Exhibit (b)(1)
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$100,000,000
CREDIT AGREEMENT
among
INTERMAGNETICS GENERAL CORPORATION,
as Borrower
and
THE DOMESTIC SUBSIDIARIES OF THE BORROWER
FROM TIME TO TIME PARTIES HERETO,
as Guarantors,
THE LENDERS PARTIES HERETO,
JPMORGAN CHASE BANK,
as Syndication Agent,
KEYBANK, N.A.,
as Documentation Agent,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
Dated as of December 17,2003
WACHOVIA CAPITAL MARKETS, LLC,
as Lead Arranger and Sole Book Runner
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS 1
Section 1.1 Defined Terms. 1
Section 1.2 Other Definitional Provisions. 23
Section 1.3 Accounting Terms. 23
ARTICLE II THE LOANS; AMOUNT AND TERMS 24
Section 2.1 Revolving Loans. 24
Section 2.2 Term Loan Facility. 26
Section 2.3 Letter of Credit Subfacility. 27
Section 2.4 Swingline Loan Subfacility. 30
Section 2.5 Fees. 32
Section 2.6 Commitment Reductions. 33
Section 2.7 Prepayments. 33
Section 2.8 Minimum Principal Amount of Tranches. 35
Section 2.9 Default Rate and Payment Dates. 35
Section 2.10 Conversion Options. 35
Section 2.11 Computation of Interest and Fees. 36
Section 2.12 Pro Rata Treatment and Payments. 36
Section 2.13 Non-Receipt of Funds by the Administrative Agent. 38
Section 2.14 Inability to Determine Interest Rate. 39
Section 2.15 Illegality. 40
Section 2.16 Requirements of Law. 40
Section 2.17 Indemnity. 41
Section 2.18 Taxes. 42
Section 2.19 Indemnification; Nature of Issuing Lender's Duties. 44
ARTICLE III REPRESENTATIONS AND WARRANTIES 45
Section 3.1 Financial Condition. 45
Section 3.2 No Change. 46
Section 3.3 Corporate Existence; Corporate Power; Enforceability. 46
Section 3.4 Governmental Approvals. 46
Section 3.5 No Legal Bar; No Default. 47
Section 3.6 No Material Litigation. 47
Section 3.7 Government Acts. 47
Section 3.8 Margin Regulations. 47
Section 3.9 Compliance with Laws. 48
Section 3.10 ERISA. 48
Section 3.11 Environmental Matters. 48
Section 3.12 Purpose of Extensions of Credit. 49
Section 3.13 Subsidiaries. 49
Section 3.14 Ownership. 50
Section 3.15 Indebtedness. 50
Section 3.16 Taxes. 50
Section 3.17 Solvency. 50
Section 3.18 Investments. 50
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Section 3.19 No Burdensome Restrictions. 50
Section 3.20 Brokers' Fees. 51
Section 3.21 Labor Matters. 51
Section 3.22 Accuracy and Completeness of Information. 51
Section 3.23 Consummation of Acquisition; Representations and
Warranties from Other Documents. 51
Section 3.24 Material Contracts. 52
Section 3.25 Insurance. 52
Section 3.26 Tax Shelter Regulations. 52
ARTICLE IV CONDITIONS PRECEDENT 52
Section 4.1 Conditions to Closing Date. 52
Section 4.2 Conditions to Funding Date and Initial Revolving.
Loans and Term Loans. 54
Section 4.3 Conditions to All Extensions of Credit. 57
ARTICLE V AFFIRMATIVE COVENANTS 58
Section 5.1 Financial Statements. 58
Section 5.2 Certificates; Other Information. 59
Section 5.3 Payment of Obligations. 61
Section 5.4 Conduct of Business and Maintenance of Existence. 61
Section 5.5 Maintenance of Property; Insurance. 61
Section 5.6 Inspection of Property; Books and Records;
Discussions. 61
Section 5.7 Notices. 62
Section 5.8 Environmental Laws. 63
Section 5.9 Financial Covenants. 63
Section 5.10 Additional Subsidiary Guarantors. 64
Section 5.11 Compliance with Law. 64
Section 5.12 Completion of Acquisition. 64
ARTICLE VI NEGATIVE COVENANTS 65
Section 6.1 Indebtedness. 65
Section 6.2 Liens. 66
Section 6.3 Nature of Business. 66
Section 6.4 Consolidation, Merger, Sale or Purchase of Assets,
etc. 66
Section 6.5 Advances, Investments and Loans. 67
Section 6.6 Transactions with Affiliates. 67
Section 6.7 Ownership of Subsidiaries;Restrictions. 67
Section 6.8 Fiscal Year; Organizational Documents; Material
Contracts. 68
Section 6.9 Limitation on Restricted Actions. 68
Section 6.10 Restricted Payments. 68
Section 6.11 Prepayments of Subordinated Debt, etc. 69
Section 6.12 Sale Leasebacks. 69
Section 6.13 No Further Negative Pledges. 69
ARTICLE VII EVENTS OF DEFAULT 70
Section 7.1 Events of Default. 70
Section 7.2 Acceleration; Remedies. 72
ARTICLE VIII THE AGENT 73
Section 8.1 Appointment. 73
Section 8.2 Delegation of Duties. 73
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Section 8.3 Exculpatory Provisions. 73
Section 8.4 Reliance by Administrative Agent. 74
Section 8.5 Notice of Default. 74
Section 8.6 Non-Reliance on Administrative Agent and Other
Lenders. 74
Section 8.7 Indemnification. 75
Section 8.8 Administrative Agent in Its Individual Capacity. 75
Section 8.9 Successor Administrative Agent. 76
ARTICLE IX MISCELLANEOUS 76
Section 9.1 Amendments and Waivers. 76
Section 9.2 Notices. 78
Section 9.3 No Waiver; Cumulative Remedies. 79
Section 9.4 Survival of Representations and Warranties. 79
Section 9.5 Payment of Expenses and Taxes. 79
Section 9.6 Successors and Assigns; Participations; Purchasing
Lenders. 80
Section 9.7 Adjustments; Set-off. 83
Section 9.8 Table of Contents and Section Headings. 84
Section 9.9 Counterparts. 84
Section 9.10 Effectiveness. 84
Section 9.11 Severability. 84
Section 9.12 Integration. 85
Section 9.13 Governing Law. 85
Section 9.14 Consent to Jurisdiction and Service of Process. 85
Section 9.15 Confidentiality. 85
Section 9.16 Acknowledgments. 86
Section 9.17 Waivers of Jury Trial. 87
Section 9.18 USA Patriot Act Notice. 87
ARTICLE X GUARANTY 87
Section 10.1 The Guaranty. 87
Section 10.2 Bankruptcy. 88
Section 10.3 Nature of Liability. 88
Section 10.4 Independent Obligation. 88
Section 10.5 Authorization. 88
Section 10.6 Reliance. 89
Section 10.7 Waiver. 89
Section 10.8 Limitation on Enforcement. 90
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Schedules
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Schedule 1.1-A Form of Account Designation Letter
Schedule 1.1-B Permitted Liens
Schedule 2.1(a) Schedule of Lenders and Commitments
Schedule 2.1(b)(i) Form of Notice of Borrowing
Schedule 2.1(e) Form of Revolving Note
Schedule 2.2(d) Form of Term Note
Schedule 2.4(d) Form of Swingline Note
Schedule 2.10 Form of Notice of Conversion/Extension
Schedule 2.18 Form of Section 2.18 Certificate
Schedule 3.13 Subsidiaries
Schedule 3.20 Brokers' Fees
Schedule 3.2 1 Labor Matters
Schedule 3.24 Material Contracts
Schedule 3.25 Insurance
Schedule 4.1(b) Form of Secretary's Certificate
Schedule 4.2(f) Form of Solvency Certificate
Schedule 5.10 Form of Joinder Agreement
Schedule 6.1(b) Indebtedness
Schedule 6.5 Existing Investments
Schedule 9.2 Lenders' Lending Offices
Schedule 9.6(c) Form of Commitment Transfer Supplement
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This CREDIT AGREEMENT is entered into as of December 17, 2003 by and among
INTERMAGNETICS GENERAL CORPORATION, a New York corporation (the "Borrower")
those Domestic Subsidiaries of the Borrower identified as a "Guarantor" on the
signature pages hereto and such other Domestic Subsidiaries of the Borrower as
may from time to time become a party hereto (collectively, the "Guarantors"),
the several banks and other financial institutions as may from time to time
become parties to this Credit Agreement (collectively, the "Lenders"; and
individually, a "Lender"), and WACHOVIA BANK, NATIONAL ASSOCIATION, as
administrative agent for the Lenders hereunder (in such capacity, the
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders make loans and other
financial accommodations to the Borrower in the amount of up to $100,000,000, as
more particularly described herein; and
WHEREAS, the Lenders have agreed to make such loans and other financial
accommodations to the Borrower on the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms.
As used in this Credit Agreement, terms defined in the preamble to this
Credit Agreement have the meanings therein indicated, and the following terms
have the following meanings:
"Account Designation Letter" shall mean the Notice of Account Designation
Letter dated as of the Funding Date from the Borrower to the Administrative
Agent substantially in the form attached hereto as Schedule 1.1-A.
"Acquired Company" shall mean Invivo Corporation, a Delaware corporation.
"Acquisition" shall mean the purchase of the outstanding Capital Stock of
the Acquired Company by the Borrower or a Subsidiary of the Borrower pursuant to
the Acquisition Documents.
"Acquisition Documents" shall mean that certain Agreement and Plan of
Merger, dated as of December 17, 2003, among Magic Subsidiary Corporation, a
Delaware corporation (a
wholly owned Subsidiary of the Borrower), and the Acquired Company, including
all schedules and exhibits hereto and as amended, modified or supplemented from
time to time.
"Act" shall have the meaning set forth in Section 9.18.
"Additional Credit Party" shall mean each Person that becomes a Guarantor
by execution of a Joinder Agreement in accordance with Section 5.10.
"Administrative Agent" shall have the meaning set forth in the first
paragraph of this Credit Agreement and any successors in such capacity.
"Affiliate" shall mean as to any Person, any other Person (excluding any
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person. For purposes of this definition, a
Person shall be deemed to be "controlled by" a Person if such Person possesses,
directly or indirectly, power either (a) to vote ten percent (10%) or more of
the securities having ordinary voting power for the election of directors of
such Person or (b) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Aggregate Revolving Committed Amount" shall have the meaning set forth in
Section 2.1.
"Alternate Base Rate" shall mean, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. For purposes hereof:
"Prime Rate" shall mean, at any time, the rate of interest per amum publicly
announced from time to time by Wachovia at its principal office in Charlotte,
North Carolina as its prime rate. Each change in the Prime Rate shall be
effective as of the opening of business on the day such change in the Prime Rate
occurs. The parties hereto acknowledge that the rate announced publicly by
Wachovia as its Prime Rate is an index or base rate and shall not necessarily be
its lowest or best rate charged to its customers or other banks; and "Federal
Funds Effective Rate" shall mean, for any day, the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not so
published on the next succeeding Business Day, the average of the quotations for
the day of such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it. If for any reason
the Administrative Agent shall have determined (which determination shall be
conclusive in the absence of manifest error) that it is unable to ascertain the
Federal Funds Effective Rate, for any reason, including the inability or failure
of the Administrative Agent to obtain sufficient quotations in accordance with
the terms thereof, the Alternate Base Rate shall be determined without regard to
clause (b) of the first sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the opening of business on the date of such
change.
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"Alternate Base Rate Loan" shall mean a Loan that bears interest at an
interest rate based on the Alternate Base Rate.
"Applicable Percentage" shall mean, for any day, the rate per annum set
forth below opposite the applicable level then in effect:
APPLICABLE PERCENTAGE FOR APPLICABLE PERCENTAGE FOR
CONSOLIDATED ALTERNATE BASE RATE LIBOR RATE
LEVEL LEVERAGE RATIO LOANS LOANS COMMITMENT FEE
----- ----------------- ------------------------- ------------------------- --------------
I < 1.00 to 1.0 0.00% 0.75% 0.20%
II >= 1.00 to 1.0 0.00% 1.00% 0.25%
but < 1.50 to 1.0
III >= 1.50 to 1.0 0.50% 1.50% 0.30%
but < 2.00 to 1.0
IV >= 2.00 to 1.0 0.75% 1.75% 0.375%
The Applicable Percentage shall be determined and adjusted quarterly on
the date five (5) Business Days after the date on which the Administrative
Agent has received from the Borrower the quarterly financial information and
certifications required to be delivered to the Administrative Agent and the
Lenders in accordance with the provisions of Sections 5.1(b) and 5.2(b) pursuant
to which the Borrower notifies the Administrative Agent of a change in the
applicable pricing level based on the financial information contained therein
(each an "Interest Determination Date"). Such Applicable Percentage shall be
effective from such Interest Determination Date until the next such Interest
Determination Date. The initial Applicable Percentages shall be based on Level
III from the Funding Date through the end of the second complete fiscal quarter
following the Funding Date. If the Borrower shall fail to provide the quarterly
financial information and certifications in accordance with the provisions of
Sections 5.1(b) and 5.2(b), the Applicable Percentage from such Interest
Determination Date shall, on the date five (5) Business Days after the date by
which the Borrower was so required to provide such financial information and
certifications to the Administrative Agent and the Lenders, be based on Level IV
until such time as such information and certifications are provided, whereupon
the Level shall be determined by the then current Consolidated Leverage Ratio.
"Arranger" shall mean Wachovia Capital Markets, LLC.
"Asset Disposition" shall mean the disposition of any or all of the assets
(including, without limitation, the Capital Stock of a Subsidiary or any
ownership interest in a joint venture) of any Credit Party or any Subsidiary
whether by sale, lease, transfer or otherwise. The term "Asset Disposition"
shall not include (a) Specified Sales, (b) the sale, lease or transfer of assets
permitted by Section 6.4(a)(iii) or (iv) hereof, or (c) any Equity Issuance.
"Bankruptcy Code" shall mean the Bankruptcy Code in Title 11 of the United
States Code, as amended, modified, succeeded or replaced from time to time.
"Borrower" shall have the meaning set forth in the first paragraph of this
Credit Agreement.
"Borrowing Date" shall mean, in respect of any Loan, the date such Loan is
made.
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"Business" shall have the meaning set forth in Section 3.1l(b).
"Business Day" shall mean a day other than a Saturday, Sunday or other day
on which commercial banks in Charlotte, North Carolina or New York, New York are
authorized or required by law to close; provided, however, that when used in
connection with a rate determination, borrowing or payment in respect of a LIBOR
Rate Loan, the term "Business Day" shall also exclude any day on which banks in
London, England are not open for dealings in Dollar deposits in the London
interbank market.
"Capital Lease" shall mean any lease of property, real or personal, the
obligations with respect to which are required to be capitalized on a balance
sheet of the lessee in accordance with GAAP.
"Capital Stock" shall mean (a) in the case of a corporation, capital
stock, (b) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (c) in the case of a partnership, partnership interests (whether
general or limited), (d) in the case of a limited liability company, membership
interests and (e) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" shall mean (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition ("Government Obligations"), (b)
U.S. dollar denominated (or foreign currency fully hedged) time deposits,
certificates of deposit, Eurodollar time deposits and Eurodollar certificates of
deposit of (y) any domestic commercial bank of recognized standing having
capital and surplus in excess of $250,000,000 or (z) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof or
from Xxxxx'x is at least P-1 or the equivalent thereof (any such bank being an
"Approved Bank"), in each case with maturities of not more than 364 days from
the date of acquisition, (c) commercial paper and variable or fixed rate notes
issued by any Approved Bank (or by the parent company thereof) or any variable
rate notes issued by, or guaranteed by any domestic corporation rated A-1 (or
the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or
better by Moody's and maturing within six months of the date of acquisition, (d)
repurchase agreements with a bank or trust company (including a Lender) or a
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, (e) obligations of any state of the United States or any
political subdivision thereof for the payment of the principal and redemption
price of and interest on which there shall have been irrevocably deposited
Government Obligations maturing as to principal and interest at times and in
amounts sufficient to provide such payment, and (f) auction preferred stock
rated in the highest short-term credit rating category by S&P or Moody's.
"Change of Control" shall mean (a) any Person or two or more Persons
acting in concert shall have acquired "beneficial ownership," directly or
indirectly, of, or shall have acquired by
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contract or otherwise, or shall have entered into a contract or arrangement
that, upon consummation, will result in its or their acquisition of, or control
over, Voting Stock of the Borrower (or other securities convertible into such
Voting Stock) representing 30% or more of the combined voting power of all
Voting Stock of the Borrower, or (b) the Continuing Directors shall cease for
any reason to constitute a majority of the members of the board of directors of
the Borrower then in office. As used herein, "beneficial ownership" shall have
the meaning provided in Rule 13d-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934.
"Closing Date" shall mean the date of this Credit Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment" shall mean the Revolving Commitment, the LOC Commitment, the
Swingline Commitment and the Term Loan Commitment, individually or collectively,
as appropriate.
"Commitment Fee" shall have the meaning set forth in Section 2.5(a).
"Commitment Percentage" shall mean the Revolving Commitment Percentage,
the LOC Commitment Percentage and/or the Term Loan Commitment Percentage, as
appropriate.
"Commitment Period" shall mean the period from and including the Funding
Date to but not including the Maturity Date.
"Commitment Transfer Supplement" shall mean a Commitment Transfer
Supplement, substantially in the form of Schedule 9.6(c).
"Commonly Controlled Entity" shall mean an entity, whether or not
incorporated, which is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group which includes the Borrower and
which is treated as a single employer under Section 4 14 of the Code.
"Consolidated Capital Expenditures" shall mean, for any period, all
capital expenditures of the Borrower and its Subsidiaries on a consolidated
basis for such period, as determined in accordance with GAAP. The term
"Consolidated Capital Expenditures" shall not include capital expenditures in
respect of the reinvestment of proceeds derived from Recovery Events received
by the Borrower and its Subsidiaries to the extent that such reinvestment is
permitted under the Credit Documents.
"Consolidated EBITDA" shall mean, as of any date for the four fiscal
quarter period ending on such date with respect to the Borrower and its
Subsidiaries on a consolidated basis, the sum of (a) Consolidated Net Income,
plus (b) an amount which, in the determination of Consolidated Net Income, has
been deducted for (i) Consolidated Interest Expense, (ii) total federal, state,
local and foreign income, value added and similar taxes and (iii) depreciation
and amortization expense, all as determined in accordance with GAAP.
5
"Consolidated Fixed Charge Coverage Ratio" shall mean, as of the end of
each fiscal quarter of the Borrower for the four fiscal quarter period ending on
such date with respect to the Borrower and its Subsidiaries on a consolidated
basis, the ratio of (a) Consolidated EBITDA for the applicable period minus
Consolidated Capital Expenditures for the applicable period to (b) the sum of
Consolidated Interest Expense for the applicable period plus Scheduled Funded
Debt Payments for the applicable period plus cash taxes paid during the
applicable period. Notwithstanding the foregoing, for purposes of calculating
the Consolidated Fixed Charge Coverage Ratio for the first three complete fiscal
quarters to occur after the Closing Date, the Consolidated Fixed Charge Coverage
Ratio shall be determined by annualizing the components of the denominator
thereof such that for the first complete fiscal quarter to occur after the
Closing Date such components would be multiplied by four (4), the first two
complete fiscal quarters would be multiplied by two (2) and the first three
complete fiscal quarters would be multiplied by one and one-third (1 1/3).
"Consolidated Interest Expense" shall mean, for any period, all cash
interest expense of the Borrower and its Subsidiaries (including, without
limitation, the interest component under Capital Leases), as determined in
accordance with GAAP. For purposes hereof, Consolidated Interest Expense for the
first three complete fiscal quarters to occur after the Closing Date shall be
determined by annualizing Consolidated Interest Expense such that for the first
complete fiscal quarter to occur after the Closing Date such components would be
multiplied by four (4), the first two complete fiscal quarters would be
multiplied by two (2) and the first three fiscal quarters would be multiplied by
one and one-third (1 1/3).
"Consolidated Leverage Ratio" shall mean, as of the end of any fiscal
quarter of the Borrower for the four fiscal quarter period ending on such date
with respect to the Borrower and its Subsidiaries on a consolidated basis, the
ratio of (a) Funded Debt of the Borrower and its Subsidiaries on a consolidated
basis on the last day of such period to (b) Consolidated EBITDA for such period.
"Consolidated Net Income" means, for the applicable period, net income of
the Borrower and its Subsidiaries on a consolidated basis, as determined in
accordance with GAAP. Unless expressly indicated otherwise, the applicable
period shall be for the four consecutive quarters ending on the date of
computation.
"Consolidated Net Worth" means, as of any date of computation, (a)
Consolidated Total Assets minus (b) the total liabilities of the Borrower and
its Subsidiaries on a consolidated basis as determined in accordance with GAAP.
"Consolidated Total Assets" means, on the date of computation, the amount
of total assets of the Borrower and its Subsidiaries, determined for the
Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP.
"Consolidated Working Capital" shall mean with respect to the Borrower and
its Subsidiaries on a consolidated basis, at any time, the excess of (a) current
assets at such time less cash and Cash Equivalents (b) current liabilities at
such time (excluding current maturities of long-term debt), all as determined in
accordance with GAAP.
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"Continuing Directors" shall mean either during any period of up to 24
consecutive months commencing after the Closing Date, individuals who at the
beginning of such 24 month period were directors of the Borrower (together with
any new director whose election by the Borrower's board of directors or whose
nomination for election by the Borrower's shareholders was approved by a vote of
at least two-thirds of the directors then still in office who either were
directors at the beginning of such period or whose election or nomination for
election was previously so approved).
"Contractual Obligation" shall mean, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Credit Agreement" shall mean this Credit Agreement, as amended, modified
or supplemented from time to time in accordance with its terms.
"Credit Documents" shall mean this Credit Agreement, each of the Notes,
any Joinder Agreement, the Letters of Credit, LOC Documents and all other
agreements, documents, certificates and instruments delivered to the
Administrative Agent or any Lender by any Credit Party in connection therewith
(other than any agreement, document, certificate or instrument related to a
Hedging Agreement).
"Credit Party" shall mean any of the Borrower and the Guarantors.
"Credit Party Obligations" shall mean, without duplication, (a) all of the
obligations of the Credit Parties to the Lenders (including the Issuing Lender)
and the Administrative Agent, whenever arising, under this Credit Agreement, the
Notes or any of the other Credit Documents (including, but not limited to, any
interest accruing after the occurrence of a filing of a petition of bankruptcy
under the Bankruptcy Code with respect to any Credit Party, regardless of
whether such interest is an allowed claim under the Bankruptcy Code) and (b) all
liabilities and obligations, whenever arising, of the Borrower or any of its
Subsidiaries to any Lender, or any Affiliate of a Lender, arising under any
Hedging Agreement permitted pursuant to Section 6.1.
"Debt Issuance" shall mean the issuance of any Indebtedness for borrowed
money by any Credit Party or any of its Subsidiaries (excluding, for purposes
hereof, any Equity Issuance or any Indebtedness of the Borrower and its
Subsidiaries permitted to be incurred pursuant to Section 6.1 hereof).
"Default" shall mean any of the events specified in Section 7.1, whether
or not any requirement for the giving of notice or the lapse of time, or both,
or any other condition, has been satisfied.
"Defaulting Lender" shall mean, at any time, any Lender that, at such time
(a) has failed to make a Loan required pursuant to the term of this Credit
Agreement, including the funding of a Participation Interest in accordance with
the terms hereof, (b) has failed to pay to the Administrative Agent or any
Lender an amount owed by such Lender pursuant to the terms of
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this Credit Agreement, or (c) has been deemed insolvent or has become subject to
a bankruptcy or insolvency proceeding or to a receiver, trustee or similar
official.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America.
"Domestic Lending Office" shall mean, initially, the office of each Lender
designated as such Lender's Domestic Lending Office shown on Schedule 9.2; and
thereafter, such other office of such Lender as such Lender may from time to
time specify to the Administrative Agent and the Borrower as the office of such
Lender at which Alternate Base Rate Loans of such Lender are to be made.
"Domestic Subsidiary" shall mean any Subsidiary that is organized and
existing under the laws of the United States or any state or commonwealth
thereof or under the laws of the District of Columbia.
"Environmental Laws" shall mean any and all applicable foreign, Federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority or other
Requirement of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health or the
environment, as now or may at any time be in effect during the term of this
Credit Agreement.
"Equity Issuance" shall mean any issuance by any Credit Party or any
Subsidiary to any Person which is not a Credit Party of (a) shares of its
Capital Stock, (b) any shares of its Capital Stock pursuant to the exercise of
options or warrants or (c) any shares of its Capital Stock pursuant to the
conversion of any debt securities to equity. The term "Equity Issuance" shall
not include any equity issued in connection with the Acquisition, any Asset
Disposition or any Debt Issuance.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurodollar Reserve Percentage" shall mean for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve requirement
(including without limitation any basic, supplemental or emergency reserves) in
respect of Eurocurrency liabilities, as defined in Regulation D of such Board as
in effect from time to time, or any similar category of liabilities for a member
bank of the Federal Reserve System in New York City.
"Excess Cash Flow" shall mean, with respect to any fiscal year period of
the Borrower and its Subsidiaries on a consolidated basis, an amount equal to
(a) Consolidated EBITDA for such period minus (b) Consolidated Capital
Expenditures for such period to the extent permitted hereunder minus (c)
Scheduled Funded Debt Payments made during such period minus (d) Consolidated
Interest Expense for such period minus (e) amounts paid in respect of federal,
state, local and foreign income, value added and similar taxes with respect to
such period minus
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(f) increases (or plus decreases) in Consolidated Working Capital for such
period from the prior period.
"Event of Default" shall mean any of the events specified in Section 7.1;
provided, however, that any requirement for the giving of notice or the lapse of
time, or both, or any other condition, has been satisfied.
"Extension of Credit" shall mean, as to any Lender, the making of a Loan
by such Lender or the issuance of, or participation in, a Letter of Credit by
such Lender.
"Federal Funds Effective Rate" shall have the meaning set forth in the
definition of "Alternate Base Rate".
"Fee Letter" shall mean the letter agreement dated November 11,2003
addressed to the Borrower from the Administrative Agent and the Arranger, as
amended, modified or otherwise supplemented.
"Funded Debt" shall mean, with respect to any Person, without duplication,
(a) all Indebtedness of such Person for borrowed money, (b) all obligations of
such Person evidenced by bonds, debentures, notes or similar instruments, or
upon which interest payments are customarily made, (c) all obligations of such
Person under conditional sale or other title retention agreements relating to
property purchased by such Person (other than customary reservations or
retentions of title under agreements with suppliers entered into in the ordinary
course of business), (d) all obligations of such Person incurred, issued or
assumed as the deferred purchase price of property or services purchased by such
Person (other than trade debt incurred in the ordinary course of business and
due within six months of the incurrence thereof) which would appear as
liabilities on a balance sheet of such Person and including, in any event,
earnout obligations, (e) the principal portion of all obligations of such Person
under Capital Leases, (f) all obligations of such Person under Hedging
Agreements, excluding any portion thereof which would be accounted for as
interest expense under GAAP, (g) the maximum face amount of all letters of
credit issued or bankers' acceptances facilities created for the account of such
Person and, without duplication, all drafts drawn thereunder (to the extent
unreimbursed), (h) all preferred Capital Stock issued by such Person and which
by the terms thereof could be (at the request of the holders thereof or
otherwise) subject to mandatory sinking fund payments, redemption or other
acceleration, (i) the principal balance outstanding under any synthetic lease,
tax retention operating lease, off-balance sheet loan or similar off-balance
sheet financing product, (j) all Indebtedness of others of the type described in
clauses (a) through (i) hereof secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on, or payable out of the proceeds of production from, property owned
or acquired by such Person, whether or not the obligations secured thereby have
been assumed, (k) all Guaranty Obligations of such Person with respect to
Indebtedness of another Person of the type described in clauses (a) through (i)
hereof, and (1) all Indebtedness of the type described in clauses (a) through
(i) hereof of any partnership or unincorporated joint venture in which such
Person is a general partner or a joint venturer; provided, however, that Funded
Debt shall not include Indebtedness among the Credit Parties to the extent such
Indebtedness would be eliminated on a Consolidated basis.
9
"Funding Date" shall mean the date upon which all conditions precedent to
funding under Section 4.2 shall have been satisfied, and the initial Extensions
of Credit are made hereunder, which, in any event, shall occur no later than
January 30,2004.
"GAAP" shall mean generally accepted accounting principles in effect in
the United States of America applied on a consistent basis, subject, however, in
the case of determination of compliance with the financial covenants set out in
Section 5.9 to the provisions of Section 1.3.
"Government Acts" shall have the meaning set forth in Section 2.19.
"Governmental Authority" shall mean any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guaranty Obligations" shall mean, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or collection)
guaranteeing or intended to guarantee any Indebtedness of any other Person in
any manner, whether direct or indirect, and including without limitation any
obligation, whether or not contingent, (a) to purchase any such Indebtedness or
any property constituting security therefor, (b) to advance or provide funds or
other support for the payment or purchase of any such Indebtedness or to
maintain working capital, solvency or other balance sheet condition of such
other Person (including without limitation keep well agreements, maintenance
agreements, comfort letters or similar agreements or arrangements) for the
benefit of any holder of Indebtedness of such other Person, (c) to lease or
purchase property, securities or services primarily for the purpose of assuring
the holder of such Indebtedness, or (d) to otherwise assure or hold harmless the
holder of such Indebtedness 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.
"Guarantor" shall mean any of the Domestic Subsidiaries identified as a
"Guarantor" on the signature pages hereto and the Additional Credit Parties
which execute a Joinder Agreement, together with their successors and permitted
assigns.
"Guaranty" shall mean the guaranty of the Guarantors set forth in Article
X.
"Hedging Agreements" shall mean, with respect to any Person, any agreement
entered into to protect such Person against fluctuations in interest rates, or
currency or raw materials values, including, without limitation, any interest
rate swap, cap or collar agreement or similar arrangement between such Person
and one or more counterparties, any foreign currency exchange agreement,
currency protection agreements, commodity purchase or option agreements or other
interest or exchange rate or commodity price hedging agreements.
"Indebtedness" shall mean, with respect to any Person, without
duplication, (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily
10
made, (c) all obligations of such Person under conditional sale or other title
retention agreements relating to property purchased by such Person (other than
customary reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business), (d) all obligations of such
Person issued or assumed as the deferred purchase price of property or services
purchased by such Person (other than trade debt incurred in the ordinary course
of business and due within six months of the incurrence thereof) which would
appear as liabilities on a balance sheet of such Person, (e) all obligations of
such Person under take-or-pay or similar arrangements or under commodities
agreements, (f) all Indebtedness of others secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on, or payable out of the proceeds of production from,
property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, (g) all Guaranty Obligations of such Person
with respect to Indebtedness of another Person, (h) the principal portion of all
obligations of such Person under Capital Leases plus any accrued interest
thereon, (i) all obligations of such Person under Hedging Agreements, (j) the
maximum amount of all letters of credit issued or bankers' acceptances
facilities created for the account of such Person and, without duplication, all
drafts drawn thereunder (to the extent unreimbursed), (k) all preferred Capital
Stock issued by such Person and which by the terms thereof could be (at the
request of the holders thereof or otherwise) subject to mandatory sinking fund
payments, redemption or other acceleration, (1) the principal balance
outstanding under any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product plus any
accrued interest thereon, and (m) the Indebtedness of any partnership or
unincorporated joint venture in which such Person is a general partner or a
joint venturer.
"Insolvency" shall mean, with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of such term as used in
Section 4245 of ERISA.
"Insolvent" shall mean being in a condition of Insolvency.
"Interest Determination Date" shall have the meaning assigned thereto in
the definition of "Applicable Percentage".
"Interest Payment Date" shall mean (a) as to any Alternate Base Rate Loan
or Swingline Loan, the last day of each March, June, September and December and
on the applicable Maturity Date, (b) as to any LIBOR Rate Loan having an
Interest Period of three (3) months or less, the last day of such Interest
Period, (c) as to any LIBOR Rate Loan having an Interest Period longer than
three (3) months, each day which is three (3) months after the first day of such
Interest Period and the last day of such Interest Period and (d) as to any
Alternate Base Rate Loan or LIBOR Rate Loan, the Maturity Date.
"Interest Period" shall mean, with respect to any LIBOR Rate Loan,
(a) initially, the period commencing on the Borrowing Date or
conversion date, as the case may be, with respect to such LIBOR Rate Loan
and ending one, two, three or six months thereafter, as selected by the
Borrower in the notice of borrowing or notice of conversion given with
respect thereto; and
11
(b) thereafter, each period commencing on the last day of the
immediately preceding Interest Period applicable to such LIBOR Rate Loan
and ending one, two, three or six months thereafter, as selected by the
Borrower by irrevocable notice to the Administrative Agent not less than
three (3) Business Days prior to the last day of the then current Interest
Period with respect thereto;
provided that the foregoing provisions are subject to the
following:
(i) if any Interest Period pertaining to a LIBOR Rate Loan
would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business
Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(ii) any Interest Period pertaining to a LIBOR Rate Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of the relevant calendar month;
(iii) if the Borrower shall fail to give notice as provided
above, the Borrower shall be deemed to have selected an Alternate
Base Rate Loan to replace the affected LIBOR Rate Loan;
(iv) any Interest Period in respect of any Loan that would
otherwise extend beyond the applicable Maturity Date and, further
with regard to the Term Loans, no Interest Period shall extend
beyond any principal amortization payment date unless the portion of
such Term Loan consisting of Alternate Base Rate Loans together with
the portion of such Term Loan consisting of LIBOR Rate Loans with
Interest Periods expiring prior to or concurrently with the date
such principal amortization payment date is due, is at least equal
to the amount of such principal amortization payment due on such
date; and
(v) no more than six (6) LIBOR Rate Loans may be in effect at
any time. For purposes hereof, LIBOR Rate Loans with different
Interest Periods shall be considered as separate LIBOR Rate Loans,
even if they shall begin on the same date and have the same
duration, although borrowings, extensions and conversions may, in
accordance with the provisions hereof, be combined at the end of
existing Interest Periods to constitute a new LIBOR Rate Loan with a
single Interest Period.
"Investment" shall mean any investment, in cash or by delivery of property
made, directly or indirectly in or to any Person, whether by acquisition of
shares of Capital Stock, property, assets, indebtedness or other obligations or
securities or by loan advance, capital contribution or otherwise.
"Issuing Lender" shall mean Wachovia.
12
"Issuing Lender Fees" shall have the meaning set forth in Section 2.5(c).
"Joinder Agreement" shall mean a Joinder Agreement substantially in the
form of Schedule 5.10, executed and delivered by an Additional Credit Party in
accordance with the provisions of Section 5.10.
"Lender" shall have the meaning set forth in the first paragraph of this
Credit Agreement.
"Letters of Credit" shall mean any letter of credit issued by the Issuing
Lender pursuant to the terms hereof, as such Letters of Credit may be amended,
modified, extended, renewed or replaced from time to time.
"Letter of Credit Fee" shall have the meaning set forth in Section 2.5(b).
"LIBOR" shall mean, for any LIBOR Rate Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as the
London interbank offered rate for deposits in Dollars at approximately 11:00
A.M. (London time) two (2) Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any reason such
rate is not available, the term "LIBOR" shall mean, for any LIBOR Rate Loan for
any Interest Period therefor, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00 A.M.
(London time) two (2) Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided, however, if more
than one rate is specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates (rounded upwards, if necessary,
to the nearest 1/100 of 1%). If, for any reason, neither of such rates is
available, then "LIBOR" shall mean the rate per annum at which, as determined by
the Administrative Agent, Dollars in an amount comparable to the Loans then
requested are being offered to leading banks at approximately 11:00 A.M. London
time, two (2) Business Days prior to the commencement of the applicable Interest
Period for settlement in immediately available funds by leading banks in the
London interbank market for a period equal to the Interest Period selected.
"LIBOR Lending Office" shall mean, initially, the office of each Lender
designated as such Lender's LIBOR Lending Office shown on Schedule 9.2; and
thereafter, such other office of such Lender as such Lender may from time to
time specify to the Administrative Agent and the Borrower as the office of such
Lender at which the LIBOR Rate Loans of such Lender are to be made.
"LIBOR Rate" shall mean a rate per annum (rounded upwards, if necessary,
to the next higher 1/100th of 1%) determined by the Administrative Agent
pursuant to the following formula:
LIBOR Rate = LIBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
13
"LIBOR Rate Loan" shall mean Loans the rate of interest applicable to
which is based on the LIBOR Rate.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any Capital Lease having
substantially the same economic effect as any of the foregoing).
"Loan" shall mean a Revolving Loan, a Swingline Loan and/or the Term Loan,
as appropriate.
"LOC Commitment" shall mean the commitment of the Issuing Lender to issue
Letters of Credit and with respect to each Revolving Lender, the commitment of
such Revolving Lender to purchase participation interests in the Letters of
Credit up to such Revolving Lender's LOC Committed Amount as specified in
Schedule 2.l(a), as such amount may be reduced from time to time in accordance
with the provisions hereof.
"LOC Commitment Percentage" shall mean, for each Revolving Lender, the
percentage identified as its LOC Commitment Percentage on Schedule 2.l(a), as
such percentage may be modified in connection with any assignment made in
accordance with the provisions of Section 9.6(c).
"LOC Committed Amount" shall mean, collectively, the aggregate amount of
all of the LOC Commitments of the Revolving Lenders to issue and participate in
Letters of Credit as referenced in Section 2.3 and, individually, the amount of
each Revolving Lender's LOC Commitment as specified in Schedule 2.1(a).
"LOC Documents" shall mean, with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in connection
therewith, any application therefor, and any agreements, instruments, guarantees
or other documents (whether general in application or applicable only to such
Letter of Credit) governing or providing for (a) the rights and obligations of
the parties concerned or (b) any collateral security for such obligations.
"LOC Obligations" shall mean, at any time, the sum of (a) the maximum
amount which is, or at any time thereafter may become, available to be drawn
under Letters of Credit then outstanding, assuming compliance with all
requirements for drawings referred to in such Letters of Credit plus (b) the
aggregate amount of all drawings under Letters of Credit honored by the Issuing
Lender but not theretofore reimbursed.
"Mandatory Borrowing" shall have the meaning set forth in Section 2.3(e)
or Section 2.4(b)(ii), as the context may require.
"Margin Stock" shall have the meaning given such term in Regulation U of
the Board of Governors of the Federal Reserve System of the United States.
14
"Material Adverse Effect" shall mean a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or prospects
of any of the Borrower and its Subsidiaries taken as a whole, (b) the ability of
the Borrower or any Guarantor to perform its obligations, when such obligations
are required to be performed, under this Credit Agreement, any of the Notes or
any other Credit Document or (c) the validity or enforceability of this Credit
Agreement, any of the Notes or any of the other Credit Documents or the rights
or remedies of the Administrative Agent or the Lenders hereunder or thereunder.
"Material Contract" means any contract or other agreement set forth on
Schedule 3.24 and any other contract or agreement, whether written or oral, to
which any Credit Party or any of its Subsidiaries is a party as to which the
breach, nonperformance, cancellation or failure to renew by any party thereto
could reasonably be expected to have a Material Adverse Effect.
"Material Proceeding" shall mean any litigation, investigation or other
proceeding by or before any Governmental Authority (a) which involves any of the
Credit Documents or any of the transactions contemplated hereby or thereby, or
involves the Borrower or any of its Subsidiaries as a party or the property of
Borrower or any of its Subsidiaries, and could have a Material Adverse Effect if
adversely determined, (b) in which there has been issued an injunction, writ,
temporary restraining order or any other order of any nature which purports to
restrain or enjoin the making of any requested Extension of Credit, the
consummation of any other transaction contemplated by the Credit Documents, or
the enforceability of any provision of any of the Credit Documents, (c) which
involves the actual or alleged breach or violation by the Borrower or any of its
Subsidiaries of, or default by the Borrower or any of its Subsidiaries under,
any Material Contract or (d) which involves the actual or alleged violation by
the Borrower or any of its Subsidiaries of any applicable law.
"Materials of Environmental Concern" shall mean any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Maturity Date" shall mean the fifth anniversary of the Closing Date.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" shall mean a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean the aggregate cash proceeds received by any
Credit Party or any Subsidiary in respect of any Asset Disposition, Equity
Issuance or Debt Issuance, net of (a) direct costs (including, without
limitation, legal, accounting and investment banking fees, and sales
commissions) and (b) taxes paid or payable as a result thereof; it being
understood that "Net Cash Proceeds" shall include, without limitation, any cash
received upon the sale or other disposition of any non-cash consideration
received by any Credit Party or any Subsidiary in any Asset Disposition, Equity
Issuance or Debt Issuance.
15
"Note" or "Notes" shall mean the Revolving Notes, the Swingline Note
and/or the Term Notes, collectively, separately or individually, as appropriate.
"Notice of Borrowing" shall mean the written notice of borrowing as
referenced and defined in Section 2.1(b)(i) or 2.4(b)(i), as appropriate.
"Notice of Conversion" shall mean the written notice of extension or
conversion as referenced and defined in Section 2.10.
"Obligations" shall mean, collectively, Loans and LOC Obligations.
"Participant" shall have the meaning set forth in Section 9.6(b).
"Participation Interest" shall mean the purchase by a Revolving Lender of
a participation interest in Letters of Credit as provided in Section 2.3 and in
Swingline Loans as provided in Section 2.4.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Acquisition" shall mean an acquisition or any series of related
acquisitions by a Credit Party of the assets or all of the Capital Stock of a
Person that is incorporated, formed or organized in the United States or any
division, line of business or other business unit of a Person that is
incorporated, formed or organized in the United States (such Person or such
division, line of business or other business unit of such Person referred to
herein as the "Target"), in each case that is in the same line of business (or
assets used in the same line of business) as the Credit Parties and their
Subsidiaries, so long as (a) no Default or Event of Default shall then exist or
would exist after giving effect thereto, (b) the Credit Parties shall have
complied with the documentation requirements for a Permitted Acquisition as set
forth in Section 5.2(f), (c) the Credit Parties shall demonstrate to the
reasonable satisfaction of the Administrative Agent and the Required Lenders
that the Credit Parties will be in compliance on a pro forma basis with all of
the terms and provisions of the financial covenants set forth in Section 5.9,
(d) the Target, if a Person, shall have executed a Joinder Agreement in
accordance with the terms of Section 5.10, (e) the Target has earnings before
interest, taxes, depreciation and amortization for the four fiscal quarter prior
to the acquisition date in an amount greater than $0, (f) such acquisition is
not a "hostile" acquisition and has been approved by the Board of Directors
and/or shareholders of the applicable Credit Party and the Target, (g) after
giving effect to such acquisition, the unused availability under the Aggregate
Revolving Committed Amount shall be greater than or equal to $15,000,000 and (h)
the total consideration (including, without limitation, assumed liabilities,
earnout payments and any other deferred payment) for the assets, Capital Stock,
division, line of business or other business unit acquired in all such
acquisition or series of related acquisitions shall not exceed $50,000,000,
individually or in the aggregate with all other acquisitions made by the Credit
Parties during the term of this Credit Agreement.
16
"Permitted Investments" shall mean:
(a) cash and Cash Equivalents;
(b) receivables owing to the Borrower or any of its Subsidiaries or any
receivables and advances to suppliers, in each case if created, acquired or made
in the ordinary course of business and payable or dischargeable in accordance
with customary trade terms;
(c) Investments in and loans to any Credit Parties;
(d) Investments in and loans to Subsidiaries of the Borrower that are not
Guarantors in an aggregate amount not to exceed $1,000,000 at any time
outstanding solely for the purpose of purchasing third party debt obligations;
(e) loans and advances to employees (other than any officer or director)
of the Borrower or its Subsidiaries, other than employee advances in the
ordinary course and/or other loans or advances to employees in an aggregate
amount not to exceed $250,000 at any time outstanding;
(f) Investments (including debt obligations) received in connection with
the bankruptcy or reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business;
(g) Investments, acquisitions or transactions permitted under Section
6.4(b);
(h) Hedging Agreements entered into by the Borrower to the extent
permitted pursuant to Section 6.1;
(i) Permitted Acquisitions;
(j) Investments of the Borrower existing as of the Closing Date and set
forth on Schedule 6.5; and
(k) other Investments in addition to those permitted by the foregoing
clauses in an aggregate amount not to exceed $2,500,000 at any time outstanding.
"Permitted Liens" shall mean:
(a) Liens created by or otherwise existing, under or in connection with
this Credit Agreement or the other Credit Documents in favor of the Lenders;
(b) purchase money Liens securing purchase money indebtedness (and
refinancings thereof) to the extent permitted under Section 6.l(c);
17
(c) Liens for taxes, assessments, charges or other governmental levies not
yet due or as to which the period of grace (not to exceed sixty (60) days), if
any, related thereto has not expired or which are being contested in good faith
by appropriate proceedings, provided that adequate reserves with respect thereto
are maintained on the books of the Borrower or its Subsidiaries, as the case may
be, in conformity with GAAP (or, in the case of Subsidiaries with significant
operations outside of the United States of America, generally accepted
accounting principles in effect from time to time in their respective
jurisdictions of incorporation);
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business which are not
overdue for a period of more than sixty (60) days or which are being contested
in good faith by appropriate proceedings;
(e) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(f) deposits to secure the performance of bids, trade contracts, (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(g) any extension, renewal or replacement (or successive extensions,
renewals or replacements) ,in whole or in part, of any Lien referred to in the
foregoing clauses; provided that such extension, renewal or replacement Lien
shall be limited to all or a part of the property which secured the Lien so
extended, renewed or replaced (plus improvements on such property);
(h) Liens existing on the Closing Date and set forth on Schedule 1.1-B;
provided that (a) no such Lien shall at any time be extended to cover property
or assets other than the property or assets subject thereto on the Closing Date
and (b) the principal amount of the Indebtedness secured by such Liens shall not
be extended, renewed, refunded or refinanced;
(i) Liens arising in connection with Capital Leases to the extent
permitted under Section 6.1(c);
(j) Liens on Margin Stock held by the Borrower or any Subsidiary in favor
of any Person other than the Lenders; and
(k) other Liens in addition to those permitted by the foregoing clauses
securing Indebtedness in an aggregate amount not to exceed $2,500,000 at any
time outstanding.
18
"Person" shall mean an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Plan" shall mean, at any particular time, any employee benefit plan which
is covered by Title IV of ERISA and in respect of which the Borrower or a
Commonly Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Prime Rate" shall have the meaning set forth in the definition of
Alternate Base Rate.
"Pro Forma EBITDA" shall mean Consolidated EBITDA of the Borrower and its
Subsidiaries (including the Acquired Company and its Subsidiaries) after giving
effect to the Acquisition for the twelve month period ending on the Funding
Date.
"Properties" shall have the meaning set forth in Section 3.11(a).
"Purchasing Lenders" shall have the meaning set forth in Section 9.6(c).
"Recovery Event" shall mean the receipt by the Borrower or any of its
Subsidiaries of any cash insurance proceeds or condemnation award payable by
reason of theft, loss, physical destruction or damage, taking or similar event
with respect to any of their respective property or assets.
"Register" shall have the meaning set forth in Section 9.6(d).
"Related Fund" shall mean, with respect to any Lender or other Person who
invests in commercial bank loans in the ordinary course of business, any other
fund or trust or entity that invests in commercial bank loans in the ordinary
course of business and is advised or managed by such Lender or other Persons or
the same investment advisor as such Lender or by an Affiliate of such Lender or
investment advisor.
"Reorganization" shall mean, with respect to any Multiemployer Plan, the
condition that such Plan is in reorganization within the meaning of such term as
used in Section 4241 of ERISA.
"Reportable Event" shall mean any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty-day notice
period is waived under PBGC Reg. Section 4043.
"Required Lenders" shall mean Lenders holding in the aggregate greater
than 50% of (a) the Commitments (and Participation Interests therein) or (b) if
the Commitments have been terminated, the outstanding Loans and Participation
Interests (including the Participation Interests of the Issuing Lender in any
Letters of Credit and of the Swingline Lender in Swingline Loans) 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, Obligations
(including
19
Participation Interests) owing to such Defaulting Lender and such Defaulting
Lender's Commitments, or after termination of the Commitments, the principal
balance of the Obligations owing to such Defaulting Lender.
"Requirement of Law" shall mean, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and each law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer" shall mean, as to (a) the Borrower, any of the
President, the Chief Executive Officer or the Chief Financial Officer or (b) any
other Credit Party, any duly authorized officer thereof.
"Restricted Payment" shall mean (a) any dividend or other distribution,
direct or indirect, on account of any shares of any class of Capital Stock of
the Borrower or any of its Subsidiaries, now or hereafter outstanding, (b) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of Capital
Stock of the Borrower or any of its Subsidiaries, now or hereafter outstanding,
(c) any payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of Capital
Stock of the Borrower or any of its Subsidiaries, now or hereafter outstanding,
(d) any payment with respect to any earnout obligation or (e) any payment or
prepayment of principal of, premium, if any, or interest on, redemption,
purchase, retirement, defeasance, sinking fund or similar payment with respect
to, any Subordinated Debt.
"Revolving Commitment" shall mean, with respect to each Revolving Lender,
the commitment of such Revolving Lender to make Revolving Loans in an aggregate
principal amount at any time outstanding up to such Revolving Lender's Revolving
Committed Amount.
"Revolving Commitment Percentage" shall mean, for each Revolving Lender,
the percentage identified as its Revolving Commitment Percentage on Schedule
2.1(a), as such percentage may be modified in connection with any assignment
made in accordance with the provisions of Section 9.6(c).
"Revolving Committed Amount" shall mean the amount of each Revolving
Lender's Revolving Commitment as specified on Schedule 2.l(a), as such amount
may be reduced from time to time in accordance with the provisions hereof.
"Revolving Lender" shall mean, as of any date of determination, each
Lender with a Revolving Commitment greater than $0.
"Revolving Loans" shall have the meaning set forth in Section 2.1.
"Revolving Note" or "Revolving Notes" shall mean the promissory notes of
the Borrower in favor of each of the Revolving Lenders evidencing the Revolving
Loans provided pursuant to
20
Section 2.1(e), individually or collectively, as appropriate, as such promissory
notes may be amended, modified, supplemented, extended, renewed or replaced from
time to time.
"S&P" shall mean Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc.
"Scheduled Funded Debt Payments" shall mean, as of any date of
determination for the Borrower and its Subsidiaries, the sum of all scheduled
payments of principal on Funded Debt for the applied period ending on the date
of determination (including the principal component of payments due on Capital
Leases during the applicable period ending on the date of determination).
"Single Employer Plan" shall mean any Plan which is not a Multiemployer
Plan.
"Specified Sales" shall mean (a) the sale, transfer, lease or other
disposition of inventory and materials in the ordinary course of business and
(b) the sale, transfer or other disposition of Permitted Investments described
in clause (i) of the definition thereof.
"Subordinated Debt" shall mean any Indebtedness incurred by any Credit
Party which by its terms is specifically subordinated in right of payment to the
prior payment of the Credit Party Obligations.
"Subsidiary" shall mean, as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Credit Agreement shall
refer to a Subsidiary or Subsidiaries of the Borrower.
"Swingline Commitment" shall mean the commitment of the Swingline Lender
to make Swingline Loans in an aggregate principal amount at any time outstanding
up to the Swingline Committed Amount, and the commitment of the Revolving
Lenders to purchase participation interests in the Swingline Loans as provided
in Section2.4(b)(ii), as such amounts may be reduced from time to time in
accordance with the provisions hereof.
"Swingline Committed Amount" shall mean the amount of the Swingline
Lender's Swingline Commitment as specified in Section 2.4(a).
"Swingline Lender" shall mean Wachovia.
"Swingline Loan" or "Swingline Loans" shall have the meaning set forth in
Section 2.4(a).
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"Swingline Note" shall mean the promissory note of the Borrower in favor
of the Swingline Lender evidencing the Swingline Loans provided pursuant to
Section 2.4(d), as such promissory note may be amended, modified, supplemented,
extended, renewed or replaced from time to time.
"Target" shall have the meaning set forth in the definition of "Permitted
Acquisitions."
"Taxes" shall have the meaning set forth in Section 2.18.
"Term Loan" shall have the meaning set forth in Section 2.2(a).
"Term Loan Commitment" shall mean, with respect to each Term Loan Lender,
the commitment of such Term Loan Lender to make its portion of the Term Loan in
a principal amount equal to such Term Loan Lender's Term Loan Commitment
Percentage of the Term Loan Committed Amount (and for purposes of making
determinations of Required Lenders hereunder after the Funding Date, the
principal amount outstanding on the Term Loan).
"Term Loan Commitment Percentage" shall mean, for any Term Loan Lender,
the percentage identified as its Term Loan Commitment Percentage on Schedule
2.l(a), as such percentage may be modified in connection with any assignment
made in accordance with the provisions of Section 9.6.
"Term Loan Committed Amount" shall have the meaning set forth in Section
2.2(a).
"Term Loan Lender" shall mean, as of any date of determination, each
Lender that holds a portion of the outstanding Term Loan.
"Term Note" or "Term Notes" shall mean the promissory notes of the
Borrower in favor of each of the Term Loan Lenders evidencing the portion of the
Term Loan provided pursuant to Section 2.2(d), individually or collectively, as
appropriate, as such promissory notes may be amended, modified, restated,
supplemented, extended, renewed or replaced from time to time.
"Tranche" shall mean the collective reference to LIBOR Rate Loans whose
Interest Periods begin and end on the same day. A Tranche may sometimes be
referred to as a "LIBOR Tranche".
"Transfer Effective Date" shall have the meaning set forth in each
Commitment Transfer Supplement.
"2.18 Certificate" shall have the meaning set forth in Section 2.18.
"Voting Stock" shall mean, with respect to any Person, Capital Stock
issued by such Person the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons
performing similar functions) of such Person, even though the right so to vote
has been suspended by the happening of such a contingency.
22
"Wachovia" shall mean Wachovia Bank, National Association.
Section 1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this
Credit Agreement shall have the defined meanings when used in the Notes or
other Credit Documents or any certificate or other document made or
delivered pursuant hereto.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Credit Agreement shall refer to this
Credit Agreement as a whole and not to any particular provision of this
Credit Agreement, and Section, subsection, Schedule and Exhibit references
are to this Credit Agreement unless otherwise specified.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
Section 1.3 Accounting Terms.
Unless otherwise specified herein, all accounting terms used herein shall
be interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP applied on a basis consistent with the most recent audited
consolidated financial statements of the Borrower delivered to the Lenders;
provided that, if the Borrower shall notify the Administrative Agent that it
wishes to amend any covenant in Section 5.9 to eliminate the effect of any
change in GAAP on the operation of such covenant (or if the Administrative Agent
notifies the Borrower that the Required Lenders wish to amend Section 5.9 for
such purpose), then the Borrower's compliance with such covenant shall be
determined on the basis of GAAP in effect immediately before the relevant change
in GAAP became effective, until either such notice is withdrawn or such covenant
is amended in a manner satisfactory to the Borrower and the Required Lenders.
The Borrower shall deliver to the Administrative Agent and each Lender at
the same time as the delivery of any annual or quarterly financial statements
given in accordance with the provisions of Section 5.1, (i) a description in
reasonable detail of any material change in the application of accounting
principles employed in the preparation of such financial statements from those
applied in the most recently preceding quarterly or annual financial statements
as to which no objection shall have been made in accordance with the provisions
above and (ii) a reasonable estimate of the effect on the financial statements
on account of such changes in application.
Notwithstanding the above, the parties hereto acknowledge and agree that,
for purposes of all calculations made in determining compliance for any
applicable period with the financial covenants set forth in Section 5.9, after
consummation of any Permitted Acquisition or any acquisition by the Borrower or
the Acquired Company during the twelve month period prior to the Closing Date,
(i) income statement items and other balance sheet items (whether positive or
negative) attributable to the Target acquired in such transaction shall be
included in such
23
calculations to the extent relating to such applicable period, and (ii)
Indebtedness of a Target which is retired in connection with a Permitted
Acquisition shall be excluded from such calculations and deemed to have been
retired as of the first day of such applicable period.
ARTICLE II
THE LOANS; AMOUNT AND TERMS
Section 2.1 Revolving Loans.
(a) Revolving Commitment. During the Commitment Period, subject to the
terms and conditions hereof, each Revolving Lender severally agrees to make
revolving credit loans ("Revolving Loans") to the Borrower from time to time in
an aggregate principal amount of up to SEVENTY-FIVE MILLION DOLLARS
($75,000,000) (as such aggregate maximum amount may be reduced from time to time
as provided in Section 2.6, the "Aggregate Revolving Committed Amount") for the
purposes hereinafter set forth; provided, however, that (i) with regard to each
Revolving Lender individually, the sum of such Revolving Lender's share of
outstanding Revolving Loans plus such Revolving Lender's Revolving Commitment
Percentage of outstanding Swingline Loans plus such Revolving Lender's LOC
Commitment Percentage of LOC Obligations shall not exceed such Revolving
Lender's Revolving Committed Amount, and (ii) with regard to the Revolving
Lenders collectively, the sum of the outstanding Revolving Loans plus
outstanding Swingline Loans plus LOC Obligations shall not exceed the Aggregate
Revolving Committed Amount. Revolving Loans may consist of Alternate Base Rate
Loans or LIBOR Rate Loans, or a combination thereof, as the Borrower may
request, and may be repaid and reborrowed in accordance with the provisions
hereof. LIBOR Rate Loans shall be made by each Revolving Lender at its LIBOR
Lending Office and Alternate Base Rate Loans at its Domestic Lending Office.
(b) Revolving Loan Borrowings.
(i) Notice of Borrowing. The Borrower may request a Revolving Loan
borrowing by written notice (or telephone notice promptly confirmed in
writing which confirmation may be by fax) to the Administrative Agent not
later than 12:00 noon (New York time) on the Business Day prior to the
date of requested borrowing in the case of Alternate Base Rate Loans, and
on the third Business Day prior to the date of the requested borrowing in
the case of LIBOR Rate Loans. Each such request for borrowing shall be
irrevocable and shall specify (A) that a Revolving Loan is requested, (B)
the date of the requested borrowing (which shall be a Business Day), (C)
the aggregate principal amount to be borrowed, (D) whether the borrowing
shall be comprised of Alternate Base Rate Loans, LIBOR Rate Loans or a
combination thereof, and if LIBOR Rate Loans are requested, the Interest
Period(s) therefor. A form of Notice of Borrowing (a "Notice of
Borrowing") is attached as Schedule 2.1(b)(i). If the Borrower shall fail
to specify in any such Notice of Borrowing (I) an applicable Interest
Period in the case of a LIBOR Rate Loan, then such notice shall be deemed
to be a request for an Interest Period of one month, or (II) the type of
Revolving Loan requested, then such notice shall be deemed to
24
be a request for an Alternate Base Rate Loan hereunder. The Administrative
Agent shall give notice to each Revolving Lender promptly upon receipt of
each Notice of Borrowing, the contents thereof and each such Revolving
Lender's share thereof.
(ii) Minimum Amounts. Each Revolving Loan which is an Alternate Base
Rate Loan shall be in a minimum aggregate amount of $1,000,000 and in
integral multiples of $500,000 in excess thereof (or the remaining amount
of the Aggregate Revolving Committed Amount, if less). Each Revolving Loan
which is a LIBOR Rate Loan shall be in a minimum aggregate amount of
$2,000,000 and in integral multiples of $1,000,000 in excess thereof (or
the remaining amount of the Aggregate Revolving Committed Amount, if
less).
(iii) Advances. Each Revolving Lender will make its Revolving
Commitment Percentage of each Revolving Loan borrowing available to the
Administrative Agent for the account of the Borrower at the office of the
Administrative Agent specified in Schedule 9.2, or at such other office as
the Administrative Agent may designate in writing, by 12:00 noon (New York
time) on the date specified in the applicable Notice of Borrowing in
Dollars and in funds immediately available to the Administrative Agent.
Such borrowing will then be made available to the Borrower by the
Administrative Agent by crediting the account of the Borrower on the books
of such office with the aggregate of the amounts made available to the
Administrative Agent by the Revolving Lenders and in like funds as
received by the Administrative Agent.
(c) Repayment. The principal amount of all Revolving Loans shall be due
and payable in full on the Maturity Date.
(d) Interest. Subject to the provisions of Section 2.9, Revolving Loans
shall bear interest as follows:
(i) Alternate Base Rate Loans. During such periods as Revolving
Loans shall be comprised of Alternate Base Rate Loans, each such Alternate
Base Rate Loan shall bear interest at a per annum rate equal to the sum of
the Alternate Base Rate plus the Applicable Percentage; and
(ii) LIBOR Rate Loans. During such periods as Revolving Loans shall
be comprised of LIBOR Rate Loans, each such LIBOR Rate Loan shall bear
interest at a per annum rate equal to the sum of the LIBOR Rate plus the
Applicable Percentage.
Interest on Revolving Loans shall be payable in arrears on each Interest
Payment Date.
(e) Revolving Notes. Each Revolving Lender's Revolving Committed Amount
shall be evidenced by a duly executed promissory note of the Borrower to such
Revolving Lender in substantially the form of Schedule 2.1(e).
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Section 2.2 Term Loan Facility.
(a) Term Loan. Subject to the terms and conditions hereof and in reliance
upon the representations and warranties set forth herein, each Term Loan Lender
severally agrees to make available to the Borrower on the Funding Date such Term
Loan Lender's Term Loan Commitment Percentage of a term loan in Dollars (the
"Term Loan") in the aggregate principal amount of TWENTY-FIVE MILLION DOLLARS
($25,000,000) (the "Term Loan Committed Amount") for the purposes hereinafter
set forth. The Term Loan may consist of Alternate Base Rate Loans or LIBOR Rate
Loans, or a combination thereof, as the Borrower may request. The Borrower shall
request the initial Term Loan borrowing by written notice (or telephone notice
promptly confirmed in writing which confirmation may be by fax) to the
Administrative Agent not later than 12:00 noon (New York time) on (i) the
Business Day prior to the date of the requested borrowing if the initial Loans
shall be Alternate Base Rate Loans or (ii) three (3) Business Days prior to the
date of the requested borrowing if the initial Loans shall be LIBOR Rate Loans.
LIBOR Rate Loans shall be made by each Term Loan Lender at its LIBOR Lending
Office and Alternate Base Rate Loans at its Domestic Lending Office. Amounts
repaid on the Term Loan may not be reborrowed.
(b) Repayment of Term Loan. The principal amount of the Term Loan shall be
repaid in twenty (20) consecutive quarterly installments as follows, unless
accelerated sooner pursuant to Section 7.2:
Principal Amortization Term Loan
Payment Date Principal Amortization Payment
------------ ------------------------------
March 31,2004 $ 937,500
June 30,2004 $ 937,500
September 30,2004 $ 937,500
December 31,2004 $ 937,500
March 31,2005 $ 937,500
June 30,2005 $ 937,500
September 30,2005 $ 937,500
December 31,2005 $ 937,500
March 31,2006 $1,250,000
June 30,2006 $1,250,000
September 30,2006 $1,250,000
December 31,2006 $1,250,000
March 31,2007 $1,562,500
June 30,2007 $1,562,500
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September 30,2007 $1,562,500
December 31,2007 $1,562,500
March 31,2008 $1,562,500
June 30,2008 $1,562,500
September 30,2008 $1,562,500
December 31,2008 $1,562,500
(c) Interest on the Term Loan. Subject to the provisions of Section 2.9,
the Term Loan shall bear interest as follows:
(i) Alternate Base Rate Loans. During such periods as the Term Loan
shall be comprised of Alternate Base Rate Loans, each such Alternate Base
Rate Loan shall bear interest at a per annum rate equal to the sum of the
Alternate Base Rate plus the Applicable Percentage; and
(ii) LIBOR Rate Loans. During such periods as the Term Loan shall be
comprised of LIBOR Rate Loans, each such LIBOR Rate Loan shall bear
interest at a per annum rate equal to the sum of the LIBOR Rate plus the
Applicable Percentage.
Interest on the Term Loan shall be payable in arrears on each Interest
Payment Date.
(d) Term Notes. Each Term Loan Lender's Term Loan Commitment Percentage of
the Term Loan Committed Amount shall be evidenced by a duly executed promissory
note of the Borrower to such Term Loan Lender in substantially the form of
Schedule 2.2(d).
Section 2.3 Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions hereof and of the LOC
Documents, if any, and any other terms and conditions which the Issuing Lender
may reasonably require, during the Commitment Period the Issuing Lender shall
issue, and the Revolving Lenders shall participate in, Letters of Credit for the
account of the Borrower from time to time upon request in a form acceptable to
the Issuing Lender; provided, however, that (i) the aggregate amount of LOC
Obligations shall not at any time exceed TEN MILLION DOLLARS ($10,000,000) (the
"LOC Committed Amount"), (ii) the sum of outstanding Revolving Loans plus
outstanding Swingline Loans plus LOC Obligations shall not at any time exceed
the Aggregate Revolving Committed Amount (iii)all Letters of Credit shall be
denominated in U.S. Dollars and (iv) Letters of Credit shall be issued for
lawful corporate purposes and may be issued as standby letters of credit,
including in connection with workers' compensation and other insurance programs,
and trade letters of credit. Except as otherwise expressly agreed upon by all
the Revolving Lenders, no Letter of Credit shall have an original expiry date
more than twelve (12) months from the date of issuance; provided, however, so
long as no Default or Event of Default has occurred and is continuing and
subject to the other terms and conditions to the issuance of Letters of Credit
hereunder, the expiry dates of Letters of Credit may be extended annually or
27
periodically from time to time on the request of the Borrower or by operation of
the terms of the applicable Letter of Credit to a date not more than twelve (12)
months from the date of extension; provided, further, that no Letter of Credit,
as originally issued or as extended, shall have an expiry date extending beyond
the date that is thirty (30) days prior to the Maturity Date. Each Letter of
Credit shall comply with the related LOC Documents. The issuance and expiry date
of each Letter of Credit shall be a Business Day. Any Letters of Credit issued
hereunder shall be in a minimum original face amount of $100,000. Wachovia shall
be the Issuing Lender on all Letters of Credit issued after the Closing Date.
(b) Notice and Reports. The request for the issuance of a Letter of Credit
shall be submitted to the Issuing Lender at least five (5) Business Days prior
to the requested date of issuance. The Issuing Lender will promptly upon request
provide to the Administrative Agent for dissemination to the Lenders a detailed
report specifying the Letters of Credit which are then issued and outstanding
and any activity with respect thereto which may have occurred since the date of
any prior report, and including therein, among other things, the account party,
the beneficiary, the face amount, expiry date as well as any payments or
expirations which may have occurred. The Issuing Lender will further provide to
the Administrative Agent promptly upon request copies of the Letters of Credit.
The Issuing Lender will provide to the Administrative Agent promptly upon
request a summary report of the nature and extent of LOC Obligations then
outstanding.
(c) Participations. Each Revolving Lender upon issuance of a Letter of
Credit shall be deemed to have purchased without recourse a risk participation
from the Issuing Lender in such Letter of Credit and the obligations arising
thereunder and any collateral relating thereto, in each case in an amount equal
to its LOC Commitment Percentage of the obligations under such Letter of Credit
and shall absolutely, unconditionally and irrevocably assume, as primary obligor
and not as surety, and be obligated to pay to the Issuing Lender therefor and
discharge when due, its LOC Commitment Percentage of the obligations arising
under such Letter of Credit. Without limiting the scope and nature of each
Revolving Lender's participation in any Letter of Credit, to the extent that the
Issuing Lender has not been reimbursed as required hereunder or under any LOC
Document, each such Revolving Lender shall pay to the Issuing Lender its LOC
Commitment Percentage of such unreimbursed drawing in same day funds on the day
of notification by the Issuing Lender of an unreimbursed drawing pursuant to the
provisions of subsection(d) hereof. The obligation of each Revolving Lender to
so reimburse the Issuing Lender shall be absolute and unconditional and shall
not be affected by the occurrence of a Default, an Event of Default or any other
occurrence or event. Any such reimbursement shall not relieve or otherwise
impair the obligation of the Borrower to reimburse the Issuing Lender under any
Letter of Credit, together with interest as hereinafter provided.
(d) Reimbursement. In the event of any drawing under any Letter of Credit,
the Issuing Lender will promptly notify the Borrower and the Administrative
Agent. The Borrower shall reimburse the Issuing Lender on the day of drawing
under any Letter of Credit (with the proceeds of a Revolving Loan obtained
hereunder or otherwise) in same day funds as provided herein or in the LOC
Documents. If the Borrower shall fail to reimburse the Issuing Lender as
provided herein, the unreimbursed amount of such drawing shall bear interest at
a per annum rate equal to the Alternate Base Rate plus two percent (2%). Unless
the Borrower shall immediately
28
notify the Issuing Lender and the Administrative Agent of its intent to
otherwise reimburse the Issuing Lender, the Borrower shall be deemed to have
requested a Revolving Loan in the amount of the drawing as provided in
subsection (e) hereof, the proceeds of which will be used to satisfy the
reimbursement obligations. The Borrower's reimbursement obligations hereunder
shall be absolute and unconditional under all circumstances irrespective of any
rights of set-off, counterclaim or defense to payment the Borrower may claim or
have against the Issuing Lender, the Administrative Agent, the Lenders, the
beneficiary of the Letter of Credit drawn upon or any other Person, including
without limitation any defense based on any failure of the Borrower to receive
consideration or the legality, validity, regularity or unenforceability of the
Letter of Credit. The Issuing Lender will promptly notify the other Revolving
Lenders of the amount of any unreimbursed drawing and each Revolving Lender
shall promptly pay to the Administrative Agent for the account of the Issuing
Lender in Dollars and in immediately available funds, the amount of such
Revolving Lender's LOC Commitment Percentage of such unreimbursed drawing. Such
payment shall be made on the day such notice is received by such Revolving
Lender from the Issuing Lender if such notice is received at or before 2:00 P.M.
(New York time), otherwise such payment shall be made at or before 12:00 Noon
(New York time) on the Business Day next succeeding the day such notice is
received. If such Revolving Lender does not pay such amount to the Issuing
Lender in full upon such request, such Revolving Lender shall, on demand, pay to
the Administrative Agent for the account of the Issuing Lender interest on the
unpaid amount during the period from the date of such drawing until such
Revolving Lender pays such amount to the Issuing Lender in full at a rate per
annum equal to, if paid within two (2) Business Days of the date of drawing, the
Federal Funds Effective Rate and thereafter at a rate equal to the Alternate
Base Rate, Each Revolving Lender's obligation to make such payment to the
Issuing Lender, and the right of the Issuing Lender to receive the same, shall
be absolute and unconditional, shall not be affected by any circumstance
whatsoever and without regard to the termination of this Credit Agreement or the
Commitments hereunder, the existence of a Default or Event of Default or the
acceleration of the Credit Party Obligations hereunder and shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Repayment with Revolving Loans. On any day on which the Borrower shall
have requested, or been deemed to have requested, a Revolving Loan to reimburse
a drawing under a Letter of Credit, the Administrative Agent shall give notice
to the Revolving Lenders that a Revolving Loan has been requested or deemed
requested in connection with a drawing under a Letter of Credit, in which case a
Revolving Loan borrowing comprised entirely of Alternate Base Rate Loans (each
such borrowing, a "Mandatory Borrowing") shall be immediately made (without
giving effect to any termination of the Commitments pursuant to Section 7.2) pro
rata based on each Revolving Lender's respective Revolving Commitment Percentage
(determined before giving effect to any termination of the Commitments pursuant
to Section 7.2) and in the case of both clauses (i) and (ii) the proceeds
thereof shall be paid directly to the Issuing Lender for application to the
respective LOC Obligations. Each Revolving Lender hereby irrevocably agrees to
make such Revolving Loans immediately upon any such request or deemed request on
account of each Mandatory Borrowing in the amount and in the manner specified in
the preceding sentence and on the same such date notwithstanding (i) the amount
of Mandatory Borrowing may not comply with the minimum amount for borrowings of
Revolving Loans otherwise required hereunder, (ii) whether any conditions
specified in Section 4.3 are then satisfied, (iii) whether a Default or an Event
of Default then exists, (iv) failure for any such
29
request or deemed request for Revolving Loan to be made by the time otherwise
required in Section 2.1 (b), (v) the date of such Mandatory Borrowing, or (vi)
any reduction in the Aggregate Revolving Committed Amount after any such Letter
of Credit may have been drawn upon; provided, however, that in the event any
such Mandatory Borrowing should be less than the minimum amount for borrowings
of Revolving Loans otherwise provided in Section 2.1(b)(ii), the Borrower shall
pay to the Administrative Agent for its own account an administrative fee of
$500. In the event that any Mandatory Borrowing cannot for any reason be made on
the date otherwise required above (including, without limitation, as a result of
the commencement of a proceeding under the Bankruptcy Code), then each such
Revolving Lender hereby agrees that it shall forthwith fund (as of the date the
Mandatory Borrowing would otherwise have occurred, but adjusted for any payments
received from the Borrower on or after such date and prior to such purchase) its
Participation Interests in the outstanding LOC Obligations; provided, further,
that in the event any Revolving Lender shall fail to fund its Participation
Interest on the day the Mandatory Borrowing would otherwise have occurred, then
the amount of such Revolving Lender's unfunded Participation Interest therein
shall bear interest payable by such Revolving Lender to the Issuing Lender upon
demand, at the rate equal to, if paid within two (2) Business Days of such date,
the Federal Funds Effective Rate, and thereafter at a rate equal to the
Alternate Base Rate.
(f) Modification, Extension. The issuance of any supplement, modification,
amendment, renewal, or extension to any Letter of Credit shall, for purposes
hereof, be treated in all respects the same as the issuance of a new Letter of
Credit hereunder.
(g) Uniform Customs and Practices. The Issuing Lender shall have the
Letters of Credit be subject to The Uniform Customs and Practice for Documentary
Credits, as published as of the date of issue by the International Chamber of
Commerce (the "UCP"),in which case the UCP may be incorporated therein and
deemed in all respects to be a part thereof.
Section 2.4 Swingline Loan Subfacility.
(a) Swingline Commitment. During the Commitment Period, subject to the
terms and conditions hereof, the Swingline Lender, in its individual capacity,
agrees to make certain revolving credit loans to the Borrower (each a "Swingline
Loan" and, collectively, the "Swingline Loans") for the purposes hereinafter set
forth; provided, however, (i) the aggregate amount of Swingline Loans
outstanding at any time shall not exceed FIVE MILLION DOLLARS ($5,000,000) (the
"Swingline Committed Amount"), and (ii) the sum of the outstanding Revolving
Loans plus outstanding Swingline Loans plus LOC Obligations shall not exceed the
Aggregate Revolving Committed Amount. Swingline Loans hereunder may be repaid
and reborrowed in accordance with the provisions hereof.
(b) Swingline Loan Borrowings.
(i) Notice of Borrowing and Disbursement. The Swingline Lender will
make Swingline Loans available to the Borrower on any Business Day upon
request made by the Borrower not later than 12:00 noon (New York time) on
such Business Day. A notice of request for Swingline Loan borrowing shall
be made in the form of Schedule 2.l(b)(i)
30
with appropriate modifications. Swingline Loan borrowings hereunder shall
be made in minimum amounts of $100,000 and in integral amounts of $100,000
in excess thereof.
(ii) Repayment of Swingline Loans. Each Swingline Loan borrowing
shall be due and payable on the Maturity Date. The Swingline Lender may,
at any time, in its sole discretion, by written notice to the Borrower and
the Administrative Agent, demand repayment of its Swingline Loans by way
of a Revolving Loan borrowing, in which case the Borrower shall be deemed
to have requested a Revolving Loan borrowing comprised entirely of
Alternate Base Rate Loans in the amount of such Swingline Loans; provided,
however, that, in the following circumstances, any such demand shall also
be deemed to have been given one Business Day prior to the occurrence
thereof (A) the Maturity Date, (B) the occurrence of any Event of Default
described in Section 7.l(e), (C) upon acceleration of the Credit Party
Obligations hereunder, whether on account of an Event of Default described
in Section 7.l(e) or any other Event of Default, and (D) the exercise of
remedies in accordance with the provisions of Section 7.2 hereof (each
such Revolving Loan borrowing made on account of any such deemed request
therefor as provided herein being hereinafter referred to as "Mandatory
Borrowing"). Each Revolving Lender hereby irrevocably agrees to make such
Revolving Loans promptly upon any such request or deemed request on
account of each Mandatory Borrowing in the amount and in the manner
specified in the preceding sentence and on the same such date
notwithstanding (I) the amount of Mandatory Borrowing may not comply with
the minimum amount for borrowings of Revolving Loans otherwise required
hereunder, (II) whether any conditions specified in Section 4.3 are then
satisfied, (III) whether a Default or an Event of Default then exists,
(IV) failure of any such request or deemed request for Revolving Loans to
be made by the time otherwise required in Section 2.1(b)(i), (V) the date
of such Mandatory Borrowing, or (VI) any reduction in the Revolving
Committed Amount or termination of the Revolving Commitments immediately
prior to such Mandatory Borrowing or contemporaneously therewith. In the
event that any Mandatory Borrowing cannot for any reason be made on the
date otherwise required above (including, without limitation, as a result
of the commencement of a proceeding under the Bankruptcy Code), then each
Revolving Lender hereby agrees that it shall forthwith purchase (as of the
date the Mandatory Borrowing would otherwise have occurred, but adjusted
for any payments received from the Borrower on or after such date and
prior to such purchase) from the Swingline Lender such participations in
the outstanding Swingline Loans as shall be necessary to cause each such
Revolving Lender to share in such Swingline Loans ratably based upon its
respective Revolving Commitment Percentage (determined before giving
effect to any termination of the Commitments pursuant to Section 7.2).
provided that (A) all interest payable on the Swingline Loans shall be for
the account of the Swingline Lender until the date as of which the
respective participation is purchased, and (B) at the time any purchase of
participations pursuant to this sentence is actually made, the purchasing
Revolving Lender shall be required to pay to the Swingline Lender interest
on the principal amount of such participation purchased for each day from
and including the day upon which the Mandatory Borrowing would otherwise
have occurred to but excluding the date of payment for such participation,
at the rate equal to, if paid within two(2) Business Days of the date of
the Mandatory Borrowing, the Federal Funds Effective Rate, and thereafter
at a rate equal to the Alternate Base Rate.
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(c) Interest on Swingline Loans. Subject to the provisions of Section 2.9,
Swingline Loans shall bear interest at a per annum rate equal to the Alternate
Base Rate plus the applicable Percentage for Revolving Loans that are Alternate
Base Rate Loans. Interest on Swingline Loans shall be payable in arrears on each
Interest Payment Date.
(d) Swingline Note. The Swingline Loans shall be evidenced by a duly
executed promissory note of the Borrower to the Swingline Lender in the original
amount of the Swingline Committed Amount and substantially in the form of
Schedule 2.4(d).
Section 2.5 Fees.
(a) Commitment Fee. In consideration of the Revolving Commitments, the
Borrower agrees to pay to the Administrative Agent for the ratable benefit of
the Revolving Lenders a commitment fee (the "Commitment Fee") in an amount equal
to the Applicable Percentage per annum on the average daily unused amount of the
Aggregate Revolving Committed Amount. For purposes of computation of the
Commitment Fee, LOC Obligations shall be considered usage of the Aggregate
Revolving Committed Amount but Swingline Loans shall not be considered usage of
the Aggregate Revolving Committed Amount. The Commitment Fee shall be payable
quarterly in arrears on the 15th day following the last day of each calendar
quarter for the prior calendar quarter.
(b) Letter of Credit Fees. In consideration of the LOC Commitments, the
Borrower agrees to pay to the Issuing Lender a fee (the "Letter of Credit Fee")
equal to the Applicable Percentage per annum on the average daily maximum amount
available to be drawn under each Letter of Credit from the date of issuance to
the date of expiration. The Issuing Lender shall promptly pay over to the
Administrative Agent for the ratable benefit of the Revolving Lenders (including
the Issuing Lender) the Letter of Credit Fee. The Letter of Credit Fee shall be
payable quarterly in arrears on the 15th day following the last day of each
calendar quarter for the prior calendar quarter.
(c) Issuing Lender Fees. The Issuing Lender may charge, and retain for its
own account without sharing by the other Lenders, an additional facing fee of
one-eighth of one percent (.125%) per annum on the average daily maximum amount
available to be drawn under each such Letter of Credit issued by it. In
addition, the Borrower shall pay to the Issuing Lender for its own account
without sharing by the other Lenders the reasonable and customary charges from
time to time of the Issuing Lender with respect to the amendment, transfer,
administration, cancellation and conversion of, and drawings under, such Letters
of Credit (collectively, the "Issuing Lender Fees").
(d) Administrative Fee. The Borrower agrees to pay to the Administrative
Agent the annual administrative fee as described in the Fee Letter.
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Section 2.6 Commitment Reductions.
(a) Voluntary Reductions. The Borrower shall have the right to terminate
or permanently reduce the unused portion of the Aggregate Revolving Committed
Amount at any time or from time to time upon not less than five Business Days'
prior notice to the Administrative Agent (which shall notify the Revolving
Lenders thereof as soon as practicable) of each such termination or reduction,
which notice shall specify the effective date thereof and the amount of any such
reduction which shall be in a minimum amount of $2,000,000 or a whole multiple
of $1,000,000 in excess thereof and shall be irrevocable and effective upon
receipt by the Administrative Agent, provided that no such reduction or
termination shall be permitted if after giving effect thereto, and to any
prepayments of the Loans made on the effective date thereof, the sum of the
outstanding Revolving Loans plus outstanding Swingline Loans plus LOC
Obligations would exceed the Aggregate Revolving Committed Amount.
(b) Maturity Date. The Revolving Commitment, the Swingline Commitment and
the LOC Commitment shall automatically terminate on the Maturity Date.
Section 2.7 Prepayments.
(a) Optional Prepayments. The Borrower shall have the right to prepay
Loans in whole or in part from time to time; provided, however, that each
partial prepayment of a Revolving Loan and the Term Loan shall be in a minimum
principal amount of $1,000,000 and integral multiples of $500,000 in excess
thereof, and each partial prepayment of a Swingline Loan shall be in a minimum
principal amount of $100,000 and integral multiples of $100,000 in excess
thereof. The Borrower shall give three Business Days' irrevocable notice in the
case of LIBOR Rate Loans and same-day irrevocable notice on any Business Day in
the case of Alternate Base Rate Loans, to the Administrative Agent (which shall
notify the Lenders thereof as soon as practicable). To the extent that the
Borrower elects to prepay the Term Loans, amounts prepaid under this
Section 2.7(a) shall be applied first pro rata to the Term Loan (ratably to the
remaining principal installments thereof) and then (after the Term Loan have
been paid in full) to the Revolving Loans, in each case first to Alternate Base
Rate Loans and then to LIBOR Rate Loans in direct order of Interest Period
maturities. All prepayments under this Section 2.7(a) shall be subject to
Section 2.17, but otherwise without premium or penalty. Interest on the
principal amount prepaid shall be payable on the next occurring Interest Payment
Date that would have occurred had such loan not been prepaid or, at the request
of the Administrative Agent, interest on the principal amount prepaid shall be
payable on any date that a prepayment is made hereunder through the date of
prepayment. Amounts prepaid on the Revolving Loans and the Swingline Loans may
be reborrowed in accordance with the terms hereof. Amounts prepaid on the Term
Loan may not be reborrowed.
(b) Mandatory Prepayments.
(i) Aggregate Revolving Committed Amount. If at any time after the
Closing Date, the sum of the outstanding Revolving Loans plus outstanding
Swingline Loans plus LOC Obligations shall exceed the Aggregate Revolving
Committed Amount, the
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Borrower immediately shall prepay the Loans in an amount sufficient to
eliminate such excess (any such prepayment to be applied as set forth in clause
(vii) below).
(ii) Asset Dispositions. Promptly following any Asset Disposition in
excess of $500,000 in any fiscal year, the Borrower shall prepay the Loans
in an aggregate amount equal to the Net Cash Proceeds derived from such
Asset Disposition (such prepayment to be applied as set forth in clause
(vii) below); provided, however, that such Net Cash Proceeds shall not be
required to be so applied to the extent (A) such Asset Disposition is in
the ordinary course of the Borrower's business or (B) the Borrower
delivers to the Administrative Agent a certificate stating that the
Borrower intends to use such Net Cash Proceeds to acquire fixed or capital
assets in replacement of the disposed assets within 180 days of the
receipt of such Net Cash Proceeds, it being expressly agreed that any Net
Cash Proceeds not so reinvested during such period shall be applied to
repay the Loans immediately thereafter.
(iii) Issuances. Immediately upon receipt by any Credit Party of
proceeds from (A) any Debt Issuance, the Borrower shall prepay the Loans
and cash collateralize the LOC Obligations in an aggregate amount equal to
one hundred percent (100%) of the Net Cash Proceeds of such Debt Issuance
to the Lenders (such prepayment to be applied as set forth in clause (vii)
below) or (B) any Equity Issuance, the Borrower shall prepay the Loans and
cash collateralize the LOC Obligations in an aggregate amount equal to one
hundred percent (100%) of the Net Cash Proceeds of such Equity Issuance
(such prepayment to be applied as set forth in clause (vii) below) );
provided, however, that no prepayment shall be required under this
subsection if the Consolidated Leverage Ratio is less than or equal to
2.25 to 1.0 on a pro forma basis.
(iv) Recovery Event. To the extent of cash proceeds received in
connection with a Recovery Event which are in excess of $500,000 in the
aggregate and which are not applied in accordance with Section 6.4(a)(ii),
immediately following the 180th day occurring after the receipt by a
Credit Party of such cash proceeds, the Borrower shall prepay the Loans in
an aggregate amount equal to one-hundred percent (100%) of such cash
proceeds to the Lenders (any such prepayment to be applied as set forth in
clause (vii) below).
(v) Excess Cash Flow. Within 90 days after the end of each fiscal
year (commencing with the fiscal year ending May 31, 2004), the Borrower
shall prepay the Loans in an amount equal to fifty percent (50%) of the
Excess Cash Flow earned during such prior fiscal year (such prepayments to
be applied as set forth in clause (vii) below); provided, however, that if
the Consolidated Leverage Ratio is less than or equal to 2.00 to 1.0 as of
the end of such fiscal year, any Excess Cash Flow earned during such prior
fiscal year shall not be subject to such mandatory prepayment
requirements.
(vi) Liens on Margin Stock. Promptly following any Credit Party
contracting, creating, incurring, assuming or permitting to exist any Lien
on any Margin Stock owned by any Credit Party, the Borrower shall prepay
the Loans in an aggregate amount equal to
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one-hundred percent (100%) of the aggregate amount of Indebtedness secured
by such Lien (any such prepayment to be applied as set forth in clause
(vii) below).
(vii) Application of Mandatory Prepayments. All amounts required to
be paid pursuant to this Section 2.7(b) shall be applied as follows: (A)
with respect to all amounts prepaid pursuant to Section 2.7(b)(i), to the
Revolving Loans and then (after all Revolving Loans have been repaid) to a
cash collateral account in respect of LOC Obligations, (B) with respect to
all amounts prepaid pursuant to Sections 2.7(b)(ii) through (vi), (1)
first, to the Term Loan (in inverse order of maturity dates); and (2)
second, to the Revolving Loans without a corresponding reduction in the
Revolving Commitments and (after all Revolving Loans have been repaid) to
a cash collateral account in respect of LOC Obligations. Within the
parameters of the applications set forth above, prepayments shall be
applied first to Alternate Base Rate Loans and then to LIBOR Rate Loans in
direct order of Interest Period maturities. All prepayments under this
Section 2.7(b) shall be subject to Section 2.17 and be accompanied by
interest on the principal amount prepaid through the date of prepayment.
(c) Hedging obligations Unaffected. Any prepayment made pursuant to this
Section 2.7 shall not affect the Borrower's obligation to continue to make
payments under any Hedging Agreement, which shall remain in full force and
effect notwithstanding such prepayment, subject to the terms of such Hedging
Agreement.
Section 2.8 Minimum Principal Amount of Tranches.
All borrowings, payments and prepayments in respect of Revolving Loans and
the Term Loan shall be in such amounts and be made pursuant to such elections so
that after giving effect thereto the aggregate principal amount of the Revolving
Loans and the Term Loan comprising any Tranche shall be (a) with respect to
Alternate Base Rate Loans, $1,000,000 or a whole multiple of $500,000 in excess
thereof and (b) with respect to LIBOR Rate Loans, $2,000,000 or a whole multiple
of $1,000,000 in excess thereof.
Section 2.9 Default Rate and Payment Dates.
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 hereunder or under the other Credit Documents shall, at
the discretion of the Required Lenders, bear interest, payable on demand, at a
per annum rate 2% greater than the rate which would otherwise be applicable (or
if no rate is applicable, whether in respect of interest, fees or other amounts,
then the Alternate Base Rate plus 2%).
Section 2.10 Conversion Options.
(a) The Borrower may, in the case of Revolving Loans and the Term Loan,
elect from time to time to convert Alternate Base Rate Loans to LIBOR Rate
Loans, by giving the Administrative Agent at least three (3) Business Days'
prior irrevocable written notice of such election. A form of Notice of
Conversion Extension is attached as Schedule 2.10. If the date
35
upon which an Alternate Base Rate Loan is to be converted to a LIBOR Rate Loan
is not a Business Day, then such conversion shall be made on the next succeeding
Business Day and during the period from such last day of an Interest Period to
such succeeding Business Day such Loan shall bear interest as if it were an
Alternate Base Rate Loan. All or any part of outstanding Alternate Base Rate
Loans may be converted as provided herein, provided that (i) no Loan may be
converted into a LIBOR Rate Loan when any Default or Event of Default has
occurred and is continuing and (ii) partial conversions shall be in an aggregate
principal amount of $2,000,000 or a whole multiple of $1,000,000 in excess
thereof.
(b) Any LIBOR Rate Loans may be continued as such upon the expiration of
an Interest Period with respect thereto by compliance by the Borrower with the
notice provisions contained in Section 2.10(a); provided, that no LIBOR Rate
Loan may be continued as such when any Default or Event of Default has occurred
and is continuing, in which case such Loan shall be automatically converted to
an Alternate Base Rate Loan at the end of the applicable Interest Period with
respect thereto. If the Borrower shall fail to give timely notice of an election
to continue a LIBOR Rate Loan, or the continuation of LIBOR Rate Loans is not
permitted hereunder, such LIBOR Rate Loans shall be automatically converted to
Alternate Base Rate Loans at the end of the applicable Interest Period with
respect thereto.
Section 2.11 Computation of Interest and Fees.
(a) Interest payable hereunder with respect to Alternate Base Rate Loans
shall be calculated on the basis of a year of 365 days (or 366 days, as
applicable) for the actual days elapsed. All other fees, interest and all other
amounts payable hereunder shall be calculated on the basis of a 360 day year for
the actual days elapsed. The Administrative Agent shall as soon as practicable
notify the Borrower and the Lenders of each determination of a LIBOR Rate on the
Business Day of the determination thereof. Any change in the interest rate on a
Loan resulting from a change in the Alternate Base Rate shall become effective
as of the opening of business on the day on which such change in the Alternate
Base Rate shall become effective. The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of the effective date and the
amount of each such change.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Credit Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the computations used by the Administrative Agent
in determining any interest rate.
Section 2.12 Pro Rata Treatment and Payments.
(a) Each borrowing of Revolving Loans and any reduction of the Revolving
Commitments shall be made pro rata according to the respective Revolving
Commitment Percentages of the Revolving Lenders. Each payment under this Credit
Agreement or any Note shall be applied, first, to any fees then due and owing by
the Borrower pursuant to Section 2.5, second, to interest then due and owing in
respect of the Notes of the Borrower and, third, to principal then due and owing
hereunder and under the Notes of the Borrower. Each payment on
36
account of any fees pursuant to Section 2.5 shall be made pro rata in accordance
with the respective amounts due and owing (except as to the portion of the
Letter of Credit Fees retained by the Issuing Lender and the Issuing Lender
Fees). Each payment (other than prepayments) by the Borrower on account of
principal of and interest on the Revolving Loans and on the Term Loan shall be
made pro rata according to the respective amounts due and owing. Prepayments
made pursuant to Section 2.15 shall be applied in accordance with such section.
Each mandatory prepayment on account of principal of the Loans shall be applied
in accordance with Section 2.7(b). All payments (including prepayments) to be
made by the Borrower on account of principal, interest and fees shall be made
without defense, set-off or counterclaim (except as provided in Section 2.18(b))
and shall be made to the Administrative Agent for the account of the Lenders at
the Administrative Agent's office specified on Schedule 9.2 in Dollars and in
immediately available funds not later than 12:OO noon (New York time) on the
date when due. The Administrative Agent shall distribute such payments to the
Lenders entitled thereto promptly upon receipt in like funds as received. If any
payment hereunder (other than payments on the LIBOR Rate Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension. If any payment on a LIBOR Rate Loan becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day.
(b) Allocation of Payments After Event of Default. Notwithstanding any
other provisions of this Credit Agreement to the contrary, after the exercise of
remedies by the Administrative Agent or the Lenders pursuant to Section 7.2 (or
after the Commitments shall automatically terminate and the Loans (with accrued
interest thereon) and all other amounts under the Credit Documents (including
without limitation the maximum amount of all contingent liabilities under
Letters of Credit) shall automatically become due and payable in accordance with
the terms of such Section), all amounts collected or received by the
Administrative Agent or any Lender on account of the Credit Party Obligations or
any other amounts outstanding under any of the Credit Documents shall be paid
over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and expenses
(including without limitation reasonable attorneys' fees) of the Administrative
Agent in connection with enforcing the rights of the Lenders under the Credit
Documents;
SECOND, to payment of any fees owed to the Administrative Agent;
THIRD, to the payment of all reasonable out-of-pocket costs and expenses
(including without limitation, reasonable attorneys' fees) of each of the
Lenders in connection with enforcing its rights under the Credit Documents or
otherwise with respect to the Credit Party Obligations owing to such Lender;
FOURTH, to the payment of all of the Credit Party Obligations consisting
of accrued fees and interest, and including with respect to any Hedging
Agreement between any Credit Party and any Lender, or any Affiliate of a Lender,
to the extent such Hedging
37
Agreement is permitted by Section 6.1, any fees, premiums and scheduled periodic
payments due under such Hedging Agreement and any interest accrued thereon;
FIFTH, to the payment of the outstanding principal amount of the Credit
Party Obligations and the payment or cash collateralization of the outstanding
LOC Obligations, and including with respect to any Hedging Agreement between any
Credit Party and any Lender, or any Affiliate of a Lender, to the extent such
Hedging Agreement is permitted by Section 6.1, any breakage, termination or
other payments due under such Hedging Agreement and any interest accrued
thereon;
SIXTH, to all other Credit Party Obligations and other obligations which
shall have become due and payable under the Credit Documents or otherwise and
not repaid pursuant to clauses "FIRST" through "FIFTH" above; and
SEVENTH, to the payment of the surplus, if any, to whoever may be lawfully
entitled to receive such surplus.
In carrying out the foregoing, (i) amounts received shall be applied in
the numerical order provided until exhausted prior to application to the
next succeeding category; (ii) each of the Lenders shall receive an amount
equal to its pro rata share (based on the proportion that the then
outstanding Loans and LOC Obligations held by such Lender bears to the
aggregate then outstanding Loans and LOC Obligations) of amounts available
to be applied pursuant to clauses "THIRD", "FOURTH", "FIFTH" and "SIXTH"
above; and (iii) to the extent that any amounts available for distribution
pursuant to clause "FIFTH" above are attributable to the issued but
undrawn amount of outstanding Letters of Credit, such amounts shall be
held by the Administrative Agent in a cash collateral account and applied
(A) first, to reimburse the Issuing Lender from time to time for any
drawings under such Letters of Credit and (B) then, following the
expiration of all Letters of Credit, to all other obligations of the types
described in clauses "FIFTH" and "SIXTH" above in the manner provided in
this Section 2.12(b).
Section 2.13 Non-Receipt of Funds by the Administrative Agent.
(a) Unless the Administrative Agent shall have been notified in writing by
a Lender prior to the date a Loan is to be made by such Lender (which notice
shall be effective upon receipt) that such Lender does not intend to make the
proceeds of such Loan available to the Administrative Agent, the Administrative
Agent may assume that such Lender has made such proceeds available to the
Administrative Agent on such date, and the Administrative Agent may in reliance
upon such assumption (but shall not be required to) make available to the
Borrower a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent, the Administrative Agent shall be
able to recover such corresponding amount from such Lender. If such Lender does
not pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent will promptly notify the Borrower, and
the Borrower shall immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to recover
from the Lender or the Borrower, as the case may be, interest on such
corresponding amount in respect of
38
each day from the date such corresponding amount was made available by the
Administrative Agent to the Borrower to the date such corresponding amount is
recovered by the Administrative Agent at a per annum rate equal to (i) from the
Borrower at the applicable rate for the applicable borrowing pursuant to the
Notice of Borrowing and (ii) from a Lender at the Federal Funds Effective Rate.
(b) Unless the Administrative Agent shall have been notified in writing by
the Borrower, prior to the date on which any payment is due from it hereunder
(which notice shall be effective upon receipt) that the Borrower does not intend
to make such payment, the Administrative Agent may assume that the Borrower has
made such payment when due, and the Administrative Agent may in reliance upon
such assumption (but shall not be required to) make available to each Lender on
such payment date an amount equal to the portion of such assumed payment to
which such Lender is entitled hereunder, and if the Borrower has not in fact
made such payment to the Administrative Agent, such Lender shall, on demand,
repay to the Administrative Agent the amount made available to such Lender. If
such amount is repaid to the Administrative Agent on a date after the date such
amount was made available to such Lender, such Lender shall pay to the
Administrative Agent on demand interest on such amount in respect of each day
from the date such amount was made available by the Administrative Agent to such
Lender to the date such amount is recovered by the Administrative Agent at a per
annum rate equal to the Federal Funds Effective Rate.
(c) A certificate of the Administrative Agent submitted to the Borrower or
any Lender with respect to any amount owing under this Section 2.13 shall be
conclusive in the absence of manifest error.
Section 2.14 Inability to Determine Interest Rate.
Notwithstanding any other provision of this Credit Agreement, if (i) the
Administrative Agent shall reasonably determine (which determination shall be
conclusive and binding absent manifest error) that, by reason of circumstances
affecting the relevant market, reasonable and adequate means do not exist for
ascertaining LIBOR for such Interest Period, or (ii) the Required Lenders shall
reasonably determine (which determination shall be conclusive and binding absent
manifest error) that the LIBOR Rate does not adequately and fairly reflect the
cost to such Lenders of funding LIBOR Rate Loans that the Borrower has requested
be outstanding as a LIBOR Tranche during such Interest Period, the
Administrative Agent shall forthwith give telephone notice of such
determination, confirmed in writing, to the Borrower, and the Lenders at least
two Business Days prior to the first day of such Interest Period. Unless the
Borrower shall have notified the Administrative Agent upon receipt of such
telephone notice that it wishes to rescind or modify its request regarding such
LIBOR Rate Loans, any Loans that were requested to be made as LIBOR Rate Loans
shall be made as Alternate Base Rate Loans and any Loans that were requested to
be converted into or continued as LIBOR Rate Loans shall remain as or be
converted into Alternate Base Rate Loans. Until any such notice has been
withdrawn by the Administrative Agent, no further Loans shall be made as,
continued as, or converted into, LIBOR Rate Loans for the Interest Periods so
affected.
39
Section 2.15 Illegality.
Notwithstanding any other provision of this Credit Agreement, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof by the relevant Governmental Authority to any Lender shall
make it unlawful for such Lender or its LIBOR Lending Office to make or maintain
LIBOR Rate Loans as contemplated by this Credit Agreement or to obtain in the
interbank eurodollar market through its LIBOR Lending Office the funds with
which to make such Loans, (a) such Lender shall promptly notify the
Administrative Agent and the Borrower thereof, (b) the commitment of such Lender
hereunder to make LIBOR Rate Loans or continue LIBOR Rate Loans as such shall
forthwith be suspended until the Administrative Agent shall give notice that the
condition or situation which gave rise to the suspension shall no longer exist,
and (c) such Lender's Loans then outstanding as LIBOR Rate Loans, if any, shall
be converted on the last day of the Interest Period for such Loans or within
such earlier period as required by law as Alternate Base Rate Loans. The
Borrower hereby agrees to promptly pay any Lender, upon its demand, any
additional amounts necessary to compensate such Lender for actual and direct
costs (but not including anticipated profits) reasonably incurred by such Lender
in making any repayment in accordance with this Section including, but not
limited to, any interest or fees payable by such Lender to lenders of funds
obtained by it in order to make or maintain its LIBOR Rate Loans hereunder. A
certificate as to any additional amounts payable pursuant to this Section
submitted by such Lender, through the Administrative Agent, to the Borrower
shall be conclusive in the absence of manifest error. Each Lender agrees to use
reasonable efforts (including reasonable efforts to change its LIBOR Lending
Office) to avoid or to minimize any amounts which may otherwise be payable
pursuant to this Section; provided, however, that such efforts shall not cause
the imposition on such Lender of any additional costs or legal or regulatory
burdens deemed by such Lender in its sole discretion to be material.
Section 2.16 Requirements of Law.
(a) If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof or compliance by any Lender with any
request or directive (whether or not having the force of law) fiom any central
bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject such Lender to any tax of any kind whatsoever with
respect to any Letter of Credit or any application relating thereto, any
LIBOR Rate Loan made by it, or change the basis of taxation of payments to
such Lender in respect thereof (except for changes in the rate of tax on
the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the LIBOR Rate hereunder; or
(iii) shall impose on such Lender any other condition;
40
and the result of any of the foregoing is to increase the cost to such
Lender of making or maintaining LIBOR Rate Loans or the Letters of Credit
or to reduce any amount receivable hereunder or under any Note, then, in
any such case, the Borrower shall promptly pay such Lender, upon its
demand, any additional amounts necessary to compensate such Lender for
such additional cost or reduced amount receivable which such Lender
reasonably deems to be material as determined by such Lender with respect
to its LIBOR Rate Loans or Letters of Credit. A certificate as to any
additional amounts payable pursuant to this Section submitted by such
Lender, through the Administrative Agent, to the Borrower shall be
conclusive in the absence of manifest error. Each Lender agrees to use
reasonable efforts (including reasonable efforts to change its Domestic
Lending Office or LIBOR Lending Office, as the case may be) to avoid or to
minimize any amounts which might otherwise be payable pursuant to this
paragraph of this Section; provided, however, that such efforts shall not
cause the imposition on such Lender of any additional costs or legal or
regulatory burdens deemed by such Lender to be material.
(b) If any Lender shall have reasonably determined that the adoption of or
any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any central bank
or Governmental Authority made subsequent to the date hereof does or shall have
the effect of reducing the rate of return on such Lender's or such corporation's
capital as a consequence of its obligations hereunder to a level below that
which such Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount reasonably
deemed by such Lender to be material, then from time to time, within fifteen
(15) days after demand by such Lender, the Borrower shall pay to such Lender
such additional amount as shall be certified by such Lender as being required to
compensate it for such reduction. Such a certificate as to any additional
amounts payable under this Section submitted by a Lender (which certificate
shall include a description of the basis for the computation), through the
Administrative Agent, to the Borrower shall be conclusive absent manifest error.
(c) The agreements in this Section 2.16 shall survive the termination of
this Credit Agreement and payment of the Credit Party Obligations.
Section 2.17 Indemnity.
The Borrower hereby agrees to indemnify each Lender and to hold such
Lender harmless from any funding loss or expense which such Lender may sustain
or incur as a consequence of (a) default by the Borrower in payment of the
principal amount of or interest on any Loan by such Lender in accordance with
the terms hereof, (b) default by the Borrower in accepting a borrowing after the
Borrower has given a notice in accordance with the terms hereof, (c) default by
the Borrower in making any prepayment after the Borrower has given a notice in
accordance with the terms hereof, and/or (d) the making by the Borrower of a
prepayment of a Loan, or the conversion thereof, on a day which is not the last
day of the Interest Period with respect thereto, in each case including, but not
limited to, any such loss or expense arising from interest or fees
41
payable by such Lender to lenders of funds obtained by it in order to maintain
its Loans hereunder. A certificate as to any additional amounts payable pursuant
to this Section submitted by any Lender, through the Administrative Agent, to
the Borrower shall be conclusive in the absence of manifest error. The
agreements in this Section shall survive termination of this Credit Agreement
and payment of the Credit Party Obligations.
Section 2.18 Taxes.
(a) All payments made by the Borrower hereunder or under any Note will be,
except as provided in Section 2.18(b), made free and clear of, and without
deduction or withholding for, any present or future taxes, levies, imposts,
duties, fees, assessments or other charges of whatever nature now or hereafter
imposed by any Governmental Authority or by any political subdivision or taxing
authority thereof or therein with respect to such payments (but excluding any
tax imposed on or measured by the net income or profits of a Lender pursuant to
the laws of the jurisdiction in which it is organized or the jurisdiction in
which the principal office or applicable lending office of such Lender is
located or any subdivision thereof or therein) and all interest, penalties or
similar liabilities with respect thereto (all such non-excluded taxes, levies,
imposts, duties, fees, assessments or other charges being referred to
collectively as "Taxes"). If any Taxes are so levied or imposed, the Borrower
agrees to pay the full amount of such Taxes, and such additional amounts as may
be necessary so that every payment of all amounts due under this Credit
Agreement or under any Note, after withholding or deduction for or on account of
any Taxes, will not be less than the amount provided for herein or in such Note.
The Borrower will furnish to the Administrative Agent as soon as practicable
after the date the payment of any Taxes is due pursuant to applicable law
certified copies (to the extent reasonably available and required by law) of tax
receipts evidencing such payment by the Borrower. The Borrower agrees to
indemnify and hold harmless each Lender, and reimburse such Lender upon its
written request, for the amount of any Taxes so levied or imposed and paid by
such Lender.
(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) agrees to deliver to the Borrower
and the Administrative Agent on or prior to the Closing Date, or in the case of
a Lender that is an assignee or transferee of an interest under this Credit
Agreement pursuant to Section 9.6(d) (unless the respective Lender was already a
Lender hereunder immediately prior to such assignment or transfer), on the date
of such assignment or transfer to such Lender, (i) if the Lender is a "bank"
within the meaning of Section 881(c)(3)(A) of the Code, two accurate and
complete original signed copies of Internal Revenue Service Form W-8BEN or
W-8ECI (or successor forms) certifying such Lender's entitlement to a complete
exemption from United States withholding tax with respect to payments to be made
under this Credit Agreement and under any Note, or (ii) if the Lender is not a
"bank" within the meaning of Section 881(c)(3)(A) of the Code, either Internal
Revenue Service Form W-8BEN or W-8ECI as set forth in clause (i) above, or (x) a
certificate substantially in the form of Schedule 2.18 (any such certificate, a
"2.18 Certificate") and (y) two accurate and complete original signed copies of
Internal Revenue Service Form W-8 (or successor form) certifying such Lender's
entitlement to an exemption from United States withholding tax with respect to
payments of interest to be made under this Credit Agreement and under any Note.
In addition, each Lender agrees that it will deliver upon the Borrower's request
updated versions of the foregoing, as applicable, whenever the previous
certification has become
42
obsolete or inaccurate in any material respect, together with such other forms
as may be required in order to confirm or establish the entitlement of such
Lender to a continued exemption from or reduction in United States withholding
tax with respect to payments under this Credit Agreement and any Note.
Notwithstanding anything to the contrary contained in Section 2.18(a), but
subject to the immediately succeeding sentence, (A) the Borrower shall be
entitled, to the extent it is required to do so by law, to deduct or withhold
Taxes imposed by the United States (or any political subdivision or taxing
authority thereof or therein) from interest, fees or other amounts payable
hereunder for the account of any Lender which is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income
tax purposes to the extent that such Lender has not provided to the Borrower
U.S. Internal Revenue Service Forms that establish a complete exemption from
such deduction or withholding and (B) the Borrower shall not be obligated
pursuant to Section 2.18(a) hereof to gross-up payments to be made to a Lender
in respect of Taxes imposed by the United States if (I) such Lender has not
provided to the Borrower the Internal Revenue Service Forms required to be
provided to the Borrower pursuant to this Section 2.18(b) or (II) in the case of
a payment, other than interest, to a Lender described in clause (ii) above, to
the extent that such Forms do not establish a complete exemption from
withholding of such Taxes. Notwithstanding anything to the contrary contained in
the preceding sentence or elsewhere in this Section 2.18, the Borrower agrees to
pay additional amounts and to indemnify each Lender in the manner set forth in
Section 2.18(a) (without regard to the identity of the jurisdiction requiring
the deduction or withholding) in respect of any amounts deducted or withheld by
it as described in the immediately preceding sentence as a result of any changes
after the Closing Date in any applicable law, treaty, governmental rule,
regulation, guideline or order, or in the interpretation thereof, relating to
the deducting or withholding of Taxes.
(c) Each Lender agrees to use reasonable efforts (including reasonable
efforts to change its Domestic Lending Office or LIBOR Lending Office, as the
case may be) to avoid or to minimize any amounts which might otherwise be
payable pursuant to this Section; provided, however, that such efforts shall not
cause the imposition on such Lender of any additional costs or legal or
regulatory burdens deemed by such Lender in its sole discretion to be material.
(d) If the Borrower pays any additional amount pursuant to this Section
2.18 with respect to a Lender, such Lender shall use reasonable efforts to
obtain a refund of tax or credit against its tax liabilities on account of such
payment; provided that such Lender shall have no obligation to use such
reasonable efforts if either (i) it is in an excess foreign tax credit position
or (ii) it believes in good faith, in its sole discretion, that claiming a
refund or credit would cause adverse tax consequences to it. In the event that
such Lender receives such a refund or credit, such Lender shall pay to the
Borrower an amount that such Lender reasonably determines is equal to the net
tax benefit obtained by such Lender as a result of such payment by the Borrower.
In the event that no refund or credit is obtained with respect to the Borrower's
payments to such Lender pursuant to this Section 2.18, then such Lender shall
upon request provide a certification that such Lender has not received a refund
or credit for such payments. Nothing contained in this Section 2.18 shall
require a Lender to disclose or detail the basis of its calculation of the
amount of any tax benefit or any other amount or the basis of its determination
referred to in the proviso to the first sentence of this Section 2.18 to the
Borrower or any other party.
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(e) The agreements in this Section 2.18 shall survive the termination of
this Credit Agreement and the payment of the Credit Party Obligations.
Section 2.19 Indemnification; Nature of Issuing Lender's Duties.
(a) In addition to its other obligations under Section 2.3, the Borrower
hereby agrees to protect, indemnify, pay and save the Issuing Lender harmless
from and against any and all claims, demands, liabilities, damages, losses,
costs, charges and expenses (including reasonable attorneys' fees) that the
Issuing Lender may incur or be subject to as a consequence, direct or indirect,
of (i) the issuance of any Letter of Credit or (ii) the failure of the Issuing
Lender to honor a drawing under a Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or future de jure or de
facto government or governmental authority (all such acts or omissions, herein
called "Government Acts").
(b) As between the Borrower and the Issuing Lender, the Borrower shall
assume all risks of the acts, omissions or misuse of any Letter of Credit by the
beneficiary thereof. The Issuing Lender shall not be responsible: (i) for the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of any Letter of Credit, even if it should in fact prove to be in any
or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii)
for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, that may prove to be
invalid or ineffective for any reason; (iii) for failure of the beneficiary of a
Letter of Credit to comply fully with conditions required in order to draw upon
a Letter of Credit; (iv) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (v) for errors in interpretation of
technical terms; (vi) for any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under a Letter of Credit or of
the proceeds thereof; and (vii) for any consequences arising from causes beyond
the control of the Issuing Lender, including, without limitation, any Government
Acts. None of the above shall affect, impair, or prevent the vesting of the
Issuing Lender's rights or powers hereunder.
(c) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by the Issuing
Lender, under or in connection with any Letter of Credit or the related
certificates, if taken or omitted in good faith, shall not put the Issuing
Lender under any resulting liability to the Borrower. It is the intention of the
parties that this Credit Agreement shall be construed and applied to protect and
indemnify the Issuing Lender against any and all risks involved in the issuance
of the Letters of Credit, all of which risks are hereby assumed by the Borrower,
including, without limitation, any and all risks of the acts or omissions,
whether rightful or wrongful, of any Government Authority. The Issuing Lender
shall not, in any way, be liable for any failure by the Issuing Lender or anyone
else to pay any drawing under any Letter of Credit as a result of any Government
Acts or any other cause beyond the control of the Issuing Lender.
(d) Nothing in this Section 2.19 is intended to limit the reimbursement
obligation of the Borrower contained in Section 2.3(d) hereof. The obligations
of the Borrower under this
44
Section 2.19 shall survive the termination of this Credit Agreement. No act or
omissions of any current or prior beneficiary of a Letter of Credit shall in any
way affect or impair the rights of the Issuing Lender to enforce any right,
power or benefit under this Credit Agreement.
(e) Notwithstanding anything to the contrary contained in this Section
2.19, the Borrower shall have no obligation to indemnify any Issuing Lender in
respect of any liability incurred by the Issuing Lender arising out of the gross
negligence or willful misconduct of the Issuing Lender (including action not
taken by the Issuing Lender), as determined by a court of competent jurisdiction
pursuant to a final, non-appealable judgment.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Credit Agreement and to make the
Extensions of Credit herein provided for, each of the Credit Parties hereby
represents and warrants to the Administrative Agent and to each Lender that:
Section 3.1 Financial Condition.
The Borrower has heretofore delivered to the Lenders, at the Lenders'
request, the following financial statements and information: (a) audited
financial statements of the Borrower and its Subsidiaries for the Fiscal Years
ended May 31, 2001, 2002 and 2003, consisting of balance sheets and the related
consolidated and consolidating statements of income, stockholders' equity and
cash flows for such period, (b) audited financial statements of the Acquired
Company and its Subsidiaries for the Fiscal Years ended June 30, 2001, 2002 and
2003, consisting of balance sheets and the related consolidated and
consolidating statements of income, stockholders' equity and cash flows for such
period, (c) unaudited financial statements of the Borrower and its Subsidiaries
through the most recently available quarterly period ending prior to the Funding
Date, consisting of a balance sheet and the related consolidated statements of
income, stockholders' equity and cash flows for the period ending on such date,
(d) unaudited financial statements of the Acquired Company and its Subsidiaries
through the most recently available quarterly period ending prior to the Funding
Date, consisting of a balance sheet and the related consolidated and
consolidating statements of income, stockholders' equity and cash flows for the
period ending on such date, (e) a pro forma balance sheet of the Borrower and
its Subsidiaries as of the most recently available quarterly period ending prior
to the Funding Date and (F) five-year projections for the Borrower and its
Subsidiaries, all in form and substance satisfactory to the Administrative Agent
and certified by the chief financial officer of the Borrower that (i) with
respect to (a) and (c) herein, they fairly present the results of its operations
and its cash flows for the periods indicated, subject to changes resulting from
audit and normal year-end adjustments, (ii) with respect to (b) and (d) herein,
to the knowledge of the Borrower, they fairly present the results of its
operations and its cash flows for the periods indicated, subject to changes
resulting from audit and normal year-end adjustments, and (iii) with respect to
(e) and (F) herein, they were prepared in good faith based upon reasonable
assumptions.
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Section 3.2 No Change.
Since May 31, 2003, there has been no development or event which has had
or could reasonably be expected to have a Material Adverse Effect.
Section 3.3 Corporate Existence; Corporate Power: Enforceability.
(a) Each of the Credit Parties is duly organized and validly
existing and in good standing under the laws of the state of its formation
and each of the Credit Parties has the power and authority to enter into
and perform its obligations under the Credit Documents to which it is a
party and has the corporate power and authority to enter into and perform
the obligations under each other agreement, instrument and document to be
executed and delivered by it in connection with or as contemplated by each
such Credit Document to which it is a party or will be a party.
(b) The execution and delivery by each of the Credit Parties of
this Credit Agreement and the other applicable Credit Documents as of such
date and the performance by each of the Credit Parties of its respective
obligations under this Credit Agreement and the other applicable Credit
Documents are within the limited liability company or corporate powers of
each of the Credit Parties, have been duly authorized by all necessary
limited liability company or corporate action on the part of each of the
Credit Parties (including without limitation any necessary shareholder
action), have been duly executed and delivered, have received all
necessary governmental approval, and do not and will not (A) violate any
Requirement of Law which is binding on any Credit Party or any of its
Subsidiaries, (B) contravene or conflict with, or result in a breach of,
any provision of the articles of incorporation, by-laws or other
organizational documents of any of the Credit Parties or any of their
Subsidiaries or of any agreement, indenture, instrument or other document
which is binding on any of the Credit Parties or any of their Subsidiaries
or (C) result in, or require, the creation or imposition of any Lien
(other than pursuant to the terms of the Credit Documents) on any asset of
any of the Credit Parties or any of their Subsidiaries.
(c) This Credit Agreement and the other applicable Credit
Documents to which the Credit Parties are parties constitute the legal,
valid and binding obligation of such Credit Parties, as applicable,
enforceable against each such Credit Party, as applicable, in accordance
with their terms.
Section 3.4 Governmental Approvals.
No material consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or other authorization,
registration, filing, consent, approval, waiver, notice or other action
(including Xxxx-Xxxxx-Xxxxxx clearance) by, to or of any other Person pursuant
to any Requirement of Law, contract, indenture, instrument or agreement or for
any other reason is required to authorize or is required in connection with (i)
the execution, delivery or performance of any Credit Document, (ii) the
legality, validity, binding effect or
46
enforceability of any Credit Document or (iii) any Extension of Credit, in each
case, except those which have been obtained and are in full force and effect.
Section 3.5 No Legal Bar; No Default.
The execution, delivery and performance of the Credit Documents, the
borrowings thereunder and the use of the proceeds of the Loans will not violate
any Requirement of Law or any Contractual Obligation of the Borrower or any
other Credit Party (except those as to which waivers or consents have been
obtained), and will not result in, or require, the creation or imposition of any
Lien on any of its or their respective properties or revenues pursuant to any
Requirement of Law or Contractual Obligation other than the Liens arising under
or contemplated in connection with the Credit Documents. Neither the Borrower
nor any other Credit Party is in default under or with respect to any of its
Contractual Obligations in any respect which could reasonably be expected to
have a Material Adverse Effect. No Default or Event of Default has occurred and
is continuing.
Section 3.6 No Material Litigation.
No litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the best knowledge of the Borrower,
threatened by or against the Borrower or any of its Subsidiaries or against any
of its or their respective properties or revenues (a) with respect to the Credit
Documents or any Loan or any of the transactions contemplated hereby, or (b)
which, if adversely determined, could reasonably be expected to have a Material
Adverse Effect.
Section 3.7 Government Acts.
(a) Neither the Borrower nor any Credit Party is an "investment
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
(b) Neither the Borrower nor any of its Subsidiaries is a "holding
company", or an "affiliate" of a "holding company" or a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
Section 3.8 Margin Regulations.
No part of the proceeds of any Extension of Credit hereunder will be used
directly or indirectly for any purpose which violates, or which would be
inconsistent with, the provisions of Regulation T, U or X of the Board of
Governors of the Federal Reserve System as now and from time to time hereafter
in effect. The Borrower and its Subsidiaries taken as a group do not own Margin
Stock except as identified in the financial statements referred to in Section
3.1 and the aggregate value of all Margin Stock owned by the Borrower and its
Subsidiaries taken as a group does not exceed 25% of the value of their assets.
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Section 3.9 Compliance with Laws.
Each of the Credit Parties is in compliance with all Requirements of Law
except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
Section 3.10 ERISA.
Neither a Reportable Event nor an "accumulated funding deficiency" (within
the meaning of Section 412 of the Code or Section 302 of ERISA) has occurred
during the five-year period prior to the date on which this representation is
made or deemed made with respect to any Plan, and each Plan has complied in all
material respects with the applicable provisions of ERISA and the Code, except
to the extent that any such occurrence or failure to comply could not reasonably
be expected to have a Material Adverse Effect. No termination of a Single
Employer Plan has occurred resulting in any liability that has remained
underfunded, and no Lien in favor of the PBGC or a Plan has arisen, during such
five-year period which could reasonably be expected to have a Material Adverse
Effect. The present value of all accrued benefits under each Single Employer
Plan (based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits by an amount which, as determined in accordance with GAAP,
could reasonably be expected to have a Material Adverse Effect. Neither the
Borrower nor any Commonly Controlled Entity is currently subject to any
liability for a complete or partial withdrawal from a Multiemployer Plan which
could reasonably be expected to have a Material Adverse Effect.
Section 3.11 Environmental Matters.
(a) The facilities and properties owned, leased or operated by the
Borrower and the other Credit Parties or any of their Subsidiaries (the
"Properties") do not contain any Materials of Environmental Concern in
amounts or concentrations which constitute a violation of any
Environmental Law, which could reasonably be expected to have a Material
Adverse Effect.
(b) The Properties and all operations of the Borrower and the
other Credit Parties and/or their Subsidiaries at the Properties are in
compliance, and have in the last five years been in compliance, in all
material respects with all applicable Environmental Laws, and to the best
knowledge of the Borrower, there is no contamination at, under or about
the Properties or violation of any Environmental Law with respect to the
Properties or the business operated by the Borrower and the other Credit
Parties or any of their Subsidiaries (the "Business").
(c) Neither the Borrower nor any of the other Credit Parties has
received any written or actual notice of violation, alleged violation,
non-compliance, liability or potential liability regarding environmental
matters or compliance with Environmental Laws with regard to any of the
Properties or the Business, nor does the Borrower or any of the other
Credit Parties nor any of their Subsidiaries have knowledge or reason to
48
believe that any such notice will be received or is being threatened,
which could reasonably be expected to have a Material Adverse Effect.
(d) To the best knowledge of the Borrower, Materials of
Environmental Concern have not been transported or disposed of from the
Properties in violation of, or in a manner or to a location which could
give rise to liability under any Environmental Law, nor have any Materials
of Environmental Concern been generated, treated, stored or disposed of
at, on or under any of the Properties in violation of, or in a manner that
could give rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Borrower and the other
Credit Parties, threatened, under any Environmental Law to which the
Borrower or any other Credit Party or any Subsidiary is or will be named
as a party with respect to the Properties or the Business, nor are there
any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Properties or
the Business.
(f) To the best knowledge of the Borrower, there has been no
release or threat of release of Materials of Environmental Concern at or
from the Properties, or arising from or related to the operations of the
Borrower or any other Credit Party or any Subsidiary in connection with
the Properties or otherwise in connection with the Business, in violation
of or in amounts or in a manner that could give rise to liability under
Environmental Laws.
Section 3.12 Purpose of Extensions of Credit.
The proceeds of the Extensions of Credit shall be used by the Borrower
solely to (i) finance the Acquisition and to pay certain costs, fees and
expenses related thereto, (ii) refinance certain existing indebtedness of the
Borrower and the Acquired Company, (iii) pay fees and expenses owing to the
Lenders and the Administrative Agent in connection with this Credit Agreement
and any other transaction fees and expenses incurred in connection with the
Acquisition and the financing thereof, in amounts acceptable to the
Administrative Agent and the Lenders and (iv) provide for working capital and
other general corporate purposes of the Borrower and its Subsidiaries.
Section 3.13 Subsidiaries.
Set forth on Schedule 3.13 is a complete and accurate list of all
Subsidiaries of the Credit Parties. Information on the attached Schedule
includes (i) the state of incorporation or organization, (ii) the number of
shares of each class of Capital Stock or other equity interests outstanding,
(iii) the number and percentage of outstanding shares of each class of stock and
(iv) the number and effect, if exercised, of all outstanding options, warrants,
rights of conversion or purchase and similar rights. The outstanding Capital
Stock and other equity interests of all such Subsidiaries is validly issued,
fully paid and non-assessable and is owned, free and clear of all Liens (other
than those arising under or contemplated in connection with the Credit
Documents).
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Section 3.14 Ownership.
Each of the Credit Parties (a) is the owner of, and has good and
marketable title to, all of its respective assets, except as may be permitted
pursuant to Section 6.12 hereof, and none of such assets is subject to any Lien
other than Permitted Liens and (b) enjoys peaceful and undisturbed possession of
all real properties that are necessary for the operation and conduct of its
business.
Section 3.15 Indebtedness.
Except as otherwise permitted under Section 6.1, the Borrower and its
Subsidiaries have no Indebtedness.
Section 3.16 Taxes.
Each of the Credit Parties and each Subsidiary thereof has filed or caused
to be filed all tax reports and returns required to be filed by each of them
with any Governmental Authority, except where extensions have been properly
obtained and have paid or made adequate provision for the payment of all taxes,
assessments, fees and other charges by any Governmental Authority which are due
and payable, except such taxes, assessments, fees and other charges, if any, as
are being diligently contested in good faith by appropriate proceedings and as
to which the applicable Credit Party or Subsidiary thereof has established
adequate reserves in conformity with GAAP on the books of such Credit Party or
Subsidiary. No Lien for any such taxes, assessments, fees or other charges has
been filed, and no claims are being asserted with respect to any such taxes,
assessments, fees or other charges which, if adversely determined, could have a
Material Adverse Effect.
Section 3.17 Solvency.
The fair saleable value of each Credit Party's assets, measured on a going
concern basis, exceeds all probable liabilities, including those to be incurred
pursuant to this Credit Agreement. None of the Credit Parties (a) has
unreasonably small capital in relation to the business in which it is or
proposes to be engaged or (b) has incurred, or believes that it will incur after
giving effect to the transactions contemplated by this Credit Agreement, debts
beyond its ability to pay such debts as they become due.
Section 3.18 Investments.
All Investments of each of the Borrower and its Subsidiaries are Permitted
Investments.
Section 3.19 No Burdensome Restrictions.
None of the Borrower or any of its Subsidiaries is a party to any
agreement or instrument or subject to any other obligation or any charter or
corporate restriction or any provision of any
50
applicable law, rule or regulation which, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
Section 3.20 Brokers' Fees.
Except as set forth on Schedule 3.20, none of the Borrower or any of its
Subsidiaries have any obligation to any Person in respect of any finder's,
broker's, investment banking or other similar fee in connection with any of the
transactions contemplated under the Credit Documents other than the closing and
other fees payable pursuant to this Credit Agreement.
Section 3.21 Labor Matters.
There are no collective bargaining agreements or Multiemployer Plans
covering the employees of the Borrower or any of its Subsidiaries as of the
Closing Date, other than as set forth in Schedule 3.21 hereto, and none of the
Borrower or any of its Subsidiaries (i) has suffered any strikes, walkouts, work
stoppages or other material labor difficulty within the last five years, other
than as set forth in Schedule 3.21 hereto or (ii) has knowledge of any potential
or pending strike, walkout or work stoppage.
Section 3.22 Accuracy and Completeness of Information.
(a) All information heretofore or contemporaneously herewith
furnished by either the Borrower or any other Credit Party or any of their
Subsidiaries to the Administrative Agent, the Arranger or any Lender for
purposes of or in connection with this Credit Agreement and the
transactions contemplated hereby is, and all information hereafter
furnished by or on behalf of the Credit Parties or any of their
Subsidiaries to the Administrative Agent, the Arranger or any Lender
pursuant hereto or in connection herewith will be, true and accurate in
every material respect on the date as of which such information is dated
or certified, and such information, taken as a whole, does not and will
not omit to state any material fact necessary to make such information,
taken as a whole, not misleading.
(b) All registration statements, reports, proxy statements and
other documents, if any, required to be filed by Credit Parties and their
Subsidiaries with the Securities and Exchange Commission pursuant to the
Securities Act if 1933 and the Securities Exchange Act of 1934, as
amended, have been filed, and such filings are complete and accurate and
contain no untrue statements of material fact or omit to state any
material facts required to be stated therein or necessary in order to make
the statements therein not misleading.
Section 3.23 Consummation of Acquisition; Representations and Warranties
from Other Documents.
The Acquisition and related transactions have been consummated
substantially in accordance with the terms of the Acquisition Documents. As of
the Closing Date and as of the Funding Date, the Acquisition Documents have not
been altered, amended or otherwise modified or supplemented or any condition
thereof waived without the prior written consent of the
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Administrative Agent. Each of the representations and warranties made in the
Acquisition Documents by a Credit Party that is a party thereto is true and
correct, except for any representation or warranty therein the failure of which
to be true and correct, does not have or could not reasonably be expected to
have a Material Adverse Effect.
Section 3.24 Material Contracts.
Schedule 3.24 sets forth a complete and accurate list of all Material
Contracts of the Borrower and its Subsidiaries in effect as of the Closing Date.
As of the Closing Date, other than as set forth in Schedule 3.24, each such
Material Contract is, and after giving effect to the Acquisition and the
transactions contemplated by the Credit Documents will be, in full force and
effect in accordance with the terms thereof and neither any Credit Party nor any
Subsidiary of any Credit Party has violated in any material respect any such
Material Contract. The Borrower has delivered to the Administrative Agent for
its review a correct and complete copy of each written agreement listed in
Schedule 3.24 (as amended to date).
Section 3.25 Insurance.
The present insurance coverage of the Credit Parties and their
Subsidiaries is outlined as to carrier, policy number, expiration date, type and
amount on Schedule 3.25 and such insurance coverage is on terms and in coverage
amounts comparable to the industry standard applicable to the assets and
operations of the Credit Parties and their Subsidiaries.
Section 3.26 Tax Shelter Regulations.
The Borrower does not intend to treat the Extensions of Credit and related
transactions as being a "reportable transaction" (within the meaning of Treasury
Regulation section 1.6011-4). If the Borrower determines to take any action
inconsistent with such intention, it will promptly notify the Administrative
Agent thereof. The Borrower acknowledges that the Administrative Agent and/or
one or more of the Lenders may treat the Loans and/or Letters of Credit as part
of a transaction that is subject to Treasury Regulation section 1.6011-4 or
section 301.6112-1, and the Administrative Agent and such Lender or Lenders, as
applicable, may file such IRS forms or maintain such lists and other records as
they may determine is required by such Treasury Regulations.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.1 Conditions to Closing Date.
This Credit Agreement shall become effective upon the satisfaction of the
following conditions precedent:
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(a) Execution of Credit Documents. The Administrative Agent shall have
received (i) counterparts of this Credit Agreement, (ii) for the account of each
Lender, Revolving Notes and the Term Notes and (iii) for the account of the
Swingline Lender, the Swingline Note, in each case conforming to the
requirements of this Credit Agreement and executed by a duly authorized officer
of each party thereto
(b) Authority Documents. The Administrative Agent shall have received the
following:
(i) Articles of Incorporation. Copies of the articles of
incorporation or other charter documents, as applicable, of each Credit
Party certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state of its incorporation.
(ii) Resolutions. Copies of resolutions of the board of directors
of each Credit Party approving and adopting the Credit Documents, the
transactions contemplated therein and authorizing execution and delivery
thereof, certified by an officer of such Credit Party as of the Closing
Date to be true and correct and in force and effect as of such date.
(iii) By-laws. A copy of the by-laws or operating agreement of each
Credit Party certified by an officer of such Credit Party as of the
Closing Date to be true and correct and in force and effect as of such
date.
(iv) Good Standing. Copies of certificates of good standing,
existence or its equivalent with respect to each Credit Party certified as
of a recent date by the appropriate Governmental Authorities of its state
of incorporation and each other state in which the failure to so qualify
and be in good standing could reasonably be expected to have a Material
Adverse Effect on the business or operations of the Borrower and its
Subsidiaries.
(v) Incumbency. An incumbency certificate of each Credit Party
certified by a secretary or assistant secretary to be true and correct as
of the Closing Date.
(c) Legal Opinion of Counsel. The Administrative Agent shall have
received an opinion of general legal counsel for the Credit Parties, dated the
Closing Date and addressed to the Administrative Agent and the Lenders, which
opinion shall be in form and substance acceptable to the Administrative Agent.
(d) Additional Matters. The Administrative Agent and the Lenders shall
have received such other documents, agreements and opinions in connection with
the Credit Documents, all satisfactory in form and substance, as the
Administrative Agent or any Lender may reasonably request.
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Section 4.2 Conditions to Funding Date and Initial Revolving Loans and
Term Loans.
The obligation of each Lender to make the initial Revolving Loans, the
Swingline Loans and the Term Loan on the Funding Date is subject to, the
satisfaction of the following conditions precedent:
(a) Authority Documents. The Administrative Agent shall have
received, with respect to any Subsidiary of the Borrower joining the
Credit Agreement on the Funding Date as a Guarantor and Credit Party, the
following:
(i) Articles of Incorporation. Copies of the articles of
incorporation or other charter documents, as applicable, of each
such Credit Party certified to be true and complete as of a recent
date by the appropriate Governmental Authority of the state of its
incorporation.
(ii) Resolutions. Copies of resolutions of the board of
directors of such Credit Party approving and adopting the Credit
Documents, the transactions contemplated therein and authorizing
execution and delivery thereof, certified by an officer of such
Credit Party as of the Funding Date to be true and correct and in
force and effect as of such date.
(iii) By-laws. A copy of the by-laws or operating agreement of
such Credit Party certified by an officer of such Credit Party as of
the Funding Date to be true and correct and in force and effect as
of such date.
(iv) Good Standing. Copies of certificates of good standing,
existence or its equivalent with respect to such Credit Party
certified as of a recent date by the appropriate Governmental
Authorities of its state of incorporation and each other state in
which the failure to so qualify and be in good standing could
reasonably be expected to have a Material Adverse Effect on the
business or operations of the Borrower and its Subsidiaries.
(v) Incumbency. An incumbency certificate of such Credit
Party certified by a secretary or assistant secretary to be true and
correct as of the Funding Date.
(b) Legal Opinions of Counsel. The Administrative Agent shall have
received an opinion or opinions of legal counsel for the Credit Parties,
dated the Funding Date and addressed to the Administrative Agent and the
Lenders, which opinion or opinions shall provide, among other things, that
the Borrower, its Subsidiaries and the Acquired Company are in compliance
with all corporate instruments and Material Contracts on the Funding Date
after giving effect to the Acquisition and shall otherwise be in form and
substance acceptable to the Administrative Agent.
(c) Reliance. The Administrative Agent shall have received a copy
of each opinion, report, agreement, and other document required to be
delivered pursuant to the
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Acquisition Documents in connection with the Acquisition and related
transactions, and to the extent available with a letter from each Person
delivering any such opinion authorizing reliance thereon by the
Administrative Agent and the Lenders, all in form and substance reasonably
satisfactory to the Administrative Agent and the Lenders.
(d) Acquisition. The corporate, capital, and ownership structure
of the Credit Parties and their Subsidiaries after giving effect to the
Acquisition shall be as described in Schedule 3.13, and shall otherwise be
reasonably satisfactory to the Administrative Agent and the Lenders. The
Administrative Agent and the Lenders shall be reasonably satisfied with
all legal, tax, accounting, business and other matters relating the
Acquisition or to the Credit Parties and their Subsidiaries, and with the
fees and expenses payable in connection with the consummation of the
Acquisition. All Acquisition Documents (including without limitation the
Purchase Agreement and all schedules thereto, employment agreements, and
any other material agreements including merger agreements) shall be
reasonably satisfactory to the Administrative Agent in all material
respects. The Borrower shall have acquired at least a majority of the
Capital Stock of the Acquired Company. The Administrative Agent, on behalf
of the Lenders, shall have received a final copy of the executed and
effective Acquisition Documents, including all amendments or supplements
thereto, certified by an officer of the Borrower to be true and correct
and in full force and effect.
(e) Account Designation Letter. The Administrative Agent shall
have received the executed Account Designation Letter in the form of
Schedule 1.1-A hereto.
(f) Solvency Certificate. The Administrative Agent shall have
received an officer's certificate for the Credit Parties prepared by the
chief financial officer of the Borrower as to the financial condition,
solvency and related matters of each of the Credit Parties, in each case
after giving effect to the Acquisition and the initial borrowings under
the Credit Documents, in substantially the form of Schedule 4.2(f) hereto.
(g) Officer's Certificate. The Administrative Agent shall have
received a certificate executed by a responsible officer of the Borrower
as of the Closing Date stating that immediately after giving effect to the
borrowings to be made on the Funding Date, the Acquisition and all the
transactions contemplated herein and therein to occur on such date, (A) no
Default or Event of Default exists, (B) all representations and warranties
contained herein and in the other Credit Documents are true and correct in
all material respects, and (C) the Credit Parties are in compliance with
each of the financial covenants set forth in Section 5.9 on a pro forma
basis, as evidenced by detailed calculations attached thereto.
(h) Litigation. There shall not exist any pending or threatened
litigation or investigation affecting or relating to the Borrower, the
Acquired Company or any of their respective Subsidiaries, this Credit
Agreement, the other Credit Documents or the Acquisition that in the
reasonable judgment of the Administrative Agent and Lenders could
materially adversely affect the Borrower, the Acquired Company and any of
their respective Subsidiaries, taken as a whole, or this Credit Agreement
or the other Credit
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Documents, that has not been settled, dismissed, vacated, discharged or
terminated prior to the Funding Date.
(i) Termination of Existing Indebtedness. All existing
Indebtedness for borrowed money of the Borrower, the Acquired Company and
their respective Subsidiaries (other than the Indebtedness listed on
Schedule 6.l(b)) shall have been repaid in full and terminated and all
Liens relating thereto shall have been terminated.
(j) Consents. The Administrative Agent shall have received
evidence that all governmental, shareholder and material third party
consents and approvals necessary in connection with the Acquisition, the
Extensions of Credit and the other transactions contemplated hereby have
been obtained (including, without limitation, approval of the Acquisition
by the board of directors of the Acquired Company) and all applicable
waiting periods have expired without any action being taken by any
authority that could restrain, prevent or impose any material adverse
conditions on such transactions or that could seek or threaten any of such
transactions.
(k) Compliance with Laws. The financings and other transactions
contemplated hereby shall be in compliance with all applicable laws and
regulations (including all applicable securities and banking laws, rules
and regulations).
(1) Bankruptcy. There shall be no bankruptcy or insolvency
proceedings with respect to the Borrower or any of its Subsidiaries.
(m) Material Adverse Effect. Since May 31, 2003, there shall have
been no change which could have a Material Adverse Effect.
(n) Financial Covenants at Funding. The Administrative Agent shall
have received evidence satisfactory to it provided by the Borrower that on
the Funding Date, after giving effect to the Acquisition, the initial
Extensions of Credit hereunder and the other transactions contemplated in
this Credit Agreement, (i) Consolidated Net Worth of the Borrower, the
Acquired Company and their respective Subsidiaries, as of the Funding
Date, is greater than or equal to $125,000,000, (ii) Pro Forma EBITDA of
the Borrower and its Subsidiaries on a consolidated basis is greater than
or equal to $30,000,000, (iii) the Funded Debt of the Borrower and its
Subsidiaries on a consolidated basis is less than or equal to $80,000,000
and (iv) the ratio of Funded Debt of the Borrower and its Subsidiaries on
a consolidated basis to Pro Forma EBITDA of the Borrower and its
Subsidiaries on a consolidated basis is less than or equal to 2.25 to 1.0.
(o) Liability. Casualty and Business Interruption Insurance. The
Administrative Agent shall have received, in form and substance
satisfactory thereto, copies of insurance policies or certificates of
insurance evidencing liability, casualty and business interruption
insurance of the Borrower, the Acquired Company and their respective
Subsidiaries.
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(p) Financial Statements. The Administrative Agent shall have
received copies of the financial statements referred to in Section 3.1
hereof, each in form and substance satisfactory to it.
(q) Form U-1s. The Administrative Agent shall have received for
each Lender a Federal Reserve Form U-1, duly executed and completed by the
Borrower, indicating that none of the Credit Extensions constitute, or
will constitute, "purpose credit" within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System of the United States.
(r) Fees. The Administrative Agent and the Lenders shall have
received all fees, if any, owing pursuant to the Fee Letter and Section
2.5.
(s) Additional Matters. All other documents and legal matters in
connection with the transactions contemplated by this Credit Agreement
shall be reasonably satisfactory in form and substance to the
Administrative Agent and its counsel.
Section 4.3 Conditions to All Extensions of Credit.
The obligation of each Lender to make any Extension of Credit hereunder is
subject to satisfaction of the following conditions precedent on the date of
making such Extension of
(a) Representations and Warranties. The representations and
warranties made by the Credit Parties herein or which are contained in any
certificate furnished at any time under or in connection herewith shall be
true and correct on and as of the date of such Extension of Credit as if
made on and as of such date.
(b) No Default or Event of Default. No Default or Event of Default
shall have occurred and be continuing on such date or after giving effect
to the Extension of Credit to be made on such date unless such Default or
Event of Default shall have been waived in accordance with this Credit
Agreement.
(c) Compliance with Commitments. Immediately after giving effect
to the making of any such Extension of Credit (and the application of the
proceeds thereof), (i) the sum of outstanding Revolving Loans plus
outstanding Swingline Loans plus LOC Obligations shall not exceed the
Aggregate Revolving Committed Amount, (ii) the LOC Obligations shall not
exceed the LOC Committed Amount and (iii) the Swingline Loans shall not
exceed the Swingline Committed Amount.
(d) Additional Conditions to Revolving Loans. If a Revolving Loan
is requested, all conditions set forth in Section 2.1 shall have been
satisfied.
(e) Additional Conditions to Term Loan. If the Term Loan is
requested, all conditions set forth in Section 2.2 shall have been
satisfied.
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(f) Additional Conditions to Letters of Credit. If the issuance of
a Letter of Credit is requested, all conditions set fort in Section 2.3
shall have been satisfied.
(g) Additional Conditions to Swingline Loans. If a Swingline Loan
is requested, all conditions set forth in Section 2.4 shall have been
satisfied.
Each request for an Extension of Credit and each acceptance by the
Borrower of any such Extension of Credit shall be deemed to constitute
representations and warranties by the Borrower as of the date of such Extension
of Credit that the applicable conditions in paragraphs (a) through (g) of this
Section have been satisfied.
ARTICLE V
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that on the Closing Date,
and thereafter for so long as this Credit Agreement is in effect and until the
Commitments have terminated, no Note remains outstanding and unpaid and the
Credit Party Obligations, together with interest, Commitment Fee and all other
amounts owing to the Administrative Agent or any Lender hereunder, are paid in
full, such Credit Party shall, and shall cause each of its Subsidiaries (other
than in the case of Sections 5.1,5.2 or 5.7 hereof), to:
Section 5.1 Financial Statements.
Furnish to the Administrative Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available, but in any
event within ninety (90) days after the end of each fiscal year of the
Borrower, a copy of the consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such fiscal year and the
related consolidated and consolidating statements of income and retained
earnings and of cash flows of the Borrower and its consolidated
Subsidiaries for such year which, other than in the case of the
consolidating statements, shall be audited by a firm of independent
certified public accountants of nationally recognized standing reasonably
acceptable to the Required Lenders, setting forth in each case in
comparative form the figures for the previous year, reported on without a
"going concern" or like qualification or exception, or qualification
indicating that the scope of the audit was inadequate to permit such
independent certified public accountants to certify such financial
statements without such qualification;
(b) Quarterly Financial Statements. As soon as available and in
any event within forty-five (45) days after the end of each of the first
three fiscal quarters of the Borrower, a copy of the consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at the end of
such period and related consolidated and consolidating statements of
income and retained earnings and of cash flows for the Borrower and its
consolidated Subsidiaries for such quarterly period and for the portion of
the fiscal year
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ending with such period, in each case setting forth in comparative form
consolidated figures for the corresponding period or periods of the
preceding fiscal year (subject to normal recurring year-end audit
adjustments);
(c) Annual Operating Budget and Cash Flow. As soon as available,
but in any event within forty-five (45) days prior to the end of each
fiscal year, a copy of the detailed annual operating budget or plan
including cash flow projections of the Borrower and its Subsidiaries for
the next four fiscal quarter period prepared on a quarterly basis, in form
and detail reasonably acceptable to the Administrative Agent and the
Lenders, together with a summary of the material assumptions made in the
preparation of such annual budget or plan;
all such financial statements to be complete and correct in all material
respects (subject, in the case of interim statements, to normal recurring
year-end audit adjustments) and to be prepared in reasonable detail and, in the
case of the annual and quarterly financial statements provided in accordance
with subsections (a) and (b) above, in accordance with GAAP applied consistently
throughout the periods reflected therein and further accompanied by a
description of, and an estimation of the effect on the financial statements on
account of, a change, if any, in the application of accounting principles as
provided in Section 1.3.
Section 5.2 Certificates; Other Information.
Furnish to the Administrative Agent and each of the Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Section 5.1(a) above, a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge was
obtained of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements
referred to in Sections 5.1(a) and 5.1(b) above, a certificate of a
Responsible Officer stating that, to the best of such Responsible
Officer's knowledge, each of the Credit Parties during such period
observed or performed in all material respects all of its covenants and
other agreements, and satisfied in all material respects every condition,
contained in this Credit Agreement to be observed, performed or satisfied
by it, and that such Responsible Officer has obtained no knowledge of any
Default or Event of Default except as specified in such certificate and
such certificate shall include the calculations in reasonable detail
required to indicate compliance with Section 5.9 as of the last day of
such period;
(c) within thirty (30) days after the same are sent, copies of all
reports (other than those otherwise provided pursuant to Section 5.1 and
those which are of a promotional nature) and other financial information
which the Borrower sends to its stockholders, and within thirty (30) days
after the same are filed, copies of all financial statements and
non-confidential reports which the Borrower may make to, or file with the
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Securities and Exchange Commission or any successor or analogous
Governmental Authority;
(d) within ninety (90) days after the end of each fiscal year of
the Borrower, a certificate containing information regarding the amount of
all Asset Dispositions, Debt Issuances, and Equity Issuances that were
made during the prior fiscal year and amounts received in connection with
any Recovery Event during the prior fiscal year;
(e) promptly upon receipt thereof, a copy of any other report or
"management letter" submitted by independent accountants to the Borrower
or any of its Subsidiaries in connection with any annual, interim or
special audit of the books of such Person;
(f) not less than five (5) days prior to the consummation of any
Permitted Acquisition:
(i) a reasonably detailed description of the material terms
of such Permitted Acquisition (including, without limitation, the
purchase price and method and structure of payment) and of each
Target;
(ii) to the extent available, audited financial statements of
the Target for its three (3) most recent fiscal years prepared by
independent certified public accountants acceptable to the
Administrative Agent and unaudited fiscal year-to-date statements
for the two (2) most recent interim periods;
(iii) to the extent available, consolidated projected income
statements of the Borrower and its consolidated Subsidiaries (giving
effect to such Permitted Acquisition and the consolidation with the
Borrower of each relevant Target) for the three (3)-year period
following the consummation of such Permitted Acquisition, in
reasonable detail, together with any appropriate statement of
assumptions and pro forma adjustments reasonably acceptable to the
Required Lenders;
(iv) a certificate, in form and substance reasonably
satisfactory to the Administrative Agent, executed by a Responsible
Officer of the Borrower (A) setting forth the best good faith
estimate of the total consideration (including, without limitation,
cash, debt and equity) to be paid for each Target, (B) certifying
that (y) such Permitted Acquisition complies with the requirements
of this Credit Agreement and (z) after giving effect to such
Permitted Acquisition and any borrowings in connection therewith,
the Borrower believes in good faith that it will have sufficient
availability under the Revolving Commitment to meet its ongoing
working capital requirements and (C) demonstrating compliance with
subsections (c) and (e) of the definition of the Permitted
Acquisition; and
(v) to the extent available, any due diligence reports
prepared by, or on behalf of, any Credit Party with respect to the
Target; and
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(g) promptly, such other documents and information about the
business, operations, revenues, financial condition, property or business
prospects of the Borrower or any of its Subsidiaries as the Administrative
Agent, on behalf of any Lender, may from time to time reasonably request.
Section 5.3 Payment of Obligations.
(a) Perform all of its obligations under each contract to which it
is a party, if a failure to so perform may have a Material Adverse Effect.
(b) Pay and perform all of its obligations under the Credit
Documents and pay and perform (i) all taxes, assessments and other
governmental charges that may be levied or assessed upon it or its
property, which if not paid or performed would have a Material Adverse
Effect and (ii) all other indebtedness, obligations and liabilities in
accordance with customary trade practices, which if not paid would have a
Material Adverse Effect; provided that it may contest any tax, assessment
or other governmental charge in good faith so long as adequate reserves
are maintained with respect thereto in accordance with GAAP.
Section 5.4 Conduct of Business and Maintenance of Existence.
Continue to engage in business of the same general type as conducted by it
on the Closing Date and preserve and maintain its corporate existence and all
rights, franchises, licenses and privileges necessary to the conduct of its
business, and qualify and remain qualified as a foreign corporation (or
partnership, limited liability company or other such similar entity, as the case
may be) and authorized to do business in each jurisdiction in which the failure
to so qualify would have a Material Adverse Effect and shall maintain all
licenses, permits and registrations necessary for the conduct of its operations.
Section 5.5 Maintenance of Property; Insurance.
(a) Keep all material property useful and necessary in its
business in good working order and condition (ordinary wear and tear and
obsolescence excepted).
(b) Maintain with financially sound and reputable insurance
companies insurance on all its material property in at least such amounts
and against at least such risks as are usually insured against in the same
general area by companies engaged in the same or a similar business; and
furnish to the Administrative Agent, upon written request, full
information as to the insurance carried; provided, however, that the
Borrower and its Subsidiaries may maintain self insurance plans to the
extent companies of similar size and in similar businesses do so.
Section 5.6 Inspection of Property; Books and Records; Discussions.
Keep proper books and records of accounts in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of all
dealings and
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transactions in relation to its businesses and activities; and, provided that
the Administrative Agent, the Lenders use reasonable efforts to minimize
disruption to the business of the Borrower and its Subsidiaries, permit
representatives of the Administrative Agent or any Lender, from time to time, to
visit and inspect its properties and to inspect, audit and make extracts from
its books, records and files, including without limitation management letters
prepared by independent accountants and to discuss with its principal officers,
and its independent accountants, its business, assets, liabilities, financial
condition, results of operations and business prospects.
Section 5.7 Notices.
Give notice in writing to the Administrative Agent (which shall promptly
transmit such notice to each Lender) of:
(a) promptly, but in any event within two (2) days after the
Borrower knows or has reason to know thereof, the occurrence of any
Default or Event of Default;
(b) promptly and in any event within three (3)Business Days after
the Borrower knows or has reason to know thereof, the commencement of any
(i) Material Proceeding, (ii) loss of or damage to any assets of the
Borrower or any Subsidiary that likely will result in a Material Adverse
Effect and (iii) litigation, investigation or proceeding involving an
environmental claim or potential liability under Environmental Laws in
excess of $1,000,000;
(c) promptly and in any event within three (3)Business Days after
the Borrower knows or has reason to know thereof, default by Borrower or
any Subsidiary under any note, indenture, loan agreement, mortgage or
other similar agreement to which the Borrower or any Subsidiary is a party
or by which the Borrower or any Subsidiary is bound, which relates to
borrowed money, or of any other default under any other note, indenture,
loan agreement, mortgage or other similar agreement to which the Borrower
or any Subsidiary is a party or by which the Borrower or any Subsidiary is
bound if such other default may result in a material and adverse effect on
the Borrower's financial condition or operations;
(d) promptly and in any event within thirty (30) Business Days
after the Borrower knows or has reason to know thereof: (i) the occurrence
or expected occurrence of any Reportable Event with respect to any Plan, a
failure to make any required contribution to a Plan, the creation of any
Lien in favor of the PBGC (other than a Permitted Lien) or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of
any other action by the PBGC or the Borrower or any Commonly Controlled
Entity or any Multiemployer Plan with respect to the withdrawal from, or
the terminating, Reorganization or Insolvency of, any Plan; and
(e) promptly and in any event within three (3) Business Days after
the Borrower knows or has reason to know thereof, any other development or
event which could reasonably be expected to have a Material Adverse
Effect.
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Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto. In
the case of any notice of a Default or Event of Default, the Borrower shall
specify that such notice is a Default or Event of Default notice on the face
thereof.
Section 5.8 Environmental Laws.
(a) Comply in all material respects with, and ensure compliance in
all material respects by all tenants and subtenants, if any, with, all
applicable Environmental Laws and obtain and comply in all material
respects with and maintain, and ensure that all tenants and subtenants
obtain and comply in all material respects with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws except to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws except to the extent that the same are being contested
in good faith by appropriate proceedings and the pendency of such
proceedings could not reasonably be expected to have a Material Adverse
Effect; and
(c) Defend, indemnify and hold harmless the Administrative Agent
and the Lenders, and their respective employees, agents, officers and
directors, from and against any and all claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of whatever
kind or nature known or unknown, contingent or otherwise, arising out of,
or in any way relating to the violation of, noncompliance with or
liability under, any Environmental Law applicable to the operations of
the Borrower, any of its Subsidiaries or the Properties, or any orders,
requirements or demands of Governmental Authorities related thereto,
including, without limitation, reasonable attorney's and consultant's
fees, investigation and laboratory fees, response costs, court costs and
litigation expenses, except to the extent that any of the foregoing arise
out of the gross negligence or willful misconduct of the party seeking
indemnification therefor. The agreements in this paragraph shall survive
repayment of the Notes and all other amounts payable hereunder.
Section 5.9 Financial Covenants.
Commencing on the day immediately following the Closing Date, the Credit
Parties shall comply with the following financial covenants:
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(a) Consolidated Leverage Ratio. The Consolidated Leverage Ratio, as
of the last day of each fiscal quarter of the Borrower and its
consolidated Subsidiaries shall be less than or equal to 2.50 to 1.0.
(b) Consolidated Fixed Charge Coverage Ratio. The Consolidated Fixed
Charge Coverage Ratio, as of the last day of each fiscal quarter of the
Borrower and its consolidated Subsidiaries shall be greater than or equal
to (i) 1.50 to 1.0 until the end of the first fiscal quarter of the
Borrower's fiscal year 2005 and (ii) 2.00 to 1.0 for each fiscal quarter
of the Borrower ending thereafter.
(c) Consolidated Net Worth. Consolidated Net Worth shall at all
times be greater than or equal to $125,000,000 plus 50% of Consolidated
Net Income (if positive) from the Closing Date to the date of computation
plus 80% of all Equity Issuances from the Closing Date to the date of
computation.
Section 5.10 Additional Subsidiary Guarantors.
The Credit Parties will cause each of their Domestic Subsidiaries, whether
newly formed, after acquired or otherwise existing, to promptly become a
Guarantor hereunder by way of execution of a Joinder Agreement.
Section 5.11 Compliance with Law.
To the extent failure to do so would have a Material Adverse Effect, each
Credit Party will, and will cause each of its Subsidiaries to observe and
remain in compliance with all applicable Requirements of Law and maintain in
full force and effect all permits, authorizations, registrations and consents
from any Governmental Authority, in each case applicable to the conduct of its
business.
Section 5.12 Further Assurances.
(a) By no later than five (5) Business Days after the Closing
Date, the Administrative Agent shall have received a secretary's
certificate, certified articles of incorporation, by-laws, resolutions,
incumbency and a certificate of good standing of Magic Subsidiary
Corporation.
(b) By no later than 120 days after the Funding Date, the Borrower
shall have acquired 100% of the Capital Stock of the Acquired Company.
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ARTICLE VI
NEGATIVE COVENANTS
The Credit Parties hereby covenant and agree that on the Closing Date,
and thereafter for so long as this Credit Agreement is in effect and until the
Commitments have terminated, no Note remains outstanding and unpaid and the
Credit Party Obligations, together with interest, Commitment Fee and all other
amounts owing to the Administrative Agent or any Lender hereunder, are paid in
full that:
Section 6.1 Indebtedness.
The Borrower will not, nor will it permit any Subsidiary to, contract,
create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising or existing under this Credit Agreement and
the other Credit Documents;
(b) Indebtedness of the Borrower and its Subsidiaries existing as of
the Funding Date (and not refinanced by the Loans as provided herein) as
referenced in the financial statements referenced in Section 3.1 (and set
out more specifically in Schedule 6.1(b)) hereto and renewals,
refinancings or extensions thereof in a principal amount not in excess of
that outstanding as of the date of such renewal, refinancing or extension;
(c) Indebtedness of the Borrower and its Subsidiaries incurred after
the Closing Date consisting of Capital Leases or Indebtedness incurred to
provide all or a portion of the purchase price or cost of construction of
an asset provided that (i) such Indebtedness when incurred shall not
exceed the purchase price or cost of construction of such asset; (ii) no
such Indebtedness shall be refinanced for a principal amount in excess of
the principal balance outstanding thereon at the time of such refinancing;
and (iii) the total amount of all such Indebtedness shall not exceed
$2,000,000 at any time outstanding;
(d) Unsecured intercompany Indebtedness among the Credit Parties,
provided that any such Indebtedness shall be fully subordinated to the
Credit Party Obligations hereunder on terms reasonably satisfactory to the
Administrative Agent;
(e) Indebtedness and obligations owing under Hedging Agreements
relating to the Loans hereunder and other Hedging Agreements entered into
in order to manage existing or anticipated interest rate, exchange rate or
commodity price risks and not for speculative purposes;
(f) Indebtedness and obligations of Credit Parties owing under
documentary letters of credit for the purchase of goods or other
merchandise (but not under standby, direct pay or other letters of credit
except for the Letters of Credit hereunder) generally;
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(g) Guaranty Obligations in respect of Indebtedness of a Credit
Party to the extent such Indebtedness is permitted to exist or be incurred
pursuant to this Section 6.1;
(h) other Indebtedness of the Borrower and its Subsidiaries provided
that such Indebtedness is non-recourse to the Borrower or any of its
Subsidiaries and does not exceed $1,000,000 in the aggregate at any time
outstanding.
Section 6.2 Liens.
The Borrower will not, nor will it permit any Subsidiary to, contract,
create, incur, assume or permit to exist any Lien with respect to any of its
property or assets of any kind (whether real or personal, tangible or
intangible), whether now owned or hereafter acquired, except for Permitted
Liens.
Section 6.3 Nature of Business.
The Borrower will not, nor will it permit any Subsidiary to, alter the
character of its business in any material respect from that conducted as of the
Closing Date.
Section 6.4 Consolidation, Merger, Sale or Purchase of Assets, etc.
The Borrower will not, nor will it permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, sell, transfer,
lease or otherwise dispose of its property or assets or agree to do so at
a future time except the following, without duplication, shall be
expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other disposition of
property or assets (A) to an unrelated party not in the ordinary
course of business (other than Specified Sales), where and to the
extent that they are the result of a Recovery Event or (B) the sale,
lease, transfer or other disposition of machinery, parts and
equipment no longer used or useful in the conduct of the business of
the Borrower or any of its Subsidiaries, as appropriate, in its
reasonable discretion, so long as and the net proceeds therefrom are
used to repair or replace damaged property or to purchase or
otherwise acquire new assets or property, provided that such
purchase or acquisition is committed to within 180 days of receipt
of the net proceeds and such purchase or acquisition is consummated
within 270 days of receipt of such proceeds;
(iii) the sale, lease or transfer of property or assets (at
fair market value) from the Borrower to any Guarantor;
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(iv) the sale, lease or transfer of property or assets (at
fair market value) from a Guarantor to another Guarantor; and
(v) the sale, lease or transfer of property or assets not to
exceed $1,000,000 in the aggregate in any fiscal year;
provided, that in each case at least 75% of the consideration received
therefor by the Borrower or any such Subsidiary is in the form of cash or
Cash Equivalents; provided, further, that with respect to sales of assets
permitted hereunder only, the Administrative Agent shall be entitled,
without the consent of the Required Lenders, to release its Liens relating
to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single
transaction or a series of related transactions) the property or assets of
any Person (other than purchases or other acquisitions of inventory,
leases, materials, property and equipment in the ordinary course of
business, except as otherwise limited or prohibited herein) or (ii) enter
into any transaction of merger or consolidation, except for (A)
Investments or acquisitions (including Permitted Acquisitions and the
Acquisition) permitted pursuant to Section 6.5, and (B) the merger or
consolidation of a Credit Party with and into another Credit Party,
provided that if the Borrower is a party thereto, the Borrower will be the
surviving corporation.
Section 6.5 Advances, Investments and Loans.
The Borrower will not, nor will it permit any Subsidiary to, lend money or
extend credit or make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, any Person except for Permitted Investments and the
Acquisition.
Section 6.6 Transactions with Affiliates.
The Borrower will not, nor will it permit any Subsidiary to, enter into
any transaction or series of transactions, whether or not in the ordinary course
of business, with any officer, director, shareholder or Affiliate of such Person
other than on terms and conditions substantially as favorable as would be
obtainable in a comparable arm's-length transaction with a Person other than an
officer, director, shareholder or Affiliate.
Section 6.7 Ownership of Subsidiaries; Restrictions.
The Borrower will not, nor will it permit any Subsidiary to, create, form
or acquire any Subsidiaries, except for Domestic Subsidiaries which are joined
as Additional Credit Parties in accordance with the terms hereof. The Borrower
will not sell, transfer, pledge or otherwise dispose of any Capital Stock or
other equity interests in any of its Subsidiaries, nor will it permit any of its
Subsidiaries to issue, sell, transfer, pledge or otherwise dispose of any of
their Capital Stock or other equity interests, except in a transaction permitted
by Section 6.4. The Borrower shall not, and shall not permit any of its
Subsidiaries to, amend, modify or change its
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shareholders' agreements or other equity-related documents (excluding amendments
to stock option plan documents) in any material respect without the prior
written consent of the Required Lenders.
Section 6.8 Fiscal Year; Organizational Documents; Material Contracts.
The Borrower will not, nor will it permit any of its Subsidiaries to (a)
change its fiscal year, (b) amend, modify or change its articles of
incorporation (or corporate charter or other similar organizational document) or
by-laws (or other similar document) in any material respect or in any respect
adverse to the interests of the Lenders without the prior written consent of the
Required Lenders or (c) amend, modify, cancel, terminate or fail to renew or
extend or permit the amendment, modification, cancellation or termination of any
Material Contract without the prior written consent of the Required Lenders,
except in the event that such amendments, modifications, cancellations or
terminations could not reasonably be expected to have a Material Adverse Effect.
Section 6.9 Limitation on Restricted Actions.
The Borrower will not, nor will it permit any Subsidiary to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Person to (a) pay
dividends or make any other distributions to any Credit Party on its Capital
Stock or with respect to any other interest or participation in, or measured by,
its profits, (b) pay any Indebtedness or other obligation owed to any Credit
Party, (c) make loans or advances to any Credit Party, (d) sell, lease or
transfer any of its properties or assets to any Credit Party, or (e) act as a
Guarantor and pledge its assets pursuant to the Credit Documents or any
renewals, refinancings, exchanges, refundings or extension thereof, except (in
respect of any of the matters referred to in clauses (a)-(d) above) for such
encumbrances or restrictions existing under or by reason of (i) this Credit
Agreement and the other Credit Documents, (ii) applicable law, (iii) any
document or instrument governing Indebtedness incurred pursuant to Section
6.l(c), provided that any such restriction contained therein relates only to the
asset or assets constructed or acquired in connection therewith or (iv) any
Permitted Lien or any document or instrument governing any Permitted Lien,
provided that any such restriction contained therein relates only to the asset
or assets subject to such Permitted Lien.
Section 6.10 Restricted Payments.
Each of the Credit Parties will not, nor will it permit any Subsidiary to,
directly or indirectly, declare, order, make or set apart any sum for or pay any
Restricted Payment, except (a) to make dividends payable solely in the common
stock or equivalent equity interests of such Person and (b) to make dividends or
other distributions payable to the Borrower or any wholly owned Subsidiary of
the Borrower that is a Guarantor (directly or indirectly through Subsidiaries).
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Section 6.11 Prepayments of Subordinated Debt, etc.
The Borrower will not, nor will it permit any Subsidiary to, after the
issuance thereof, amend or modify (or permit the amendment or modification of)
any of the terms of any Subordinated Debt if such amendment or modification
would add or change any terms in a manner adverse to the issuer of such
Subordinated Debt or the Lenders, or shorten the final maturity or average life
to maturity or require any payment to be made sooner than originally scheduled
or increase the interest rate applicable thereto or change any subordination
provision thereof.
Section 6.12 Sale Leasebacks.
The Borrower will not, nor will it permit any Subsidiary to, directly or
indirectly, become or remain liable as lessee or as guarantor or other surety
with respect to any lease, whether an operating lease or a Capital Lease, of any
property (whether real, personal or mixed), whether now owned or hereafter
acquired in excess of $1,000,000 in the aggregate on an annual basis, (a) which
the Borrower or any Subsidiary has sold or transferred or is to sell or transfer
to a Person which is not the Borrower or any Subsidiary or (b) which the
Borrower or any Subsidiary intends to use for substantially the same purpose as
any other property which has been sold or is to be sold or transferred by the
Borrower or any Subsidiary to another Person which is not the Borrower or any
Subsidiary in connection with such lease.
Section 6.13 No Further Negative Pledges.
The Borrower will not, nor will it permit any Subsidiary to, enter into,
assume or become subject to any agreement prohibiting or otherwise restricting
the creation or assumption of any Lien upon its properties or assets, whether
now owned or hereafter acquired, or requiring the grant of any security for such
obligation if security is given for some other obligation, except (a) pursuant
to this Credit Agreement and the other Credit Documents, (b)pursuant to any
document or instrument governing Indebtedness incurred pursuant to Section 6.1
(c), provided that any such restriction contained therein relates only to the
asset or assets constructed or acquired in connection therewith and (c) in
connection with any Permitted Lien or any document or instrument governing any
Permitted Lien, provided that any such restriction contained therein relates
only to the asset or assets subject to such Permitted Lien.
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ARTICLE VII
EVENTS OF DEFAULT
Section 7.1 Events of Default.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) The Borrower shall fail (i) to pay any principal on any Note
when due in accordance with the terms thereof or hereof, (ii) to reimburse
the Issuing Lender for any LOC Obligations when due in accordance with the
terms hereof, or (iii) to pay any interest on any Note or any fee or other
amount payable hereunder when due in accordance with the terms thereof or
hereof and the failure to pay such interest, fee or other amount pursuant
to this clause (iii) shall continue unremedied for three (3) Business Days
(or any Guarantor shall fail to pay on the Guaranty in respect of any of
the foregoing or in respect of any other Guaranty Obligations thereunder);
or
(b) Any representation or warranty made or deemed made herein or in
any of the other Credit Documents or which is contained in any
certificate, document or financial or other statement furnished at any
time under or in connection with this Credit Agreement shall prove to have
been incorrect, false or misleading in any material respect on or as of
the date made or deemed made; or
(c) (i)Any Credit Party shall fail to perform, comply with or
observe any term, covenant or agreement applicable to it contained in
Section 5.1, Section 5.2, Section 5.7(a), Section 5.9, 5.12 or Article VI
hereof; or (ii) any Credit Party shall fail to comply with any other
covenant, contained in this Credit Agreement or the other Credit Documents
or any other agreement, document or instrument among any Credit Party, the
Administrative Agent and the Lenders or executed by any Credit Party in
favor of the Administrative Agent or the Lenders (other than as described
in Sections 7.l(a) or 7.l(c)(i) above), and in the event such breach or
failure to comply is capable of cure, is not cured within thirty (30) days
of its occurrence; or
(d) The Borrower or any of its Subsidiaries shall (i) default in any
payment of principal of or interest on any Indebtedness (other than the
Notes) in a principal amount outstanding of at least $1,000,000 in the
aggregate for the Borrower and any of its Subsidiaries beyond the period
of grace (not to exceed thirty (30) days), if any, provided in the
instrument or agreement under which such Indebtedness was created; (ii)
default in the observance or performance of any other agreement or
condition relating to any Indebtedness in a principal amount outstanding
of at least $1,000,000 in the aggregate for the Borrower and its
Subsidiaries or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition
exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness or
beneficiary or beneficiaries of such Indebtedness (or a trustee or agent
on behalf of such holder or holders or beneficiary or beneficiaries) to
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cause, with the giving of notice if required, such Indebtedness to become
due prior to its stated maturity; or (iv) breach or default any Hedging
Agreement between the Borrower and any Lender or Affiliate of a Lender; or
(e) (i) The Borrower or any of its Subsidiaries shall commence any
case, proceeding or other action (A) under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it
or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or the Borrower or any of its Subsidiaries
shall make a general assignment for the benefit of its creditors; or (ii)
there shall be commenced against the Borrower or any of its Subsidiaries
any case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of sixty (60) days; or (iii) there shall be
commenced against the Borrower or any of its Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within sixty (60) days from the entry thereof; or (iv) the
Borrower or any of its Subsidiaries shall take any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any of
the acts set forth in clause (i), (ii), or (iii) above; or (v) the
Borrower or any of its Subsidiaries shall generally not, or shall be
unable to, or shall admit in writing their inability to, pay its debts as
they become due; or
(f) One or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate a liability
(to the extent not paid when due or covered by insurance) of $1,000,000 or
more and all such judgments or decrees shall not have been paid and
satisfied, vacated, discharged, stayed or bonded pending appeal within ten
(10) days from the entry thereof; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan (other than a Permitted Lien)
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall
be appointed, to administer or to terminate, any Single Employer Plan,
which Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders, likely to
result in the termination of such Plan for purposes of Title IV of ERISA,
(iv) any Single Employer Plan shall terminate for purposes of Title IV of
ERISA, (v) the Borrower, any of its Subsidiaries or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required
Lenders is likely to, incur any liability in
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connection with a withdrawal from, or the Insolvency or Reorganization of,
any Multiemployer Plan or (vi) any other similar event or condition shall
occur or exist with respect to a Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all other such
events or conditions, if any, could have a Material Adverse Effect; or
(h) There shall occur a Change of Control; or
(i) At any time after the execution and delivery thereof, the
Guaranty for any reason, other than the satisfaction in full of all Credit
Party Obligations, shall cease to be in full force and effect (other than
in accordance with its terms) or shall be declared to be null and void, or
any Credit Party shall contest the validity or enforceability of the
Guaranty or any Credit Document in writing or deny in writing that it has
any further liability, including with respect to future advances by the
Lenders, under any Credit Document to which it is a party; or
(j) Any other Credit Document shall fail to be in full force and
effect or to give the Administrative Agent and/or the Lenders the rights,
powers and privileges purported to be created thereby (except as such
documents may be terminated or no longer in force and effect in accordance
with the terms thereof, other than those indemnities and provisions which
by their terms shall survive).
Section 7.2 Acceleration: Remedies.
Upon the occurrence of an Event of Default, then, and in any such event,
(a) if such event is an Event of Default specified in Section 7.l(e) above,
automatically the Commitments shall immediately terminate and the Loans (with
accrued interest thereon), and all other amounts under the Credit Documents
(including without limitation the maximum amount of all contingent liabilities
under Letters of Credit) shall immediately become due and payable, and (b) if
such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the written consent of the Required Lenders, the
Administrative Agent may, or upon the written request of the Required Lenders,
the Administrative Agent shall, by notice to the Borrower declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) the Administrative Agent may, or upon the
written request of the Required Lenders, the Administrative Agent shall, by
notice of default to the Borrower, declare the Loans (with accrued interest
thereon) and all other amounts owing under this Credit Agreement and the Notes
to be due and payable forthwith and direct the Borrower to pay to the
Administrative Agent cash collateral as security for the LOC Obligations for
subsequent drawings under then outstanding Letters of Credit an amount equal to
the maximum amount of which may be drawn under Letters of Credit then
outstanding, whereupon the same shall immediately become due and payable.
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ARTICLE VIII
THE AGENT
Section 8.1 Appointment.
Each Lender hereby irrevocably designates and appoints Wachovia Bank,
National Association as the Administrative Agent of such Lender under this
Credit Agreement, and each such Lender irrevocably authorizes Wachovia Bank,
National Association, as the Administrative Agent for such Lender, to take such
action on its behalf under the provisions of this Credit Agreement and to
exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Credit Agreement, together with such
other powers as are reasonably incidental thereto. Notwithstanding any provision
to the contrary elsewhere in this Credit Agreement, the Administrative Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Credit Agreement or otherwise exist against the Administrative Agent.
Section 8.2 Delegation of Duties.
The Administrative Agent may execute any of its duties under this Credit
Agreement by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care. Without
limiting the foregoing, the Administrative Agent may appoint one of its
affiliates as its agent to perform the functions of the Administrative Agent
hereunder relating to the advancing of funds to the Borrower and distribution of
funds to the Lenders and to perform such other related functions of the
Administrative Agent hereunder as are reasonably incidental to such functions.
Section 8.3 Exculpatory Provisions.
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Credit Agreement (except for its or such Person's own gross
negligence or willful misconduct) or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
the Borrower or any officer thereof contained in this Credit Agreement or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this Credit
Agreement or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of any of the Credit Documents or for any failure of the Borrower
to perform their obligations hereunder or thereunder. The Administrative Agent
shall not be under any obligation to any Lender to ascertain or to inquire as to
the observance or performance by the Borrower of any of the agreements contained
in, or conditions of, this Credit Agreement, or to inspect the properties, books
or records of the Borrower.
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Section 8.4 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any Note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it in
good faith to be genuine and correct and to have been signed, sent or made by
the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless (a) a written notice of assignment, negotiation
or transfer thereof shall have been filed with the Administrative Agent and (b)
the Administrative Agent shall have received the written agreement of such
assignee to be bound hereby as fully and to the same extent as if such assignee
were an original Lender party hereto, in each case in form satisfactory to the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Credit Agreement unless it
shall first receive such advice or concurrence of the Required Lenders as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under any of the Credit Documents in accordance with a request of the Required
Lenders or all of the Lenders, as may be required under this Credit Agreement,
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders and all future holders of the Notes.
Section 8.5 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or notice
of the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or the Borrower referring
to this Credit Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
prompt notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders; provided, however, that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders except to the extent that
this Credit Agreement expressly requires that such action be taken, or not
taken, only with the consent or upon the authorization of the Required Lenders,
or all of the Lenders, as the case may be.
Section 8.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representation or warranty to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Borrower, shall be deemed to constitute any representation or
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warranty by the Administrative Agent to any Lender. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
the Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to make
its Loans hereunder and enter into this Credit Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Credit Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrower. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
Section 8.7 Indemnification.
The Lenders agree to indemnify the Administrative Agent in its capacity
hereunder (to the extent not reimbursed by the Borrower and without limiting the
obligation of the Borrower to do so), ratably according to their respective
Commitment Percentages in effect on the date on which indemnification is sought
under this Section, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Notes) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of any Credit Document or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided, however, that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
to the extent resulting from the Administrative Agent's gross negligence or
willful misconduct, as determined by a court of competent jurisdiction. The
agreements in this Section 8.7 shall survive the termination of this Credit
Agreement and payment of the Notes and all other amounts payable hereunder.
Section 8.8 Administrative Agent in Its Individual Capacity.
The Administrative Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower as
though the Administrative Agent were not the Administrative Agent hereunder.
With respect to its Loans made or renewed by it and any Note issued to it, the
Administrative Agent shall have the same rights and powers under this Credit
Agreement as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
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Section 8.9 Successor Administrative Agent.
The Administrative Agent may resign as Administrative Agent upon thirty
(30) days' prior notice to the Borrower and the Lenders. If the Administrative
Agent shall resign as Administrative Agent under this Credit Agreement and the
Notes, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders, which successor agent shall be approved by the
Borrower, whereupon such successor agent shall succeed to the rights, powers and
duties of the Administrative Agent, and the term "Administrative Agent" shall
mean such successor agent effective upon such appointment and approval, and the
former Agent's rights, powers and duties as Administrative Agent shall be
terminated, without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Credit Agreement or any
holders of the Notes. After any retiring Agent's resignation as Administrative
Agent, the provisions of this Section 8.9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent
under this Credit Agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Amendments and Waivers.
Neither this Credit Agreement nor any of the other Credit Documents,
nor any terms hereof or thereof may be amended, supplemented, waived or modified
except in accordance with the provisions of this Section nor may be released
except as specifically provided herein or in accordance with the provisions of
this Section 9.1. The Required Lenders may, or, with the written consent of the
Required Lenders, the Administrative Agent may, from time to time, (a) enter
into with the Borrower written amendments, supplements or modifications hereto
and to the other Credit Documents for the purpose of adding any provisions to
this Credit Agreement or the other Credit Documents or changing in any manner
the rights of the Lenders or of the Borrower hereunder or thereunder or (b)
waive, on such terms and conditions as the Required Lenders may specify in such
instrument, any of the requirements of this Credit Agreement or the other Credit
Documents or any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, waiver, supplement,
modification or release shall:
(i) reduce the amount or extend the scheduled date of maturity
of any Loan or Note or any installment thereon, or reduce the stated
rate of any interest or fee payable hereunder (other than interest at
the increased post-default rate) or extend the scheduled date of any
payment thereof (it being understood and agreed that any extension or
waiver of a mandatory prepayment required pursuant to Section
2.7(b)(ii)-(vi) shall require the consent of the Required Lenders only)
or increase the amount or extend the expiration date of any Lender's
Commitment,
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in each case without the written consent of each Lender directly
affected thereby, or
(ii) amend, modify or waive any provision of this Section 9.1
or reduce the percentage specified in the definition of Required
Lenders, without the written consent of all the Lenders, or
(iii) amend, modify or waive any provision of Article VIII
without the written consent of the then Administrative Agent, or
(iv) release all or substantially all of the Guarantors from
their obligations under the Guaranty, without the written consent of
all of the Lenders, or
(v) release all or substantially all of the collateral (if
any), without the written consent of all of the Lenders, or
(vi) without the consent of Revolving Lenders holding in the
aggregate more than 50% of the outstanding Revolving Commitments (or if
the Revolving Commitments have been terminated, the outstanding
Revolving Loans), amend, modify or waive Section 4.3 or waive any
Default or Event of Default (or amend any Credit Document to
effectively waive any Default or Event of Default) if the effect of
such waiver is that the Revolving Lenders shall be required to continue
to make Revolving Loans, or
(vii) amend, modify or waive any provision of the Credit
Documents requiring consent, approval or request of the Required
Lenders or all Lenders, without the written consent of all of the
Required Lenders or Lenders as appropriate; or
(viii) amend, modify or waive any provision of the Credit
Documents affecting the rights or duties of the Administrative Agent or
the Issuing Lender under any Credit Document without the written
consent of the Administrative Agent and/or the Issuing Lender, as
applicable, in addition to the Lenders required hereinabove to take
such action.
Any such waiver, amendment, supplement or modification and any such
release shall apply equally to each of the Lenders and shall be binding upon the
Borrower, the other Credit Parties, the Lenders, the Administrative Agent and
all future holders of the Notes. In the case of any waiver, the Borrower, the
other Credit Parties, the Lenders and the Administrative Agent shall be restored
to their former position and rights hereunder and under the outstanding Loans
and Notes and other Credit Documents, and any Default or Event of Default waived
shall be deemed to be cured and not continuing; but no such waiver shall extend
to any subsequent or other Default or Event of Default, or impair any right
consequent thereon.
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Notwithstanding any of the foregoing to the contrary, the consent of
the Borrower shall not be required for any amendment, modification or waiver of
the provisions of Article VIII (other than the provisions of Section 8.9). In
addition, the Borrower and the Lenders hereby authorize the Administrative Agent
to modify this Credit Agreement by unilaterally amending or supplementing
Schedule 2.1(a) from time to time in the manner requested by the Borrower, the
Administrative Agent or any Lender in order to reflect any assignments or
transfers of the Loans as provided for hereunder; provided, however, that the
Administrative Agent shall promptly deliver a copy of any such modification to
the Borrower and each Lender.
Notwithstanding the fact that the consent of all the Lenders is
required in certain circumstances as set forth above, (x) each Lender is
entitled to vote as such Lender sees fit on any bankruptcy reorganization plan
that affects the Loans, and each Lender acknowledges that the provisions of
Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent
provisions set forth herein and (y) the Required Lenders may consent to allow a
Credit Party to use cash collateral in the context of a bankruptcy or insolvency
proceeding.
Section 9.2 Notices.
Except as otherwise provided in Article 11, all notices, requests and
demands to or upon the respective parties hereto to be effective shall be in
writing (including by telecopy), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made (a) when delivered by
hand, (b) when transmitted via telecopy (or other facsimile device) to the
number set out herein, (c) the day following the day on which the same has been
delivered prepaid (or pursuant to an invoice arrangement) to a reputable
national overnight air courier service, or (d) the third Business Day following
the day on which the same is sent by certified or registered mail, postage
prepaid, in each case, addressed as follows in the case of the Borrower, the
other Credit Parties and the Administrative Agent, and as set forth on Schedule
9.2 in the case of the Lenders, or to such other address as may be hereafter
notified by the respective parties hereto and any future holders of the Notes:
The Borrower
and the other
Credit Parties: Intermagnetics General Corporation
000 Xxx Xxxxxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Telecopier: 000-000-0000
Telephone: 000-000-0000
with a copy to:
Intermagnetics General Corporation
000 Xxx Xxxxxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
Attention: General Counsel
Telecopier: 000-000-0000
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Telephone: 000-000-0000
The Administrative Wachovia Bank, National Association,
Agent: as Administrative Agent
Charlotte Plaza
000 Xxxxx Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Telecopier: 000-000-0000
with a copy to:
Wachovia Bank, National Association
Credit Product Management
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, Vice President
Telecopier: 000-000 0000
Telephone: 000-000 0000
Section 9.3 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
Section 9.4 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Credit Agreement and the Notes
and the making of the Loans; provided that all such representations and
warranties shall terminate on the date upon which the Commitments have been
terminated and all amounts owing hereunder and under any Notes have been paid in
full.
Section 9.5 Payment of Expenses and Taxes.
The Borrower agrees (a) to pay or reimburse the Administrative Agent
for all its reasonable out-of-pocket costs and expenses incurred in connection
with the development, preparation, negotiation, printing and execution of, and
any amendment, supplement or modification to, this Credit Agreement and the
other Credit Documents and any other documents prepared in connection herewith
or therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, together with the reasonable fees and
disbursements of counsel to the Administrative Agent, (b) to pay or reimburse
each Lender and
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the Administrative Agent for all its costs and expenses incurred in connection
with the enforcement or preservation of any rights under this Credit Agreement,
the Notes and any such other documents, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent and to
the Lenders (including reasonable allocated costs of in-house legal counsel),
and (c) on demand, to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other similar taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, the Credit Documents and any such other documents, and (d) to
pay, indemnify, and hold each Lender and the Administrative Agent and their
Affiliates harmless from and against, any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of the Credit
Documents and any such other documents and the use, or proposed use, of proceeds
of the Loans (all of the foregoing, collectively, the "indemnified
liabilities"); provided, however, that the Borrower shall not have any
obligation hereunder to an indemnified party with respect to indemnified
liabilities of such indemnified party arising from the gross negligence or
willful misconduct of such indemnified party, as determined by a court of
competent jurisdiction pursuant to a final non-appealable judgment. The
agreements in this Section 9.5 shall survive repayment of the Loans and the
Credit Party Obligations.
Section 9.6 Successors and Assigns; Participations; Purchasing Lenders.
(a) This Credit Agreement shall be binding upon and inure to
the benefit of the Borrower, the Lenders, the Administrative Agent, all
future holders of the Notes and their respective successors and
assigns, except that the Borrower may not assign or transfer any of its
rights or obligations under this Credit Agreement or the other Credit
Documents without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time
sell to one or more banks or other entities ("Participants")
participating interests in any Loan owing to such Lender, any Note held
by such Lender, any Commitment of such Lender, or any other interest of
such Lender hereunder. In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's obligations
under this Credit Agreement to the other parties to this Credit
Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the
holder of any such Note for all purposes under this Credit Agreement,
and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under this Credit Agreement. No Lender shall
transfer or grant any participation under which the Participant shall
have rights to approve any amendment to or waiver of this Credit
Agreement or any other Credit Document except to the extent such
amendment or waiver would (i) extend the scheduled maturity of any Loan
or Note or any installment thereon (it being understood
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and agreed that any extension or waiver of a mandatory prepayment
required pursuant to Section 2.7(b)(ii)-(vi) shall require the consent
of the Required Lenders only) in which such Participant is
participating, or reduce the stated rate or extend the time of payment
of interest or fees thereon (except in connection with a waiver of
interest at the increased post-default rate) or reduce the principal
amount thereof, or increase the amount of the Participant's
participation over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default shall not
constitute a change in the terms of such participation, and that an
increase in any Commitment or Loan shall be permitted without consent
of any participant if the Participant's participation is not increased
as a result thereof), (ii) release all or substantially all of the
Guarantors from their obligations under the Guaranty, (iii) release
all or substantially all of the collateral (if any), or (iv) consent to
the assignment or transfer by the Borrower of any of its rights and
obligations under this Credit Agreement. In the case of any such
participation, the Participant shall not have any rights under this
Credit Agreement or any of the other Credit Documents (the
Participant's rights against such Lender in respect of such
participation to be those set forth in the agreement executed by such
Lender in favor of the Participant relating thereto) and all amounts
payable by the Borrower hereunder shall be determined as if such Lender
had not sold such participation; provided that each Participant shall
be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.5 with
respect to its participation in the Commitments and the Loans
outstanding from time to time; provided further, that no Participant
shall be entitled to receive any greater amount pursuant to such
Sections than the transferor Lender would have been entitled to receive
in respect of the amount of the participation transferred by such
transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time,
sell or assign to any Lender or any Affiliate or Related Fund thereof
and with the consent of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Borrower (in each
case, which consent shall not be unreasonably withheld), to one or more
additional banks or financial institutions or entities ("Purchasing
Lenders"), all or any part of its rights and obligations under this
Credit Agreement and the Notes in minimum amounts of $5,000,000 with
respect to its Revolving Commitment, its Revolving Loans or its Term
Loans (or, if less, the entire amount of such Lender's obligations),
pursuant to a Commitment Transfer Supplement, executed by such
Purchasing Lender and such transferor Lender (and, in the case of a
Purchasing Lender that is not then a Lender or an Affiliate or Related
Fund thereof, the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower), and delivered to
the Administrative Agent for its acceptance and recording in the
Register; provided, however, that any sale or assignment to an existing
Lender, or Affiliate or Related Fund thereof, shall not require the
consent of the Administrative Agent or the Borrower nor shall any such
sale or assignment be subject to the minimum assignment amounts
specified herein. Upon such execution, delivery, acceptance and
recording, from and after the Transfer Effective Date specified in such
Commitment Transfer Supplement, (x) the Purchasing Lender thereunder
shall be a party hereto and, to the extent provided in such Commitment
Transfer Supplement, have the rights and obligations of a Lender
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hereunder with a Commitment as set forth therein, and (y) the
transferor Lender thereunder shall, to the extent provided in such
Commitment Transfer Supplement, be released from its obligations under
this Credit Agreement (and, in the case of a Commitment Transfer
Supplement covering all or the remaining portion of a transferor
Lender's rights and obligations under this Credit Agreement, such
transferor Lender shall cease to be a party hereto). Such Commitment
Transfer Supplement shall be deemed to amend this Credit Agreement to
the extent, and only to the extent, necessary to reflect the addition
of such Purchasing Lender and the resulting adjustment of Commitment
Percentages arising from the purchase by such Purchasing Lender of all
or a portion of the rights and obligations of such transferor Lender
under this Credit Agreement and the Notes. On or prior to the Transfer
Effective Date specified in such Commitment Transfer Supplement, the
Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the Notes delivered to the
Administrative Agent pursuant to such Commitment Transfer Supplement
new Notes to the order of such Purchasing Lender in an amount equal to
the Commitment assumed by it pursuant to such Commitment Transfer
Supplement and, unless the transferor Lender has not retained a
Commitment hereunder, new Notes to the order of the transferor Lender
in an amount equal to the Commitment retained by it hereunder. Such new
Notes shall be dated the Closing Date and shall otherwise be in the
form of the Notes replaced thereby. The Notes surrendered by the
transferor Lender shall be returned by the Administrative Agent to the
Borrower marked "canceled".
(d) The Administrative Agent shall maintain at its address
referred to in Section 9.2 a copy of each Commitment Transfer
Supplement delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Loans owing to, each Lender
from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrower, the Administrative
Agent and the Lenders may treat each Person whose name is recorded in
the Register as the owner of the Loan recorded therein for all purposes
of this Credit Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and
from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly executed Commitment Transfer
Supplement, together with payment to the Administrative Agent by the
transferor Lender or the Purchasing Lender, as agreed between them, of
a registration and processing fee of $3,500 for each Purchasing Lender
listed in such Commitment Transfer Supplement and the Notes subject to
such Commitment Transfer Supplement, the Administrative Agent shall (i)
accept such Commitment Transfer Supplement, (ii) record the information
contained therein in the Register and (iii) give prompt notice of such
acceptance and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Purchasing Lender (each, a "Transferee") and any
prospective Transferee any and all financial information in such
Lender's possession concerning the Borrower and its Affiliates which
has been delivered to such Lender by or on behalf of the Borrower
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pursuant to this Credit Agreement or which has been delivered to such
Lender by or on behalf of the Borrower in connection with such Lender's
credit evaluation of the Borrower and its Affiliates prior to becoming
a party to this Credit Agreement, in each case subject to Section 9.15.
(g) At the time of each assignment pursuant to this Section
9.6 to a Person which is not already a Lender hereunder and which is
not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for Federal income tax purposes, the
respective assignee Lender shall provide to the Borrower and the
Administrative Agent the appropriate Internal Revenue Service Forms
(and, if applicable, a 2.18 Certificate) described in Section 2.18.
(h) Nothing herein shall prohibit any Lender from pledging or
assigning any of its rights under this Credit Agreement (including,
without limitation, any right to payment of principal and interest
under any Note) to any Federal Reserve Bank in accordance with
applicable laws.
Section 9.7 Adjustments; Set-off.
(a) Each Lender agrees that if any Lender (a "benefited
Lender") shall at any time receive any payment of all or part of its
Loans, or interest thereon, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off, pursuant to
events or proceedings of the nature referred to in Section 7.l(e), or
otherwise) in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such
other Lender's Loans, or interest thereon, such benefited Lender shall
purchase for cash from the other Lenders a participating interest in
such portion of each such other Lender's Loan, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such benefited Lender to share
the excess payment or benefits of such collateral or proceeds ratably
with each of the Lenders; provided, however, that if all or any portion
of such excess payment or benefits is thereafter recovered from such
benefited Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but
without interest. The Borrower agrees that each Lender so purchasing a
portion of another Lender's Loans may exercise all rights of payment
(including, without limitation, rights of set-off) with respect to such
portion as fully as if such Lender were the direct holder of such
portion.
(b) In addition to any rights and remedies of the Lenders
provided by law (including, without limitation, other rights of
set-off), each Lender shall have the right, without prior notice to the
applicable Credit Party, any such notice being expressly waived by the
applicable Credit Party to the extent permitted by applicable law, upon
the occurrence of any Event of Default, to setoff and appropriate and
apply any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for
the credit or the account of any Credit
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Party, or any part thereof in such amounts as such Lender may elect,
against and on account of the obligations and liabilities of such
Credit Party to such Lender hereunder and claims of every nature and
description of such Lender against such Credit Party, in any currency,
whether arising hereunder, under the Notes or under any documents
contemplated by or referred to herein or therein, as such Lender may
elect, whether or not such Lender has made any demand for payment and
although such obligations, liabilities and claims may be contingent or
unmatured. The aforesaid right of set-off may be exercised by such
Lender against the applicable Credit Party or against any trustee in
bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver or execution, judgment or attachment creditor of
such Credit Party, or against anyone else claiming through or against
such Credit Party or any such trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, receiver, or
execution, judgment or attachment creditor, notwithstanding the fact
that such right of set-off shall not have been exercised by such Lender
prior to the occurrence of any Event of Default. Each Lender agrees
promptly to notify the applicable Credit Party and the Administrative
Agent after any such set-off and application made by such Lender;
provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application.
Section 9.8 Table of Contents and Section Headings.
The table of contents and the Section and subsection headings herein
are intended for convenience only and shall be ignored in construing this Credit
Agreement.
Section 9.9 Counterparts.
This Credit Agreement may be executed by one or more of the parties to
this Credit Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Credit Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
Section 9.10 Effectiveness.
This Credit Agreement shall become effective on the date on which all
of the parties have signed a copy hereof (whether the same or different copies)
and shall have delivered the same to the Administrative Agent pursuant to
Section 9.2 or, in the case of the Lenders, shall have given to the
Administrative Agent written, telecopied or telex notice (actually received) at
such office that the same has been signed and mailed to it.
Section 9.11 Severability.
Any provision of this Credit Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
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Section 9.12 Integration.
This Credit Agreement and the other Credit Documents represent the
agreement of the Borrower, the other Credit Parties, the Administrative Agent
and the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent, the Borrower, the other Credit Parties or any Lender relative to the
subject matter hereof not expressly set forth or referred to herein or therein.
Section 9.13 Governing Law.
This Credit Agreement and the Notes and the rights and obligations of the
parties under this Credit Agreement and the Notes shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
Section 9.14 Consent to Jurisdiction and Service of Process.
All judicial proceedings brought against the Borrower and/or any other
Credit Party with respect to this Credit Agreement, any Note or any of the other
Credit Documents may be brought in any state or federal court of competent
jurisdiction in the State of New York, and, by execution and delivery of this
Credit Agreement, the Borrower and each of the other Credit Parties accepts, for
itself and in connection with its properties, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts and irrevocably agrees to be
bound by any final judgment rendered thereby in connection with this Credit
Agreement from which no appeal has been taken or is available. The Borrower and
each of the other Credit Parties irrevocably agree that all service of process
in any such proceedings in any such court may be effected by mailing a copy
thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to it at its address set forth in Section 9.2 or at such
other address of which the Administrative Agent shall have been notified
pursuant thereto, such service being hereby acknowledged by the Borrower and the
other Credit Parties to be effective and binding service in every respect. The
Borrower, the other Credit Parties, the Administrative Agent and the Lenders
irrevocably waives any objection, including, without limitation, any objection
to the laying of venue or based on the grounds of forum non conveniens which
it may now or hereafter have to the bringing of any such action or proceeding in
any such jurisdiction. Nothing herein shall affect the right to serve process in
any other manner permitted by law or shall limit the right of any Lender to
bring proceedings against the Borrower or the other Credit Parties in the court
of any other jurisdiction.
Section 9.15 Confidentiality.
The Administrative Agent and each of the Lenders agrees that it will use
its best efforts not to disclose without the prior consent of the Borrower
(other than to its employees, affiliates, auditors or counsel or to another
Lender) any information (the "Information") with respect to the Borrower and its
Subsidiaries which is furnished pursuant to this Credit Agreement, any other
Credit Document or any documents contemplated by or referred to herein or
therein and which is designated by the Borrower to the Lenders in writing as
confidential or as to which it is
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otherwise reasonably clear such information is not public, except that any
Lender may disclose any such Information (a) as has become generally available
to the public other than by a breach of this Section 9.15, (b) as may be
required or appropriate in any report, statement or testimony submitted to any
municipal, state or federal regulatory body having or claiming to have
jurisdiction over such Lender or to the Federal Reserve Board or the Federal
Deposit Insurance Corporation or the Office of the Comptroller of the Currency
or the National Association of Insurance Commissioners or similar organizations
(whether in the United States or elsewhere) or their successors, (c) as may be
required or appropriate in response to any summons or subpoena or any law,
order, regulation or ruling applicable to such Lender, (d) to any prospective
Participant or assignee in connection with any contemplated transfer pursuant to
Section 9.6, provided that such prospective transferee shall have been made
aware of this Section 9.15 and shall have agreed to be bound by its provisions
as if it were a party to this Credit Agreement, (e) to Gold Sheets and other
similar bank trade publications; such information to consist of deal terms and
other information regarding the credit facilities evidenced by this Credit
Agreement customarily found in such publications, and (f) in connection with any
suit, action or proceeding for the purpose of defending itself, reducing its
liability, or protecting or exercising any of its claims, rights, remedies or
interests under or in connection with the Credit Documents or any Hedging
Agreement. Notwithstanding anything herein to the contrary, "Information" shall
not include, and the Borrower, the other Credit Parties, the Administrative
Agent, each Lender and the respective Affiliates of each of the foregoing (and
the respective partners, directors, officers, employees, agents, advisors and
other representatives of each of the foregoing and their Affiliates) may
disclose to any and all Persons, without limitation of any kind (i) any
information with respect to the U.S. federal and state income tax treatment of
the transactions contemplated hereby and any facts that may be relevant to
understanding such tax treatment, which facts shall not include for this purpose
the names of the parties or any other Person named herein, or information that
would permit identification of the parties or such other Persons, or any pricing
terms or other nonpublic business or financial information that is unrelated to
such tax treatment or facts and (ii) all materials of any kind (including
opinions or other tax analyses) relating to such tax treatment or facts that are
provided to any of the Persons referred to above.
Section 9.16 Acknowledgments.
The Borrower and the other Credit Parties each hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of each Credit Document;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower or any other Credit
Party arising out of or in connection with this Credit Agreement and the
relationship between Administrative Agent and Lenders, on one hand, and
the Borrower and the other Credit Parties, on the other hand, in
connection herewith is solely that of debtor and creditor; and
(c) no joint venture exists among the Lenders or among the Borrower
or the other Credit Parties and the Lenders.
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Section 9.17 Waivers of Jury Trial.
THE BORROWER, THE OTHER CREDIT PARTIES, THE ADMINISTRATIVE AGENT AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
Section 9.18 USA Patriot Act Notice.
Each Lender and the Administrative Agent (for itself and not on behalf of
any Lender) hereby notifies the Borrower that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October
26,2001)) (the "Act"),it is required to obtain, verify and record information
that identifies the Borrower, which information includes the name and address of
the Borrower and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify the Borrower in accordance with
the Act.
ARTICLE X
GUARANTY
Section 10.1 The Guaranty.
In order to induce the Lenders to enter into this Credit Agreement and to
extend credit hereunder and in recognition of the direct benefits to be received
by the Guarantors from the Extensions of Credit hereunder, each of the
Guarantors hereby agrees with the Administrative Agent and the Lenders as
follows: each of the Guarantors hereby unconditionally and irrevocably jointly
and severally guarantees as primary obligor and not merely as surety the full
and prompt payment when due, whether upon maturity, by acceleration or
otherwise, of any and all Credit Party Obligations. If any or all of the Credit
Party Obligations becomes due and payable hereunder, each Guarantor
unconditionally promises to pay such Credit Party Obligations to the
Administrative Agent and the Lenders, or order of the Administrative Agent or
any such Lender, or demand, together with any and all reasonable expenses which
may be incurred by the Administrative Agent or the Lenders in collecting any of
the Credit Party Obligations.
Notwithstanding any provision to the contrary contained herein or in any
other of the Credit Documents, to the extent the obligations of a Guarantor
shall be adjudicated to be invalid or unenforceable for any reason (including,
without limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of each such Guarantor
hereunder shall be limited to the maximum amount that is permissible under
applicable law (whether federal or state and including, without limitation, the
Bankruptcy Code).
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Section 10.2 Bankruptcy.
Additionally, each of the Guarantors unconditionally and irrevocably
guarantees jointly and severally the payment of any and all Credit Party
Obligations of the Borrower to the Lenders whether or not due or payable by the
Borrower upon the occurrence of any of the events specified in Section 7.1(e),
and unconditionally promises to pay such Credit Party Obligations to the
Administrative Agent for the account of the Lenders, or order, on demand, in
lawful money of the United States. Each of the Guarantors further agrees that to
the extent that the Borrower or a Guarantor shall make a payment or a transfer
of an interest in any property to the Administrative Agent or any Lender, which
payment or transfer or any part thereof is subsequently invalidated, declared to
be fraudulent or preferential, or otherwise is avoided, and/or required to be
repaid to the Borrower or a Guarantor, the estate of the Borrower or a
Guarantor, a trustee, receiver or any other party under any bankruptcy law,
state or federal law, common law or equitable cause, then to the extent of such
avoidance or repayment, the obligation or part thereof intended to be satisfied
shall be revived and continued in full force and effect as if said payment had
not been made.
Section 10.3 Nature of Liability.
The liability of each Guarantor hereunder is exclusive and independent of
any security for or other guaranty of the Credit Party Obligations of the
Borrower whether executed by any such Guarantor, any other guarantor or by any
other party, and no Guarantor's liability hereunder shall be affected or
impaired by (a) any direction as to application of payment by the Borrower or by
any other party, or (b) any other continuing or other guaranty, undertaking or
maximum liability of a guarantor or of any other party as to the Credit Party
Obligations of the Borrower, or (c) any payment on or in reduction of any such
other guaranty or undertaking, or (d) any dissolution, termination or increase,
decrease or change in personnel by the Borrower, or (e) any payment made to the
Administrative Agent or the Lenders on the Credit Party Obligations which the
Administrative Agent or such Lenders repay the Borrower pursuant to court order
in any bankruptcy, reorganization, arrangement, moratorium or other debtor
relief proceeding, and each of the Guarantors waives any right to the deferral
or modification of its obligations hereunder by reason of any such proceeding.
Section 10.4 Independent Obligation.
The obligations of each Guarantor hereunder are independent of the
obligations of any other Guarantor or the Borrower, and a separate action or
actions may be brought and prosecuted against each Guarantor whether or not
action is brought against any other Guarantor or the Borrower and whether or not
any other Guarantor or the Borrower is joined in any such action or actions.
Section 10.5 Authorization.
Each of the Guarantors authorizes the Administrative Agent and each Lender
without notice or demand (except as shall be required by applicable statute and
cannot be waived), and without affecting or impairing its liability hereunder,
from time to time to (a) renew,
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compromise, extend, increase, accelerate or otherwise change the time for
payment of, or otherwise change the terms of the Credit Party Obligations or any
part thereof in accordance with this Credit Agreement, including any increase or
decrease of the rate of interest thereon, (b) take and hold security from any
Guarantor or any other party for the payment of this Guaranty or the Credit
Party Obligations and exchange, enforce waive and release any such security, (c)
apply such security and direct the order or manner of sale thereof as the
Administrative Agent and the Lenders in their discretion may determine and
(d) release or substitute any one or more endorsers, Guarantors, the Borrower or
other obligors.
Section 10.6 Reliance.
It is not necessary for the Administrative Agent or the Lenders to inquire
into the capacity or powers of the Borrower or the officers, directors, members,
partners or agents acting or purporting to act on their behalf, and any Credit
Party Obligations made or created in reliance upon the professed exercise of
such powers shall be guaranteed hereunder.
Section 10.7 Waiver.
(a) Each of the Guarantors waives any right (except as shall be
required by applicable statute and cannot be waived) to require the
Administrative Agent or any Lender to (i) proceed against the Borrower,
any other Guarantor or any other party, (ii) proceed against or exhaust
any security held from the Borrower, any Guarantor or any other party, or
(iii) pursue any other remedy in the Administrative Agent's or any
Lender's power whatsoever. Each of the Guarantors waives any defense based
on or arising out of any defense of the Borrower, any Guarantor or any
other party other than payment in full of the Credit Party Obligations,
including without limitation any defense based on or arising out of the
disability of the Borrower, any Guarantor or any other party, or the
unenforceability of the Credit Party Obligations or any part thereof from
any cause, or the cessation from any cause of the liability of the
Borrower other than payment in full of the Credit Party Obligations. The
Administrative Agent or any of the Lenders may, at their election,
foreclose on any security held by the Administrative Agent or a Lender by
one or more judicial or nonjudicial sales, whether or not every aspect of
any such sale is commercially reasonable (to the extent such sale is
permitted by applicable law), or exercise any other right or remedy the
Administrative Agent and any Lender may have against the Borrower or any
other party, or any security, without affecting or impairing in any way
the liability of any Guarantor hereunder except to the extent the Credit
Party Obligations have been paid in full and the Commitments have been
terminated. Each of the Guarantors waives any defense arising out of any
such election by the Administrative Agent and each of the Lenders, even
though such election operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of the Guarantors
against the Borrower or any other party or any security.
(b) Each of the Guarantors waives all presentments, demands for
performance, protests and notices, including without limitation notices of
nonperformance, notice of protest, notices of dishonor, notices of
acceptance of this Guaranty, and notices of the existence, creation or
incurring of new or additional Credit
89
Party Obligations. Each Guarantor assumes all responsibility for being and
keeping itself informed of the Borrower's financial condition and assets,
and of all other circumstances bearing upon the risk of nonpayment of the
Credit Party Obligations and the nature, scope and extent of the risks
which such Guarantor assumes and incurs hereunder, and agrees that neither
the Administrative Agent nor any Lender shall have any duty to advise such
Guarantor of information known to it regarding such circumstances or
risks.
(c) Each of the Guarantors hereby agrees it will not exercise any
rights of subrogation which it may at any time otherwise have as a result
of this Guaranty (whether contractual, under Section 509 of the U.S.
Bankruptcy Code, or otherwise) to the claims of the Lenders against the
Borrower or any other guarantor of the Credit Party Obligations of the
Borrower owing to the Lenders (collectively, the "Other Parties") and all
contractual, statutory or common law rights of reimbursement, contribution
or indemnity from any Other Party which it may at any time otherwise have
as a result of this Guaranty until such time as the Loans hereunder shall
have been paid and the Commitments have been terminated. Each of the
Guarantors hereby further agrees not to exercise any right to enforce any
other remedy which the Administrative Agent and the Lenders now have or
may hereafter have against any Other Party, any endorser or any other
guarantor of all or any part of the Credit Party Obligations of the
Borrower and any benefit of, and any right to participate in, any security
or collateral given to or for the benefit of the Lenders to secure payment
of the Credit Party Obligations of the Borrower until such time as the
Credit Party Obligations shall have been paid and the Commitments have
been terminated.
Section 10.8 Limitation on Enforcement.
The Lenders agree that this Guaranty may be enforced only by the action of
the Administrative Agent acting upon the instructions of the Required Lenders
and that no Lender shall have any right individually to seek to enforce or to
enforce this Guaranty, it being understood and agreed that such rights and
remedies may be exercised by the Administrative Agent for the benefit of the
Lenders under the terms of this Credit Agreement. The Lenders further agree that
this Guaranty may not be enforced against any director, officer, employee or
stockholder of the Guarantors.
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INTERMAGNETICS GENERAL CORPORATION
CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement
to be duly executed and delivered by its proper and duly authorized officers as
of the day and year first above written.
BORROWER: INTERMAGNETICS GENERAL CORPORATION,
a New York corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
------------------------------------
Title: Executive Vice President & Chief Financial Officer
-----------------------------------
GUARANTORS: MAGIC SUBSIDIARY CORPORATION, a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
------------------------------------
Title: Treasurer
-----------------------------------
IGC-POLYCOLD SYSTEMS INC., a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------------------------------
Title: Treasurer
---------------------------------------------------
IGC-MEDICAL ADVANCES INC., a Wisconsin
corporation
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------------------------------
Title: Treasurer
---------------------------------------------------
SUPERPOWER, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------------------------------
Title: Treasurer
---------------------------------------------------
INTERMAGNETICS GENERAL CORPORATION
CREDIT AGREEMENT
AGENT AND LENDERS: WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Issuing Lender,
Swingline Lender and as a Lender
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
INTERMAGNETICS GENERAL CORPORATION
CREDIT AGREEMENT
JPMORGAN CHASE BANK
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------------
Title: Vice President
-----------------------------------
/s/ Xxxxxxxxx X. Xxxxxxxxx
XXXXXXXXX X. XXXXXXXXX
Notary Public, State of New York
No. 4911548
Qualified in Saratoga County
Commission Expires November 9, 2005
INTERMAGNETICS GENERAL CORPORATION
CREDIT AGREEMENT
KEYBANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------------
Title: Senior Vice President
-----------------------------------
INTERMAGNETICS GENERAL CORPORATION
CREDIT AGREEMENT
COMERICA BANK
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
------------------------------------
Title: Account Officer
-----------------------------------
