
such Borrowing is in Dollars) or the Applicable Interbank Offered Rate (if such Borrowing
is in an Alternative Currency), in the case of such Lender. If such Lender shall repay to
the Administrative Agent such corresponding amount, such amount so repaid shall constitute
such Lender's Loan included in such Borrowing for purposes of this Agreement.
- Obligations of Lenders Several. The failure of any Lender to
make a Loan required to be made by it as part of any Borrowing hereunder shall not relieve
any other Lender of its obligation, if any, hereunder to make any Loan on the date of such
Borrowing, but no Lender shall be responsible for the failure of any other Lender to make
the Loan to be made by such other Lender on such date of Borrowing.
Failed Loans. If any Lender shall fail to make any Loan (a "Failed Loan") which such Lender is otherwise obligated hereunder to make to the Borrower on the date of Borrowing thereof, and the Administrative Agent shall not have received notice from the Borrower or such Lender that any condition precedent to the making of the Failed Loan has not been satisfied, then, until such Lender shall have made or be deemed to have made (pursuant to the last sentence of this subsection (e)) the Failed Loan in full or the Administrative Agent shall have received notice from the Borrower or such Lender that any condition precedent to the making of the Failed Loan was not satisfied at the time the Failed Loan was to have been made, whenever the Administrative Agent shall receive any amount from the Borrower for the account of such Lender, (i) the amount so received (up to the amount of such Failed Loan) will, upon receipt by the Administrative Agent, be deemed to have been paid to the Lender in satisfaction of the obligation for which paid, without actual disbursement of such amount to the Lender, (ii) the Lender will be deemed to have made the same amount available to the Administrative Agent for disbursement as a Loan to the Borrower (up to the amount of such Failed Loan) and (iii) the Administrative Agent will disburse such amount (up to the amount of the Failed Loan) to the Borrower or, if the Administrative Agent has previously made such amount available to the Borrower on behalf of such Lender pursuant to the provisions hereof, reimburse itself (up to the amount of the amount made available to the Borrower); provided, however, that the Administrative Agent shall have no obligation to disburse any such amount to the Borrower or otherwise apply it or deem it applied as provided herein unless the Administrative Agent shall have determined in its sole discretion that to so disburse such amount will not violate any law, rule, regulation or requirement applicable to the Administrative Agent. Upon any such disbursement by the Administrative Agent, such Lender shall be deemed to have made a Base Rate Loan as the Failed Loan to the Borrower in satisfaction, to the extent thereof, of such Lender's obligation to make the Failed Loan.
Section 2.04 Evidence of Loans.
- Lender Accounts. Each Lender shall maintain in accordance
with its usual practice an account or accounts evidencing the indebtedness to such Lender
resulting from each Loan made by such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time under this
Agreement.
- Administrative Agent Records. The Administrative Agent shall
maintain accounts in which it will record (i) the amount of each Loan made hereunder and
the Type of each Loan made and the Interest Period, if any, applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by the Agent
hereunder from the Borrower and each Lender's share thereof.
- Evidence of Debt. The entries made in the accounts maintained
pursuant to subsections (a) and (b) of this Section 2.04 shall be
prima facie evidence of the existence and amounts of the obligations therein recorded; provided,
however, that the failure of any Lender or the Administrative Agent to maintain
such accounts or any error therein shall not in any manner affect the obligations of the
Borrower to repay the Loans in accordance with their terms.
- Notes. Notwithstanding any other provision of this Agreement,
if any Lender shall request and receive a Note or Notes as provided in Section 11.06
or otherwise, then the Loans of such Lender shall be evidenced by Notes substantially in
the form of Exhibit B and payable to the order of such Lender for the account of
its Applicable Lending Office in an amount equal to the aggregate unpaid principal amount
of such Lender's Loans.
- Notes for Loans of Different Types. Each Lender may, by
notice to the Borrower and the Administrative Agent, request that its Loans of a
particular Type be evidenced by separate Notes in an amount equal to the aggregate unpaid
principal amount of such Loans. Each such Note shall be in substantially the form of Exhibit
B hereto with appropriate modifications to reflect the fact that it evidences solely
Loans of the relevant Type. Each reference in this Agreement to such Lender's
"Note" shall be deemed to refer to and include any or all of such Notes, as the
context may require.
- Note Endorsements. Each Lender having one or more Notes shall
record the date, amount and Type of each Loan made by it and the date and amount of each
payment of principal made by the Borrower with respect thereto, and may, if such Lender so
elects in connection with any transfer or enforcement of any Note, endorse on the reverse
side or on the schedule, if any, forming a part thereof appropriate notations to evidence
the foregoing information with respect to each outstanding Loan evidenced thereby; provided
that the failure of any Lender to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under any such Note. Each Lender is
hereby irrevocably authorized by the Borrower so to endorse each of its Notes and to
attach to and make a part of each of its Notes a continuation of any such schedule as and
when required.
- Rate Options Applicable to Loans. Each Borrowing shall be
comprised of Base Rate Loans or Eurocurrency Loans, as the Borrower may request pursuant
to Section 2.02. Borrowings of more than one Type may be outstanding at the same
time; provided, however, that the Borrowers may not request any Borrowing
that, if made, would result in an aggregate of more than 10 separate Groups of
Eurocurrency Loans being outstanding hereunder at any one time. For this purpose, Loans
having different Interest Periods, regardless of whether commencing on the same date,
shall be considered separate Groups.
- Base Rate Loans. Each Loan which is made as, or converted
into, a Base Rate Loan shall bear interest on the outstanding principal amount thereof,
for each day from the date such Loan is made as, or converted into, a Base Rate Loan until
it becomes due or is converted into a Loan of any other Type, at a rate per annum equal to
the Applicable Margin for Base Rate Loans for such day plus the Base Rate for such day.
Such interest shall be payable quarterly in arrears on each Interest Payment Date and,
with respect to the principal amount of any Base Rate Loan converted to a Eurocurrency
Loan, on the date such Base Rate Loan is so converted. Any overdue principal of or
interest on any Base Rate Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 2% plus the rate otherwise applicable to Base
Rate Loans for such day.
- Eurocurrency Loans. Each Eurocurrency Loan shall bear
interest on the outstanding principal amount thereof, for each day during the Interest
Period applicable thereto, at a rate per annum equal to the sum of the Applicable Margin
for Eurocurrency Loans for such day plus the Eurocurrency Rate applicable to Eurocurrency
Loans denominated in the relevant currency for such Interest Period; provided that
if any Eurocurrency Loan or any portion thereof shall, as a result of the definition of
Interest Period, have an Interest Period of less than one month (other than any
Eurocurrency Loan with an Interest Period of one week), such portion shall bear interest
during such Interest Period at the rate applicable to Base Rate Loans during such period.
Such interest shall be payable for each Interest Period on each Interest Payment Date. Any
overdue principal of or interest on any Eurocurrency Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the higher of (i) the sum of
2% plus the Applicable Margin for Eurocurrency Loans for such day plus the Eurocurrency
Rate applicable to such Loan at the date such payment was due and (ii) (A) in the
case of Eurocurrency Loans not denominated in Dollars, the sum of 2% plus the Applicable
Margin for Eurocurrency Loans for such day plus the Applicable Interbank Offered Rate for
one day (or, if such amount due remains unpaid more than three Business Days, then for
such other period of time not longer than six months as the Administrative Agent may
select) deposits in the relevant currency in an amount approximately equal to such overdue
payment or (B) in the case of Eurocurrency Loans denominated in Dollars, the sum of 2%
plus the Applicable Margin for Eurocurrency Loans for such day plus the quotient obtained
(rounded upward, if necessary, to the nearest 1/100th of 1%) by dividing (x)
the Applicable Interbank Offered Rate for one day (or if such amount due remains unpaid
more than three Business Days, then for such other period of time not longer than six
months as the Administrative Agent may select) deposits in the relevant currency in an
amount approximately equal to such overdue payment by (y) 1.00 minus the Eurocurrency
Reserve Percentage (or, if the circumstances described in Section 3.02 shall exist,
at a rate per annum equal to the sum of 2% plus the rate applicable to Revolving Base Rate
Loans for such day).
- Determination and Notice of Interest Rates. The
Administrative Agent shall determine each interest rate applicable to the Loans hereunder.
The Administrative Agent shall give prompt notice to Xxxxxxxxx and the participating
Lenders of each rate of interest so determined, and its determination thereof shall be
conclusive in the absence of manifest error. Any notice with respect to Eurocurrency Loans
shall, without the necessity of the Administrative Agent so stating in such notice, be
subject to adjustments in the Applicable Margin applicable to such Loans after the
beginning of the Interest Period applicable thereto. When during an Interest Period any
event occurs that causes an adjustment in the Applicable Margin applicable to Loans to
which such Interest Period is applicable, the Administrative Agent shall give prompt
notice to Xxxxxxxxx and the Lenders of such event and the adjusted rate of interest so
determined for such Loans, and its determination thereof shall be conclusive in the
absence of manifest error.
- Default Interest. Upon the occurrence and during the
continuance of an Event of Default, the principal of and, to the extent permitted by law,
interest on the Loans and any other amounts owing herein or under the other Loan Documents
shall bear interest, payable on demand, at a per annum rate equal to (i) in the case of
principal of any Loan, the rate otherwise applicable to such Loan during such period
pursuant to this Section 2.05 plus 2.00% (without duplication of any amount owing
in respect of Base Rate Loans under the third sentence of Section 2.05(b), in
respect of Eurocurrency Loans under the third sentence of Section 2.05(c), (ii) in
the case of interest on any Loan the Base Rate plus the Applicable Margin for Loans on
such day plus 2.00% and (iii) in the case of any other amount, the Base Rate plus the
Applicable Margin for Revolving Base Rate Loans plus 2.00%.
Section 2.06 Extension and
Conversion.
- Continuation Conversion Options. The Dollar-Denominated Loans
included in each Borrowing shall bear interest initially at the type of rate specified by
the Borrower in the applicable Notice of Borrowing. Thereafter, the Borrower shall have
the option, on any Business Day, to elect to change or continue the type of interest rate
borne by each Group of Dollar-Denominated Loans (subject in each case to the provisions of
Article III and subsection 2.06(d)), as follows:
- if such Loans are Base Rate Loans, the Borrower may elect to convert
such Loans to Eurodollar Loans as of any Business Day; and
- if such Loans are Eurodollar Loans, the Borrower may elect to convert
such Loans to Base Rate Loans or elect to continue such Loans as Eurodollar Loans for an
additional Interest Period, subject to Section 3.05 in the case of any such
conversion or continuation effective on any day other than the last day of the then
current Interest Period applicable to such Loans.
- Contents of Notice of Extension/Conversion. Each Notice of
Extension/Conversion shall specify:
- the Group of Loans (or portion thereof) to which such notice applies;
- the date on which the conversion or continuation selected in such
notice is to be effective, which shall comply with the applicable clause of subsection
2.06(a) above;
- if the Loans comprising such Group are to be converted, the new type
of Loans and, if the Loans being converted are to be Eurodollar Loans, the duration of the
next succeeding Interest Period applicable thereto; and
- if such Loans are to be continued as Eurodollar Loans for an
additional Interest Period, the duration of such additional Interest Period.
- Notification to Lenders. Upon receipt of a Notice of
Extension/Conversion from the Borrower pursuant to subsection 2.06(a) above, the
Administrative Agent shall promptly notify each Lender of the contents thereof and such
notice shall not thereafter be revocable by the Borrower. If no Notice of
Extension/Conversion is timely received prior to the end of an Interest Period for any
Group of Eurodollar Loans, the Borrower shall be deemed to have elected that such Group be
converted to Base Rate Loans as of the last day of such Interest Period.
- Limitation on Conversion/Continuation Options. The Borrowers
shall not be entitled to elect to convert any Loans to, or continue any Loans for an
additional Interest Period as, Eurodollar Loans if (i) the aggregate principal amount
of any Group of Eurodollar Loans created or continued as a result of such election would
be less than $2,000,000 or (ii) a Default shall have occurred and be continuing when
the Borrower delivers notice of such election to the Administrative Agent.
- Alternative Currency Loans. The initial Interest Period for
each Group of Alternative Currency Loans shall be specified by the Borrower in the
applicable Notice of Borrowing. The Borrower may specify the duration of each subsequent
Interest Period applicable to such Group of Alternative Currency Loans by delivering to
the Administrative Agent, not later than 12:00 Noon (New York City time) on the fourth
Business Day before the end of the immediately preceding Interest Period, a notice
specifying the Group of Loans to which such notice applies and the duration of such
subsequent Interest Period (which shall comply with the provisions of the definition of
Interest Period). Such notice may, if it so specifies, apply to only a portion of the
aggregate principal amount of the relevant Group of Loans; provided that
(i) such portion is allocated ratably among the Loans comprising such Group and
(ii) the Dollar Amounts of the portion to which such notice applies, and the
remaining portion to which it does not apply, are each at least $2,000,000. If no such
Notice of Extension/Conversion is timely received by the Administrative Agent before the
end of any applicable Interest Period, the Borrower shall be deemed to have elected that
the subsequent Interest Period for such Group of Loans shall have a duration of one month
(subject to the provisions of the definition of Interest Period).
- Certain Mandatory Conversions and Prepayments of Eurocurrency Loans.
On the date in which the aggregate unpaid Dollar Amount of Eurocurrency Loans comprising
any Group of Loans shall be reduced, by payment or prepayment or otherwise, to less than
$2,000,000, such Loans shall, on the last day of the then current Interest Period
therefor, (i) if such Eurocurrency Loans are denominated in Dollars, automatically be
converted into Base Rate Loans and (ii) if such Eurocurrency Loans are denominated in
an Alternative Currency, be repaid by the Borrower. Upon the occurrence and during the
continuance of any Event of Default, (i) each Eurocurrency Loan shall automatically,
on the last day of the then current Interest Period therefor, (A) if such
Eurocurrency Loan is denominated in Dollars, be converted into a Base Rate Loan and
(B) if such Eurocurrency Loan is denominated in an Alternative Currency, be
redenominated into Dollars in an amount equal to the then Dollar Equivalent thereof as of
the date of determination and converted into Base Rate Loans and (ii) the obligation
of the Lenders to make, or to continue or convert Loans into, Eurocurrency Loans shall be
suspended. The Administrative Agent shall promptly notify each Lender of the aggregate
Dollar Amount if any such Eurocurrency Loan which is redenominated into Dollars and such
Lender's pro-rata share of such Loan.
- Accrued Interest. Accrued interest on a Loan (or portion
thereof) being extended or converted shall be paid by the Borrower (i) with respect to any
Base Rate Loan being converted to a Eurodollar Loan, on the last day of the first fiscal
quarter of Xxxxxxxxx ending on or after the date of conversion and (ii) otherwise, on the
date of extension or conversion.
Each such election shall be made by delivering a
notice, substantially in the form of Exhibit A-2 hereto (a "Notice of
Extension/Conversion") to the Administrative Agent not later than 12:00 Noon on
the third Business Day before the conversion or continuation selected in such notice is to
be effective. A Notice of Extension/Conversion may, if it so specifies, apply to only a
portion of the aggregate principal amount of the relevant Group of Loans, provided
that (i) such portion is allocated ratably among the Loans comprising such Group and
(ii) the portion to which such Notice applies, and the remaining portion to which it
does not apply, are each $2,000,000 or any larger multiple of $500,000.
Each Interest Period specified in a Notice of Interest Rate Election shall comply with the provisions of the definition of the term "Interest Period".
Section 2.08 Optional
Prepayments.
- Subject in the case of any Eurocurrency Loan to Section 3.05,
the Borrower may (i) with notice by 12:00 Noon on the date of such prepayment, prepay
any Group of Base Rate Loans bearing interest at the Base Rate pursuant to Section 3.02,
in each case in whole at any time, or from time to time in part in an aggregate Dollar
Amount of $5,000,000 or any larger multiple of $1,000,000, or (ii) upon at least
three Business Days' notice to the Administrative Agent, prepay any Group of Eurocurrency
Loans in whole at any time, or from time to time in part in an aggregate Dollar Amount of
$5,000,000 or any larger multiple of $1,000,000, by paying the principal amount to be
prepaid together with accrued interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the Loans of the several Lenders
included in such Group or Borrowing.
- Upon receipt of a notice of prepayment pursuant to this Section, the
Administrative Agent shall promptly notify each Lender of the contents thereof and of such
Lender's ratable share (if any) of such prepayment and such notice shall not thereafter be
revocable by the Borrower.
Section 2.09 Adjustment of
Commitments.
- Optional Termination or Reduction of Revolving Committed Amount.
Xxxxxxxxx may from time to time terminate in full or permanently reduce the Revolving
Committed Amount upon five Business Days' prior written or telecopied notice to the
Administrative Agent; provided, however, that (i) no such termination
or reduction shall be made which would cause the Dollar Amount of the Revolving
Outstandings (after giving effect to any concurrent repayment of Loans to exceed the
Revolving Committed Amount as so reduced, and (ii) any such partial reduction shall
be in a minimum aggregate amount of $5,000,000 or any integral multiple of $1,000,000 in
excess thereof (or, if less, the full remaining amount of the then applicable Revolving
Committed Amount). The Administrative Agent shall promptly notify each affected Lender of
the receipt by the Administrative Agent of any notice from Xxxxxxxxx pursuant to this Section
2.09(a). Any partial reduction of the Revolving Committed Amount pursuant to this Section 2.09(a)
shall be applied to the Revolving Commitments of the Lenders pro-rata based upon their
respective Revolving Commitment Percentages. Xxxxxxxxx shall pay to the Administrative
Agent for the account of the Lenders in accordance with the terms of Section 2.10,
on the date of each termination or reduction of the Revolving Committed Amount, any fees
accrued through the date of such termination or reduction on the amount of the Revolving
Committed Amount so terminated or reduced.
- Automatic Termination at Maturity. The Revolving Commitments
of the Lenders shall terminate automatically on the Maturity Date.
- Optional Replacement of Lenders, Non-Pro-Rata Termination of
Commitments. If (i) any Lender has demanded compensation or indemnification
pursuant to Section 3.01 or Section 3.04, (ii) the obligation of
any Lender to make Eurocurrency Loans has been suspended pursuant to Section 3.02,
(iii) any Lender is a Defaulting Lender or (iv) any Lender has failed to consent to a
proposed amendment, waiver, discharge or termination which pursuant to the terms of Section
11.01 or any other provision of any Loan Document requires the consent of all of the
Lenders and with respect to which the Required Lenders shall have granted their consent,
Xxxxxxxxx shall have the right, if no Default or Event of Default then exists, to
(i) remove such Lender by terminating such Lender's Commitment in full or
(ii) replace such Lender by causing such Lender to assign its Commitment to one or
more existing Lenders or Eligible Assignees pursuant to Section 11.06. The
replacement of a Lender pursuant to this Section 2.09(c) shall be effective on the
tenth Business Day (the "Replacement Date") following the date of notice
of such replacement to the Lenders through the Administrative Agent, subject to the
satisfaction of the following conditions:
- each replacement Lender and/or Eligible Assignee, and each Lender
subject to replacement, shall have satisfied the conditions to an Assignment and
Acceptance set forth in Section 11.06(b) and, in connection therewith, the
replacement Lender(s) and/or Eligible Assignee(s) shall pay to each Lender subject to
replacement an amount equal in the aggregate to the sum of (x) the principal of, and all
accrued but unpaid interest on, its outstanding Loans and (y) all accrued but unpaid fees
owing to it pursuant to Section 2.10; and
- the Borrower shall have paid to the Administrative Agent for the
account of each replaced Lender an amount equal to all obligations owing to such replaced
Lenders by the Borrower pursuant to this Agreement and the other Loan Documents (other
than those obligations of the Borrower referred to in clause (i)(A) above).
- Optional Extensions of Commitments.
- If Xxxxxxxxx shall request, by notice to the Administrative Agent not
less than 45 days and not more than 60 days prior to the Maturity Date then in effect,
that the availability period for Loans be extended until the first anniversary of such
Maturity Date, then the Administrative Agent shall promptly notify each Lender of such
request, and each Lender shall notify Xxxxxxxxx and the Administrative Agent not less than
30 days and not more than 45 days prior to such Maturity Date of its election so to extend
or not extend the availability period for Loans. Any Lender which shall not timely notify
the Administrative Agent of such election shall be deemed to have elected not to extend
such availability period.
- If Lenders comprising the Required Lenders fail to timely notify the
Administrative Agent pursuant to clause d(i) of this Section 2.09 of their
election to extend the availability period for Loans or shall be deemed to have elected
not to extend the availability period for Loans by virtue of having not timely notified
the Administrative Agent of their election to extend such availability period, then the
Maturity Date then in effect shall not be extended and the outstanding principal balance
of all Loans and other amounts payable hereunder shall be payable on such Maturity Date.
- If, and only if, Lenders compromising the Required Lenders
(collectively, the "Remaining Lenders") shall timely notify the
Administrative Agent pursuant to clause (d)(i) of this Section 2.09 of their
election to extend the availability period for Loans, then the Administrative Agent shall
so advise Xxxxxxxxx and the Remaining Lenders, and the Remaining Lenders or any of them
shall have the right (but not the obligation), upon notice to the Administrative Agent not
later than the Business Day immediately preceding the applicable Maturity Date, to
increase their respective Revolving Commitments by an amount equal in the aggregate to the
Revolving Commitments of the Lenders who have, or have been deemed to have, elected not to
extend the availability period for Loans. Each Lender electing to increase its Revolving
Commitment hereunder shall specify in its notice to the Administrative Agent the amount by
which it is willing to increase its Revolving Commitment; provided that such amount
shall not exceed for any Lender the product of (A) the quotient of (x) such Lender's
Revolving Commitment divided by (y) the aggregate Revolving Commitments of all the
Remaining Lenders (in each case determined before giving effect to any increase in the
Revolving Commitments of the Remaining Lenders pursuant to this subsection (e))
multiplied by (B) the aggregate Revolving Commitments of the Lenders who have, or have
been deemed to have, elected not to extend the availability period for Loans. Each
increase in the Revolving Commitment of a Lender hereunder shall be evidenced by a written
instrument executed by such Lender and the Administrative Agent and shall take effect on
the Maturity Date in effect for the Lenders who have, or have been deemed to have, elected
not to extend the availability period for Loans.
- If the aggregate Revolving Commitments of the Lenders shall exceed
the aggregate amount by which the Remaining Lenders have agreed to increase their
Revolving Commitments pursuant to subsection (d)(ii) of this Section 2.09,
Xxxxxxxxx may, with the approval of the Administrative Agent, designate one or more
Eligible Assignees willing to extend Revolving Commitments until the first anniversary of
the Maturity Date in effect for the Lenders who have, or have been deemed to have, elected
not to extend the availability period for Loans in an aggregate amount not greater than
such excess. Any such Eligible Assignee shall, on or prior to the Maturity Date in effect
for the Lenders who have, or have been deemed to have, elected not to extend the
availability period for Loans, execute and deliver to Xxxxxxxxx, the Administrative Agent
and each Remaining Lender an instrument, satisfactory to Xxxxxxxxx and the Administrative
Agent, setting forth the amount of its Revolving Commitment and containing its agreement
to become, and to perform all the obligations of, a Lender hereunder. The Revolving
Commitment of such Eligible Assignee shall become effective, and such Eligible Assignee
shall become a Lender hereunder, on the Maturity Date then in effect for the Lenders who
have, or have been deemed to have, elected not to extend the availability period for
Loans.
- The Borrowers shall deliver to each Eligible Assignee, on the
Maturity Date in effect for the Lenders who have, or have been deemed to have, elected not
to extend the availability period for Loans, a Note evidencing the Borrowers' obligations
to pay Loans made by such Eligible Assignee pursuant to this Agreement.
- If some or all of the Lenders shall have elected to extend the
availability period for Loans as provided in this Section 2.09(d), then (A) the
availability period with respect to the Revolving Commitments of such Lenders and any
which becomes a Lender hereunder shall continue until the first anniversary of the
Maturity Date in effect prior to such election and, as to such Lenders, the term
"Maturity Date", as used herein, shall mean such first anniversary; (B) the
Revolving Commitments of the Lenders who have, or have been deemed to have, elected not to
extend the availability period for Loans shall continue in effect until the Maturity Date
in effect prior to such extension and shall then terminate, and, as to such Lenders, the
term "Maturity Date", as used herein, shall continue to mean such Maturity Date;
and (C) on the Maturity Date in effect prior to such extension, each of the Lenders who
have, or have been deemed to have, elected not to extend the availability period for Loans
shall cease to be a Lender hereunder; provided that the provisions of this
Agreement (including, without limitation, the provisions of Article III and Sections
10.04 and 10.05) shall continue to govern the rights and obligations of such
Lender with respect to any Loans made or any other actions taken by such Lender while it
was a Lender.
In the case of the removal of a Lender pursuant to this Section 2.09(c), upon payment by the Borrower to the Administrative Agent for the account of the Lender subject to such removal of an amount equal to the sum of (A) the aggregate principal amount of all Loans held by such Lender and (B) all accrued interest, fees and other amounts owing to such Lender hereunder, including, without limitation, all amounts payable by the Borrower to such Lender under Article III or Sections 10.04 and 10.05, such Lender shall cease to constitute a Lender hereunder; provided that the provisions of this Agreement (including, without limitation, the provisions of Article III and Sections 10.04 and 10.05) shall continue to govern the rights and obligations of a removed Lender with respect to any Loans made or any other actions taken by such removed Lender while it was a Lender.
- Facility Fee. Xxxxxxxxx shall pay to the Administrative Agent
for the account of each Lender a fee (the "Facility Fee") on such
Lender's Revolving Commitment Percentage of the daily Dollar Amount of Revolving Committed
Amount, computed at a per annum rate for each day at a rate equal to the Applicable Margin
in effect from time to time. The Facility Fee shall commence to accrue on the Closing Date
and shall be due and payable in arrears on each March 31, June 30, September 30 and
December 31 (and any date that the Revolving Committed Amount is reduced as provided in Section
2.08(a) and the Maturity Date) for the calendar quarter or portion thereof ending on
each such date, beginning with the first of such dates to occur after the Closing Date.
- Utilization Fee. Xxxxxxxxx shall pay to the Administrative
Agent for the account of each Lender a fee (the "Utilization Fee") on the
actual daily aggregate Dollar Amount of such Lender's Loans then outstanding hereunder
with respect to each day on which the principal amount of all Loans then outstanding
exceeds 50% of the aggregate Revolving Commitments (each such day a "Utilization
Fee Day"). Such fee shall be computed with respect to each Utilization Fee Day at
a rate equal to .125% per annum, and shall accrue with respect to each Utilization Fee Day
occurring on and after the Closing Date to the Maturity Date and, to the extent accrued
during such period, shall be due and payable, quarterly in arrears, on the last Business
Day of each March, June, September and December, beginning on the first of such dates to
occur after the Closing Date.
- Agency Fees. Xxxxxxxxx shall pay an agency fee to the
Administrative Agent's own account, in amounts and at times specified in the letter
agreement dated October 18, 2001, among Xxxxxxxxx, First Union Securities, Inc. and the
Administrative Agent. All such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
Section 2.11 Pro-rata
Treatment. Except to the extent otherwise provided herein, each Borrowing,
each payment or prepayment of principal of or interest on any Loan, each payment of fees
(other than the fees retained by the Agents for their own account), each reduction of the
Revolving Committed Amount and each conversion or continuation of any Loan, shall be
allocated pro-rata among the relevant Lenders in accordance with the respective Revolving
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 of such Lenders); provided 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.
Section 2.13 Payments; Computations.
- Payments by the Borrower. Each payment of principal of and
interest on Loans and fees hereunder (other than fees payable directly to the Agents)
shall be paid not later than 2:00 P.M. on the date when due, in the applicable currency
and in funds immediately available to the Administrative Agent at the Administrative
Agent's Office. Each such payment shall be made irrespective of any set-off, counterclaim
or defense to payment which might in the absence of this provision be asserted by the
Borrower or any Affiliate against any Agent or any Lender. Except as otherwise provided
herein, payments received after 2:00 P.M. shall be deemed to have been received on the
next Business Day. The Borrower shall, at the time it makes any payments under this
Agreement, specify to the Administrative Agent the Loan, fees or other amounts payable by
the Borrower hereunder to which such payment is to be applied (and if it fails so to
specify or if such application would be inconsistent with the terms hereof, the
Administrative Agent shall, subject to Section 2.11, distribute such payment to the
Lenders in such manner as the Administrative Agent may deem appropriate). The
Administrative Agent will distribute such payments in like funds to the applicable Lenders
on the date of receipt thereof, if such payment is received prior to 2:00 P.M.; otherwise
the Administrative Agent will distribute such payment to the applicable Lenders on the
next succeeding Business Day. Whenever any payment hereunder shall be due on a day which
is not a Business Day, the date for payment thereof shall be extended to the next
succeeding Business Day unless (in the case of Eurocurrency Loans) such Business Day falls
in another calendar month, in which case the date for payment thereof shall be the next
preceding Business Day for such currency. If the date for any payment of principal is
extended by operation of law or otherwise, interest thereon shall be payable for such
extended time. The Borrower hereby authorizes and directs the Administrative Agent to
debit any account maintained by the Borrower with the Administrative Agent to pay when due
any amounts required to be paid from time to time under this Agreement. Unless converted
to Dollars pursuant to the express terms of this Agreement, all payments in respect of the
principal of or interest on Loans denominated in any Available Alternative Currency shall
be made by the Borrower in such Alternative Currency.
- Distributions by the Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the date on
which any payment is due to the Lenders hereunder that the Borrower will not make such
payment in full, the Administrative Agent may assume that the Borrower has made such
payment in full to the Administrative Agent on such date, and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on such due
date an amount equal to the amount then due such Lender. If and to the extent that the
Borrower shall not have so made such payment, each Lender shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender together
with interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative Agent, at
(i) the Federal Funds Rate (if such amount was distributed in Dollars) or
(ii) the rate per annum at which one day deposits in the relevant currency are
offered to the Administrative Agent in the appropriate interbank market for such day (if
such amount was distributed in an Alternative Currency).
- Computations. Except for Base Rate Loans, in which case
interest shall be computed on the basis of a 365 or 366 day year as the case may be
(unless the Base Rate is determined by reference to the Federal Funds Rate), 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 excluding the date of payment.
Section 2.14 Judgment Currency.
- Exchange Ratio. If, for the purpose of obtaining judgment in
any court, it is necessary to convert a sum owing hereunder or under any other Loan
Document in one currency into another currency, each party hereto agrees, to the fullest
extent that it may effectively do so, that the rate of exchange used shall be that at
which in accordance with normal banking procedures in the relevant jurisdiction the first
currency could be purchased with such other currency on the Business Day immediately
preceding the day on which final judgment is given.
- Satisfaction of Obligations in Agreement Currency. The
obligations of each Borrower hereunder and under each other Loan Document in respect of
any sum due to any other party hereto or thereto or to any holder of the obligations owing
hereunder or thereunder (an "Applicable Creditor") shall, notwithstanding
any judgment in a currency (the "Judgment Currency") other than the
currency in which such sum is stated to be due hereunder (the "Agreement Currency"),
be discharged only to the extent that, on the Business Day following receipt by the
Applicable Creditor of any sum adjudged to be so due in the Judgment Currency, the
Applicable Creditor may, in accordance with normal banking procedures in the relevant
jurisdiction, purchase the Agreement Currency with the Judgment Currency. If the amount of
the Agreement Currency so purchased is less than the sum originally due to the Applicable
Creditor in the Agreement Currency, the Borrowers agree, jointly and severally, as a
separate obligation and notwithstanding such judgment, to indemnify the Applicable
Creditor against such loss. The obligations of the Borrowers contained in this Section
2.14 shall survive the termination of this Agreement and the payment of all other
amounts owing.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
- Payments Net of Certain Taxes. Any and all payments by the
Borrower to or for the account of any Lender or any Agent hereunder or under any other
Loan Document shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding, in the case of each Lender and each
Agent, taxes imposed on its income, and franchise taxes imposed on it, by the jurisdiction
under the laws of which such Lender (or its Applicable Lending Office) or such Agent (as
the case may be) is organized or any political subdivision thereof (all such non-excluded
taxes, duties, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required by
law to deduct or withhold any Taxes from or in respect of any sum payable under this
Agreement or any other Loan Document to any Lender or any Agent, (i) the sum payable shall
be increased as necessary so that after making all required deductions and withholdings
(including deductions and withholdings applicable to additional sums payable under this Section
3.01) such Lender or such Agent receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such deductions
and withholdings, (ii) the Borrower shall pay the full amount deducted or withheld to the
relevant taxation authority or other authority in accordance with applicable law and (iv)
the Borrower shall furnish to the Administrative Agent, at the office of the
Administrative Agent specified in Section 11.02, the original or a certified copy
of a receipt evidencing payment thereof.
- Other Taxes. In addition, the Borrower agrees to pay any and
all present or future stamp or documentary, excise or property taxes or similar levies
(including mortgage recording taxes) which arise from any payment made under this
Agreement or any other Loan Document or from the execution or delivery of, or otherwise
with respect to, this Agreement or any other Loan Document (hereinafter referred to as
"Other Taxes").
- Additional Taxes. The Borrowers agree, jointly and severally,
to indemnify each Lender and each Agent for the full amount of Taxes and Other Taxes
(including any Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts
payable under this Section 3.01) paid by such Lender or such Agent (as the case may
be) and any liability (including penalties, interest and expenses) arising therefrom or
with respect thereto.
- Tax Forms and Certificates. Each Lender organized under the
laws of a jurisdiction outside the United States (a "Non-U.S. Lender"),
on or prior to the date of its execution and delivery of this Agreement in the case of
each Lender listed on the signature pages hereof and on or prior to the date on which it
becomes a Lender in the case of each other Lender, and from time to time thereafter as
required by law, shall provide Xxxxxxxxx and the Administrative Agent with (i) Internal
Revenue Service Form W-8 BEN or W-8 ECI, as appropriate, or any successor form prescribed
by the Internal Revenue Service, certifying that such Lender is entitled to benefits under
an income tax treaty to which the United States is a party which reduces to zero the rate
of withholding tax on payments of interest or certifying that the income receivable
pursuant to this Agreement is effectively connected with the conduct of a trade or
business in the United States, (ii) Interval Revenue Service Form W-8 or W-9, as
appropriate, or any successor form prescribed by the Internal Revenue Service and (iii)
any other form or certificate required by any taxing authority (including any certificate
required by Sections 871(h) and 881(c) of the Internal Revenue Code), certifying that such
Lender is entitled to an exemption from tax on payments pursuant to this Agreement or any
of the other Loan Documents.
- Failure to Provide Tax Forms and Certificates. For any period
with respect to which a Lender has failed to provide Xxxxxxxxx and the Administrative
Agent with the appropriate form pursuant to Section 3.01(d) (unless such failure is
due to a change in treaty, law or regulation occurring subsequent to the date on which a
form originally was required to be provided), such Lender shall not be entitled to
indemnification under Section 3.01(a) or 3.01(b) with respect to Taxes
imposed by the United States; provided, however, that should a Lender, which
is otherwise exempt from or subject to a reduced rate of withholding tax, become subject
to Taxes because of its failure to deliver a form required to be delivered hereunder, the
Borrower shall take such steps as such Lender shall reasonably request to assist such
Lender to recover such Taxes.
- Obligations in Respect of Non-U.S. Lenders. The Borrower
shall not be required to indemnify any Non-U.S. Lender or to pay any additional amounts to
any Non-U.S. Lender, in respect of United States Federal withholding tax pursuant to subsections
(a) or (b) above to the extent that the obligation to withhold amounts with
respect to United States Federal withholding tax existed on the date such Non-U.S. Lender
became a party to this Agreement (or, in the case of a participant, on the date such
participant acquired its participation interest) or, with respect to payments to a new
Applicable Lending Office, the date such Non-U.S. Lender designated such new Applicable
Lending Office with respect to a Loan; provided, however, that this subsection
(f) shall not apply (i) to any participant or new Applicable Lending Office that
becomes a participant or new Applicable Lending Office as a result of an assignment,
participation, transfer or designation made at the request of the Borrower and (ii) to the
extent the indemnity payment or additional amounts any participant, or any Lender acting
through a new Applicable Lending Office, would be entitled to receive (without regard to
this subsection (f)) do not exceed the indemnity payment or additional amounts that
the Person making the assignment, participation or transfer to such participant, or Lender
(or participant) making the designation of such new Applicable Lending Office, would have
been entitled to receive in the absence of such assignment, participation, transfer or
designation.
- Mitigation. If the Borrower is required to pay additional
amounts to or for the account of any Lender pursuant to this Section 3.01, then
such Lender will agree to use reasonable efforts to change the jurisdiction of its
Applicable 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
disadvantageous to such Lender.
Tax Receipts. Within thirty days after the date of any payment of Taxes, the Borrower shall furnish to the Agent the original or a certified copy of a receipt evidencing such payment (to the extent one is so provided).
- the Administrative Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the applicable Eurocurrency Rate for the
applicable currency for such Interest Period; or
- in the case of Eurocurrency Loans, Lenders having 50% or more of the
aggregate amount of the Commitments advise the Administrative Agent that the Applicable
Interbank Offered Rate as determined by the Administrative Agent will not adequately and
fairly reflect the cost to such Lenders of funding their Eurocurrency Loans in the
applicable currency for such Interest Period;
the Administrative Agent shall forthwith give notice
thereof to Xxxxxxxxx and the Lenders, whereupon until the Administrative Agent notifies
Xxxxxxxxx that the circumstances giving rise to such suspension no longer exist,
(i) the obligations of the Lenders to make Eurocurrency Loans, or to continue or
convert outstanding Loans as or into Eurocurrency Loans, in the affected currency shall be
suspended and (ii) each outstanding Eurocurrency Loan in the affected currency shall
be converted (in the case of an Alternative Currency Loan, at the then Dollar Equivalent)
into a Base Rate Loan on the last day of the then current Interest Period applicable
thereto. Unless the Borrower notifies the Administrative Agent at least two Business Days
before the date of any Eurocurrency Borrowing for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, if such Eurocurrency
Borrowing is a Borrowing, such Borrowing shall instead be made in Dollars as a Base Rate
Borrowing in the same aggregate Dollar Amount as the requested Borrowing.
Section 3.04 Increased
Costs and Reduced Return. If on or after the date hereof, in the case of any Loan
or any obligation to make Loans, the adoption of or any change in any applicable Law or in
the interpretation or application thereof applicable to any Lender (or its Applicable
Lending Office), or compliance by any Lender (or its Applicable Lending Office) with any
request or directive (whether or not having the force of Law) from any central bank or
other Governmental Authority, in each case made subsequent to the Effective Date (or, if
later, the date on which such Lender becomes a Lender):
- shall subject such Lender (or its Applicable Lending Office) to any
tax of any kind whatsoever with respect to any Eurocurrency Loans made by it or any of its
Notes or its obligation to make Eurocurrency Loans, or change the basis of taxation of
payments to such Lender (or its Applicable Lending Office) in respect thereof (except for
(A) Taxes and Other Taxes covered by Section 3.01 (including Taxes imposed solely
by reason of any failure of such Lender to comply with its obligations under Section
3.01(d)) and (B) changes in taxes measured by or imposed upon the overall net income,
or franchise tax (imposed in lieu of such net income tax), of such Lender or its
Applicable Lending Office, branch or any affiliate thereof));
- shall impose, modify or hold applicable any reserve, special deposit,
compulsory loan or similar requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or other extensions of credit by, or
any other acquisition of funds by, any office of such Lender (or its Applicable Lending
Office) which is not otherwise included in the determination of the Eurocurrency Rate
hereunder; or
- shall impose on such Lender (or its Applicable Lending Office) any
other condition (excluding any tax of any kind whatsoever);
- If any Lender shall have determined that the adoption or the becoming
effective of, or any change in, or any change by any Governmental Authority, central bank
or comparable agency charged with the interpretation or administration thereof in the
interpretation or administration of, any applicable Law, regarding capital adequacy, or
compliance by such Lender, or its parent corporation, with any request or directive
regarding capital adequacy (whether or not having the force of Law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender's (or parent corporation's) capital or assets as a consequence of
its commitments or obligations hereunder to a level below that which such Lender, or its
parent corporation, could have achieved but for such adoption, effectiveness, change or
compliance (taking into consideration such Lender's (or parent corporation's) policies
with respect to capital adequacy), then, upon notice from such Lender to Xxxxxxxxx, the
Borrower shall be obligated to pay to such Lender such additional amount or amounts as
will compensate such Lender on an after-tax basis (after taking into account applicable
deductions and credits in respect of the amount indemnified) for such reduction. Each
determination by any such Lender of amounts owing under this Section shall, absent
manifest error, be conclusive and binding on the parties hereto; provided, that if
any Lender receives a rebate of any amount for which it had received compensation from the
Borrower pursuant to subsection (a) or subsection (b) of this Section 3.04,
any such Lender shall promptly remit any such rebated amount to the Borrower.
- A certificate of each Lender setting forth such amount or amounts as
shall be necessary to compensate such Lender or its holding company as specified in subsection
(a) or (b) above, as the case may be, shall be delivered to the Borrower and
shall be conclusive absent manifest error. The Borrower shall pay each Lender the amount
shown as due on any such certificate delivered by it within 10 Business Days after receipt
of the same.
- Promptly after any Lender becomes aware of any circumstance that
will, in its sole judgment, result in a request for increased compensation pursuant to
this Section, such Lender shall notify Xxxxxxxxx thereof. Failure on the part of any
Lender so to notify Xxxxxxxxx or to demand compensation for any increased costs or
reduction in amounts received or receivable or reduction in return on capital with respect
to any period shall not constitute a waiver of such Lender's right to demand compensation
with respect to such period or any other period. The protection of this Section shall be
available to each Lender regardless of any possible contention of the invalidity or
inapplicability of the law, rule, regulation, guideline or other change or condition which
shall have occurred or been imposed.
and the result of any of the foregoing is to
increase the cost to such Lender (or its Applicable Lending Office) of making, converting
into, continuing or maintaining any Eurocurrency Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, upon notice to Xxxxxxxxx from such
Lender, through the Administrative Agent, in accordance herewith, the Borrower shall be
obligated to promptly pay such Lender, upon its demand, any additional amounts necessary
to compensate such Lender on an after-tax basis (after taking into account applicable
deductions and credits in respect of the amount indemnified) for such increased cost or
reduced amount receivable.
ARTICLE IV
CONDITIONS
- Executed Loan Documents. Receipt by the Administrative Agent
of duly executed copies of: (i) this Agreement; and (ii) the Notes, if any, each in form
and substance satisfactory to the Lenders in their sole discretion.
- Legal Matters. All legal matters incident to this Agreement
and the borrowings hereunder shall be satisfactory to the Administrative Agent and to
Xxxxx, Xxxxx & Xxxxx, counsel for the Administrative Agent.
- Organization Documents. The Administrative Agent shall have
received: (i) a copy of the Organization Documents of each Borrower, certified (if
available) as of a recent date by the Secretary of State or similar official of its
respective state or similar jurisdiction of organization, and a certificate as to the good
standing of each Borrower, from such Secretary of State or similar official, as of a
recent date; (ii) a certificate of the Secretary or Assistant Secretary of each Borrower
dated the Closing Date and certifying (A) that the Organization Documents of such Borrower
have not been amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above; (B) that
attached thereto is a true and complete copy of by-laws or similar constitutive documents
of such Borrower as in effect on the Closing Date and at all times since a date prior to
the date of the resolutions described in clause (C) below, (C) that attached
thereto is a true and complete copy of resolutions duly adopted by the board of directors
or similar governing body of each Borrower authorizing the execution, delivery and
performance of the Loan Documents and the borrowings hereunder, and that such resolutions
have not been modified, rescinded or amended and are in full force and effect; and (D) as
to the incumbency and specimen signature of each officer executing any Loan Document or
any other document delivered in connection herewith on behalf of such Borrower; (iii) a
certificate of another officer of each Borrower as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause
(ii) above; and (iv) such other documents as the Administrative Agent or Xxxxx, Xxxxx
& Xxxxx, counsel for the Administrative Agent, may reasonably request.
- Officer's Certificate. The Agent shall have received a
certificate, dated the Closing Date and signed by a Responsible Officer of Xxxxxxxxx, (i)
confirming compliance with the conditions precedent set forth in paragraphs (b) and
(c) of Section 4.02 and (ii) certifying the current Xxxxxxxxx'x Ratings.
- Opinions of Counsel. On the Closing Date, the Administrative
Agent shall have received a favorable written opinions of Xxxxxx & Xxxxxxx, L.L.P.,
special North Carolina counsel to the Borrowers, and in-house counsel of Xxxxxxxxx, each
case addressed to the Administrative Agent and each Lender, dated the Closing Date,
substantially in the form of Exhibit D hereto and covering such additional matters
incident to the transactions contemplated hereby as the Administrative Agent or the
Required Lenders may reasonably request.
- Payment of Fees. All costs, fees and expenses due to the
Administrative Agent, the Collateral Agent and the Lenders on or before the Closing Date
shall have been paid.
- Counsel Fees. The Administrative Agent shall have received
full payment from the Borrower of the fees and expenses of Xxxxx, Xxxxx & Xxxxx
described in Section 11.04 which are billed through the Closing Date.
- Repayment of Indebtedness. The Administrative shall have
received satisfactory evidence of the repayment in full of all amounts owing and
termination of all commitments to lend under (i) the Credit Agreement dated as of January
18, 1994, as amended, among Xxxxxxxxx, the lenders party thereto and JPMorgan Chase Bank
(as successor by merger to Xxxxxx Guaranty Trust Company of New York), as agent, (ii) the
Amended and Restated Revolving Credit Agreement dated as of March 20, 2000, as amended,
among Xxxxxxxxx, Xxxxxxxxx UK, Certech and First Union National Bank and (iii) the Line of
Credit Agreement dated as of March 3, 2000, as amended, between Xxxxxxxxx and Mellon Bank,
N.A.
- Financial Statements. The Administrative Agent and the
Lenders shall have received and be satisfied with (a) the consolidated balance sheet and
income statement of Xxxxxxxxx and its Consolidated Subsidiaries, as of June 30, 2001, and
the related consolidated statements of operations and retained earnings and cash flows for
such fiscal year, audited by independent certified public accountants of recognized
national standing reasonably acceptable to the Administrative Agent and accompanied by an
opinion of such accountants (which shall not be subject to any qualifications or
exceptions as to the scope of the audit nor to any qualifications or exceptions not
reasonably acceptable to the Required Lenders) to the effect that such consolidated
financial statements have been prepared in accordance with GAAP and present fairly the
consolidated financial position and consolidated results of operations and cash flows of
Xxxxxxxxx and its Consolidated Subsidiaries in accordance with GAAP consistently applied
(except for changes with which such accountants concur) and (b) unaudited, interim
financial statements of Xxxxxxxxx and its Consolidated Subsidiaries for the fiscal quarter
ended September 30, 2001.
All corporate and legal proceedings and instruments
and agreements relating to the transactions contemplated by this Agreement or in any other
document delivered in connection herewith or therewith shall be satisfactory in form and
substance to the Administrative Agent and its counsel, and the Administrative Agent shall
have received all information and copies of all documents and papers, including records of
corporate proceedings, governmental approvals, good standing certificates and bring-down
telegrams, if any, which the Administrative Agent reasonably may have requested in
connection therewith, such documents and papers where appropriate to be certified by
proper corporate or Governmental Authorities. The documents referred to in this Section
shall be delivered to the Administrative Agent no later than the Closing Date. The
certificates and opinions referred to in this Section shall be dated the Closing Date.
The requirement that any document, agreement,
certificate or other writing be satisfactory to the Required Lenders shall be deemed to be
satisfied if (i) such document, agreement, certificate or other writing was delivered to
the Lenders not less than two Business Days prior to the Closing Date, (ii) such document,
agreement, certificate or other writing is satisfactory to the Administrative Agent and
(iii) Lenders holding at least 50% of the Commitments have not objected in writing to such
document, agreement, certificate or other writing to the Administrative Agent prior to the
Closing Date.
- Notice. The Borrower shall have delivered to the
Administrative Agent an appropriate Notice of Borrowing, duly executed and completed, by
the time specified in Section 2.02.
- Representations and Warranties. The representations and
warranties made by the Borrowers in any Loan Document are true and correct in all material
respects at and as if made as of such date except to the extent they expressly relate to
an earlier date.
- No Default. No Default or Event of Default shall exist or be
continuing either prior to or after giving effect thereto.
- Availability. Immediately after giving effect to the making
of a Loan (and the application of the proceeds thereof) the Dollar Amount of the Revolving
Outstandings shall not exceed the Revolving Committed Amount.
- Currency Availability. In the case of any Eurocurrency
Borrowing in a currency other than Dollars or an Agreed Alternative Currency, the fact
that no Lender shall have notified the Administrative Agent (which shall promptly notify
the Borrower and the other Lenders) within two Business Days of such Lender's receipt of
the Notice of Borrowing for such Eurocurrency Borrowing that deposits in the relevant
currency are not available to such Lender in the applicable interbank market for the
relevant Interest Period.
The delivery of each Notice of Borrowing shall
constitute a representation and warranty by the Borrowers of the correctness of the
matters specified in subsections (b) and (c) above.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrowers represent and warrant to the Agents and
the Lenders that:
Section 5.05 Financial
Condition.
- Audited Financial Statements. The consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries as of June 30, 2001 and the related
consolidated statements of income and cash flows for the fiscal year then ended, reported
on by PricewaterhouseCoopers and set forth in Xxxxxxxxx'x 2001 Form 10-K, a copy of which
has been delivered to each of the Lenders, fairly present, in conformity with GAAP, the
consolidated financial position of Xxxxxxxxx and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for such fiscal year.
- Interim Financial Statements. The unaudited consolidated
balance sheet of Xxxxxxxxx and its Consolidated Subsidiaries as of September 30, 2001 and
the related unaudited consolidated statements of income and cash flows for the three
months then ended, set forth in Xxxxxxxxx'x Latest Form 10-Q, a copy of which has been
delivered to each of the Lenders, fairly present, in conformity with GAAP applied on a
basis consistent with the financial statements referred to in subsection (a) of
this Section, the consolidated financial position of Xxxxxxxxx and its Consolidated
Subsidiaries as of such date and their consolidated results of operations and cash flows
for such three-month period (subject to normal year-end audit adjustments).
- Material Adverse Effect. Since June 30, 2001, there has been
no Material Adverse Effect, and no event or development has occurred which could
reasonably be expected to result in a Material Adverse Effect.
- Post-Closing Financial Statements. The financial statements
delivered to the Lenders pursuant to Section 6.01(a) and (b), if any, (i)
have been prepared in accordance with GAAP (except as may otherwise be permitted under Section
6.01(a) and (b)) and (ii) present fairly (on the basis disclosed in the
footnotes to such financial statements, if any) the consolidated financial condition,
results of operations and cash flows of Xxxxxxxxx and its Consolidated Subsidiaries as of
the respective dates thereof and for the respective periods covered thereby.
Section 5.12 ERISA
Compliance.
- Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each Plan that
is intended to qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS or an application for such a letter is currently being
processed by the IRS with respect thereto and, to the best knowledge of Xxxxxxxxx, nothing
has occurred which would prevent, or cause the loss of such qualification. Xxxxxxxxx and
each ERISA Affiliate have made all required contributions to each Plan subject to
Section 412 of the Code, and no application for a funding waiver or an extension of
any amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan.
- There are no pending or, to the best knowledge of Xxxxxxxxx,
threatened claims, actions or lawsuits, or action by any Governmental Authority, with
respect to any Plan that could be reasonably be expected to have a Material Adverse
Effect. There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan that has resulted or could be reasonably
expected to result in a Material Adverse Effect.
- (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither Xxxxxxxxx
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under
Title IV of ERISA with respect to any Pension Plan (other than premiums due and not
delinquent under Section 4007 of ERISA); (iv) neither Xxxxxxxxx nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability (and no event has
occurred which, with the giving of notice under Section 4219 of ERISA, would result
in such liability) under Sections 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) neither Xxxxxxxxx nor any ERISA Affiliate has engaged in
a transaction that could be subject to Sections 4069 or 4212(c) of ERISA.
- None of Xxxxxxxxx and 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. In addition, none of Xxxxxxxxx and its Subsidiaries
is (i) an "investment company" registered or required to be registered under the
Investment Company Act of 1940, as amended, (ii) controlled by such a company, or (iii) a
"holding company", a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a
"subsidiary" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1934, as amended.
- No director, executive officer or principal holder of any Equity
Interest of Xxxxxxxxx or any of its Subsidiaries is a director, executive officer or
principal shareholder of any Lender. For the purposes hereof, the terms
"director", "executive officer" and "principal shareholder"
(when used with reference to any Lender) have the respective meanings assigned thereto in
Regulation O.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrowers agree that so long as any Lender has
any Commitment hereunder, any Obligation or other amount payable hereunder or under any
Note or other Loan Document:
- Annual Financial Statements. As soon as available, and in any
event within 105 days after the end of each fiscal year of Xxxxxxxxx, a consolidated
balance sheet and income statement of Xxxxxxxxx and its Consolidated Subsidiaries, as of
the end of such fiscal year, and the related consolidated statements of operations and
retained earnings and cash flows for such fiscal year, setting forth in comparative form
consolidated figures for the preceding fiscal year, all such financial statements 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
accompanied by an opinion of such accountants (which shall not be subject to any
qualifications or exceptions as to the scope of the audit nor to any qualifications or
exceptions not reasonably acceptable to the Required Lenders) to the effect that such
consolidated financial statements have been prepared in accordance with GAAP and present
fairly the consolidated financial position and consolidated results of operations and cash
flows of Xxxxxxxxx and its Consolidated Subsidiaries in accordance with GAAP consistently
applied (except for changes with which such accountants concur).
- Quarterly Financial Statements. As soon as available, and in
any event within 60 days after the end of each of the first three fiscal quarters in each
fiscal year of Xxxxxxxxx, a consolidated balance sheet of Xxxxxxxxx and its Consolidated
Subsidiaries as of the end of such fiscal quarter, together with related consolidated
statements of operations and retained earnings and cash flows for such fiscal quarter and
the then elapsed portion of such fiscal year, setting forth in comparative form
consolidated figures for the corresponding periods of the preceding fiscal year, all such
financial statements to be in form and detail and reasonably acceptable to the
Administrative Agent, and accompanied by a certificate of the chief financial officer of
Xxxxxxxxx to the effect that such quarterly financial statements have been prepared in
accordance with GAAP and present fairly in all material respects the consolidated
financial position and consolidated results of operations and cash flows of Xxxxxxxxx and
its Consolidated Subsidiaries in accordance with GAAP consistently applied, subject to
changes resulting from normal year-end audit adjustments and the absence of footnotes
required by GAAP.
- Officer's Certificate. At the time of delivery of the
financial statements provided for in Sections 6.01(a) and 6.01(b) above, a
certificate of the chief financial officer of Xxxxxxxxx (i) demonstrating compliance with
the financial covenants contained in Section 7.12 by calculation thereof as of the
end of the fiscal period covered by such financial statements, (ii) 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 Xxxxxxxxx proposes to take with
respect thereto, (iii) stating whether, since the date of the most recent financial
statements delivered hereunder, there has been any material change in the GAAP applied in
the preparation of the financial statements of Xxxxxxxxx and its Consolidated
Subsidiaries, and, if so, describing such change.
- Reports. Promptly after the same are filed or made available,
copies, which may be in electronic format, of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of Xxxxxxxxx, and
copies of all annual, regular, periodic and special reports and registration statements
which Xxxxxxxxx may file or be required to file with the Securities and Exchange
Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not
otherwise required to be delivered to the Administrative Agent pursuant hereto.
- Notices. Prompt notice of: (i) the occurrence of any Default
or Event of Default; (ii) any matter that has resulted or may result in a Material
Adverse Effect, including (A) breach or non-performance of, or any default under, a
Contractual Obligation of Xxxxxxxxx or any Subsidiary; (B) any dispute, litigation,
investigation, proceeding or suspension between Xxxxxxxxx or any Subsidiary and of
Governmental Authority; (C) the commencement of, or any material development in, any
litigation or proceeding affecting Xxxxxxxxx or any Subsidiary, including pursuant to any
applicable Environmental Law; (D) any litigation, investigation or proceeding affecting
any Borrower in which the amount involved exceeds $5,000,000, or in which injunctive
relief or similar relief is sought, which relief, if granted, could be reasonably expected
to have a Material Adverse Effect; (E) the occurrence of any ERISA Event; (F) any material
change in accounting policies or financial reporting practice by Xxxxxxxxx or any
Subsidiary; and (G) of any announcement by Xxxxx'x or S&P of any change or possible
change in the ratios assigned to Xxxxxxxxx'x Ratings. Each notice pursuant to this Section
6.01(e) shall (i) be accompanied by a statement of a Responsible Officer of
Xxxxxxxxx setting forth details of the occurrence referred to therein and stating what
action Xxxxxxxxx has taken and proposes to take with respect thereto and (ii) describe
with particularity any and all provisions of this Agreement or other Loan Document that
have been breached.
- Annual Business Plan and Budget. Prior to the 30th day after
the beginning of each fiscal year of Xxxxxxxxx, an annual business plan and budget of
Xxxxxxxxx and its Consolidated Subsidiaries.
- Other Information. With reasonable promptness upon request
therefor, such other information regarding the business, properties or financial condition
of Xxxxxxxxx or any Subsidiary as the Administrative Agent or the Required Lenders may
reasonably request.
ARTICLE VII
NEGATIVE COVENANTS
Each Borrower agrees that so long as any Lender has any Commitment
hereunder, any Obligation or other amount payable hereunder or under any Note or other
Loan Document:
- Debt of Xxxxxxxxx and its Subsidiaries outstanding on the Closing
Date and disclosed on Schedule 7.01, without giving effect to any subsequent
extension, renewal or refinancing thereof (collectively, the "Existing
Indebtedness");
- Indebtedness of the Borrowers under this Agreement and the other Loan
Documents;
- Indebtedness of Xxxxxxxxx and its Subsidiaries not otherwise
permitted by this Section 7.01 incurred after the Closing Date in an aggregate
principal amount not to exceed $200,000,000 at any time outstanding; provided that
(A) up to $20,000,000 aggregate principal amount of such Indebtedness may be secured, (B)
no Default or Event of Default shall have occurred and be continuing immediately before
and immediately after giving effect to such incurrence and (C) upon giving effect on a
pro-forma basis to the incurrence of such Indebtedness and to the concurrent retirement of
any other Indebtedness of Xxxxxxxxx or any subsidiary, Xxxxxxxxx shall be in compliance
with the financial covenants set forth in Section 7.12;
- Purchase Money Indebtedness of Xxxxxxxxx and its Subsidiaries
incurred after the Closing Date; provided that (A) such Indebtedness is issued and
any Liens securing such Indebtedness are created concurrently with, or within 90 days
after, the acquisition of the asset financed and (B) no Lien securing such Indebtedness
shall extend to or cover any property or asset of Xxxxxxxxx or any Subsidiary other than
the asset so financed;
- an asset securitization transaction of Xxxxxxxxx or its Subsidiaries,
on terms reasonably acceptable to the Administrative Agent and not in excess of
$75,000,000 in the aggregate; and
- Indebtedness of Xxxxxxxxx and its Subsidiaries under the 5-Year
Facility.
- existing and future Liens existing on the Closing Date and listed on Schedule
7.02 hereto, provided that such Liens shall secure only those obligations which they
secure on the date hereof (and permitted extensions, renewals and refinancings of such
obligations) and shall not subsequently apply to any other property or assets of Xxxxxxxxx
and its Subsidiaries (other than accessions to and the proceeds of the property or assets
subject to such Liens to the extent provided by the terms thereof on the date hereof);
- existing and future Liens (other than any Liens imposed by ERISA or
pursuant to any Environmental Law) for taxes, assessments or governmental charges or
levies not yet due or being contested in good faith and by appropriate proceedings
diligently pursued for which adequate reserves (in the good faith judgment of the
management of Xxxxxxxxx) have been established in accordance with GAAP (and as to which
the property or assets subject to any such Lien is not yet subject to foreclosure, sale or
loss on account thereof);
- Liens imposed by law securing the charges, claims, demands or levies
of landlords, carriers, warehousemen, mechanics, carriers and other like persons which
were incurred in the ordinary course of business and which (A) do not, individually or in
the aggregate, materially detract from the value of the property or assets which are the
subject of such Lien or materially impair the use thereof in the operation of the business
of Xxxxxxxxx or any of its Subsidiaries or (B) which are being contested in good faith by
appropriate proceedings diligently pursued, which proceedings have the effect of
preventing the forfeiture or sale of the property or assets subject to such Lien;
- Liens arising from judgments, decrees or attachments (or securing of
appeal bonds with respect thereto) in circumstances not constituting an Event of Default
under Section 8.01;
- existing and future Liens (other than any Liens imposed by ERISA or
pursuant to any Environmental Law) not securing Indebtedness incurred or deposits made in
the ordinary course of business in connection with workers' compensation, unemployment
insurance and other types of social security or to secure the performance of tenders,
statutory obligations, surety bonds (other than appeal bonds), bids, leases, government
contracts, performance and return-of-money bonds and other similar obligations incurred in
the ordinary course of business;
- existing and future zoning restrictions, easements, rights of way,
licenses, reservations, covenants, conditions, waivers, restrictions on the use of
property or other minor encumbrances or irregularities of title not securing Indebtedness
or Derivatives Obligations which do not, individually or in the aggregate, materially
impair the use of any property in the operation or business of Xxxxxxxxx or any of its
Subsidiaries or the value of such property for the purpose of such business;
- Liens securing (A) the secured Indebtedness permitted to be incurred
under Section 7.01(iii)(A) and (B) Purchase Money Indebtedness permitted to be
incurred under Section 7.01(iv);
- any Lien existing on any asset of any Person at the time such Person
becomes a Subsidiary of Xxxxxxxxx and not created in contemplation of such event;
- any Lien on any asset of any Person existing at the time such Person
is merged or consolidated with or into Xxxxxxxxx or a Subsidiary of Xxxxxxxxx and not
created in contemplation of such event;
- any Lien existing on any asset prior to the acquisition thereof by
Xxxxxxxxx or a Subsidiary of Xxxxxxxxx and not created in contemplation of such
acquisition;
- existing and future Liens arising solely by virtue of any statutory
or common law provision relating to banker's liens, rights of set-off or similar rights,
in each case incurred in the ordinary course of business;
- Liens on the property or assets of Xxxxxxxxx its Subsidiaries arising
in connection with an asset securitization transaction permitted pursuant to Section
7.01(v); and
- Liens other than those permitted by clause (i) through clause
(xii) of this Section 7.02 on property or assets of Xxxxxxxxx and its
Subsidiaries now owned or hereafter acquired by it, or on any income or rights in respect
thereof, not in excess of 15% of Consolidated Tangible Net Worth.
- Investments other than those permitted by subsections (i)
through (vii) existing on the date hereof and listed on Schedule 7.03;
- Investments held by Xxxxxxxxx or such Subsidiary in the form of Cash
Equivalents;
- advances to officers, directors and employees of Xxxxxxxxx and
Subsidiaries in an aggregate amount not to exceed $2,000,000 at any time outstanding, for
travel, entertainment, relocation and analogous ordinary business purposes;
- Investments of any Subsidiary in Xxxxxxxxx or another Subsidiary;
- Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the sale or lease of goods or
services in the ordinary course of business, and Investments received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to the extent
reasonably necessary in order to prevent or limit loss;
- Investments permitted by Section 7.05;
- Investments consisting of the acquisition by Xxxxxxxxx or any of is
Subsidiaries of assets or shares of Capital Stock of any other Person; provided,
that (A) no Default or Event of Default shall have occurred and be continuing, (B) the
Person whose assets or shares of Capital Stock are acquired pursuant to this clause
(vii) shall be engaged in substantially the same line of business as Xxxxxxxxx and its
Subsidiaries are engaged in as of the Closing Date and (C) after to giving effect to any
such acquisition, Xxxxxxxxx shall be in pro forma compliance with the covenants set forth
in Section 7.13 of this Agreement; and
- other Investments made in the ordinary course of business of
Xxxxxxxxx and its Subsidiaries.
- any Subsidiary may merge with (A) Xxxxxxxxx, provided
that Xxxxxxxxx shall be the continuing or surviving Person, or (B) any one or more
Subsidiaries, provided that when any Wholly-Owned Subsidiary is merging with
another Subsidiary, the Wholly-Owned Subsidiary shall be the continuing or surviving
Person; and
- any Subsidiary may sell all or substantially all of its assets (upon
voluntary liquidation or otherwise), to Xxxxxxxxx or to another Subsidiary; provided
that if the seller in such a transaction is a Wholly-Owned Subsidiary, then the purchaser
must also be a Wholly-Owned Subsidiary.
- Dispositions of obsolete or worn out property, whether now owned or
hereafter acquired, in the ordinary course of business;
- Dispositions of inventory and other property in the ordinary course
of business;
- Dispositions of equipment or real property to the extent that (A)
such property is exchanged for credit against the purchase price of similar replacement
property, (B) the proceeds of such Disposition are reasonably promptly applied to the
purchase price of such replacement property or (C) the Board of Directors or senior
management of Xxxxxxxxx or such Subsidiary has determined in good faith that the failure
to replace such property will not be detrimental to the business of Xxxxxxxxx or such
Subsidiary;
- Dispositions of property by Xxxxxxxxx or any Subsidiary of Xxxxxxxxx
to Xxxxxxxxx or to a Wholly-Owned Subsidiary of Xxxxxxxxx;
- Dispositions permitted by Section 7.04;
- Dispositions of assets of Xxxxxxxxx or its Subsidiaries in connection
with an asset securitization transaction on terms reasonably acceptable to the
Administrative Agent and not in excess of $75,000,000 in the aggregate; and
- in addition to the Dispositions permitted by clause (i)
through clause (vi) of this Section 7.05, Dispositions of all or
substantially all of the property or all of the shares of Capital Stock of any Subsidiary
of Xxxxxxxxx not in excess of 15% of the total assets of Xxxxxxxxx and its Subsidiaries.
provided, however, that any
Disposition pursuant to clauses (i) through (vi) of property having a book
value in excess of $25,000,000 shall be for fair market value.
- each Subsidiary may make Restricted Payments to Xxxxxxxxx and to
Wholly-Owned Subsidiaries (and, in the case of a Restricted Payment by a non-Wholly-Owned
Subsidiary, to Xxxxxxxxx and any Subsidiary and to each other owner of Equity Interests of
such Subsidiary on a pro-rata basis based on their relative ownership interests);
- Xxxxxxxxx and each Subsidiary may declare and make dividend payments
or other distributions payable solely in the Equity Interests (exclusive of Disqualified
Stock) of such Person;
- Xxxxxxxxx and each Subsidiary may purchase, redeem or otherwise
acquire shares of its common stock; provided that, (A) any such purchase,
redemption or other acquisition for value shall not have a Material Adverse Effect and (B)
immediately prior to and after giving effect to any such proposed action, no Default or
Event of Default shall have occurred and be continuing; and
- Xxxxxxxxx may declare or pay cash dividends to its stockholders; provided
that, (A) any such declaration or payment shall not have a Material Adverse Effect and (B)
immediately after giving effect to any such proposed action, no Default or Event of
Default shall have occurred and be continuing.
Section 7.10 Burdensome
Agreements. Xxxxxxxxx will not, nor will it cause or permit any of its
Subsidiaries to, enter into any Contractual Obligation that limits the ability (i) of
any Subsidiary to make Restricted Payments to Xxxxxxxxx or to otherwise transfer property
to Xxxxxxxxx or (ii) of Xxxxxxxxx or any Subsidiary to create, incur, assume or
suffer to exist Liens on property of such Person.
Section 7.12 Financial
Covenants.
- Interest Coverage Ratio. The Interest Coverage Ratio for any
period of four consecutive fiscal quarters of Xxxxxxxxx, in each case taken as a single
accounting period, will not be less than (i) 2.50:1.00 on the last day of any fiscal
quarter from December 31, 2001 to June 30, 2003 and (ii) 3.00:1.00 on the last day of any
fiscal quarter thereafter.
- Debt to Capital Ratio. The Debt to Capital Ratio shall not
exceed 55% at any time.
ARTICLE VIII
DEFAULTS
Section 8.01 Events of Default.
An Event of Default shall exist upon the occurrence of any of the following specified
events or conditions (each an "Event of Default"):
- Payment. Any Borrower shall fail to pay: (i) as and when due
(whether by scheduled maturity, mandatory prepayment, acceleration or otherwise) any
amount of principal of any Loan; (ii) within three days of when due (whether by scheduled
maturity, mandatory prepayment, acceleration or otherwise) any interest on any Loan, any
commitment facility, utilization or other fee due hereunder; or (iii) within five days
after the same become due, any other amount payable hereunder or under any other Loan
Document.
- Representation and Warranties. Any representation, warranty
or statement made or deemed to be made by any Borrower herein, in any of the other Loan
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.
- Covenants. Any Borrower shall:
- default in the due performance or observance of any term, covenant or
agreement contained in Sections 6.01, 6.02, 6.03, 6.05 or 6.10
or in Article VII or Article X;
- default in the due performance or observance by it of any term,
covenant or agreement contained in Article VI (other than those referred to in subsections
(a), (b) or (c)(i) of this Section 8.01) and such default shall
continue unremedied for a period of ten Business Days after the earlier of an executive
officer of such Borrower becoming aware of such default or notice thereof given by the
Administrative Agent; or
- 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 8.01) contained in this Agreement
and such default shall continue unremedied for a period of at least 30 days after the
earlier of an executive officer of such Borrower becoming aware of such default or notice
thereof given by the Administrative Agent.
- Other Loan Documents. Any Borrower shall default in the due
performance or observance of any term, covenant or agreement in any of the other Loan
Documents and such default shall continue unremedied for a period of at least 30 days
after the earlier of an executive officer of such Borrower becoming aware of such default
or notice thereof given by the Administrative Agent.
- Bankruptcy, etc. A Bankruptcy Event shall occur with respect
to Xxxxxxxxx or any of its Subsidiaries.
- Cross-Default. Xxxxxxxxx or any Subsidiary (A) fails to make
payment when due (whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise), regardless of amount, in respect of any Indebtedness or Guaranty Obligation
(other than in respect of Indebtedness outstanding under the Loan Documents) having an
aggregate principal amount (including undrawn committed or available amounts and including
amounts owing to all creditors under any combined or syndicated credit arrangement) of
more than $15,000,000, (B) fails to perform or observe any other condition or covenant, or
any other event shall occur or condition shall exist, under any agreement or instrument
relating to any such Indebtedness or Guaranty Obligation, if the effect of such failure,
event or condition is to cause such Indebtedness to be declared to be due and payable
prior to its stated maturity, or such Guaranty Obligation to become payable, or cash
collateral in respect thereof to be demanded or (C) shall be required by the terms of such
Indebtedness or Guaranty Obligation to offer to prepay or repurchase such Indebtedness or
the primary Indebtedness underlying such Guaranty Obligation (or any portion thereof)
prior to the stated maturity thereof.
- Judgments. One or more judgments, orders, decrees or
arbitration awards is entered against Xxxxxxxxx or any Subsidiary involving in the
aggregate a liability (to the extent not covered by independent third-party insurance as
to which the insurer does not dispute coverage), as to any single or related series of
transactions, incidents or conditions, of $15,000,000 or more, and the same shall remain
undischarged, unvacated and unstayed pending appeal for a period of 60 days after the
entry thereof, or any Consolidated Party shall enter into any agreement to settle or
compromise any pending or threatened litigation, as to any single or related series of
claims, involving payment by any Consolidated Party of $15,000,000 or more, or any
non-monetary judgment, order or decree is entered against any Consolidated Party which has
or would reasonably be expected to have a Material Adverse Effect, and there shall be any
period of 60 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect.
- ERISA. (i) An ERISA Event occurs when respect to a Pension
Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in
liability of Xxxxxxxxx under Title IV of ERISA to the Pension Plan, Multiemployer Plan or
the PBGC in an aggregate amount in excess of $15,000,000, or (ii) Xxxxxxxxx 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 $15,000,000.
- Invalidity of Loan Documents. Any Loan Document, at any time
after its execution and delivery and for any reason other than the agreement of all the
Lenders or satisfaction in full of all the Obligations, ceases to be in full force and
effect, or is declared by a court of competent jurisdiction to be null and void, invalid
or unenforceable in any respect; any Borrower denies that it has any or further liability
or obligation under any Loan Document, or purports to revoke, terminate or rescind any
Loan Document; or any provision of Article X of this Agreement shall for any reason
cease to be valid and binding on or enforceable against Xxxxxxxxx or Xxxxxxxxx shall so
state in writing.
- Ownership. There shall occur a Change of Control.
- Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
- Acceleration of Loans. Declare the unpaid principal of and
any accrued interest in respect of all Loans and any and all other indebtedness or
obligations of any and every kind owing by the Borrower to any of the Lenders hereunder 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 any
Borrower.
- Enforcement of Rights. Enforce any and all rights and interests created and existing under the Loan Documents, including, without limitation, all rights of set-off, or applicable Law.
Notwithstanding the foregoing, if an Event of Default specified in Section 8.01(e) shall occur, then the Commitments shall automatically terminate and all Loans, all accrued interest in respect thereof and all accrued and unpaid fees and other indebtedness or obligations owing to the Lenders hereunder and under the other Loan Documents 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 any Borrower.
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 a separate "creditor" holding a separate "claim" within the meaning of Section 101(5) of the Bankruptcy Code or any other insolvency statute.
In case any one or more of the covenants and/or
agreements set forth in this Agreement or any other Loan Document shall have been breached
by any Borrower, then the Administrative Agent may proceed to protect and enforce the
Lenders' rights either by suit in equity and/or by action at law, including an action for
damages as a result of any such breach and/or an action for specific performance of any
such covenant or agreement contained in this Agreement or such other Loan Document.
Without limitation of the foregoing, the Borrowers agree that failure to comply with any
of the covenants contained herein will cause irreparable harm and that specific
performance shall be available in the event of any breach thereof.
ARTICLE IX
AGENCY PROVISIONS
Section 9.01 Appointment;
Authorization.
- Appointment. Each Lender hereby designates and appoints First
Union National Bank as Administrative Agent and JPMorgan Chase Bank as Syndication Agent
of such Lender to act as specified herein and in the other Loan Documents, and each such
Lender hereby authorizes the Agents, as the agents for such Lender, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly delegated by the terms
hereof and of the other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere herein and in
the other Loan Documents, the Agents shall not have any duties or responsibilities, except
those expressly set forth herein and therein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any of the other Loan Documents, or shall
otherwise exist against the Agents. In performing its functions and duties under this
Agreement and the other Loan Documents, each Agent shall act solely as an agent of the
Lenders and does not assume and shall not be deemed to have assumed any obligation or
relationship of agency or trust with or for any Borrower. Without limiting the generality
of the foregoing two sentences, the use of the term "agent" herein and in the
other Loan Documents with reference to any 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. The provisions of this Article IX (other than Section 9.09) are
solely for the benefit of the Agents and the Lenders and no Borrower shall have any rights
as a third party beneficiary of the provisions hereof (other than Section 9.09).
- Certain Other Agents. JPMorgan Chase Bank, in its capacity as
Syndication Agent, shall have no duties or obligations whatsoever under this Agreement or
any of the other Loan Documents.
ARTICLE X
GUARANTEE
- any lack of validity or enforceability of this Agreement or any other
agreement or instrument relating thereto;
- any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations, or any other amendment or waiver
of or any consent to departure from this Agreement;
- any taking, exchange, release or non-perfection of any collateral or
any taking, release or amendment or waiver of or consent to departure from any other
guaranty, for all or any of the Guaranteed Obligations;
- any change, restructuring or termination of the corporate structure
or existence of any Borrower; or
- any other circumstance, (including, without limitation, any statute
of limitations to the fullest extent permitted by applicable law) which might otherwise
constitute a defense available to, or a discharge of, Xxxxxxxxx, the other Borrowers or
any other guarantor.
This guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time any payment or any of the Guaranteed
Obligations is rescinded or must otherwise be returned by any of the Lenders or the Agents
upon the insolvency, bankruptcy or reorganization of any Borrower or otherwise, all as
though such payment had not been made.
(b) Xxxxxxxxx hereby waives any right to revoke this guaranty, and
acknowledges that this guaranty is continuing in nature and applies to
Guaranteed Obligations, whether existing now or in the future.
(c) Xxxxxxxxx acknowledges that it will receive substantial direct and
indirect benefits from the financing arrangements contemplated it is this
Agreement and that the waivers set forth in this Article X are knowingly
made in contemplation of such benefits.
(d) Xxxxxxxxx agrees that payments made by it pursuant to this Article X
be subject to the provisions of Section 3.01 as if such payments were
made by the other Borrowers.
ARTICLE XI
MISCELLANEOUS
- no such amendment, change, waiver, discharge or termination shall,
without the consent of each Lender affected thereby:
- extend the final maturity of any Loan, provided that this clause
(A) shall not restrict the ability of the Required Lenders to waive any Event of
Default (other than an Event of Default the waiver of which would effectively result in
any such extension or waiver), prior to the time the Administrative Agent shall have
declared, or the Required Lenders shall have requested the Administrative Agent to
declare, the Loans immediately due and payable pursuant to Article VIII;
- reduce the rate, or extend the time of payment, of interest or change
the manner of computation of any financial covenant used in determining the Applicable
Margin that could result in the reduction of the rate of interest on any Loan (other than
as a result of waiving the applicability of any post-default increase in interest rates)
thereon or fees hereunder;
- reduce or waive the principal amount of any Loan;
- increase the Commitment of a Lender over the amount thereof in effect
(it being understood and agreed that a waiver of any Default or Event of Default or a
mandatory reduction in the Commitments shall not constitute a change in the terms of any
Commitment of any Lender);
- release any Borrower from its respective obligations under the Loan
Documents, including, without limitation, Xxxxxxxxx with respect to its obligations under Article
X of this Agreement;
- amend, modify or waive any provision of this Section 11.01 or
reduce any percentage specified in, or otherwise modify, the definition of Required
Lenders; or
- consent to the assignment or transfer by any Borrower of any of its
respective rights and obligations under (or in respect of) the Loan Documents, except as
permitted thereby;
- no provision of Article IX may be amended without the consent
of the Administrative Agent.
Notwithstanding the fact that the consent of all the
Lenders is required in certain circumstances as set forth above, (i) each Lender is
entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that
affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code supersede the unanimous consent provisions set forth herein and (ii)
the Required Lenders may consent to allow any Borrower to use cash collateral in the
context of a bankruptcy or insolvency proceeding.
Section 11.02 Notices and
Other Communications; Facsimile Copies.
- General. Unless otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing (including by
facsimile transmission) and mailed, faxed or delivered, to the address, facsimile number
or (subject to subsection (c) below) electronic mail address specified for notices
on Schedule 10.02; or, in the case of the Borrowers or the Administrative
Agent, to such other address as shall be designated by such party in a notice to the other
parties, and in the case of any other party, to such other address as shall be designated
by such party in a notice to the Borrowers and the Administrative Agent. All such notices
and other communications shall be deemed to be given or made upon the earlier to occur of
(i) actual receipt by the intended recipient and (ii) (A) if delivered by
hand or by courier, when signed for by the intended recipient; (B) if delivered by
mail, four Business Days after deposit in the mails, postage prepaid; (C) if
delivered by facsimile, when sent and receipt has been confirmed by telephone; and
(D) if delivered by electronic mail (which form of delivery is subject to the
provisions of subsection (c) below), when delivered; provided, however,
that notices and other communications to the Administrative Agent pursuant to Article II
shall not be effective until actually received by such Person. Any notice or other
communication permitted to be given, made or confirmed by telephone hereunder shall be
given, made or confirmed by means of a telephone call to the intended recipient at the
number specified on Schedule 10.02, it being understood and agreed that a
voicemail message shall in no event be effective as a notice, communication or
confirmation hereunder.
- Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to requirements of Law, have the same force and
effect as manually-signed originals and shall be binding on the Borrowers, the Agents and
the Lenders. The Administrative Agent may also require that any such documents and
signatures be confirmed by a manually-signed original thereof; provided, however,
that the failure to request or deliver the same shall not limit the effectiveness of any
facsimile document or signature.
- Limited Use of Electronic Mail. Electronic mail and internet
and intranet websites may be used only to distribute routine communications, such as
financial statements and other information, and to distribute Loan Documents for execution
by the parties thereto, and may not be used for any other purpose.
- Reliance by Administrative Agent and Lenders. The
Administrative Agent and the Lenders shall be entitled to rely and act upon any notices
purportedly given by or on behalf of the Borrowers even if (i) such notices were not
made in a manner specified herein, were incomplete or were not preceded or followed by any
other form of notice specified herein or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. The Borrowers shall indemnify, jointly
and severally, each Agent-Related Person and each Lender from all losses, costs, expenses
and liabilities resulting from the reliance by such Person on each notice purportedly
given by or on behalf of any Borrower. All telephonic notices to and other communications
with the Administrative Agent may be recorded by the Administrative Agent, and each of the
parties hereto hereby consents to such recording.
Section 11.06 Successors
and Assigns.
- Generally. This 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 no Borrower may assign or transfer any of its respective
interests and obligations without the prior written consent of either the Required Lenders
or the Lenders, as the terms set forth in Section 11.01 may require;
- Assignments. Any Lender may assign all or a portion of its
rights and obligations under this Agreement (including, without limitation, all or a
portion of its Loans, its Notes and its Commitments; provided, however,
that:
- each such assignment shall be to an Eligible Assignee;
- except in the case of an assignment to another Lender, an Affiliate
of an existing Lender or any Approved Fund (A) the aggregate amount of the Revolving
Commitment of the assigning Lender subject to such assignment (determined as of the date
the Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not, without the consent of Xxxxxxxxx and the Administrative
Agent, be less than $5,000,000 and an integral multiple of $1,000,000 (or such lesser
amount as shall equal the assigning Lender's entire Revolving Commitment) and (B) after
giving effect to such assignment, unless otherwise consented to by Xxxxxxxxx, the
aggregate amount of the Revolving Commitment to the assigning Lender shall not be less
than $2,500,000 (unless the assigning Lender shall have assigned its entire Revolving
Commitment pursuant to such assignment or assignments otherwise complying with this
Section executed substantially simultaneously with such assignment); and
- the parties to such assignment shall execute and deliver to the
Administrative Agent for its acceptance an Assignment and Acceptance in the form of Exhibit
C, together with any Note subject to such assignment and a processing fee of $3,500,
payable or agreed between the assigning Lender and the assignee.
- Assignment and Acceptance. By executing and delivering an
Assignment and Acceptance in accordance with this Section 11.06, 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: (i) 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; (ii)
except as set forth in clause (i) 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 Agreement, any of the
other Loan Documents or any other instrument or document furnished pursuant hereto or
thereto, or the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, any of the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto or the financial condition of any Borrower
or the performance or observance by any Borrower of any of its obligations under this
Agreement, any of the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such assignment agreement; (iv) such assignee confirms that it
has received a copy of this Agreement, the other Loan Documents, together with copies of
the most recent financial statements delivered pursuant to Section 6.01 and
such other documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (v) 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 Agreement and the other Loan Documents; (vi) such assignee appoints and
authorizes the Administrative Agent to take such action on its behalf and to exercise such
powers under this Agreement or any other Loan Document as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all the obligations which by the terms of this Agreement and
the other Loan Documents are required to be performed by it as a Lender. Upon execution,
delivery, and acceptance of such Assignment and Acceptance, 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 under this
Agreement. Upon the consummation of any assignment pursuant to this Section 11.06,
the assignor, the Administrative Agent and the Borrowers shall make appropriate
arrangements so that, if required, new Notes are issued to the assignor and the assignee.
If the assignee is not a United States person under Section 7701(a)(30) of the Code, it
shall deliver to Xxxxxxxxx and the Administrative Agent certification as to exemption from
deduction or withholding of Taxes in accordance with Section 3.01.
- Register. The Borrowers hereby designate the Administrative
Agent to serve as the Borrowers' agent, solely for purposes of this subsection 11.06(d),
to (i) maintain a register (the "Register") on which the Administrative
Agent will record the Commitments from time to time of each Lender, the Loans made by each
Lender and each repayment in respect of the principal amount of the Loans of each Lender
and to (ii) retain a copy of each Assignment and Acceptance delivered to the
Administrative Agent pursuant to this Section. Failure to make any such recordation, or
any error in such recordation, shall not affect the Borrowers' obligation in respect of
such Loans. The entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person
in whose name a Loan and the Note evidencing the same is registered as the owner thereof
for all purposes of this Agreement, notwithstanding notice or any provision herein to the
contrary. With respect to any Lender, the assignment or other transfer of the Commitments
of such Lender and the rights to the principal of, and interest on, any Loan made and any
Note issued pursuant to this Agreement shall not be effective until such assignment or
other transfer is recorded on the Register and, except to the extent provided in this subsection
11.06(d), otherwise complies with Section 11.06, and prior to such recordation
all amounts owing to the transferring Lender with respect to such Commitments, Loans and
Notes shall remain owing to the transferring Lender. The registration of assignment or
other transfer of all or part of any Commitments, Loans and Notes for a Lender shall be
recorded by the Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment and Acceptance and
payment of the administrative fee referred to in Section 11.06(b)(iv). The Register
shall be available at the offices where kept by the Administrative Agent for inspection by
Xxxxxxxxx and any Lender at any reasonable time upon reasonable prior notice to the
Administrative Agent.
- Participations. Each Lender may, without the consent of
Xxxxxxxxx or any Agent, sell participations to one or more Persons in all or a portion of
its rights, obligations or rights and obligations under this Agreement (including all or a
portion of its Commitment or the Loans owing to it); provided, however, that
(i) such Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participant shall be entitled to the benefit of the right of
Setoff contained in Section 11.08 and the yield protection provisions contained in Sections
3.01, 3.04 and 3.05 and to the same extent that the Lender from which
such participant acquired its participation would be entitled to the benefits of such
yield protections; provided that no Borrower shall be required to reimburse any
participant pursuant to Sections 3.01, 3.04 or 3.05 in an amount
which exceeds the amount that would have been payable thereunder to such Lender had such
Lender not sold such participation and (iv) the Borrowers, the Agents and the other
Lenders shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement, and such Lender shall retain
the sole right to enforce the obligations of the Borrowers relating to the Obligations
owing to such Lender and to approve any amendment, modification or waiver of any provision
of this 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 or extending its Commitment).
- Other Assignments. Any Lender may at any time (i) assign all
or any portion of its rights under this Agreement and any Notes to a Federal Reserve Bank,
(ii) pledge or assign a security interest in all or any portion of its interest and rights
under this Agreement (including all or any portion of its Notes, if any) to secure
obligations of such Lender and (iii) grant to an SPC referred to in subsection (h)
below identified as such in writing from time to time by such Lender to the Administrative
Agent and Xxxxxxxxx the option to provide to the Borrowers all or any part of any Loans
that such Lender would otherwise be obligated to make to the Borrowers pursuant to the
Agreement; provided that no such assignment, option, pledge or security interest
shall release a Lender from any of its obligations hereunder or substitute any such
Federal Reserve Bank or other person to which such option, pledge or assignment has been
made for such Lender as a party hereto.
- Information. Any Lender may furnish any information
concerning any Borrower or any of its 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 11.07.
- Other Funding Vehicles. Notwithstanding anything to the
contrary contained herein, any Lender (a "Granting Lender") may grant to
a special purpose funding vehicle (a "SPC"), identified as such in
writing from time to time by the Granting Lender to the Administrative Agent and
Xxxxxxxxx, the option to provide to any Borrower all or any part of any Loan that such
Granting Lender would otherwise be obligated to make to any such Borrower pursuant to this
Agreement; provided that (i) nothing herein shall constitute a commitment by
any SPC to make any Loan or shall reduce the Commitment of any Granting Lender, (ii) if
any SPC elects not to exercise such option or otherwise fails to provide all or any part
of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the
terms of this Agreement. The making of a Loan by any SPC hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if, such Loan were made by
such Granting Lender. Each party to this Agreement hereby agrees that no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement (all liability
for which shall remain with the Granting Lender pursuant to the terms of this Agreement
and the other Loan Documents). In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this 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. In addition, notwithstanding anything to the contrary contained in this
Section 11.06(h), any SPC may (i) with notice to, but without the prior written
consent of, Xxxxxxxxx and the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to the Granting Lender or
to any financial institutions (consented to in writing by Xxxxxxxxx and Administrative
Agent) providing liquidity and/or credit support to or for the account of such SPC to
support the funding or maintenance of Loans and (ii) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency, commercial paper dealer
or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This Section
11.06(h) may not be amended without the written consent of each SPC that has made a
Loan which is outstanding at the time of any such amendment.
Section 11.13 Severability.
Any provision of this Agreement and the other Loan Documents to which any Borrower is a
party that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions thereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
Section 11.14 Headings.
The headings and captions 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 Agreement.
Section 11.16 Governing
Law; Submission to Jurisdiction
- THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY
SET FORTH IN SUCH OTHER LOAN DOCUMENTS) AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES; PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL
RIGHTS ARISING UNDER FEDERAL LAW. Any legal action or proceeding with respect to this
Agreement or any other Loan Document may be brought in the courts of the State of North
Carolina in Mecklenburg County, or of the United States for the Western District of North
Carolina, and, by execution and delivery of this Agreement, each Borrower hereby
irrevocably accepts for itself and in respect of its property, generally and
unconditional, the nonexclusive jurisdiction of such courts. The Borrowers irrevocably
waive, to the fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such court and any claim
that any such proceeding brought in any such court has been brought in an inconvenient
forum.
- The Borrowers hereby irrevocably appoint C.T. Corporation System its
authorized agent to accept and acknowledge service of any and all process which may be
served in any suit, action or proceeding of the nature referred to in this Section
11.16 and consents to process being served in any such suit, action or proceeding upon
C.T. Corporation System in any manner or by the mailing of a copy thereof by registered or
certified mail, postage prepaid, return receipt requested, to the Borrowers' address
referred to in Section 11.02. The Borrower agrees that such service (i) shall be
deemed in every respect effective service of process upon it in any such suit, action or
proceeding and (ii) shall, to the fullest extent permitted by law, be taken and held to be
valid personal service upon and personal delivery to it. Nothing in this Section 11.16
shall affect the right of any Lender to serve process in any manner permitted by law or
limit the right of any Lender to bring proceedings against any Borrower in the courts of
any jurisdiction or jurisdictions.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective authorized officers as of the day
and year first above written.
By: /s/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Vice President and Treasurer
XXXXXXXXX TECHNOLOGY (UK) LIMITED, as a Borrower
By: /s/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Attorney-in-Fact
CERTECH INTERNATIONAL LIMITED, as a Borrower
By: /s/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Attorney-in-Fact
XXXXXXXXX TECHNOLOGY (EUROPE) S.A., as a Borrower
By: /s/Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Attorney-in-Fact
XXXXXXXXX POWDER PRODUCTS AB, as a Borrower
By: /s/Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Director
FIRST UNION NATIONAL BANK,
as Administrative Agent
By: /s/Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK,
as Lender
By: /s/Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
By: /s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
By: /s/Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
By: /s/Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON, as Lender
By: /s/Xxxx X'Xxxx
Name: Xxxx X'Xxxx
Title: Vice President
By: /s/Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Associate
By: /s/Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
