EXHIBIT 10.20
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Credit Agreement
among
FLIR Systems, Inc.
and
Bank of America, N.A.
as Administrative Agent, Swing Line Lender
and
Letter of Credit Issuing Lender
and
The Other Financial
Institutions Party Hereto
Dated as of December 16, 0000
Xxxx xx Xxxxxxx Securities LLC,
as
Sole Arranger and Sole Book Manager
[BANK OF AMERICA LOGO APPEARS HERE]
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TABLE OF CONTENTS
Section Page
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SECTION I. DEFINITIONS AND ACCOUNTING TERMS.......................................................... 1
1.01 Defined Terms............................................................................ 1
1.02 Use of Certain Terms..................................................................... 19
1.03 Accounting Terms......................................................................... 20
1.04 Rounding................................................................................. 20
1.05 Exhibits and Schedules................................................................... 20
1.06 References to Agreements, Exhibits and Laws.............................................. 20
SECTION II. THE COMMITMENTS AND EXTENSIONS OF CREDIT................................................. 20
2.01 Committed Loans.......................................................................... 20
2.02 Borrowings, Conversions and Continuations of Committed Loans; Conversion to Term Loan.... 21
2.03 Letters of Credit........................................................................ 22
2.04 Security................................................................................. 26
2.05 Prepayments.............................................................................. 26
2.06 Reduction or Termination of Commitments.................................................. 27
2.07 Principal and Interest................................................................... 27
2.08 Fees..................................................................................... 27
2.09 Computation of Interest and Fees......................................................... 28
2.10 Making Payments.......................................................................... 28
2.11 Funding Sources.......................................................................... 29
2.12 Swing Line Loans......................................................................... 30
SECTION III. TAXES, YIELD PROTECTION AND ILLEGALITY.................................................. 31
3.01 Taxes.................................................................................... 31
3.02 Illegality............................................................................... 32
3.03 Inability to Determine Rates............................................................. 32
3.04 Increased Cost and Reduced Return; Capital Adequacy...................................... 32
3.05 Breakfunding Costs....................................................................... 33
3.06 Matters Applicable to all Requests for Compensation...................................... 33
3.07 Survival................................................................................. 34
SECTION IV. CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT............................................. 34
4.01 Conditions of Initial Extension of Credit................................................ 34
4.02 Conditions to all Extensions of Credit................................................... 35
SECTION V. REPRESENTATIONS AND WARRANTIES............................................................ 36
5.01 Existence and Qualification; Power; Compliance with Laws................................. 36
5.02 Power; Authorization; Enforceable Obligations............................................ 36
5.03 No Legal Bar............................................................................. 36
5.04 Financial Statements; No Material Adverse Effect......................................... 36
5.05 Litigation............................................................................... 37
5.06 No Default............................................................................... 37
5.07 Ownership of Property; Liens............................................................. 37
5.08 Taxes.................................................................................... 37
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5.09 Margin Regulations; Investment Company Act; Public Utility Holding Company Act.......... 37
5.10 ERISA Compliance........................................................................ 38
5.11 Intangible Assets....................................................................... 38
5.12 Compliance With Laws.................................................................... 38
5.13 Environmental Compliance................................................................ 39
5.14 Insurance............................................................................... 39
5.15 Year 2000............................................................................... 39
5.16 Disclosure.............................................................................. 39
SECTION VI. AFFIRMATIVE COVENANTS................................................................... 39
6.01 Financial Statements.................................................................... 39
6.02 Certificates, Notices and Other Information............................................. 40
6.03 Payment of Taxes........................................................................ 41
6.04 Preservation of Existence............................................................... 41
6.05 Maintenance of Properties............................................................... 41
6.06 Maintenance of Insurance................................................................ 41
6.07 Compliance With Laws.................................................................... 41
6.08 Inspection Rights....................................................................... 42
6.09 Keeping of Records and Books of Account................................................. 42
6.10 Compliance with ERISA................................................................... 42
6.11 Compliance With Agreements.............................................................. 42
6.12 Use of Proceeds......................................................................... 42
6.13 Maintenance of Security Interests and Liens............................................. 42
SECTION VII. NEGATIVE COVENANTS..................................................................... 42
7.01 Indebtedness............................................................................ 42
7.02 Liens and Negative Pledges.............................................................. 43
7.03 Fundamental Changes..................................................................... 43
7.04 Dispositions............................................................................ 44
7.05 Investments............................................................................. 44
7.06 Lease Obligations....................................................................... 44
7.07 Restricted Payments..................................................................... 44
7.08 ERISA................................................................................... 45
7.09 Change in Nature of Business............................................................ 45
7.10 Transactions with Affiliates............................................................ 45
7.11 Hostile Acquisitions.................................................................... 45
7.12 Capital Expenditures.................................................................... 45
7.13 Limitations on Upstreaming.............................................................. 45
7.14 Financial Covenants..................................................................... 45
7.15 Change in Auditors...................................................................... 46
SECTION VIII. EVENTS OF DEFAULT AND REMEDIES........................................................ 46
8.01 Events of Default....................................................................... 46
8.02 Remedies Upon Event of Default.......................................................... 48
SECTION IX. ADMINISTRATIVE AGENT.................................................................... 49
9.01 Appointment and Authorization of Administrative Agent................................... 49
9.02 Delegation of Duties.................................................................... 50
9.03 Liability of Administrative Agent....................................................... 50
9.04 Reliance by Administrative Agent........................................................ 50
9.05 Notice of Default....................................................................... 51
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9.06 Credit Decision; Disclosure of Information by Administrative Agent............... 51
9.07 Indemnification of Administrative Agent.......................................... 52
9.08 Administrative Agent in Individual Capacity...................................... 52
9.09 Successor Administrative Agent................................................... 52
9.10 Co-Agents, Lead Managers......................................................... 53
9.11 Collateral Matters............................................................... 53
SECTION X. MISCELLANEOUS..................................................................... 54
10.01 Amendments; Consents............................................................. 54
10.02 Transmission and Effectiveness of Notices and Signatures......................... 55
10.03 Attorney Costs, Expenses and Taxes............................................... 55
10.04 Binding Effect; Assignment....................................................... 56
10.05 Marshalling; Set-off............................................................. 57
10.06 Sharing of Payments.............................................................. 58
10.07 No Waiver; Cumulative Remedies................................................... 58
10.08 Usury............................................................................ 59
10.09 Counterparts..................................................................... 59
10.10 Integration...................................................................... 59
10.11 Nature of Lenders' Obligations................................................... 59
10.12 Survival of Representations and Warranties....................................... 60
10.13 Indemnity by Borrower............................................................ 60
10.14 Nonliability of Lenders.......................................................... 60
10.15 No Third Parties Benefited....................................................... 61
10.16 Severability..................................................................... 61
10.17 Confidentiality.................................................................. 61
10.18 Further Assurances............................................................... 62
10.19 Headings......................................................................... 62
10.20 Time of the Essence.............................................................. 62
10.21 Foreign Lenders and Participants................................................. 62
10.22 Governing Law.................................................................... 63
10.23 Waiver of Right to Trial by Jury................................................. 63
10.24 ENTIRE AGREEMENT................................................................. 64
10.25 Certain Agreements Not Enforceable............................................... 64
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EXHIBITS
Form of
A Request for Extension of Credit
B Compliance Certificate
C Committed Loan Note
D Notice of Assignment and Acceptance
SCHEDULES
1 Prepayment Fees
2.01 Commitments and Pro Rata Shares
5.01 Subsidiaries
5.05 Litigation
5.08 Taxes
7.01 Existing Indebtedness, Liens and Negative Pledges
10.02 Offshore and Domestic Lending Offices, Addresses for Notices
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CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of December 16,
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1999, by and among FLIR Systems, Inc., an Oregon corporation, ("Borrower"), each
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lender from time to time party hereto (collectively, "Lenders" and individually,
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a "Lender"), BANK OF AMERICA, N.A., as Administrative Agent and Issuing Lender.
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RECITAL
Borrower has requested that Lenders and Issuing Lender provide a secured
revolving line of credit with the option of changing it to a secured term loan,
and Lenders, Issuing Lender and Administrative Agent are willing to do so on the
terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
SECTION I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms shall
have the meanings set forth below :
"Accounts Payable Days" means total accounts payable as of the end of a
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fiscal quarter divided by the sum of the cost of goods sold during such fiscal
quarter, plus the cost of goods sold during each of the preceding three fiscal
quarters, multiplied by 365.
"Administrative Agent" means Bank of America, N.A., in its capacity as
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Administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means Administrative Agent's address and,
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as appropriate, account as set forth on Schedule 10.02, or such other address or
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account as Administrative Agent hereafter may designate by written notice to
Borrower and Lenders.
"Administrative Agent-Related Persons" means Administrative Agent
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(including any successor agent), together with its Affiliates (including, in the
case of Administrative Agent, the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Affiliate" means any Person directly or indirectly controlling, controlled
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by, or under direct or indirect common control with, another Person. A Person
shall be deemed to be "controlled by" any other Person if such other Person
possesses, directly or indirectly, power (a) to vote 10% or more of the
securities (on a fully diluted basis) having ordinary voting power for the
election of directors or managing general partners; or (b) to direct or cause
the direction of the management and policies of such Person whether by contract
or otherwise.
"Agreement" means this Credit Agreement, as amended, restated, extended,
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supplemented or otherwise modified in writing from time to time.
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"Alternate Base Rate" means the Base Rate less 0.25%.
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"Alternate Base Rate Loan" means a Loan which bears interest based on the
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Alternate Base Rate.
"Applicable Amount" means the following amounts per annum, based upon the
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Leverage Ratio as set forth in the most recent Compliance Certificate received
by Administrative Agent pursuant to Section 6.02(b); provided, however, that,
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until Administrative Agent receives the Compliance Certificate for the period
ending March 31, 2000, such amounts shall be those indicated for pricing level 3
set forth below:
Applicable Amount (in basis points per annum)
Pricing Commitment Offshore Base Rate
Level Leverage Ratio Fee Rate + +
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1 *2.50 but ***3.00 50.0 200.0 75.0
2 *2.00 but **2.50 37.5 175.0 50.0
3 *1.50 but **2.00 37.5 150.0 25.0
4 *1.00 but **1.50 30.0 125.0 00.0
5 **1.00 25.0 100.0 00.0
* Less than or equal to
** Greater than
*** Greater than or equal to
The Applicable Amount shall be in effect from the first of the month after
the date the most recent Compliance Certificate is received by Administrative
Agent until the date the next Applicable Amount becomes effective; provided,
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however, that if Borrower fails to timely deliver the next Compliance
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Certificate, the Applicable Amount from the first of the month after the date
such Compliance Certificate was due, to but excluding the first of the month
after the date such Compliance Certificate is actually received by
Administrative Agent, shall be the highest pricing level set forth above, and,
thereafter, beginning on the first of the month following receipt of the
Compliance Certificate, the pricing level indicated by such Compliance
Certificate.
"Arranger" means Banc of America Securities LLC, in its capacity as sole
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arranger and sole book manager.
"Attorney Costs" means and includes all fees and disbursements of any law
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firm or other external counsel and the allocated cost of internal legal services
and all disbursements of internal counsel.
"Audited Financial Statements" means the audited consolidated balance sheet
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of Borrower and its Subsidiaries for the fiscal year ended December 31, 1998,
and the related consolidated statements of income and cash flows for such fiscal
year of Borrower, in each case as restated to reflect the acquisition of
Inframetrics which was accounted for as a pooling of interests.
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"Bank of America" means Bank of America, N.A.
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"Base Rate" means a fluctuating rate per annum equal to the higher of (a)
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the Federal Funds Rate plus 50 basis points or (b) the rate of interest in
effect for such day as publicly announced from time to time by Bank of America
as its "prime rate." Such "prime rate" is a rate set by Bank of America based
upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specific in the public announcement of such
change.
"Base Rate Loan" means a Committed Loan which bears interest based on the
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Base Rate.
"Borrower" has the meaning set forth in the introductory paragraph hereto.
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"Borrowing" and "Borrow" each mean, a borrowing hereunder consisting of
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Loans of the same type made on the same day and, other than in the case of Base
Rate Loans, having the same Interest Period.
"Borrowing Date" means the date that a Loan is made, which shall be a
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Business Day.
"Business Day" means any day other than a Saturday, Sunday, or other day on
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which commercial banks are authorized to close under the Laws of, or are in fact
closed in Washington. If such day relates to any Offshore Rate Loan, "Business
Day" means any such day on which dealings in Dollar deposits are conducted by
and between banks in the offshore Dollar interbank market.
"Closing Date" means the date all the conditions precedent in Section IV
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are satisfied or waived in accordance with Section IV.
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"Code" means the Internal Revenue Code of 1986, as amended from time to
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time.
"Collateral" means all property and interests in property and proceeds
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thereof now owned or hereafter acquired by Borrower in or upon which a Lien now
or hereafter exists in favor of Lenders, or Administrative Agent on behalf of
the Lenders, whether under the Security Agreement, Pledge Agreements or under
any of the other Collateral Documents. Collateral includes, but is not limited
to, all domestic accounts receivable, domestic machinery and equipment, domestic
inventory and general intangibles of Borrower and domestic Subsidiaries, as well
as a pledge of 100% of Borrower's stock or ownership interest in present or
future domestic Subsidiaries, and 65% of Borrower's stock or ownership interest
in present or future direct foreign Subsidiaries other than FSI International,
Inc., a Barbados Corporation, and FLIR Systems, Ltd., a Canadian Corporation,
FLIR Systems International, Ltd., a U.K. Corporation, and FLIR Systems Limited,
a U.K. Corporation.
"Collateral Documents" means, collectively, (i) the Security Agreement, the
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Pledge Agreements and all other security agreements, assignments, guarantees and
other similar agreements, if any, between Borrower or any Subsidiary and Lenders
or Administrative Agent
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for the benefit of Lenders now or hereafter delivered to Lenders or
Administrative Agent pursuant to or in connection with the transactions
contemplated hereby, and all financing statements (or comparable documents now
or hereafter filed in accordance with the Uniform Commercial Code or comparable
law) against Borrower or any Subsidiary as debtor in favor of Lenders or
Administrative Agent for the benefit of Lenders as secured party, and (ii) any
amendments, supplements, modifications, renewals, replacements, consolidations,
substitutions and extensions of any of the foregoing.
"Commitment" means, for each Lender, the obligation of such Lender to make
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Extensions of Credit in an aggregate principal amount not exceeding the amount
set forth opposite such Lender's name on Schedule 2.01 at any one time
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outstanding, as such amount may be reduced or adjusted from time to time in
accordance with this Agreement (collectively, the "Combined Commitments.")
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"Committed Loan" means a Loan of any type made to Borrower by a Lender in
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accordance with its Pro Rata Share pursuant to Section 2.01, except as otherwise
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provided herein.
"Committed Loan Note" means a promissory note made by Borrower in favor of
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a Lender evidencing Committed Loans made by such Lender, substantially in the
form of Exhibit C (collectively, the "Committed Loan Notes").
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"Compliance Certificate" means a certificate in the form of Exhibit B,
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properly completed and signed by a Responsible Officer of Borrower.
"Consolidated Accounts Payable Days" means Accounts Payable Days for
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Borrower and its Subsidiaries on a consolidated basis.
"Consolidated EBIT" means, for any period, for Borrower and its
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Subsidiaries on a consolidated basis, an amount equal to the sum of (a)
Consolidated Net Income, (b) Consolidated Interest Charges, (c) the amount of
taxes, based on or measured by income, used or included in the determination of
such Consolidated Net Income, and (d) Non-recurring Charges.
"Consolidated EBITDA" means, for any period, for Borrower and its
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Subsidiaries on a consolidated basis, an amount equal to the sum of (a)
Consolidated Net Income, (b) Consolidated Interest Charges, (c) the amount of
taxes, based on or measured by income, used or included in the determination of
such Consolidated Net Income, (d) the amount of depreciation and amortization
expense deducted in determining such Consolidated Net Income, and (e) Non-
recurring Charges.
"Consolidated Funded Indebtedness" means, as of any date of determination,
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for Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the
outstanding principal amount of all obligations and liabilities, whether current
or long-term, for borrowed money (including Extensions of Credit hereunder), (b)
that portion of obligations with respect to capital leases that are capitalized
in the consolidated balance sheet of Borrower and its Subsidiaries and (c)
without duplication, all Guaranty Obligations with respect to Indebtedness of
the type
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specified in subsections (a) and (b) above of Persons other than Borrower or any
of its Subsidiaries.
"Consolidated Interest Charges" means, for any period, for Borrower and its
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Subsidiaries on a consolidated basis, the sum of (a) all interest, premium
payments, fees, charges and related expenses payable by Borrower and its
Subsidiaries in connection with borrowed money (including capitalized interest)
or in connection with the deferred purchase price of assets, in each case to the
extent treated as interest in accordance with GAAP and (b) the portion of rent
payable by Borrower and its Subsidiaries with respect to such period under
capital leases that is treated as interest in accordance with GAAP.
"Consolidated Net Income" means, for any period, for Borrower and its
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Subsidiaries on a consolidated basis, the net income of Borrower and its
Subsidiaries from continuing operations after extraordinary items (excluding
gains or losses from Dispositions of assets) for that period.
"Consolidated Tangible Net Worth" means, as of any date of determination,
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for Borrower and its Subsidiaries on a consolidated basis, Shareholders' Equity
of Borrower and its Subsidiaries on that date minus the Intangible Assets of
Borrower and its Subsidiaries on that date.
"Continuation" and "Continue" mean, with respect to any Offshore Rate Loan,
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the continuation of such Offshore Rate Loan as an Offshore Rate Loan on the last
day of the Interest Period for such Loan.
"Contractual Obligation" means, as to any Person, any provision of any
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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.
"Conversion" and "Convert" mean, with respect to any Loan, the conversion
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of such Loan from or into another type of Loan.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
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America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States of America or
other applicable jurisdictions from time to time in effect affecting the rights
of creditors generally.
"Default" means any event that, with the giving of any notice, the passage
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of time, or both, would be an Event of Default.
"Default Rate" means an interest rate equal to the Base Rate plus the
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Applicable Amount, if any, applicable to Base Rate Loans plus 200 basis points
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per annum, to the fullest extent permitted by applicable Laws; provided,
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however, that with respect to an Offshore Rate Loan, the Default Rate shall be
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an interest rate equal to the interest rate (including any Applicable Amount)
otherwise applicable to such Loan plus 200 basis points per annum.
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"Designated Deposit Account" means a deposit account to be maintained by
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Borrower with Bank of America, as from time to time designated by Borrower by
written notification to Administrative Agent.
"Disposition" or "Dispose" means the sale, transfer, license or other
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disposition (including any sale and leaseback transaction) of any property by
any Person, including any sale, assignment, transfer or other disposal with or
without recourse of any notes or accounts receivable or any rights and claims
associated therewith.
"Dollar" and "$" means lawful money of the United States of America.
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"Eligible Assignee" means (a) a financial institution organized under the
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laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $100,000,000; (b) a commercial bank organized under the
laws of any other country which is a member of the Organization for Economic
Cooperation and Development, or a political subdivision of any such country, and
having a combined capital and surplus of at least $100,000,000, provided that
such bank is acting through a branch or agency located in the United States; (c)
a Person that is primarily engaged in the business of commercial banking and
that is (i) a Subsidiary of a Lender, (ii) a Subsidiary of a Person of which a
Lender is a Subsidiary, or (iii) a Person of which a Lender is a Subsidiary; and
(d) another Lender.
"Environmental Laws" means all foreign, federal, state or local laws,
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statutes, common law duties, rules, regulations, ordinances and codes, together
with all administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case relating to environmental, health, safety and land use matters
applicable to any property.
"ERISA" means the Employee Retirement Income Security Act of 1974 and any
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regulations issued pursuant thereto, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
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under common control with Borrower within the meaning of Sections 414(b) or (c)
of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions
relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
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(b) a withdrawal by Borrower or any ERISA Affiliate from a Pension Plan subject
to Section 4063 of ERISA during a plan year in which it was a substantial
employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of
operations that is treated as such a withdrawal under Section 4062(e) of ERISA;
(c) a complete or partial withdrawal by Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment
of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or
the commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which might reasonably be expected
to constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multiemployer
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Plan; or (f) the imposition of any liability under Title IV of ERISA, other than
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Borrower
or any ERISA Affiliate.
"Event of Default" means any of the events specified in Section VIII after
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the expiration of any applicable notice and cure periods.
"Extension of Credit" means (a) a Borrowing, Conversion or Continuation of
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Loans, (b) a Letter of Credit Action wherein a new Letter of Credit is issued or
which has the effect of increasing the amount of, extending the maturity of, or
making a material modification to an outstanding Letter of Credit or the
reimbursement of drawings thereunder, (c) each Lender's purchase of a risk
participation in a new Letter of Credit, or (d) each Lender's purchase of a risk
participation in a Swing Line Loan made by Swing Line Lender (collectively, the
"Extensions of Credit").
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"Federal Funds Rate" means, for any day, the rate per annum (rounded
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upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds Rate
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for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate charged to Bank of America on
such day on such transactions as determined by Administrative Agent.
"GAAP" means generally accepted accounting principles as in effect from
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time to time, applied in a manner consistent with that used in preparing the
Audited Financial Statements and in respect of a business conducting a business
the same as or similar to that of Borrower, including those set forth in
applicable bulletins, opinions, pronouncements, statements and interpretations
issued by the Accounting Principles Board, the American Institute of Certified
Public Accountants and the Financial Accounting Standard Board, consistently
applied.
"Governing State" means the State of Oregon.
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"Governmental Authority" means (a) any international, foreign, federal,
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state, county or municipal government, or political subdivision thereof, (b) any
governmental or quasi-governmental agency, authority, board, bureau, commission,
department, instrumentality, central bank or public body, or (c) any court,
administrative tribunal or public utility.
"Guaranty Obligation" means, as to any Person, any (a) guaranty by that
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Person of Indebtedness of, or other obligation payable or performable by, any
other Person or (b) assurance, agreement, letter of responsibility, letter of
awareness, undertaking or arrangement given by that Person to an obligee of any
other Person with respect to the payment or performance of an obligation by, or
the financial condition of, such other Person, whether direct, indirect or
contingent, including any purchase or repurchase agreement covering such
obligation or any collateral security therefor, any agreement to provide funds
(by means of loans, capital contributions or otherwise) to such other Person,
any agreement to support the solvency or level
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of any balance sheet item of such other Person or any "keep-well" or other
arrangement of whatever nature given for the purpose of assuring or holding
harmless such obligee against loss with respect to any obligation of such other
Person; provided, however, that the term Guaranty Obligation shall not include
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endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guaranty Obligation shall be deemed to be an amount
equal to the stated or determinable amount of the related primary obligation, or
portion thereof, covered by such Guaranty Obligation or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the Person in good faith.
"Indebtedness" means as to any Person at a particular time, all items which
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would, in conformity with GAAP, be classified as liabilities on a balance sheet
of such Person as at such time (excluding trade and other accounts payable in
the ordinary course of business in accordance with customary trade terms and
which are not overdue for a period of more than 60 days and excluding deferred
taxes), but in any event including:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(b) any direct or contingent obligations of such Person arising under
letters of credit (including standby and commercial), banker's acceptances,
bank guaranties, surety bonds and similar instruments;
(c) whether or not so included as liabilities in accordance with GAAP,
all obligations of such Person to pay the deferred purchase price of
property or services, and indebtedness (excluding prepaid interest thereon)
secured by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;
(d) lease payment obligations under capital leases or Synthetic Lease
Obligations; and
(e) all Guaranty Obligations of such Person in respect of any of the
foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall
include the Indebtedness of any partnership or joint venture in which such
Person is a general partner or a joint venturer, unless such Indebtedness is
expressly made non-recourse to such Person except for customary exceptions
acceptable to the Requisite Lenders.
"Intangible Assets" means assets that are considered to be intangible
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assets under GAAP, including customer lists, goodwill, computer software,
copyrights, trade names, trade marks, patents, unamortized deferred charges,
unamortized debt discount and capitalized research and development costs.
"Interest Coverage Ratio" means, as of any date of determination, the ratio
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of Consolidated EBIT, including an adjustment for verifiable Non-recurring
Charges and
-8-
adjustments, for the period of the four prior fiscal quarters ending on such
date to Consolidated Interest Charges during such period.
"Indemnified Liabilities" has the meaning set forth in Section 10.13.
----------------------- -------------
"Interest Payment Date" means, (a) as to any Base Rate Loan or Alternate
---------------------
Base Rate Loan, the last Business Day of each calendar month; (b) as to any
Offshore Rate Loan, the last day of the relevant Interest Period and any date
that such Loan is prepaid or Converted in whole or in part; provided, however,
-------- -------
that if any Interest Period for an Offshore Rate Loan exceeds three months,
interest shall also be paid on the date which falls every three months after the
beginning of such Interest Period; and (c) as to all Loans, the Revolving Credit
Maturity Date or Term Loan Maturity Date; provided, further, that interest
-------- -------
accruing at the Default Rate shall be payable from time to time at any time upon
demand of Administrative Agent.
"Interest Period" means, for each Offshore Rate Loan as requested by
---------------
Borrower, (a) initially, the period commencing on the date such Offshore Rate
Loan is disbursed, Continued as, or Converted into, an Offshore Rate Loan and
(b) thereafter, the period commencing the day after the last day of the
preceding Interest Period, and ending, in each case, on the earlier of (x) the
applicable Maturity Date, or (y) one, two, three or six months thereafter;
provided that:
--------
(i) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period which begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such Interest
Period; and
(iii) unless Administrative Agent otherwise consents, there may not
be more than five Interest Periods in effect at any time.
"Investment" means, as to any Person, any acquisition or any investment by
----------
such Person, whether by means of the purchase or other acquisition of stock or
other securities of any other Person or by means of a loan, creating a debt,
capital contribution, guaranty or other debt or equity participation or interest
in any other Person, including any partnership and joint venture interests in
such other Person. For purposes of covenant compliance, the amount of any
Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
"IRS" means the Internal Revenue Service.
---
"Issuing Lender" means Bank of America, or any successor issuing lender
--------------
hereunder.
"Laws" or "Law" means, collectively, all international, foreign, federal,
---- ---
state and local statutes, treaties, rules, guidelines, regulations, ordinances,
codes and administrative or judicial
-9-
precedents or authorities, including the interpretation or administration
thereof by any Governmental Authority charged with the enforcement,
interpretation or administration thereof, in each case whether or not having the
force of law.
"Lender" means each lender from time to time party hereto and, as the
------
context requires, Swing Line Lender and Issuing Lender.
"Lending Office" means, as to any Lender, the office or offices of such
--------------
Lender described as such on Schedule 10.02, or such other office or offices as
--------------
such Lender may from time to time notify Borrower and Administrative Agent.
"Letter of Credit" means any letter of credit issued or outstanding
----------------
hereunder.
"Letter of Credit Action" means the issuance, supplement, amendment,
-----------------------
renewal, extension, modification or other action relating to a Letter of Credit.
"Letter of Credit Application" means an application for a Letter of Credit
----------------------------
Action as shall at any time be in use by Issuing Lender.
"Letter of Credit Cash Collateral Account" means a blocked deposit account
----------------------------------------
at Bank of America with respect to which Borrower hereby grants a security
interest in such account to Administrative Agent for and on behalf of Lenders as
security for Letter of Credit Usage and with respect to which Borrower agrees to
execute and deliver from time to time such documentation as Administrative Agent
may reasonably request to further assure and confirm such security interest.
"Letter of Credit Commitment" means an amount equal to $10,000,000. The
---------------------------
Letter of Credit Commitment is part of, and not in addition to, the Commitments.
"Letter of Credit Expiration Date" means the date which is 30 days prior to
--------------------------------
the Revolving Credit Maturity Date.
"Letter of Credit Usage" means, as at any date of determination, the
----------------------
aggregate undrawn face amount of outstanding Letters of Credit plus the
----
aggregate amount of all drawings under the Letters of Credit honored by Issuing
Lender and not reimbursed to Issuing Lender by Borrower or deemed a part of a
Borrowing of Committed Loans which are Base Rate Loans pursuant to Section
2.03(e).
"Leverage Ratio" means, as of any date of determination, for the Borrower
--------------
and its Subsidiaries on a consolidated basis, the ratio of (a) Consolidated
Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of
the four fiscal quarters ending on that date.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement (in the nature of compensating balances, cash collateral accounts or
security interests), encumbrance, lien (statutory or other), charge, or
preference, priority or other security interest or preferential arrangement of
any kind or nature whatsoever (including any conditional sale or other title
-10-
retention agreement, any financing lease having substantially the same economic
effect as any of the foregoing, and the filing of any financing statement under
the Uniform Commercial Code or comparable Laws of any jurisdiction), including
the interest of a purchaser of accounts receivable.
"Loan" means any advance made by any Lender to Borrower as provided in
----
Section II (collectively, the "Loans").
---------- -----
"Loan Documents" means this Agreement and any Note, certificate, fee
--------------
letter, and other instrument, document or agreement from time to time delivered
in connection with this Agreement.
"Material Adverse Effect" means any set of circumstances or events which
-----------------------
(a) has or could reasonably be expected to have any material adverse effect
whatsoever upon the validity or enforceability of any Loan Document, (b) is or
could reasonably be expected to be material and adverse to the condition
(financial or otherwise), business, assets, operations or prospects of Borrower,
or (c) materially impairs or could reasonably be expected to materially impair
the ability of Borrower to perform the Obligations.
"Minimum Amount" means, with respect to each of the following actions, the
--------------
minimum amount and any multiples in excess thereof set forth opposite such
action:
Minimum Multiples in
Type of Action Amount excess thereof
---------------------------------------------------------------------
Borrowing of, prepayment of, or $ 500,000 $ 100,000
Conversion into, Base Rate Loans
Borrowing of, prepayment of, $5,000,000 $1,000,000
Continuation of, or Conversion
into, Offshore Rate Loans
Borrowing or prepayment of, $ 100,000 None
Swing Line Loans
Letter of Credit Action None None
Reduction in Commitments $1,000,000 $ 500,000
Assignments $5,000,000
"Multiemployer Plan" means any employee benefit plan of the type described
------------------
in Section 4001(a)(3) of ERISA.
"Negative Pledge" means a Contractual Obligation that restricts Liens on
---------------
property.
"Non-recurring Charges" means verifiable non-recurring charges associated
---------------------
with the acquisition of Inframetrics in an amount not to exceed $24,300,000, and
other future non-recurring charges consented to by Requisite Lenders.
-11-
"Notes" means, the Committed Loan Notes in the form of Exhibit C.
----- ---------
"Notice of Assignment and Acceptance" means a Notice of Assignment and
-----------------------------------
Acceptance substantially in the form of Exhibit D.
---------
"Obligations" means all advances to, and debts, liabilities, obligations,
-----------
covenants and duties of, Borrower arising under any Loan Document, whether
direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest that accrues after the commencement of any proceeding under
any Debtor Relief Laws by or against Borrower or any Subsidiary or Affiliate of
Borrower.
"Offshore Base Rate" has the meaning set forth in the definition of
------------------
Offshore Rate.
"Offshore Rate" means for any Interest Period with respect to any Offshore
-------------
Rate Loan, a rate per annum determined by Administrative Agent pursuant to the
following formula:
Offshore Rate = Offshore Base Rate
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Offshore Base Rate" means, for such Interest Period:
------------------
(a) the rate per annum (carried out to the fifth decimal place) equal
to the rate determined by Administrative Agent to be the offered rate that
appears on the page of the Telerate Screen that displays an average British
Bankers Association Interest Settlement Rate (such page currently being
page number 3750) for deposits in dollars (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, or
(b) in the event the rate referenced in the preceding subsection (a)
does not appear on such page or service or such page or service shall cease
to be available, the rate per annum (carried to the fifth decimal place)
equal to the rate determined by Administrative Agent to be the offered rate
on such other page or other service that displays an average British
Bankers Association Interest Settlement Rate for deposits in dollars (for
delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period, or
(c) in the event the rates referenced in the preceding subsections
(a) and (b) are not available, the rate per annum determined by
Administrative Agent as the rate of interest at which dollar deposits (for
delivery on the first day of such Interest Period) in same day funds in the
approximate amount of the applicable Offshore Rate Loan and with a term
equivalent to such Interest Period would be offered by its London Branch to
major banks in the offshore dollar market at their request at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period.
-12-
"Eurodollar Reserve Percentage" means, for any day during any Interest
-----------------------------
Period, the reserve percentage (expressed as a decimal, rounded upward to
the next 1/100th of 1%) in effect on such day, whether or not applicable to
any Lender, under regulations issued from time to time by the Board of
Governors of the Federal Reserve System for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Offshore Rate for each
outstanding Offshore Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"Offshore Rate Loan" means a Committed Loan bearing interest based on the
------------------
Offshore Rate.
"Ordinary Course Dispositions" means:
----------------------------
(a) Dispositions of obsolete or worn out property, whether now owned
or hereafter acquired, in the ordinary course of business;
(b) Dispositions of cash, cash equivalents, inventory and other
property in the ordinary course of business;
(c) Dispositions of property to the extent that such property is
exchanged for credit against the purchase price of similar replacement
property, or the proceeds of such sale are reasonably promptly applied to
the purchase price of such replacement property or where Borrower or its
Subsidiary determine in good faith that the failure to replace such
equipment will not be detrimental to the business of Borrower or such
Subsidiary; and
(d) Dispositions of assets or property by any Subsidiary of Borrower
to Borrower or another wholly-owned Subsidiary of Borrower;
provided, however, that no such Disposition shall be for less than the fair
-------- -------
market value of the property being disposed of.
"Ordinary Course Indebtedness" means:
----------------------------
(a) Indebtedness under the Loan Documents;
(b) Intercompany Guaranty Obligations of Borrower or any of its
Subsidiaries guarantying Indebtedness otherwise permitted hereunder of
Borrower or any wholly-owned Subsidiary of Borrower or any wholly owned
Subsidiary of a wholly owned Subsidiary of Borrower;
(c) Indebtedness arising from the honoring of a check, draft or
similar instrument against insufficient funds; and
(d) Swap Contracts entered into in the ordinary course of business
and not otherwise prohibited hereunder.
-13-
"Ordinary Course Investments" means:
---------------------------
(a) Investments consisting of cash and cash equivalents;
(b) Investments consisting of advances to officers, directors and
employees of Borrower and its Subsidiaries for travel, entertainment,
relocation and analogous ordinary business purposes;
(c) Investments of Borrower in any of its Subsidiaries and
Investments of any Subsidiary of Borrower in Borrower or another Subsidiary
of Borrower;
(d) Investments consisting of or evidencing the extension of credit
to customers or suppliers of Borrower and its Subsidiaries in the ordinary
course of business and any Investments received in satisfaction or partial
satisfaction thereof; and
(e) Investments consisting of Guaranty Obligations permitted by
Section 7.01.
------------
"Ordinary Course Liens" means:
---------------------
(a) Liens pursuant to any Loan Document;
(b) Liens for taxes not yet due or which are being contested in good
faith and by appropriate proceedings, if adequate reserves with respect
thereto are maintained on the books of the applicable Person in accordance
with GAAP;
(c) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business which are
not overdue for a period of more than 30 days or which are being contested
in good faith and by appropriate proceedings, if adequate reserves with
respect thereto are maintained on the books of the applicable Person;
(d) pledges or deposits in connection with worker's compensation,
unemployment insurance and other social security legislation;
(e) 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;
(f) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from
the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of any Person; and
(g) attachment, judgment or other similar Liens arising in connection
with litigation or other legal proceedings (and not otherwise a Default
hereunder) in the ordinary course of business that is currently being
contested in good faith by appropriate proceedings, adequate reserves have
been set aside and no material Property is subject to
-14-
a material risk of loss or forfeiture and the claims in respect of such
Liens are fully covered by insurance (subject to ordinary and customary
deductibles).
"Organization Documents" means, (a) with respect to any corporation, the
----------------------
certificate or articles of incorporation and the bylaws; (b) with respect to any
limited liability company, the articles of formation and operating agreement;
and (c) with respect to any partnership, joint venture or other form of business
entity, the partnership agreement and any agreement, filing or notice with
respect thereto filed with the secretary of state of the state of its formation,
in each case as amended from time to time.
"Outstanding Obligations" means, as of any date, and giving effect to
-----------------------
making any Extensions of Credit requested on such date and all payments,
repayments and prepayments made on such date, (a) when reference is made to all
Lenders, the sum of (i) the aggregate outstanding principal amount of all
outstanding Loans, and (ii) all Letter of Credit Usage, and (b) when reference
is made to one Lender the sum of (i) the aggregate outstanding principal amount
of all Loans made by such Lender (excluding, in the case of Swing Line Lender,
its Swing Line Loans except to the extent provided in clause (iii) below), (ii)
such Lender's ratable risk participation in all Letter of Credit Usage, and
(iii) such Lender's ratable risk participation in all outstanding Swing Line
Loans.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
----
thereto established under ERISA.
"Pension Plan" means any "employee pension benefit plan" (as such term is
------------
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by Borrower or any
ERISA Affiliates or to which Borrower or any ERISA Affiliate contributes or has
an obligation to contribute, or in the case of a multiple employer plan (as
described in Section 4064(a) of ERISA) has made contributions at any time during
the immediately preceding five plan years.
"Person" means any individual, trustee, corporation, general partnership,
------
limited partnership, limited liability company, joint stock company, trust,
unincorporated organization, bank, business association, firm, joint venture,
Governmental Authority, or otherwise.
"Plan" means any employee benefit plan maintained or contributed to by
----
Borrower or by any trade or business (whether or not incorporated) under common
control with Borrower as defined in Section 4001(b) of ERISA and insured by the
Pension Benefit Guaranty Corporation under Title IV of ERISA.
"Pro Rata Share" means, with respect to each Lender, the percentage of the
--------------
Combined Commitments set forth opposite the name of that Lender on Schedule
--------
2.01.
----
"Quarterly Payment Date" means the last Business Day of each March, June,
----------------------
September and December and the Revolving Credit Maturity Date and the Term Loan
Maturity Date.
-15-
"Reportable Event" means any of the events set forth in Section 4043(b) of
----------------
ERISA or the regulations thereunder, a withdrawal from a Plan described in
Section 4063 of ERISA, or a cessation of operations described in Section 4062(e)
of ERISA.
"Request for Extension of Credit" means, unless otherwise specified herein,
-------------------------------
(a) with respect to a Borrowing, Conversion or Continuance of Committed Loans, a
written request substantially in the form of Exhibit A, (b) with respect to a
Letter of Credit Action, a Letter of Credit Application, and (c) with respect to
a Swing Line Loan, any written or verbal notice acceptable to Swing Line Lender,
in each case of a written Request for Extension of Credit, duly completed and
signed by a Responsible Officer of Borrower and delivered by Requisite Notice.
"Requisite Lenders" means (a) as of any date of determination if the
-----------------
Commitments are then in effect, Lenders (excluding any Lenders not funding when
required to so hereunder) having in the aggregate 66-2/3% or more of the
Combined Commitments then in effect and (b) as of any date of determination if
the Commitments have then been terminated and there are Loans and/or Letter of
Credit Usage outstanding, Lenders holding Loans and Letter of Credit Usage
aggregating 66-2/3% or more of the aggregate outstanding principal amount of the
Loans and Letter of Credit Usage.
"Requisite Notice" means, unless otherwise provided herein, (a) irrevocable
----------------
written notice to the intended recipient or (b) except with respect to Letter of
Credit Actions (which must be in writing), irrevocable telephonic notice to the
intended recipient, promptly followed by a written notice to such recipient.
Such notices shall be (i) delivered to such recipient at the address or
telephone number specified on Schedule 10.02 or as otherwise designated by such
--------------
recipient by Requisite Notice to each other party hereto, and (ii) if made by
Borrower, given or made by a Responsible Officer of Borrower. Any written
notice delivered in connection with any Loan Document shall be in the form, if
any, prescribed in the applicable section hereof or thereof and may be delivered
as provided in Section 10.02. Any notice sent by other than hardcopy shall be
-------------
promptly confirmed by a telephone call to the recipient and, if requested by
Administrative Agent, by a manually-signed hardcopy thereof.
"Requisite Time" means, with respect to any of the actions listed below,
--------------
the time and date set forth below opposite such action (all times are local time
(standard or daylight) as observed in the Governing State):
-16-
Type of Action Time Date of Action
------------------------------------------------------------------------------------------------------
Delivery of Request for Extension of Credit
for, or notice for:
. Borrowing of, prepayment of, or Conversion 9:30 a.m. Same date as such Borrowing,
into, Base Rate Loans prepayment or Conversion
. Borrowing of, prepayment of, Continuation 10:00 a.m. 3 Business Days prior to such
of, or Conversion into, Offshore Rate Loans Borrowing, prepayment or Conversion
. Letter of Credit action 10:00 a.m. 2 Business Days prior to such action
. Voluntary reduction in or termination of 10:00 a.m. 2 Business Days prior to such
Commitments reduction or termination
. Payments by Lenders or Borrower to 12:00 p.m. On date payment is due
Administrative Agent
"Responsible Officer" means the president, chief financial officer,
-------------------
treasurer or assistant treasurer, general counsel or vice president of corporate
operations of Borrower. Any document or certificate hereunder that is signed by
a Responsible Officer of Borrower shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other action on the
part of Borrower and such Responsible Officer shall be conclusively presumed to
have acted on behalf of Borrower.
"Restricted Payment" means:
------------------
(a) the declaration or payment of any dividend or distribution by
Borrower or any of its Subsidiaries, either in cash or property, on any
shares of the capital stock of any class of Borrower or any of its
Subsidiaries (except dividends or other distributions payable solely in
shares of capital stock of Borrower or any of its Subsidiaries or payable
by a Subsidiary to Borrower or another wholly-owned Subsidiary of
Borrower);
(b) the purchase, redemption or retirement by Borrower or any of its
Subsidiaries of any shares of its capital stock of any class or any
warrants, rights or options to purchase or acquire any shares of its
capital stock, whether directly or indirectly, except for the "roll-up" of
existing Subsidiaries into other existing Subsidiaries;
(c) any other payment or distribution by Borrower or any of its
Subsidiaries in respect of its capital stock, either directly or
indirectly;
(d) any Investment other than an Investment otherwise permitted under
any Loan Document; and
(e) the prepayment, repayment, redemption, defeasance or other
acquisition or retirement for value prior to any scheduled maturity,
scheduled repayment or scheduled
-17-
sinking fund payment, of any Indebtedness not otherwise permitted under any
Loan Document to be so paid.
"Revolving Credit Maturity Date" means December 1, 2002, as it may be
------------------------------
earlier terminated or extended in accordance with the terms hereof.
"Secured Swap Obligations" means all obligations and liabilities of
------------------------
Borrower of any kind arising under all Specified Swap Contracts, including
obligations and liabilities arising in connection with or as a result of early
termination of a Swap Contract, whether or not occurring as a result of a
default thereunder), absolute or contingent, due or to become due, now existing
or hereafter created or incurred, liquidated or unliquidated, determined or
undetermined.
"Shareholders' Equity" means, as of any date of determination for Borrower
--------------------
and its Subsidiaries on a consolidated basis, shareholders' equity as of that
date determined in accordance with GAAP.
"Specified Swap Contract" means any Swap Contact between any Lender and
-----------------------
Borrower.
"Subsidiary" means a corporation, partnership, joint venture, limited
----------
liability company or other business entity of which a majority of the shares of
securities or other interests having ordinary voting power for the election of
directors or other governing body (other than securities or interests having
such power only by reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise controlled,
directly, or indirectly through one or more intermediaries, or both, by
Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
-------------
forward rate transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options, bond or bond price or bond
index swaps or options or forward bond or forward bond price or forward bond
index transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar transactions,
currency swap transactions, cross-currency rate swap transactions, currency
options, or any other similar transactions or any combination of any of the
foregoing (including any options to enter into any of the foregoing), whether or
not any such transaction is governed by or subject to any master agreement, or
(b) any and all transactions of any kind, and the related confirmations, which
are subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association,
Inc., or any other master agreement (any such master agreement, together with
any related schedules, as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, a "Master Agreement"), including any such
----------------
obligations or liabilities under any Master Agreement.
"Swing Line" means the revolving line of credit established by Swing Line
----------
Lender in favor of Borrower pursuant to Section 2.12.
------------
"Swing Line Lender" means Bank of America, or any successor swing line
-----------------
Lender hereunder.
-18-
"Swing Line Loan" means a loan which bears interest at the Alternate Base
---------------
Rate and made by Swing Line Lender to Borrower under the Swing Line.
"Swing Line Sublimit" means an amount equal to the lesser of (a) $5,000,000
-------------------
and (b) the Combined Commitments. The Swing Line Sublimit is part of, and not
in addition to, the Commitments.
"Synthetic Lease Obligations" means all monetary obligations of a Person
---------------------------
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations
which do not appear on the balance sheet of such Person but which, upon the
insolvency or bankruptcy of such Person, would be characterized as the
Indebtedness of such Person (without regard to accounting treatment).
"Term Loan" means the term loan described in Section 2.02(g).
--------- ---------------
"Term Loan Maturity Date" has the meaning set forth is Section 2.02(g).
----------------------- ---------------
"Threshold Amount" means $2,500,000.
----------------
"To the best knowledge of" means, when modifying a representation, warranty
------------------------
or other statement of any Person, that the fact or situation described therein
is known by such Person (or, in the case of a Person other than a natural
Person, known by any officer of such Person) making the representation, warranty
or other statement, or with the exercise of reasonable due diligence under the
circumstances (in accordance with the standard of what a reasonable Person in
similar circumstances would have done) would have been known by such Person (or,
in the case of a Person other than a natural Person, would have been known by an
officer of such Person).
"Type" of Loan means (a) a Base Rate Loan, (b) an Offshore Rate Loan, and
----
(c) a Swing Line Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's benefit
--------------------------
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
1.02 Use of Certain Terms.
(a) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
or thereto, unless otherwise defined therein.
(b) As used herein, unless the context requires otherwise, the masculine,
feminine and neuter genders and the singular and plural include one another.
(c) The words "herein" and "hereunder" and words of similar import when
------ ---------
used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. The term "including" is by way of
---------
example and not limitation. References
-19-
herein to a Section, subsection or clause shall refer to the appropriate
Section, subsection or clause in this Agreement.
(d) The term "or" is disjunctive; the term "and" is conjunctive. The term
-- ---
"shall" is mandatory; the term "may" is permissive. Masculine terms also apply
----- ---
to females; feminine terms also apply to males.
1.03 Accounting Terms. All accounting terms not specifically or completely
defined in this Agreement shall be construed in conformity with, and all
financial data required to be submitted by this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed herein.
------
1.04 Rounding. Any financial ratios required to be maintained by Borrower
pursuant to this Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than the
number of places by which such ratio is expressed in this Agreement and rounding
the result up or down to the nearest number (with a round-up if there is no
nearest number) to the number of places by which such ratio is expressed in this
Agreement.
1.05 Exhibits and Schedules. All exhibits and schedules to this Agreement,
either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.06 References to Agreements, Exhibits and Laws. Unless otherwise
expressly provided herein, (a) references to agreements (including the Loan
Documents) and other contractual instruments shall include all amendments and
other modifications thereto (unless prohibited by any Loan Document), and (b)
references to any statute or regulation shall include all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or
interpreting the statute or regulation.
SECTION II.
THE COMMITMENTS AND EXTENSIONS OF CREDIT
2.01 Committed Loans.
(a) Subject to the terms and conditions set forth in this Agreement, each
Lender severally agrees to make, Convert and Continue Committed Loans until the
Maturity Date as Borrower may from time to time request; provided, however, that
-------- -------
the Outstanding Obligations of each Lender shall not exceed such Lender's
Commitment, and the Outstanding Obligations of all Lenders shall not exceed the
Combined Commitments at any time. Subject to the foregoing and the other terms
and conditions hereof, Borrower may borrow, Convert, Continue, prepay and
reborrow Committed Loans as set forth herein without premium or penalty.
(b) Loans made by each Lender shall be evidenced by one or more Notes.
Each such Lender may attach schedules to its Note(s) and endorse thereon the
date, amount and maturity of
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its Committed Loans and payments with respect thereto. Such Notes shall be
conclusive absent manifest error of the amount of such Loans and payments
thereon. Any failure so to record or any error in doing so shall not, however,
limit or otherwise affect the obligation of Borrower to pay any amount owing
with respect to the Loans.
2.02 Borrowings, Conversions and Continuations of Committed Loans;
Conversion to Term Loan.
(a) Borrower may irrevocably request a Borrowing, Conversion or
Continuation of Committed Loans in a Minimum Amount therefor by delivering a
Request for Extension of Credit therefor by Requisite Notice to Administrative
Agent not later than the Requisite Time therefor. All Borrowings, Conversions
and Continuations shall constitute Base Rate Loans unless properly and timely
otherwise designated as set forth in the prior sentence.
(b) Following receipt of a Request for Extension of Credit, Administrative
Agent shall promptly notify each Lender of its Pro Rata Share thereof by
Requisite Notice. In the case of a Borrowing of Loans, each Lender shall make
the funds for its Loan available to Administrative Agent at Administrative
Agent's Office not later than the Requisite Time therefor on the Business Day
specified in such Request for Extension of Credit. Upon satisfaction of the
applicable conditions set forth in Section IV, all funds so received shall be
----------
made available to Borrower in like funds received.
(c) Administrative Agent shall promptly notify Borrower and Lenders of the
interest rate applicable to any Loan other than a Base Rate Loan upon
determination of same.
(d) Except as otherwise provided herein, an Offshore Rate Loan may be
Continued or Converted only on the last day of the Interest Period for such
Offshore Rate Loan. No Loans may be requested as, Converted into or Continued as
Offshore Rate Loans during the existence of a Default or Event of Default.
During the existence of a Default or Event of Default, the Requisite Lenders may
demand that any or all of the then outstanding Offshore Rate Loans be Converted
immediately into Base Rate Loans. Such Conversion shall be effective upon notice
to Borrower and shall continue so long as such Default or Event of Default
continues to exist.
(e) If a Loan is to be made on the same date that another Loan is due and
payable, Borrower or Lenders, as the case may be, shall make available to
Administrative Agent the net amount of funds giving effect to both such Loans
and the effect for purposes of this Agreement shall be the same as if separate
transfers of funds had been made with respect to each such Loan.
(f) The failure of any Lender to make any Loan on any date shall not
relieve any other Lender of any obligation to make a Loan on such date, but no
Lender shall be responsible for the failure of any other Lender to so make its
Loan.
(g) At any time prior to the Revolving Credit Maturity Date, Borrower may
elect to change the entire principal balance outstanding hereunder into a Term
Loan. The Term Loan shall be payable in twenty-four (24) equal monthly principal
payments, plus interest in accordance with Section 2.07. Any then unpaid
------------
principal of the Term Loan and any then accrued and unpaid interest on the Term
Loan shall be paid on the Term Loan Maturity Date which is the
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date twenty-four (24) months after the date on which the such entire principal
balance was changed into a Term Loan. Any payments made on the Term Loan may not
be reborrowed.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment. Subject to the terms and conditions
hereof, at any time and from time to time from the Closing Date through the
Letter of Credit Expiration Date, Issuing Lender shall take such Letter of
Credit Actions under the Commitments as Borrower may request; provided, however,
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that (i) the Outstanding Obligations of each Lender shall not exceed such
Lender's Commitment at any time, (ii) the Outstanding Obligations of all Lenders
shall not exceed the Combined Commitments at any time, and (iii) the aggregate
Letter of Credit Usage shall not exceed the Letter of Credit Commitment at any
time. Each Letter of Credit Action shall be in a form acceptable to Issuing
Lender and shall not violate any policies of Issuing Lender. No commercial
Letter of Credit shall expire after the Letter of Credit Expiration Date, which
date is thirty (30) days prior to the Revolving Credit Maturity Date. No standby
Letter of Credit shall have a duration in excess of three (3) years, and no
standby Letter of Credit shall expire after the date which is one year after the
Revolving Credit Maturity Date. If any Letter of Credit Usage remains
outstanding after the Letter of Credit Expiration Date, Borrower shall, not
later than the Letter of Credit Expiration Date, deposit cash in an amount equal
to such Letter of Credit Usage in a Letter of Credit Cash Collateral Account.
(b) Requesting Letter of Credit Actions. Borrower may irrevocably request
a Letter of Credit Action by delivering a Letter of Credit Application therefor
to Issuing Lender, with a copy to Administrative Agent (who shall notify
Lenders), by Requisite Notice not later than the Requisite Time therefor. Unless
Administrative Agent notifies Issuing Lender that such Letter of Credit Action
is not permitted hereunder or Issuing Lender determines that such Letter of
Credit Action is contrary to any Laws or policies of Issuing Lender or does not
otherwise conform to the requirements of this Agreement, Issuing Lender shall
effect such Letter of Credit Action. This Agreement shall control in the event
of any conflict with any Letter of Credit Application. Upon the issuance of a
Letter of Credit, each Lender shall be deemed to have purchased a pro rata
participation in such Letter of Credit from Issuing Lender in an amount equal to
that Lender's Pro Rata Share.
(c) Reimbursement of Payments Under Letters of Credit. Borrower shall
reimburse Issuing Lender through Administrative Agent for any payment that
Issuing Lender makes under a Letter of Credit on or before the date of such
payment; provided, however, that if the conditions precedent set forth in
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Section IV can be satisfied, Borrower may request a Borrowing of Committed Loans
----------
to reimburse Issuing Lender for such payment on or before the date thereof by
complying with Section 2.02, or Borrower may allow a deemed Borrowing of
------------
Committed Loans which are Base Rate Loans to take place on such payment date
pursuant to subsection (e) below.
(d) Funding by Lenders When Issuing Lender Not Reimbursed. Upon any
drawing under a Letter of Credit, Issuing Lender shall notify Administrative
Agent and Borrower. If Borrower fails to timely make the payment required
pursuant to subsection (c) above, Issuing Lender shall notify Administrative
Agent of such fact and the amount of such unreimbursed payment. Administrative
Agent shall promptly notify each Lender of its Pro Rata
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Share of such amount available to Administrative Agent at Administrative Agent's
Office not later than the Requisite Time on the Business Day specified by
Administrative Agent, and Administrative Agent shall remit the funds so received
to reimburse Issuing Lender. The obligation of each Lender to so reimburse
Issuing Lender shall be absolute and unconditional and shall not be affected by
the occurrence of an Event of Default or any other occurrence or event. Any such
reimbursement shall not relieve or otherwise impair the obligation of Borrower
to reimburse Issuing Lender for the amount of any payment made by Issuing Lender
under any Letter of Credit, together with interest as provided herein.
(e) Nature of Lenders' Funding. If the conditions precedent set forth in
Section IV can be satisfied (except for the giving of a Request for Extension of
----------
Credit) on the date Borrower is obligated to make, but fails to make, a
reimbursement of a payment under a Letter of Credit, the funding by Lenders
pursuant to subsection (d) above shall be deemed to be part of a Borrowing of
Committed Loans which are Base Rate Loans (without regard to the Minimum Amount
therefor) requested by Borrower. If the conditions precedent set forth in
Section IV cannot be satisfied on the date Borrower is obligated to make, but
----------
fails to make, a reimbursement of a payment under a Letter of Credit, the
funding by Lenders pursuant to subsection (d) above shall be deemed to be a
funding by each Lender of its participation in such Letter of Credit, and such
funds shall be payable by Borrower upon demand and shall bear interest at the
Default Rate payable on demand, and each Lender making such funding shall
thereupon acquire a pro rata participation, to the extent of such reimbursement,
in the claim of Issuing Lender against Borrower in respect of such payment and
shall share, in accordance with that pro rata participation, in any payment made
by Borrower with respect to such claim. If Administrative Agent or Issuing
Lender is required at any time to return to Borrower, or to a trustee, receiver,
liquidator, custodian, or any official under any proceeding under Debtor Relief
Laws, any portion of the payments made by Borrower to Administrative Agent for
the account of Issuing Lender pursuant to this subsection in reimbursement of a
payment made under a Letter of Credit or interest or fee thereon, each Lender
shall, on demand of Administrative Agent, forthwith return to Administrative
Agent or Issuing Lender the amount of its Pro Rata Share of any amounts so
returned by Administrative Agent or Issuing Lender plus interest thereon from
the date such demand is made to the date such amounts are returned by such
Lender to Administrative Agent or Issuing Lender, at a rate per annum equal to
the daily Federal Funds Rate.
(f) Special Provisions Relating to Evergreen Letters of Credit. Borrower
may request Letters of Credit that have automatic extension or renewal
provisions ("evergreen" Letters of Credit) so long as Issuing Lender has the
right to not permit any such extension or renewal at least annually within a
notice period to be agreed upon at the time each such Letter of Credit is
issued. Once an evergreen Letter of Credit is issued, unless Administrative
Agent has notified Issuing Lender that all Lenders have elected not to permit
such extension or renewal, Borrower, Administrative Agent and Lenders authorize
(but may not require) Issuing Lender to, in its sole and absolute discretion,
permit the renewal of such evergreen Letter of Credit at any time to a date not
later than the Letter of Credit Expiration Date, and, unless directed by Issuing
Lender, Borrower shall not be required to request such extension or renewal.
Notwithstanding the foregoing, Issuing Lender may, in its sole and absolute
discretion elect not to permit an evergreen Letter of Credit to be extended or
renewed at any time.
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(g) Obligations Absolute. The obligation of Borrower to pay to Issuing
Lender the amount of any payment made by Issuing Lender under any Letter of
Credit shall be absolute, unconditional, and irrevocable. Without limiting the
foregoing, Borrower's obligation shall not be affected by any of the following
circumstances:
(i) any lack of validity or enforceability of the Letter of Credit,
this Agreement, or any other agreement or instrument relating thereto;
(ii) any amendment or waiver of or any consent to departure from the
Letter of Credit, this Agreement, or any other agreement or instrument
relating thereto;
(iii) the existence of any claim, setoff, defense, or other rights
which Borrower may have at any time against Issuing Lender, Administrative
Agent or any Lender, any beneficiary of the Letter of Credit (or any
persons or entities for whom any such beneficiary may be acting) or any
other Person, whether in connection with the Letter of Credit, this
Agreement, or any other agreement or instrument relating thereto, or any
unrelated transactions;
(iv) any demand, statement, or any other document presented under
the Letter of Credit proving to be forged, fraudulent, invalid, or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever so long as any such document appeared
to comply with the terms of the Letter of Credit;
(v) payment by Issuing Lender in good faith under the Letter of
Credit against presentation of a draft or any accompanying document which
does not strictly comply with the terms of the Letter of Credit; or any
payment made by Issuing Lender under any Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee
for the benefit of creditors, liquidator, receiver or other representative
of or successor to any beneficiary or any transferee of any Letter of
Credit, including any arising in connection with any proceeding under any
Debtor Relief Laws;
(vi) the existence, character, quality, quantity, condition,
packing, value or delivery of any Property purported to be represented by
documents presented in connection with any Letter of Credit or for any
difference between any such Property and the character, quality, quantity,
condition, or value of such Property as described in such documents;
(vii) the time, place, manner, order or contents of shipments or
deliveries of Property as described in documents presented in connection
with any Letter of Credit or the existence, nature and extent of any
insurance relative thereto;
(viii) the solvency or financial responsibility of any party issuing
any documents in connection with a Letter of Credit;
(ix) any failure or delay in notice of shipments or arrival of any
Property;
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(x) any error in the transmission of any message relating to a
Letter of Credit not caused by Issuing Lender, or any delay or interruption
in any such message;
(xi) any error, neglect or default of any correspondent of Issuing
Lender in connection with a Letter of Credit;
(xii) any consequence arising from acts of God, wars, insurrections,
civil unrest, disturbances, labor disputes, emergency conditions or other
causes beyond the control of Issuing Lender;
(xiii) so long as Issuing Lender in good faith determines that the
document appears to comply with the terms of the Letter of Credit, the
form, accuracy, genuineness or legal effect of any contract or document
referred to in any document submitted to Issuing Lender in connection with
a Letter of Credit; and
(xiv) where Issuing Lender has acted in good faith and any other
circumstances whatsoever.
In addition, Borrower will promptly examine a copy of each Letter of Credit
and amendments thereto delivered to it and, in the event of any claim of
noncompliance with Borrower's instructions or other irregularity, Borrower will
immediately notify Issuing Lender in writing. Borrower shall be conclusively
deemed to have waived any such claim against Issuing Lender and its
correspondents unless such notice is given as aforesaid.
(h) Role of Issuing Lender. Each Lender and Borrower agree that, in paying
any drawing under a Letter of Credit, Issuing Lender shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. No Administrative Agent-
Related Person nor any of the respective correspondents, participants or
assignees of Issuing Lender shall be liable to any Lender for any action taken
or omitted in connection herewith at the request or with the approval of Lenders
or the Requisite Lenders, as applicable; any action taken or omitted in the
absence of gross negligence or willful misconduct; or the due execution,
effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit. Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter
of Credit; provided, however, that this assumption is not intended to, and shall
-------- -------
not, preclude Borrower's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. No
Administrative Agent-Related Person, nor any of the respective correspondents,
participants or assignees of Issuing Lender, shall be liable or responsible for
any of the matters described in subsection (g) above. In furtherance and not in
limitation of the foregoing, Issuing Lender may accept documents that appear on
their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and Issuing Lender
shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit
or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.
-25-
(i) Applicability of ISP98 and UCP. Unless otherwise expressly agreed by
the Issuing Lender and Borrower when a Letter of Credit is issued, performance
under Letters of Credit by the Issuing Lender, its correspondents, and
beneficiaries will be governed by (i) with respect to standby Letters of Credit,
the rules of the "International Standby Practices 1998" (ISP98) or such later
revision as may be published by the International Chamber of Commerce (the
"ICC"), and (ii) with respect to commercial Letters of Credit, the rules of the
---
Uniform Customs and Practice for Documentary Credits, as published in its most
recent version by the ICC on the date any commercial Letter of Credit is issued,
and including the ICC decision published by the Commission on Banking Technique
and Practice on April 6, 1998 regarding the European single currency (euro).
(j) Standby Letter of Credit Fee. On each Quarterly Payment Date and on
the Revolving Credit Maturity Date, Borrower shall pay to Administrative Agent
in arrears, for the account of each Lender in accordance with its Pro Rata
Share, a standby Letter of Credit fee equal to the Applicable Amount for
Offshore Rate Loans times the actual daily maximum amount available to be drawn
-----
under each standby Letter of Credit since the later of the Closing Date and the
previous Quarterly Payment Date.
(k) Commercial Letter of Credit Issuance Fee and Documentary and
Processing Charges Payable to Issuing Lender. Concurrently with the issuance of
each commercial Letter of Credit, Borrower shall pay a commercial letter of
credit issuance fee to Issuing Lender, for the sole account of Issuing Lender,
in an amount set forth in a letter agreement between Borrower and Issuing
Lender. In addition, Borrower shall pay directly to Issuing Lender for its sole
account its customary documentary and processing charges in accordance with its
standard schedule, as from time to time in effect, for any amendment, transfer,
or other occurrence relating to a Letter of Credit. Such fee and charges are
nonrefundable.
(l) Standby Letter of Credit Fronting Fee. The Borrower shall pay to the
Issuing Lender a "standby Letter of Credit fronting" fee, solely for its own
account, in an amount set forth in a letter agreement between Borrower and
Issuing Lender.
2.04 Security. All obligations of the Borrower under this Agreement, the
Commited Loan Notes, all other Loan Documents and all Secured Swap Obligations
shall be secured by the Collateral, in accordance with the Collateral Documents.
2.05 Prepayments.
(a) Upon Requisite Notice to Administrative Agent not later than the
Requisite Time therefor, Borrower may at any time and from time to time
voluntarily prepay Committed Loans in part in the Minimum Amount therefor or in
full without premium or penalty. Administrative Agent will promptly notify each
Lender thereof and of such Lender's Pro Rata Share of such prepayment. Any
prepayment of an Offshore Rate Loan shall be accompanied by all accrued interest
thereon, together with the costs set forth in Section 3.05.
------------
(b) If for any reason the Outstanding Obligations exceed the Combined
Commitments as in effect or as reduced or because of any limitation set forth in
this Agreement or otherwise,
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Borrower shall immediately prepay Loans and/or deposit cash in a Letter of
Credit Cash Collateral Account in an aggregate amount equal to such excess.
2.06 Reduction or Termination of Commitments. Upon Requisite Notice to
Administrative Agent not later than the Requisite Time therefor, Borrower may at
any time and from time to time, without premium or penalty, permanently and
irrevocably reduce the Commitments in a Minimum Amount therefor to any amount
not less than the Outstanding Obligations at such time or terminate the
Commitments. Any such reduction or termination shall be accompanied by payment
of all accrued and unpaid commitment fees with respect to the portion of the
Commitments being reduced or terminated. Administrative Agent shall promptly
notify Lenders of any such request for reduction or termination of the
Commitments. Each Lender's Commitment shall be reduced by an amount equal to
such Lender's Pro Rata Share times the amount of such reduction.
-----
2.07 Principal and Interest.
(a) If not sooner paid or changed into a Term Loan, Borrower agrees to
pay the outstanding principal amount of each Committed Loan on the Revolving
Credit Maturity Date.
(b) Subject to subsection (c) below, Borrower shall pay interest on the
unpaid principal amount of each Loan (before and after default, before and after
maturity, before and after judgment, and before and after the commencement of
any proceeding under any Debtor Relief Laws) from the date borrowed until paid
in full (whether by acceleration or otherwise) on each applicable Interest
Payment Date at a rate per annum equal to the interest rate determined in
accordance with the definition of such Type of Loan, plus, to the extent
----
applicable in each case, the Applicable Amount.
(c) If any amount payable by Borrower under any Loan Document is not paid
when due (without regard to any applicable grace periods), it shall thereafter
bear interest (after as well as before entry of judgment thereon to the extent
permitted by law) at a fluctuating interest rate per annum at all times equal to
the Default Rate to the fullest extent permitted by applicable Law. Accrued and
unpaid interest on past due amounts (including interest on past due interest)
shall be payable upon demand.
2.08 Fees.
(a) Commitment Fee. Borrower shall pay to Administrative Agent, for the
ratable accounts of Lenders pro rata according to their Pro Rata Share, a
commitment fee equal to the Applicable Amount times the average daily amount by
-----
which the Combined Commitments exceed all Outstanding Obligations (excluding
Letters of Credit Usage for commercial Letters of Credit and Swing Line Loans).
The commitment fee shall accrue at all times from the Closing Date until the
Revolving Credit Maturity Date and shall be payable in quarterly installments in
arrears on each Quarterly Payment Date and on the Revolving Credit Maturity
Date. The commitment fee shall be calculated quarterly in arrears; if there is
any change in the Applicable Amount during any quarter, the average daily amount
shall be computed and multiplied by the Applicable Amount separately for each
period that such Applicable Amount was in effect during
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such quarter. The commitment fees shall accrue at all times, including at any
time during which one or more conditions in Section IV are not met.
----------
(b) Administrative Fee. Borrower shall pay to Administrative Agent an
agency fee in such amounts and at such times as agreed upon by letter agreement
between Borrower and Administrative Agent. The agency fee is for the services to
be performed by Administrative Agent in acting as Administrative Agent and is
fully earned on the date paid. The agency fee paid to Administrative Agent is
solely for its own account and is nonrefundable.
(c) Structuring and Syndicating Fee. On the Closing Date, Borrower shall
pay to the Arranger a structuring and syndicating fee in the amount agreed upon
by letter agreement between Borrower and the Arranger. Such fee is for the
services of the Arranger in arranging the credit facilities under this Agreement
and is fully earned on the date paid. This fee paid to the Arranger is solely
for its own account and is nonrefundable.
(d) Lenders' Upfront Fee. On the Closing Date, Borrower shall pay to
Administrative Agent, for the respective accounts of Lenders (other than the Co-
Agent) pro rata according to their Pro Rata Share, an upfront fee in an amount
set forth in a letter from the Arranger to each Lender and acknowledged by that
Lender as the applicable upfront fee for such Lender. Such upfront fees are for
the credit facilities committed by each Lender under this Agreement and are
fully earned on the date paid. The upfront fee paid to each Lender is solely for
its own account and is nonrefundable.
2.09 Computation of Interest and Fees. Computation of interest on Base Rate
Loans when the Base Rate is determined by Bank of America's "prime rate" shall
be calculated on the basis of a year of 365 or 366 days, as the case may be, and
the actual number of days elapsed. Computation of all other types of interest
and all fees shall be calculated on the basis of a year of 360 days and the
actual number of days elapsed, which results in a higher yield to Lenders than a
method based on a year of 365 or 366 days. Interest shall accrue on each Loan
for the day on which the Loan is made, and shall not accrue on a Loan, or any
portion thereof, for the day on which the Loan or such portion is paid, provided
--------
that any Loan that is repaid on the same day on which it is made shall bear
interest for one day.
2.10 Making Payments.
(a) Except as otherwise provided herein, all payments by Borrower or any
Lender shall be made to Administrative Agent at Administrative Agent's Office
not later than the Requisite Time for such type of payment. All payments
received after such Requisite Time shall be deemed received on the next
succeeding Business Day. All payments shall be made in immediately available
funds in lawful money of the United States of America. All payments by Borrower
shall be made without condition or deduction for any counterclaim, defense,
recoupment or setoff.
(b) Upon satisfaction of any applicable terms and conditions set forth
herein, Administrative Agent shall promptly make any amounts received in
accordance with the prior subsection available in like funds received as
follows: (i) if payable to Borrower, by crediting
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the Designated Deposit Account, and (ii) if payable to any Lender, by wire
transfer to such Lender at the address specified in Schedule 10.02.
--------------
(c) Subject to the definition of "Interest Period," if any payment to be
made by Borrower shall come due on a day other than a Business Day, payment
shall instead be considered due on the next succeeding Business Day, and such
extension of time shall be reflected in computing interest and fees.
(d) Except as otherwise provided in Section 2.03(c) with respect to
---------------
Borrower reimbursing drawings under Letters of Credit, unless Borrower or any
Lender has notified Administrative Agent prior to the date any payment to be
made by it is due, that it does not intend to remit such payment, Administrative
Agent may, in its sole and absolute discretion, assume that Borrower or Lender,
as the case may be, has timely remitted such payment and may, in its sole and
absolute discretion and in reliance thereon, make available such payment to the
Person entitled thereto. If such payment was not in fact remitted to
Administrative Agent in immediately available funds, then:
(i) if Borrower failed to make such payment, each Lender shall
forthwith on demand repay to Administrative Agent the amount of such
assumed payment made available to such Lender, together with interest
thereon in respect of each day from and including the date such amount was
made available by Administrative Agent to such Lender to the date such
amount is repaid to Administrative Agent at the Federal Funds Rate; and
(ii) if any Lender fails to make such payment, Administrative Agent
shall be entitled to recover such corresponding amount on demand from such
Lender. If such Lender does not pay such corresponding amount forthwith
upon Administrative Agent's demand therefor, Administrative Agent promptly
shall notify Borrower, and Borrower shall pay such corresponding amount to
Administrative Agent. Administrative Agent also shall be entitled to
recover interest on such corresponding amount in respect of each day from
the date such corresponding amount was made available by Administrative
Agent to Borrower to the date such corresponding amount is recovered by
Administrative Agent, (A) from such Lender at a rate per annum equal to the
daily Federal Funds Rate. and (B) from Borrower, at a rate per annum equal
to the interest rate applicable to such Borrowing. Nothing herein shall be
deemed to relieve any Lender from its obligation to fulfill its Commitment
or to prejudice any rights which Administrative Agent or Borrower may have
against any Lender as a result of any default by such Lender hereunder.
2.11 Funding Sources. Nothing in this Agreement shall be deemed to obligate
any Lender to obtain the funds for any Loan in any particular place or manner or
to constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
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2.12 Swing Line Loans.
(a) Subject to the terms and conditions set forth in this Agreement, Swing
Line Lender agrees to make Swing Line Loans until the Revolving Credit Maturity
Date in such amounts as Borrower may from time to time request; provided,
--------
however, that (i) the aggregate principal amount of all Swing Line Loans shall
-------
not exceed the Swing Line Sublimit, and (ii) the Outstanding Obligations of each
Lender shall not exceed such Lender's Commitment and the Outstanding Obligations
of all Lenders shall not exceed the Combined Commitments at any time. This is a
revolving credit and, subject to the foregoing and the other terms and
conditions hereof, Borrower may borrow, prepay and reborrow Swing Line Loans as
set forth herein without premium or penalty; provided, however, that Swing Line
-------- -------
Lender may terminate or suspend the Swing Line at any time in its sole
discretion upon Requisite Notice to Borrower. Swing Line Loans shall be
evidenced by one or more loan accounts or records maintained by Swing Line
Lender with the same effect as set forth in Section 2.01(b).
---------------
(b) Unless notified to the contrary by Swing Line Lender, Borrower may
irrevocably request a Swing Line Loan in the Minimum Amount therefor upon
Requisite Notice to Swing Line Lender not later than the Requisite Time
therefor. Each such request for a Swing Line Loan shall constitute a
representation and warranty by Borrower that the conditions set forth in
Sections 4.02(a) and (b) are satisfied. Promptly after receipt of such request,
---------------- ---
Swing Line Lender shall obtain telephonic verification from Administrative Agent
that the requested Swing Line Loans are permitted hereunder. Upon receiving such
verification, Swing Line Lender shall make such Swing Line Loan available to
Borrower. Without the consent of Requisite Lenders and Swing Line Lender, no
Swing Line Loan shall be made during the continuation of a Default or Event of
Default. Upon the making of each Swing Line Loan, each Lender shall be deemed to
have purchased from Swing Line Lender a risk participation therein in an amount
equal to that Lender's Pro Rata Share times the amount of the Swing Line Loan.
-----
(c) Each Swing Line Loan shall bear interest at the Alternate Base Rate.
Interest shall be paid on the Interest Payment Date. Swing Line Lender shall be
responsible for invoicing Borrower (or notifying Administrative Agent to so
invoice Borrower) for such interest. The interest payable on Swing Line Loans is
solely for the account of Swing Line Lender.
(d) Borrower shall repay each Swing Line Loan on the earliest of (i) the
seventh Business Day after it is made, (ii) upon demand made by Swing Line
Lender and (iii) the Revolving Credit Maturity Date. Borrower shall repay the
principal amount of each Swing Line Loan by payment directly to Swing Line
Lender or by debit at a demand deposit account at Swing Line Lender not later
than the Requisite Time for payments hereunder. If the conditions precedent set
forth in Section 4.02 can be satisfied, Borrower may request a Borrowing of
------------
Loans to repay Swing Line Lender pursuant to Section 2.02, or, failing to make
------------
such request, Borrower shall be deemed to have requested a Borrowing of Base
Rate Loans on such payment date pursuant to subsection (f) below. Swing Line
Lender shall promptly notify Administrative Agent of each Swing Line Loan and
each payment thereof.
(e) If Borrower fails to timely make any principal or interest payment on
any Swing Line Loan, Swing Line Lender shall notify Administrative Agent of such
fact and the unpaid amount. The Administrative Agent shall promptly notify each
Lender of its Pro Rata Share of
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such amount by Requisite Notice. Each Lender shall make funds in an amount equal
its Pro Rata Share of such amount available to Administrative Agent at
Administrative Agent's Office not later than the Requisite Time for payments
hereunder on the following Business Day. The obligation of each Lender to make
such payment shall be absolute and unconditional and shall not be affected by
the occurrence of an Event of Default or any other occurrence or event. Any such
payment shall not relieve or otherwise impair the obligation of Borrower to
repay Swing Line Lender for any amount of Swing Line Loans, together with
interest as provided herein.
(f) If the conditions precedent set forth in Section 4.02 can be satisfied
------------
(except for the giving of a Request for Extension of Credit) on any date
Borrower is obligated to, but fails to, repay a Swing Line Loan, the funding by
Lenders pursuant to the previous subsection shall be deemed to be a Borrowing of
Base Rate Loans (without regard to the Minimum Amount therefor) deemed requested
by Borrower. If the conditions precedent set forth in Section 4.02 cannot be
------------
satisfied on the date Borrower is obligated to make, but fails to make, such
payment, the funding by Lenders pursuant to the previous subsection shall be
deemed to be a funding by each Lender of its participation in such Swing Line
Loan, and each Lender making such funding shall thereupon acquire a pro rata
participation, to the extent of its payment, in the claim of Swing Line Lender
against Borrower in respect of such payment and shall share, in accordance with
that pro rata participation, in any payment made by Borrower with respect to
such claim. Any amounts made available by a Lender under its risk participation
shall be payable by Borrower upon demand of Administrative Agent, and shall bear
interest at a rate per annum equal to the Default Rate applicable to Base Rate
Loans.
SECTION III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Any and all payments by Borrower to or for the account of
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of Administrative Agent
---------
and any Lender, taxes imposed on its income, and franchise taxes imposed on it,
by the jurisdiction under the Laws of which Administrative Agent or such Lender
is organized or any political subdivision thereof (all such non-excluded taxes,
duties, levies, imposts, deductions, charges, withholdings, and liabilities
being hereinafter referred to as "Taxes"). If Borrower shall be required by any
-----
Laws to deduct any Taxes from or in respect of any sum payable under any Loan
Document to Administrative Agent or any Lender, (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section),
Administrative Agent and such Lender receives an amount equal to the sum it
would have received had no such deductions been made, (ii) Borrower shall make
such deductions, (iii) Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
Laws, and (iv) Borrower shall furnish to Administrative Agent (who shall forward
the same to such Lender) the original or a certified copy of a receipt
evidencing payment thereof.
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(b) In addition, Borrower agrees to pay any and all present or future
stamp or documentary taxes and any other excise or property taxes or charges or
similar levies which arise from any payment made under any Loan Document or from
the execution or delivery of, or otherwise with respect to, any Loan Document
(hereinafter referred to as "Other Taxes").
-----------
(c) Borrower agrees to indemnify Administrative Agent and each Lender for
the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this Section)
paid by Administrative Agent and such Lender and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
3.02 Illegality. If any Lender determines that any Laws have made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Offshore Rate Loans, or materially restricts the authority of such Lender to
purchase or sell, or to take deposits of, Dollars in the applicable offshore
Dollar market, or to determine or charge interest rates based upon the Offshore
Rate, then, on notice thereof by Lender to Borrower through Administrative
Agent, any obligation of that Lender to make Offshore Rate Loans shall be
suspended until Lender notifies Administrative Agent and Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt of
such notice, Borrower shall, upon demand from such Lender (with a copy to
Administrative Agent), prepay or Convert all Offshore Rate Loans of that Lender,
either on the last day of the Interest Period thereof, if Lender may lawfully
continue to maintain such Offshore Rate Loans to such day, or immediately, if
Lender may not lawfully continue to maintain such Offshore Rate Loans. Each
Lender agrees to designate a different Lending Office if such designation will
avoid the need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender.
3.03 Inability to Determine Rates. If, in connection with any Extension of
Credit involving any Offshore Rate Loan, Administrative Agent determines that
(a) Dollar deposits are not being offered to banks in the applicable offshore
dollar market for the applicable amount and Interest Period of the requested
Offshore Rate Loan, (b) adequate and reasonable means do not exist for
determining the underlying interest rate for such Offshore Rate Loan, or (c)
such underlying interest rate does not adequately and fairly reflect the cost to
Lender of funding such Offshore Rate Loan, Administrative Agent will promptly
notify Borrower and all Lenders. Thereafter, the obligation of all Lenders to
make or maintain such Offshore Rate Loan shall be suspended until Administrative
Agent revokes such notice. Upon receipt of such notice, Borrower may revoke any
pending request for a Borrowing of Offshore Rate Loans or, failing that, be
deemed to have converted such request into a request for a Borrowing of Base
Rate Loans in the amount specified therein.
3.04 Increased Cost and Reduced Return; Capital Adequacy.
(a) If any Lender determines that any Laws:
(i) subject such Lender to any Tax, duty, or other charge with
respect to any Offshore Rate Loans or its obligation to make Offshore Rate
Loans, or change the basis
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on which taxes are imposed on any amounts payable to such Lender under this
Agreement in respect of any Offshore Rate Loans;
(ii) shall impose or modify any reserve, special deposit, or similar
requirement (other than the reserve requirement utilized in the
determination of the Offshore Rate) relating to any extensions of credit or
other assets of, or any deposits with or other liabilities or commitments
of, such Lender (including its Commitment); or
(iii) shall impose on such Lender or on the offshore Dollar interbank
market any other condition affecting this Agreement or any of such
extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender of
making, Converting into, Continuing, or maintaining any Offshore Rate Loans or
to reduce any sum received or receivable by such Lender under this Agreement
with respect to any Offshore Rate Loans, then from time to time upon demand of
Lender (with a copy of such demand to Administrative Agent), Borrower shall pay
to such Lender such additional amounts as will compensate such Lender for such
increased cost or reduction.
(b) If any Lender determines that any change in or the interpretation of
any Laws have the effect of reducing the rate of return on the capital of such
Lender or compliance by such Lender (or its Lending Office) or any corporation
controlling such Lender as a consequence of such Lender's obligations hereunder,
then from time to time upon demand of such Lender (with a copy to Administrative
Agent), Borrower shall pay to such Lender such additional amounts as will
compensate such Lender for such reduction.
3.05 Breakfunding Costs. Borrower shall promptly pay each Lender a sum
computed pursuant to Schedule 1 if there occurs:
(a) any Continuation, Conversion, payment or prepayment of any Loan other
than a Base Rate Loan on a day other than the last day of the Interest Period
for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise); or
(b) any failure by Borrower (for a reason other than the failure of such
Lender to make a Loan) to prepay, borrow, Continue or Convert any Loan other
than a Base Rate Loan on the date or in the amount notified by Borrower;
3.06 Matters Applicable to all Requests for Compensation.
(a) A certificate of Administrative Agent claiming compensation under this
Section III and setting forth the additional amount or amounts to be paid to it
-----------
hereunder shall be conclusive in the absence of clearly demonstrable error. In
determining such amount, Administrative Agent may use any reasonable averaging
and attribution methods. For purposes of this Section III, a Lender shall be
-----------
deemed to have funded each Offshore Rate Loan at the Offshore Base Rate used in
determining the Offshore Rate for such Loan by a matching deposit or other
borrowing in the offshore Dollar interbank market, whether or not such Offshore
Rate Loan was in fact so funded.
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(b) Borrower shall not be obligated to pay any such amount which arose
prior to the date which is 180 days preceding the date of such demand or is
attributable to periods prior to the date which is 180 days preceding the date
of such demand.
3.07 Survival. All of Borrower's obligations under this Section III shall
-----------
survive termination of the Commitments and payment in full of all Obligations.
SECTION IV.
CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT
4.01 Conditions of Initial Extension of Credit. The obligation of each
Lender to make the initial Extension of Credit is subject to satisfaction of the
following conditions precedent:
(a) Unless waived by all Lenders, the Administrative Agent's receipt of
the following, each of which shall be originals unless otherwise specified, each
properly executed by a Responsible Officer, each dated on or about the Closing
Date and each in form and substance satisfactory to the Administrative Agent and
its legal counsel:
(i) executed counterparts of this Agreement, sufficient in number
for distribution to Administrative Agent, Lenders and Borrower;
(ii) Committed Loan Notes executed by Borrower in favor of each
Lender, each in a principal amount equal to that Lender's Commitment;
(iii) the Collateral Documents;
(iv) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of Borrower
as Administrative Agent may require to establish the identities of and
verify the authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer thereof;
(v) such evidence as Administrative Agent may reasonably require to
verify that Borrower and each Subsidiary, any stock of which will be
pledged to Lenders, is duly organized or formed, validly existing, in good
standing and qualified to engage in business in each jurisdiction in which
it is required to be qualified to engage in business, including certified
copies of Borrower's Organization Documents, certificates of good standing
and/or qualification to engage in business, tax clearance certificates, and
the like;
(vi) a certificate signed by a Responsible Officer of Borrower
certifying (A) that the conditions specified in Sections 4.01(c) and
----------------
4.01(d) have been satisfied, (B) that there has been no event or
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circumstance since the date of the Audited Financial Statements which has a
Material Adverse Effect, and (C) that the Audited Financial Statements
fairly present the financial position of Borrower and its subsidiaries as
of December 31, 1998 and fairly present the result of their operations and
their cash flows for the period ending on such date;
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(vii) an opinion of counsel to Borrower in form and substance
satisfactory to Administrative Agent, and such opinions of foreign counsel
regarding the pledge of foreign stock as collateral as shall be
satisfactory to Administrative Agent;
(viii) such other assurances, certificates, documents, consents or
opinions as Administrative Agent, Issuing Lender or the Requisite Lenders
reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have
been paid.
(c) The representations and warranties made by Borrower herein, or which
are contained in any certificate, document or financial or other statement
furnished at any time under or in connection herewith or therewith, shall be
correct on and as of the Closing Date.
(d) Borrower shall be in compliance with all the terms and provisions of
the Loan Documents to which it is a party, and no Default or Event of Default
shall have occurred and be continuing.
(e) Unless waived by Administrative Agent, Borrower shall have paid all
Attorney Costs of Administrative Agent to the extent invoiced prior to or on the
Closing Date, plus such additional amounts of Attorney Costs as shall constitute
its reasonable estimate of Attorney Costs incurred or to be incurred by it
through the closing proceedings (provided that such estimate shall not
thereafter preclude final settling of accounts between Borrower and
Administrative Agent).
4.02 Conditions to all Extensions of Credit. In addition to any applicable
conditions precedent set forth elsewhere in this Section IV or in Section II,
---------- ----------
the obligation of each Lender to honor any Request for Extension of Credit is
subject to the following conditions precedent:
(a) the representations and warranties of Borrower contained in Section V,
---------
or which are contained in any certificate, document or financial or other
statement furnished at any time under or in connection herewith or therewith,
shall be correct in all material respects on and as of the date of such
Extension of Credit, except to the extent that such representations and
warranties specifically refer to any earlier date.
(b) no Default or Event of Default exists, or would result from such
proposed Extension of Credit.
(c) Administrative Agent shall have timely received a Request for
Extension of Credit by Requisite Notice by the Requisite Time therefor.
(d) Administrative Agent shall have received, in form and substance
satisfactory to it, such other assurances, certificates, documents or consents
related to the foregoing as Administrative Agent or Requisite Lenders reasonably
may require.
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Each request for an Extension of Credit by Borrower shall be deemed to be a
representation and warranty that the conditions specified in Sections 4.02(a)
----------------
and 4.02(b) have been satisfied and on and as of the date of such Extension of
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Credit.
SECTION V.
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Administrative Agent and Lenders that:
5.01 Existence and Qualification; Power; Compliance with Laws. Borrower
is a corporation duly organized or formed, and validly existing under the Laws
of the state of Oregon, has the corporate power and authority and the legal
right to own and operate its properties, to lease the properties it operates and
to conduct its business, is duly qualified and in good standing under the Laws
of each jurisdiction where its ownership, lease or operation of properties or
the conduct of its business requires such qualification, except where such non-
qualification does not have a Material Adverse Effect and is in compliance with
all Laws except to the extent that noncompliance does not have a Material
Adverse Effect. Schedule 5.01 lists every Subsidiary showing the jurisdiction
-------------
and organization of each Subsidiary and the percentage ownership of Borrower in
each Subsidiary.
5.02 Power; Authorization; Enforceable Obligations. Borrower has the
corporate power and authority and the legal right to make, deliver and perform
each Loan Document to which it is a party and Borrower has corporate power and
authority to borrow hereunder and has taken all necessary action to authorize
the borrowings on the terms and conditions of this Agreement and to authorize
the execution, delivery and performance of this Agreement and the other Loan
Documents to which it is a party. No consent or authorization of, filing with,
or other act by or in respect of any Governmental Authority, is required in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of this Agreement or any of the other
Loan Documents. The Loan Documents have been duly executed and delivered by
Borrower and constitute a legal, valid and binding obligation of Borrower,
enforceable against Borrower in accordance with their respective terms.
5.03 No Legal Bar. The execution, delivery, and performance by Borrower
of the Loan Documents to which it is a party and compliance with the provisions
thereof have been duly authorized by all requisite action on the part of
Borrower and do not and will not (a) violate or conflict with, or result in a
breach of, or require any consent under (i) any Organization Documents of
Borrower or any of its Subsidiaries, (ii) any applicable Laws, rules, or
regulations or any order, writ, injunction, or decree of any Governmental
Authority or arbitrator, or (iii) any material Contractual Obligation of
Borrower or any of its Subsidiaries or by which any of them or any of their
property is bound or subject, (b) constitute a default under any such agreement
or instrument, or (c) result in, or require, the creation or imposition of any
Lien on any of the properties of Borrower or any of its Subsidiaries, except as
provided herein.
5.04 Financial Statements; No Material Adverse Effect. The Audited
Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; (ii) fairly present the financial condition of Borrower and its
Subsidiaries as of the date thereof and their results of
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operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of Borrower and its Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness in each
case in accordance with GAAP consistently applied throughout the period covered
thereby.
(a) Since the date of the Audited Financial Statements, there has been no
event or circumstance which has a Material Adverse Effect.
(b) For purposes of Section 5.04 or Section 5.04(a), any change,
------------ ---------------
adjustment or restatement of the Audited Financial Statements required by the
Securities and Exchange Commission shall not be deemed a Material Adverse Effect
or render any representation untrue.
5.05 Litigation. Except as disclosed on Schedule 5.05, no litigation,
-------------
investigation or proceeding of or before an arbitrator or Governmental Authority
is pending or, to the knowledge of Borrower threatened by or against Borrower or
any of its Subsidiaries or against any of their properties or revenues which, if
determined adversely, could result in an award or judgment exceeding $2,500,000
in excess of applicable insurance.
5.06 No Default. Neither Borrower nor any of its Subsidiaries are in
default under or with respect to any Contractual Obligation which could have a
Material Adverse Effect, and no Default or Event of Default has occurred and is
continuing or will result from the consummation of this Agreement or any of the
other Loan Documents, or the making of the Extensions of Credit hereunder.
5.07 Ownership of Property; Liens. Borrower and its Subsidiaries have
valid fee or leasehold interests in all real property which they use in their
respective businesses, and Borrower and its Subsidiaries have good and
marketable title to all their other property, and none of such property is
subject to any Lien, except as permitted in Section 7.02.
------ ------------
5.08 Taxes. Borrower and its Subsidiaries have filed all tax returns
which are required to be filed, and have paid, or made provision for the payment
of, all taxes with respect to the periods, property or transactions covered by
said returns, or pursuant to any assessment received by Borrower or its
Subsidiaries, except (a) such taxes, if any, as are being contested in good
------
faith by appropriate proceedings and as to which adequate reserves have been
established and maintained, (b) immaterial taxes, and (c) except as disclosed in
Schedule 5.08; provided, however, that in each case no material item or portion
------------- -------- -------
of property of Borrower or any of its Subsidiaries is in jeopardy of being
seized, levied upon or forfeited.
5.09 Margin Regulations; Investment Company Act; Public Utility Holding
Company Act.
(a) Borrower is not engaged nor will engage, principally or as one of its
important activities, in the business of extending credit for the purpose of
"purchasing" or "carrying" "margin stock" within the respective meanings of each
of the quoted terms under Regulation U of the Board of Governors of the Federal
Reserve System as now and from time to time hereafter
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in effect. No part of the proceeds of any Extensions of Credit hereunder will be
used for "purchasing" or "carrying" "margin stock" as so defined or for any
purpose which violates, or which would be inconsistent with, the provisions of
Regulations U or X of such Board of Governors.
(b) Neither Borrower nor any of its Subsidiaries (i) is a "holding
company," or a "subsidiary company" of a "holding company," or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company," within
the meaning of the Public Utility Holding Company Act of 1935, or (ii) is or is
required to be registered as an "investment company" under the Investment
Company Act of 1940.
5.10 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state Laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to the best
knowledge of Borrower, nothing has occurred which would prevent, or cause the
loss of, such qualification. Borrower and each ERISA Affiliate have made all
required contributions to each Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of Borrower, threatened
claims, actions or lawsuits, or action by any Governmental Authority, with
respect to any Plan that has a Material Adverse Effect. There has been no
prohibited transaction or violation of the fiduciary responsibility rules with
respect to any Plan that has a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither Borrower
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA with respect to any Pension Plan (other than
premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Sections 4201 or
4243 of ERISA with respect to a Multiemployer Plan; and (v) neither Borrower nor
any ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069 or 4212(c) of ERISA.
5.11 Intangible Assets. Borrower and its Subsidiaries own, or possess the
right to use, all trademarks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intangible assets that are used in the conduct of
their respective businesses as now operated, and none of such items, to the best
knowledge of Borrower, conflicts with the valid trademark, trade name,
copyright, patent, patent right or intangible asset of any other Person to the
extent that such conflict has a Material Adverse Effect.
5.12 Compliance With Laws. Borrower and its Subsidiaries are in
compliance in all material respects with all Laws that are applicable to it.
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5.13 Environmental Compliance. Borrower and its Subsidiaries comply with
all existing Environmental Laws and, to the best of Borrower's knowledge, there
are no claims alleging potential liability or responsibility for violation of
any Environmental Law on their respective businesses, operations and properties,
and as a result thereof Borrower has reasonably concluded that such
Environmental Laws and claims do not, individually or in the aggregate, have a
Material Adverse Effect.
5.14 Insurance. The properties of Borrower and its Subsidiaries are
insured with financially sound and reputable insurance companies not Affiliates
of Borrower, in such amounts, with such deductibles and covering such risks as
are customarily carried by companies engaged in similar businesses and owning
similar properties in localities where Borrower or such Subsidiary operates.
5.15 Year 2000. Borrower has (a) initiated a review and assessment of all
areas within its and each of its Subsidiaries' business and operations
(including those affected by customers and vendors) that could be adversely
affected by the "Year 2000 Problem" (that is, the risk that computer
applications and devices containing imbedded computer chips used by Borrower or
its Subsidiaries (or their respective customers and vendors) may be unable to
recognize and perform properly date-sensitive functions involving certain dates
prior to and any date after December 31, 1999), (b) developed a plan and
timeline for addressing the Year 2000 Problem on a timely basis, and (c) to
date, implemented that plan in accordance with that timetable. Based on the
foregoing, Borrower believes that all computer applications and devices
containing imbedded computer chips (including those of its and its Subsidiaries'
vendors) that are material to its or any of its Subsidiaries' business and
operations are reasonably expected on a timely basis to be able to perform
properly date-sensitive functions for all dates before and after January 1, 2000
(that is, be "Year 2000 compliant"), except to the extent that a failure to do
so could not reasonably be expected to have a Material Adverse Effect.
5.16 Disclosure. No statement, information, report, representation, or
warranty made by Borrower in any Loan Document or furnished to Administrative
Agent or any Lender in connection with any Loan Document contains any untrue
statement of a material fact or omits to state any material fact necessary to
make the statements herein or therein not misleading.
SECTION VI.
AFFIRMATIVE COVENANTS
So long as any Obligation remains unpaid or unperformed, or any portion of
the Commitments remains outstanding, Borrower shall, and shall (except in the
case of Borrower's reporting covenants), cause each of its Subsidiaries, to:
6.01 Financial Statements. Deliver to Administrative Agent in form and
detail satisfactory to Administrative Agent and the Requisite Lenders, with
sufficient copies for each Lender:
(a) as soon as available, but in any event within 120 days after the end
of each fiscal year of Borrower, (i) a consolidated balance sheet of Borrower
and its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income and cash flows for such
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fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, audited and accompanied by a
report and opinion of an independent certified public accountant of nationally
recognized standing reasonably acceptable to the Requisite Lenders, which report
and opinion shall be prepared in accordance with GAAP and shall not be subject
to any qualifications or exceptions as to the scope of the audit nor to any
qualifications and exceptions (including possible errors generated by financial
reporting and related systems due to the Year 2000 problem) not reasonably
acceptable to the Requisite Lenders and (ii) Borrower's Form 10-K as submitted
to the Securities and Exchange Commission; and;
(b) as soon as available, but in any event within 45 days after the end of
each fiscal quarter of Borrower, Borrower's Form 10-Q, as provided to the
Securities and Exchange Commission.
(c) as soon as available, but in any event within 120 days after the end
of each fiscal year of Borrower, a company-prepared, consolidated balance sheet
and income statement forecast, including a capital expenditure budget, for the
subsequent fiscal year.
6.02 Certificates, Notices and Other Information. Deliver to
Administrative Agent in form and detail satisfactory to the Administrative Agent
and the Requisite Lenders, with sufficient copies for each Lender:
(a) concurrently with the delivery of the financial statements referred to
in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a
---------------- ---
Responsible Officer of Borrower;
(b) promptly after request by Administrative Agent or any Lender, copies
of any detailed audit reports, management letters or recommendations submitted
to the board of directors (or the audit committee of the board of directors) of
Borrower by independent accountants in connection with the accounts or books of
Borrower or any of its Subsidiaries, or any audit of any of them;
(c) promptly after the same are available, copies of each annual report,
proxy or financial statement or other report or similar communication sent to
the stockholders of Borrower, and copies of all annual, regular, periodic and
special reports and registration statements which Borrower may file or be
required to file with the Securities and Exchange Commission under Sections 13
or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to
be delivered to Administrative Agent pursuant hereto;
(d) promptly after the occurrence thereof, notice of any Default or Event
of Default;
(e) notice of any material change in accounting policies or financial
reporting practices by Borrower or any of its Subsidiaries;
(f) promptly after the commencement thereof, notice of any litigation,
investigation or proceeding affecting Borrower where the amount involved exceeds
the Threshold Amount in
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excess of applicable insurance coverage, or in which injunctive relief or
similar relief is sought, which relief, if granted, has a Material Adverse
Effect;
(g) promptly after the occurrence thereof, notice of any Reportable Event
with respect to any Plan or the intent to terminate any Plan, or the institution
of proceedings or the taking or expected taking of any other action to terminate
any Plan or withdraw from any Plan;
(h) promptly after the occurrence thereof, notice of any Material Adverse
Effect;
(i) promptly of any discovery or determination that any computer
application (including those of its suppliers and vendors) that is material to
Borrower or any of its Subsidiaries' business and operations will not be Year
2000 compliant on a timely basis, except to the extent that such failure could
not reasonably be expected to have a Material Adverse Effect;
(j) promptly, such other data and information as from time to time may be
reasonably requested by Administrative Agent, or, through Administrative Agent
or any Lender.
Each notice pursuant to this Section shall be accompanied by a statement of
a Responsible Officer of Borrower setting forth details of the occurrence
referred to therein and stating what action Borrower has taken and proposes to
take with respect thereto.
6.03 Payment of Taxes. Pay and discharge when due all taxes, assessments,
and governmental charges, Ordinary Course Liens or levies imposed on Borrower or
its Subsidiaries or on its income or profits or any of its property, except for
any such tax, assessment, charge, or levy which is an Ordinary Course Lien under
subsection (b) of the definition of such term.
6.04 Preservation of Existence. Preserve and maintain its existence,
licenses, permits, rights, franchises and privileges necessary or desirable in
the normal conduct of its business, except where failure to do so does not have
a Material Adverse Effect.
6.05 Maintenance of Properties. Maintain, preserve and protect all of its
material properties and equipment necessary in the operation of its business in
good order and condition, subject to wear and tear in the ordinary course of
business, and not permit any waste of its properties.
6.06 Maintenance of Insurance. Maintain liability and casualty insurance
with responsible insurance companies satisfactory to Requisite Lenders in such
amounts and against such risks as is customary for similarly situated
businesses.
6.07 Compliance With Laws.
(a) Comply with the requirements of all applicable Laws and orders of any
Governmental Authority, noncompliance with which has a Material Adverse Effect.
(b) Conduct its operations and keep and maintain its property in
compliance with all Environmental Laws, where failure to comply would have a
Material Adverse Effect.
-41-
6.08 Inspection Rights. At any time during regular business hours and as
often as reasonably requested, permit Administrative Agent or any Lender, or any
employee, agent or representative thereof, accompanied by a Borrower
representative to examine, audit and make copies and abstracts from Borrower's
records and books of account and to visit and inspect their properties and to
discuss their affairs, finances and accounts with any of their officers and key
employees, and, upon request, furnish promptly to Administrative Agent or any
Lender true copies of all financial information and internal management reports
made available to their senior management.
6.09 Keeping of Records and Books of Account. Keep adequate records and
books of account reflecting all financial transactions in conformity with GAAP,
consistently applied, and in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over
Borrower or any of its Subsidiaries.
6.10 Compliance with ERISA. Cause, and cause each of its ERISA Affiliates
to: (a) maintain each Plan in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law; (b)
cause each Plan which is qualified under Section 401(a) of the Code to maintain
such qualification; and (c) make all required contributions to any Plan subject
to Section 412 of the Code.
6.11 Compliance With Agreements. Promptly and fully comply with all
Contractual Obligations under all material agreements, indentures, leases and/or
instruments to which any one or more of them is a party, except for any such
------
Contractual Obligations (a) the performance of which would cause a Default, (b)
then being contested by any of them in good faith by appropriate proceedings, or
(c) if the failure to comply therewith does not have a Material Adverse Effect.
6.12 Use of Proceeds. Use the proceeds of Extensions of Credit for lawful
corporate purposes not otherwise in contravention of this Agreement.
6.13 Maintenance of Security Interests and Liens. Execute and deliver all
Collateral Documents and perform such other acts as the Administrative Agent
reasonably requests to maintain the continuous perfection and priority of
Lenders' security interests and Liens in the Collateral.
SECTION VII.
NEGATIVE COVENANTS
So long as any Obligations remain unpaid or unperformed, or any portion of
the Commitments remains outstanding, Borrower shall not, nor shall it permit any
of its Subsidiaries to, directly or indirectly:
7.01 Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except:
------
(a) Ordinary Course Indebtedness;
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(b) Indebtedness outstanding on the date hereof and listed on Schedule
--------
7.01 and any refinancings, refundings, renewals or extensions thereof, provided
---- --------
that the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to the
premium or other amount paid, and fees and expenses incurred, in connection with
such refinancing and by an amount equal to any utilized commitments thereunder;
and
(c) Indebtedness secured by Purchase Money Liens not exceeding $5,000,000
in the aggregate in any fiscal year of Borrower and not exceeding $10,000,000 in
the aggregate anytime after the date of this Agreement.
(d) Indebtedness comprised of an existing line of credit and overdraft
facility from Svenska Handelsbanken in a maximum amount of 55,000,000 Swedish
kroner, 40,000,000 Swedish kroner of which is secured; and
(e) Indebtedness comprised of a capital lease to refinance the cost of
BaaN ERP software, in a maximum amount of not more than 5% of Borrower's
Consolidated Tangible Net Worth.
7.02 Liens and Negative Pledges. Incur, assume or suffer to exist, any
Lien or Negative Pledge upon any of its property, assets or revenues, whether
now owned or hereafter acquired, except:
------
(a) Liens and Negative Pledges existing on the date hereof and listed on
Schedule 7.01 and any renewals or extensions thereof; provided that the
------------- --------
obligations secured or benefited thereby or the property covered thereby are not
increased;
(b) Ordinary Course Liens;
(c) Purchase Money Liens securing Indebtedness permitted by Section
-------
7.01(c);
-------
(d) Liens created under any Collateral Document;
(e) Liens created under an existing chattel mortgage securing indebtedness
permitted by Section 7.01(d); and
---------------
(f) Liens created under a capital lease permitted by Section 7.01(e).
---------------
7.03 Fundamental Changes. Merge or consolidate with or into any Person,
acquire any Person or liquidate, wind-up or dissolve itself, or permit or suffer
any liquidation or dissolution or sell all or substantially all of its assets,
except, that so long as no Default or Event of Default exists or would result
therefrom:
(a) any Subsidiary of Borrower may merge with (i) Borrower provided that
Borrower shall be the continuing or surviving corporation, (ii) with any one or
more Subsidiaries of Borrower, and (iii) with any joint ventures, partnerships
and other Persons, so long as such joint ventures, partnerships and other
Persons will, as a result of making such merger and all other contemporaneous
related transactions, become a Subsidiary of Borrower; provided that when any
--------
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wholly-owned Subsidiary of Borrower is merging into another Subsidiary of
Borrower, the wholly-owned Subsidiary of Borrower shall be the continuing or
surviving Person; and
(b) any Subsidiary of Borrower may sell all or substantially all of its
assets (upon voluntary liquidation or otherwise), to Borrower or any of its
Subsidiaries; provided that when any wholly-owned Subsidiary of Borrower is
--------
selling all or substantially all of its assets to another Subsidiary of
Borrower, the Subsidiary acquiring such assets shall be a wholly-owned
Subsidiary of Borrower.
(c) Borrower or any Subsidiary may merge with or acquire any Person, but
only if Borrower or the applicable Subsidiary shall remain the parent or
surviving entity, and only if the value of the total consideration paid by
Borrower and Subsidiaries in all such transactions made anytime after the date
of this Agreement, including cash, property or stock of Borrower or any
Subsidiary does not exceed $25,000,000 and also does not exceed $15,000,000 in
any period of 12 consecutive months.
7.04 Dispositions. Make any Dispositions, except:
------
(a) Ordinary Course Dispositions; and
(b) Dispositions permitted by Section 7.03.
------------
(c) Dispositions of property with a value of less than $2,500,000 in any
period of 12 consecutive months if such property is not material to the
continuation of Borrower's business.
7.05 Investments. Make any Investments, except:
------
(a) Investments existing on the date hereof;
(b) Ordinary Course Investments; and
(c) Investments permitted by Section 7.03.
------------
7.06 Lease Obligations. Create or suffer to exist any obligations for the
payment of rent for any property under lease or agreement to lease, except:
------
(a) leases in existence on the date hereof and any renewal, extension or
refinancing thereof; and
(b) leases entered into or assumed by Borrower or any of its Subsidiaries
after the date hereof in the ordinary course of business. However, no capital
leases are permitted under this Subsection unless the amount thereof is within
the limit of Section 7.12.
------------
7.07 Restricted Payments. Make any Restricted Payments described in
subparagraph (a), (c), (d), or (e) under the definition of Restricted Payment;
provided, however, Borrower may make any Restricted Payment described in such
--------- -------
subparagraphs (a), (c), (d) and (e) so long as the total of such payments does
not exceed $10,000,000 in any period of 12 consecutive months. Further, Borrower
may make any Restricted Payment described in
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subparagraph (b) under the definition of Restricted Payment so long as such
payment plus the total of all such payments described in such subparagraph made
anytime after the date of this Agreement will not exceed the lesser of
$25,000,000 and 15% of Borrower's Consolidated Tangible Net Worth as at the end
of Borrower's fiscal quarter most recently ended.
7.08 ERISA. At any time engage in a transaction which could be subject to
Sections 4069 or 4212(c) of ERISA, or permit any Pension Plan to (a) engage in
any non-exempt "prohibited transaction" (as defined in Section 4975 of the
Code); (b) fail to comply with ERISA or any other applicable Laws; or (c) incur
any material "accumulated funding deficiency" (as defined in Section 302 of
ERISA), which, with respect to each event listed above, has a Material Adverse
Effect.
7.09 Change in Nature of Business. Make any change in the nature of the
business of Borrower as conducted and as proposed to be conducted as of the date
hereof.
7.10 Transactions with Affiliates. Enter into any transaction of any kind
with any Affiliate of Borrower other than arm's-length transactions with
Affiliates that are otherwise permitted hereunder and other than transactions
with Subsidiaries, 100% of the capital stock of which has been pledged to secure
the Obligations in the case of domestic Subsidiaries, and 65% of the capital
stock of which has been so pledged in the case of foreign Subsidiaries.
7.11 Hostile Acquisitions. Use the proceeds of any Loan in connection
with the acquisition of a voting interest in any Person if such acquisition is
opposed by the board of directors or management of such Person unless (a)
------
Borrower has given Administrative Agent (who shall promptly notify each Lender)
five Business Days' prior notice thereof and (b) no Lender shall have, within
that period, notified Administrative Agent (who shall promptly notify Borrower)
not consented to the use of the proceeds of such Loan for that purpose.
7.12 Capital Expenditures. Make, or become legally obligated to make, any
capital expenditure, except capital expenditures in any fiscal year of Borrower
------
not exceeding the sum of $12,000,000.
7.13 Limitations on Upstreaming. Agree to any restriction or limitation
on the making of Restricted Payments or transferring of assets from any
Subsidiary of Borrower to Borrower.
7.14 Financial Covenants.
(a) Consolidated Tangible Net Worth. Permit Consolidated Tangible Net
Worth at any time to be less than the sum of (a) $89,056,000, (b) an amount
equal to 50% of the Net Income earned in each fiscal quarter ending after
September 30, 1999 (with no deduction for a net loss in any such fiscal quarter,
but with a deduction for any reduction in Consolidated Tangible Net Worth
resulting from repurchases of Borrower's capital stock permitted by Section
-------
7.07) and (c) an amount equal to 90% of the aggregate increases in Shareholders'
----
Equity of Borrower and its Subsidiaries after the date of this Agreement by
reason of the issuance or sale of capital stock of Borrower (including upon any
conversion of debt securities of Borrower into
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such capital stock and including any issuance of capital stock of Borrower in
connection with any merger or acquisition described in Section 7.03(c)).
---------------
(b) Interest Coverage Ratio. Permit the Interest Coverage Ratio to be less
than 2.50:1.00:
(c) Leverage Ratio. Permit the Leverage Ratio at any time to be greater
than 3.00:1.00.
(d) Maximum Accounts Payable Days. Permit Borrower's Consolidated Accounts
Payable Days to exceed 80 days for the quarter ending December 31, 1999, and 50
days for each quarter ending thereafter.
7.15 Change in Auditors. Change the certified public accountants auditing
the books of Borrower without the consent of Requisite Lenders, such consent not
to be unreasonably withheld.
SECTION VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default. Any one or more of the following events shall
constitute an Event of Default:
(a) Borrower fails to pay any principal on any Outstanding Obligation
(other than fees) as and on the date when due; or
(b) Borrower fails to pay any interest on any Outstanding Obligation, or
any commitment fees due hereunder within three Business Days after the date when
due; or fails to pay any other fees or amount payable to Administrative Agent or
any Lender under any Loan Document within five Business Days after the date due;
or
(c) Any default occurs in the observance or performance of any agreement
contained in Sections 6.01, 6.02, 6.08 or Section VII; or
------------- ---- ---- -----------
(d) The occurrence of an Event of Default (as such term is or may
hereafter be specifically defined in any other Loan Document) under any other
Loan Document; or Borrower fails to perform or observe any other covenant or
agreement (not specified in subsections (a), (b) or (c) above) contained in any
Loan Document on its part to be performed or observed and such failure continues
for 30 days; or
(e) Any representation or warranty in any Loan Document or in any
certificate, agreement, instrument or other document made or delivered by
Borrower pursuant to or in connection with any Loan Document proves to have been
incorrect when made or deemed made; or
(f) (i) Borrower (x) defaults in any payment when due of principal of or
interest on any Indebtedness (other than Indebtedness hereunder) or (y) defaults
in the observance or performance of any other agreement or condition relating to
any Indebtedness (other than
-46-
Indebtedness hereunder) or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur, the effect of
which default or other event is to cause, or to permit the holder or holders of
such Indebtedness (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required,
Indebtedness having an aggregate principal amount in excess of $1,000,000 to be
demanded or become due (automatically or otherwise) prior to its stated
maturity, or any Guaranty Obligation in such amount to become payable, or
Borrower is unable or admits in writing its inability to pay its debts as they
mature; or (ii) the occurrence under any Swap Contract of an Early Termination
Date (as defined in such Swap Contract) resulting from (x) any event of default
under such Swap Contract as to which Borrower or any Subsidiary is the
Defaulting Party (as defined in such Swap Contract) or (y) any Termination Event
occurs under any Swap Contract (as defined therein) as to which Borrower or any
Subsidiary is an Affected Party (as so defined), which, in either event, the
Swap Termination Value owed by Borrower or such Subsidiary as a result thereof
is greater than $1,000,000; or
(g) Any Loan Document, at any time after its execution and delivery and
for any reason other than the agreement of all Lenders or satisfaction in full
of all the Obligations, ceases to be in full force and effect or is declared by
a court of competent jurisdiction to be null and void, invalid or unenforceable
in any material respect; or Borrower denies that it has any or further liability
or obligation under any Loan Document, or purports to revoke, terminate or
rescind any Loan Document; or
(h) A final judgment against Borrower is entered for the payment of money
in excess of the Threshold Amount, or any non-monetary final judgment is entered
against Borrower which has a Material Adverse Effect and, in each case if such
judgment remains unsatisfied without procurement of a stay of execution within
30 calendar days after the date of entry of judgment or, if earlier, five days
prior to the date of any proposed sale, or any writ or warrant of attachment or
execution or similar process is issued or levied against all or any material
part of the Property of any such Person and is not released, vacated or fully
bonded within 30 calendar days after its issue or levy; or
(i) Borrower or any of its Subsidiaries institutes or consents to the
institution of any proceeding under Debtor Relief Laws, or makes an assignment
for the benefit of creditors; or applies for or consents to the appointment of
any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any material part of its property; or any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar
officer is appointed without the application or consent of that Person and the
appointment continues undischarged or unstayed for 60 calendar days; or any
proceeding under Debtor Relief Laws relating to any such Person or to all or any
material part of its property is instituted without the consent of that Person
and continues undismissed or unstayed for 60 calendar days, or an order for
relief is entered in any such proceeding; or
(j) (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount; (ii) the aggregate amount of Unfunded Pension Liability
-47-
among all Pension Plans at any time exceeds the Threshold Amount; or (iii)
Borrower or any ERISA Affiliate fails to pay when due, after the expiration of
any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in
an aggregate amount in excess of the Threshold Amount; or
(k) Any event occurs which has a Material Adverse Effect.
8.02 Remedies Upon Event of Default. Without limiting any other rights or
remedies of Administrative Agent or Lenders provided for elsewhere in this
Agreement, or the other Loan Documents, or by applicable Law, or in equity, or
otherwise:
(a) Upon the occurrence, and during the continuance, of any Event of
Default other than an Event of Default described in Section 8.01(i):
----- ---- ---------------
(i) the Requisite Lenders may request Administrative Agent to, and
Administrative Agent thereupon shall, terminate the Commitments and/or
declare all or any part of the unpaid principal of all Loans, all interest
accrued and unpaid thereon and all other amounts payable under the Loan
Documents to be immediately due and payable, whereupon the same shall
become and be immediately due and payable, without protest, presentment,
notice of dishonor, demand or further notice of any kind, all of which are
expressly waived by Borrower; and
(ii) Issuing Lender may, with the approval of Administrative Agent on
behalf of the Requisite Lenders, demand immediate payment by Borrower of an
amount equal to the aggregate amount of all outstanding Letters of Credit
Usage to be held in a Letter of Credit Cash Collateral Account.
(b) Upon the occurrence of any Event of Default described in Section
-------
8.01(i):
-------
(i) the Commitments and all other obligations of Administrative
Agent or Lenders shall automatically terminate without notice to or demand
upon Borrower, which are expressly waived by Borrower;
(ii) the unpaid principal of all Loans, all interest accrued and
unpaid thereon and all other amounts payable under the Loan Documents shall
be immediately due and payable, without protest, presentment, notice of
dishonor, demand or further notice of any kind, all of which are expressly
waived by Borrower; and
(iii) an amount equal to the aggregate amount of all outstanding
Letters of Credit Usage shall be immediately due and payable to Issuing
Lender without notice to or demand upon Borrower, which are expressly
waived by Borrower, to be held in a Letter of Credit Cash Collateral
Account.
(c) Upon the occurrence of any Event of Default, Lenders and
Administrative Agent, or any of them, without notice to (except as expressly
provided for in any Loan Document) or demand upon Borrower, which are expressly
waived by Borrower (except as to notices expressly provided for in any Loan
Document), may proceed to (but only with the consent of the Requisite
-48-
Lenders) protect, exercise and enforce their rights and remedies under the Loan
Documents against Borrower and such other rights and remedies as are provided by
Law or equity.
(d) Except as permitted by Section 10.05, no Lender may exercise any
-------------
rights or remedies with respect to the Obligations without the consent of the
Requisite Lenders in their sole and absolute discretion. The order and manner in
which Administrative Agent's and Lenders' rights and remedies are to be
exercised shall be determined by the Requisite Lenders in their sole and
absolute discretion. Regardless of how a Lender may treat payments for the
purpose of its own accounting, for the purpose of computing the Obligations
hereunder, payments shall be applied first, to costs and expenses (including
Attorney Costs) incurred by Administrative Agent and each Lender, second, to the
payment of accrued and unpaid interest on the Loans to and including the date of
such application, third, to the payment of the unpaid principal of the Loans and
Secured Swap Obligations on a pari passu basis, and fourth, to the payment of
all other amounts (including fees) then owing to Administrative Agent and
Lenders under the Loan Documents, in each case paid pro rata to each Lender in
the same proportions that the aggregate Obligations owed to each Lender under
the Loan Documents bear to the aggregate Obligations owed under the Loan
Documents to all Lenders, without priority or preference among Lenders. Any
surplus thereof which exists after payment and performance in full of the
Obligations shall be paid to Borrower or otherwise disposed of in accordance
with applicable law. No application of payments will cure any Event of Default,
or prevent acceleration, or continued acceleration, of amounts payable under the
Loan Documents, or prevent the exercise, or continued exercise, of rights or
remedies of Administrative Agent and Lenders hereunder or thereunder or at Law
or in equity.
SECTION IX.
ADMINISTRATIVE AGENT
9.01 Appointment and Authorization of Administrative Agent.
(a) Each Lender hereby irrevocably (subject to Section 9.09) appoints,
------------
designates and authorizes Administrative Agent to take such action on its behalf
under the provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly delegated to it by
the terms of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary contained elsewhere in this Agreement or in any other Loan
Document, Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall Administrative Agent have or
be deemed to have any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Loan Document or otherwise exist
against Administrative Agent. Without limiting the generality of the foregoing
sentence, the use of the term "agent" in this Agreement with reference to
Administrative Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
-49-
(b) Issuing Lender shall act on behalf of Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith until such
time and except for so long as Administrative Agent may agree at the request of
the Requisite Lenders to act for such Issuing Lender with respect thereto;
provided, however, that Issuing Lender shall have all of the benefits and
-------- -------
immunities (i) provided to Administrative Agent in this Section IX with respect
----------
to any acts taken or omissions suffered by Issuing Lender in connection with
Letters of Credit issued by it or proposed to be issued by it and the
application and agreements for letters of credit pertaining to the Letters of
Credit as fully as if the term "Administrative Agent" as used in this Section IX
----------
included Issuing Lender with respect to such acts or omissions, and (ii) as
additionally provided in this Agreement with respect to Issuing Lender.
9.02 Delegation of Duties. Administrative Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Administrative Agent shall not
be responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
9.03 Liability of Administrative Agent. None of Administrative Agent-
Related Persons shall (i) be liable for any action taken or omitted to be taken
by any of them under or in connection with this Agreement or any other Loan
Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct), or (ii) be responsible in any manner to any
of Lenders for any recital, statement, representation or warranty made by
Borrower or any Subsidiary or Affiliate of Borrower, or any officer thereof,
contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for in,
or received by Administrative Agent under or in connection with, this Agreement
or any other Loan Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document, or
for any failure of Borrower or any other party to any Loan Document to perform
its obligations hereunder or thereunder. No Administrative Agent-Related Person
shall be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of Borrower or any of Borrower's Subsidiaries or Affiliates.
9.04 Reliance by Administrative Agent.
(a) Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to Borrower),
independent accountants and other experts selected by Administrative Agent.
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Requisite Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by Lenders against any and all liability and expense which may be
incurred by it by reason of taking or
-50-
continuing to take any such action. Administrative Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement or
any other Loan Document in accordance with a request or consent of the Requisite
Lenders or all Lenders, if required hereunder, and such request and any action
taken or failure to act pursuant thereto shall be binding upon all of Lenders.
(b) For purposes of determining compliance with the conditions specified
in Section 4.01, each Lender that has executed this Agreement shall be deemed to
------------
have consented to, approved or accepted or to be satisfied with, each document
or other matter either sent by Administrative Agent to such Lender for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to such Lender.
9.05 Notice of Default. Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, except
with respect to defaults in the payment of principal, interest and fees required
to be paid to Administrative Agent for the account of Lenders, unless
Administrative Agent shall have received written notice from a Lender or
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." Administrative
Agent will notify Lenders of its receipt of any such notice. Administrative
Agent shall take such action with respect to such Default or Event of Default as
may be requested by the Requisite Lenders in accordance with Section VIII;
------------
provided, however, that unless and until Administrative Agent has received any
-------- -------
such request, Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable or in the best interest of Lenders.
9.06 Credit Decision; Disclosure of Information by Administrative Agent.
Each Lender acknowledges that none of Administrative Agent-Related
Persons has made any representation or warranty to it, and that no act by
Administrative Agent hereinafter taken, including any consent to and acceptance
of any assignment or review of the affairs of Borrower and its Subsidiaries,
shall be deemed to constitute any representation or warranty by any
Administrative Agent-Related Person to any Lender as to any matter, including
whether Administrative Agent-Related Persons have disclosed material information
in their possession. Each Lender, including any Lender by assignment,
represents to Administrative Agent that it has, independently and without
reliance upon any Administrative Agent-Related Person and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, prospects, operations, property,
financial and other condition and creditworthiness of Borrower and its
Subsidiaries, and all applicable bank regulatory laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to Borrower hereunder. Each Lender also
represents that it will, independently and without reliance upon any
Administrative Agent-Related Person and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Loan Documents, and to make such investigations as it
deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of Borrower. Except
for notices, reports and other documents expressly herein
-51-
required to be furnished to Lenders by Administrative Agent herein,
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of
Borrower or any of its Subsidiaries which may come into the possession of any of
Administrative Agent-Related Persons.
9.07 Indemnification of Administrative Agent. Whether or not the
transactions contemplated hereby are consummated, Lenders shall indemnify upon
demand each Administrative Agent-Related Person (to the extent not reimbursed by
or on behalf of Borrower and without limiting the obligation of Borrower to do
so), pro rata, and hold harmless each Administrative Agent-Related Person from
and against any and all Indemnified Liabilities incurred by it; provided,
--------
however, that no Lender shall be liable for the payment to any Administrative
-------
Agent-Related Person of any portion of such Indemnified Liabilities resulting
from such Person's gross negligence or willful misconduct; provided, however,
-------- -------
that no action taken in accordance with the directions of the Requisite Lenders
shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section. Without limitation of the foregoing, each Lender shall
reimburse Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that Administrative Agent
is not reimbursed for such expenses by or on behalf of Borrower. The undertaking
in this Section shall survive the payment of all Obligations hereunder and the
resignation or replacement of Administrative Agent.
9.08 Administrative Agent in Individual Capacity. Bank of America and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with Borrower
and its Subsidiaries and Affiliates as though Bank of America were not
Administrative Agent or Issuing Lender hereunder and without notice to or
consent of Lenders. Lenders acknowledge that, pursuant to such activities, Bank
of America or its Affiliates may receive information regarding Borrower or its
Affiliates (including information that may be subject to confidentiality
obligations in favor of Borrower or such Affiliate) and acknowledge that
Administrative Agent shall be under no obligation to provide such information to
them. With respect to its Loans, Bank of America shall have the same rights and
powers under this Agreement as any other Lender and may exercise the same as
though it were not Administrative Agent or Issuing Lender.
9.09 Successor Administrative Agent. Administrative Agent may, and at the
request of Requisite Lenders shall, resign as Administrative Agent upon 30 days'
notice to Lenders. If Administrative Agent resigns under this Agreement,
Requisite Lenders shall appoint from among Lenders a successor administrative
agent for Lenders which successor administrative agent shall be approved by
Borrower. If no successor administrative agent is appointed prior to the
effective date of the resignation of Administrative Agent, Administrative Agent
may appoint, after consulting with Lenders and Borrower, a successor
administrative
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agent from among Lenders. Upon the acceptance of its appointment as successor
administrative agent hereunder, such successor administrative agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent and the term "Administrative Agent" shall mean such successor
administrative agent and the retiring Administrative Agent's appointment, powers
and duties as Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Section IX and Sections 10.03 and 10.11 shall inure to its
---------- -------------- -----
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor administrative agent
has accepted appointment as Administrative Agent by the date which is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and Lenders shall perform all of the duties of Administrative Agent hereunder
until such time, if any, as Requisite Lenders appoint a successor agent as
provided for above. Notwithstanding the foregoing, however, Bank of America may
not be removed as Administrative Agent at the request of Requisite Lenders
unless Bank of America shall also simultaneously be replaced as "Issuing Lender"
and "Swing Line Lender" hereunder pursuant to documentation in form and
substance reasonably satisfactory to Bank of America.
9.10 Co-Agents, Lead Managers. None of Lenders identified on the facing
page or signature pages of this Agreement as a "co-agent" or "lead manager"
shall have any right, power, obligation, liability, responsibility or duty under
this Agreement other than those applicable to all Lenders as such. Without
limiting the foregoing, none of Lender so identified as a "co-agent" or "lead
manager" shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of Lenders so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
9.11 Collateral Matters
(a) Administrative Agent is authorized on behalf of all Lenders, without
the necessity of any notice to or further consent from Lenders, from time to
time to take any action with respect to any Collateral or the Collateral
Documents which may be necessary to perfect and maintain perfected the security
interest in and Liens upon the Collateral granted pursuant to the Collateral
Documents.
(b) Lenders irrevocably authorize Administrative Agent, at its option and
in its discretion, to release any Lien granted to or held by Administrative
Agent upon any Collateral (i) upon termination of the Combined Commitments and
payment in full of all Loans and all other Obligations known to Administrative
Agent and payable under this Agreement or any other Loan Document; (ii)
constituting property sold or to be sold or disposed of as part of or in
connection with any disposition permitted hereunder; or (iii) consisting of an
instrument evidencing Indebtedness or other debt instrument, if the indebtedness
evidenced thereby has been paid in full; or (iv) if approved, authorized or
ratified in writing by all Lenders. Upon request by Administrative Agent at any
time, Lenders will confirm in writing Administrative Agent's authority to
release particular types or items of Collateral pursuant to this Section
-------
9.11(b), provided that the absence of any such confirmation for whatever reason
-------
shall not affect Administrative Agent's rights under this Section 9.11.
------------
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(c) Each Lender agrees with and in favor of each other (which agreement
shall not be for the benefit of Borrower or any Subsidiary) that Borrower's
obligation to such Lender under this Agreement and the other Loan Documents is
not and shall not be secured by any real property collateral now or hereafter
acquired by such Lender.
SECTION X.
MISCELLANEOUS
10.01 Amendments; Consents. No amendment, modification, supplement,
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and no consent to any
departure by Borrower therefrom shall be effective unless in writing signed by
Administrative Agent and Requisite Lenders, and each such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given. Except as otherwise expressly provided herein, without the
approval in writing of Administrative Agent and all Lenders, no amendment,
modification, supplement, termination, waiver or consent may be effective:
(a) To reduce the amount of principal, principal prepayments or the rate
of interest payable on, any Loan, or the amount of any fee or other amount
payable to any Lender under the Loan Documents (unless such modification is
consented to by each Lender entitled to receive such fee) or to waive an Event
of Default consisting of the failure of Borrower to pay when due principal,
interest or any commitment fee;
(b) To postpone any date fixed for any payment of principal of, prepayment
of principal of, or any installment of interest on, any Loan or any installment
of any commitment fee, to extend the term of, or increase the amount of, any
Lender's Commitment (it being understood that a waiver of an Event of Default
shall not constitute an extension or increase in the Commitment of any Lender)
or modify the Pro Rata Share of any Lender;
(c) To amend the provisions of the definition of "Requisite Lenders",
Sections 4, 9, this Section 10.01 or Section 10.06; or
---------- - ------------- -------------
(d) To amend any provision of this Agreement that expressly requires the
consent or approval of all Lenders.
provided, however, that (i) no amendment, waiver or consent shall, unless in
-------- -------
writing and signed by Issuing Lender in addition to Requisite Lenders or all
Lenders, as the case may be, affect the rights or duties of Issuing Lender under
any Loan Document relating to Letters of Credit, (ii) no amendment, waiver or
consent shall, unless in writing and signed by Administrative Agent in addition
to Requisite Lenders or all Lenders, as the case may be, affect the rights or
duties of Administrative Agent under any Loan Document, (iii) no amendment,
waiver or consent shall, unless in writing and signed by Swing Line Lender in
addition to Requisite Lenders or all Lenders, as the case may be, affect the
rights or duties of Swing Line Lender under any Loan Document, and (iv) any fee
letter may be amended, or rights or privileges thereunder waived, in a writing
executed by the parties thereto. Any amendment, modification, supplement,
termination, waiver or consent pursuant to this Section shall apply equally to,
and shall be binding upon, all Lenders and Administrative Agent.
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10.02 Transmission and Effectiveness of Notices and Signatures.
(a) Modes of Delivery. Except as otherwise provided in any Loan Document,
notices, requests, demands, directions, agreements and documents delivered in
connection with the Loan Documents (collectively, "communications") shall be
--------------
transmitted by Requisite Notice to the number and address set forth on Schedule
--------
10.02, may be delivered by the following modes of delivery, and shall be
-----
effective as follows:
Mode of Delivery Effective on earlier of actual receipt and:
---------------------------------------------------------------------
Courier Scheduled delivery date
Facsimile When transmission in legible form complete
Mail Fourth Business Day after deposit in U.S.
mail first class postage pre-paid
Personal delivery When received
Telephone When conversation completed
provided, however, that communications delivered to Administrative Agent
-------- -------
pursuant to Section II shall not be effective until actually received by
----------
Administrative Agent.
(b) Reliance by Administrative Agent and Lenders. Administrative Agent and
Lenders shall be entitled to rely and act on any communications purportedly
given by or on behalf of Borrower even if such communications (i) were not made
in a manner specified herein, (ii) were incomplete, (iii) were not preceded or
followed by any other notice specified herein, or (iv) the terms thereof, as
understood by the recipient, varied from any subsequent related communications
provided for herein. Borrower shall indemnify Administrative Agent and Lenders
from any loss, cost, expense or liability as a result of relying on any
communications permitted herein.
(c) Effectiveness of Facsimile Signatures. Signatures on communications
may be transmitted by facsimile only with the consent of Administrative Agent in
its sole and absolute discretion in each instance. The effectiveness of any such
signatures accepted by Administrative Agent shall, subject to applicable Law,
have the same force and effect as manual signatures and shall be binding on all
Borrower Parties and Administrative Agent and Lenders. Administrative Agent may
also require that any such signature be confirmed by a manually-signed hardcopy
thereof.
10.03 Attorney Costs, Expenses and Taxes. Borrower agrees (a) to pay or
reimburse Administrative Agent for all costs and expenses incurred in connection
with the development, preparation, negotiation and execution of the Loan
Documents, and the development, preparation, negotiation and execution of any
amendment, waiver, consent, supplement or modification to, any Loan Documents,
and any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and
thereby, including all Attorney Costs, and (b) to pay or reimburse
Administrative Agent and each Lender for all costs and expenses incurred in
connection with any refinancing, restructuring,
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reorganization (including a bankruptcy reorganization) and enforcement or
attempted enforcement, or preservation of any rights under any Loan Documents,
and any other documents prepared in connection herewith or therewith, or in
connection with any refinancing, or restructuring of any such documents in the
nature of a "workout" or of any insolvency or bankruptcy proceeding, including
Attorney Costs. The foregoing costs and expenses shall include all search,
filing, recording, title insurance and appraisal charges and fees and taxes
related thereto, and other out-of-pocket expenses incurred by Administrative
Agent and the cost of independent public accountants and other outside experts
retained by Administrative Agent or any Lender. Such costs and expenses shall
also include administrative costs of Administrative Agent reasonably
attributable to the administration of the Loan Documents. Any amount payable by
Borrower under this Section shall bear interest from the second Business Day
following the date of demand for payment at the Default Rate, unless waived by
Administrative Agent. The agreements in this Section shall survive repayment of
all Obligations.
10.04 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to which Borrower is a
party will be binding upon and inure to the benefit of Borrower, Administrative
Agent, Lenders and their respective successors and assigns, except that,
Borrower may not assign its rights hereunder or thereunder or any interest
herein or therein without the prior written consent of all Lenders and any such
attempted assignment shall be void. Any Lender may at any time pledge its Note
or any other instrument evidencing its rights as a Lender under this Agreement
to a Federal Reserve Lender, but no such pledge shall release that Lender from
its obligations hereunder or grant to such Federal Reserve Lender the rights of
a Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign
to one or more Eligible Assignees all or any portion of its Pro Rata Share of
its Commitment and/or Extensions of Credit; provided that (i) such assignment,
--------
if not to a Lender or an Affiliate of the assigning Lender, shall be consented
to by Borrower at all times other than during the existence of a Default or
Event of Default and Administrative Agent and Issuing Lender (which approval of
Borrower shall not be unreasonably withheld or delayed), (ii) a copy of a duly
signed and completed Notice of Assignment and Acceptance shall be delivered to
Administrative Agent, (iii) except in the case of an assignment to an Affiliate
of the assigning Lender, to another Lender or of the entire remaining Commitment
of the assigning Lender, the assignment shall not assign a Pro Rata Share
equivalent to less than $5,000,000, the Minimum Amount therefor, and (iv) the
effective date of any such assignment shall be as specified in the Notice of
Assignment and Acceptance, but not earlier than the date which is five Business
Days after the date Administrative Agent has received the Notice of Assignment
and Acceptance. Upon acceptance by Administrative Agent of such Notice
Assignment and Acceptance and consent thereto by Administrative Agent and
Issuing Lender and payment of the requisite fee described below, the Eligible
Assignee named therein shall be a Lender for all purposes of this Agreement,
with the Pro Rata Share therein set forth and, to the extent of such Pro Rata
Share, the assigning Lender shall be released from its further obligations under
this Agreement. Borrower agrees that it shall execute and deliver upon request
(against delivery by the assigning Lender to Borrower of any Note) to such
assignee Lender, one or more Notes evidencing that assignee Lender's Pro Rata
Share, and to the assigning Lender if requested, one or more Notes evidencing
the remaining
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balance Pro Rata Share retained by the assigning Lender. Administrative Agent's
consent to and acceptance of any assignment shall not be deemed to constitute
any representation or warranty by any Administrative Agent-Related Person as to
any matter.
(c) After receipt of a completed Notice of Assignment and Acceptance, and
receipt of an assignment fee of $3,500 from such Eligible Assignee (including
Affiliates of assigning Lenders), Administrative Agent shall, promptly following
the effective date thereof, provide to Borrower and Lenders a revised Schedule
--------
10.02 giving effect thereto.
-----
(d) Each Lender may from time to time grant participations to one or more
other Person (including another Lender) all or any portion of its Pro Rata Share
of its Commitment and/or Extensions of Credit; provided, however, that (i) such
-------- -------
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or other
financial institutions shall not be a Lender hereunder for any purpose except,
if the participation agreement so provides, for the purposes of Section III (but
-----------
only to the extent that the cost of such benefits to Borrower does not exceed
the cost which Borrower would have incurred in respect of such Lender absent the
participation) and subject to Sections 10.05 and 10.06, (iv) Borrower,
------------------------
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, (v) the participation shall not restrict an
increase in the Commitment or in granting Lender's Pro Rata Share, so long as
the amount of the participation interest is not affected thereby, and (vi) the
consent of the holder of such participation interest shall not be required for
amendments or waivers of provisions of the Loan Documents; provided, however,
-------- -------
that the assigning Lender may, in any agreement with a participant, give such
participant the right to consent to any matter which (A) extends the Revolving
Credit Maturity Date or the Term Loan Maturity Date as to such participant or
any other date upon which any payment of money is due to such participant, (B)
reduces the rate of interest owing to such participant, any fee or any other
monetary amount owing to such participant, or (C) reduces the amount of any
installment of principal owing to such participant.
10.05 Marshalling; Set-off. Neither Administrative Agent nor Lenders shall
be under any obligation to marshal any assets in favor of Borrower or any other
Person or against or in payment of any or all of the Obligations. In addition to
any rights and remedies of Administrative Agent and Lenders or any assignee or
participant of Lenders or any Affiliates thereof (each, a "Proceeding Party")
----------------
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Proceeding Party is authorized at any time and from time to time,
without prior notice to Borrower, any such notice being waived by Borrower to
the fullest extent permitted by law, to proceed directly, by right of set-off,
banker's lien, or otherwise, against any assets of Borrower which may be in the
hands of such Proceeding Party (including all general or special, time or
demand, provisional or other deposits and other indebtedness owing by such
Proceeding Party to or for the credit or the account of Borrower) and apply such
assets against the Obligations, irrespective of whether such Proceeding Party
shall have made any demand therefor and although such Obligations may be
unmatured. Each Lender agrees promptly to notify Borrower and Administrative
Agent after any such set-off and
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application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.
10.06 Sharing of Payments. Each Lender severally agrees that if it,
through the exercise of any right of setoff, banker's lien or counterclaim
against Borrower, or otherwise, receives payment of the Obligations held by it
that is ratably more than any other Lender, through any means, receives in
payment of the Obligations held by that Lender, then, subject to applicable
Laws: (a) Lender exercising the right of setoff, banker's lien or counterclaim
or otherwise receiving such payment shall purchase, and shall be deemed to have
simultaneously purchased, from the other Lender a participation in the
Obligations held by the other Lender and shall pay to the other Lender a
purchase price in an amount so that the share of the Obligations held by each
Lender after the exercise of the right of setoff, banker's lien or counterclaim
or receipt of payment shall be in the same proportion that existed prior to the
exercise of the right of setoff, banker's lien or counterclaim or receipt of
payment; and (b) such other adjustments and purchases of participations shall be
made from time to time as shall be equitable to ensure that all of Lenders share
any payment obtained in respect of the Obligations ratably in accordance with
each Lender's share of the Obligations immediately prior to, and without taking
into account, the payment; provided that, if all or any portion of a
--------
disproportionate payment obtained as a result of the exercise of the right of
setoff, banker's lien, counterclaim or otherwise is thereafter recovered from
the purchasing Lender by Borrower or any Person claiming through or succeeding
to the rights of Borrower, the purchase of a participation shall be rescinded
and the purchase price thereof shall be restored to the extent of the recovery,
but without interest. Each Lender that purchases a participation in the
Obligations pursuant to this Section shall from and after the purchase have the
right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased. Borrower expressly consents to
the foregoing arrangements and agrees that any Lender holding a participation in
an Obligation so purchased may exercise any and all rights of setoff, banker's
lien or counterclaim with respect to the participation as fully as if Lender
were the original owner of the Obligation purchased.
10.07 No Waiver; Cumulative Remedies.
(a) No failure by any Lender or Administrative Agent to exercise, and no
delay by any Lender or Administrative Agent in exercising, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege under any
Loan Document preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege.
(b) The rights, remedies, powers and privileges herein or therein provided
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by Law. Any decision by Administrative Agent or any Lender not to
require payment of any interest (including Default Interest), fee, cost or other
amount payable under any Loan Document or to calculate any amount payable by a
particular method on any occasion shall in no way limit or be deemed a waiver of
Administrative Agent's or such Lender's right to require full payment
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thereof, or to calculate an amount payable by another method that is not
inconsistent with this Agreement, on any other or subsequent occasion.
(c) The terms and conditions of Section IX are inserted for the sole
----------
benefit of Administrative Agent and Lenders; the same may be waived in whole or
in part, with or without terms or conditions, in respect of any Extension of
Credit without prejudicing Administrative Agent's or Lenders' rights to assert
them in whole or in part in respect of any other Loan.
10.08 Usury. Notwithstanding anything to the contrary contained in any
Loan Document, the interest and fees paid or agreed to be paid under the Loan
Documents shall not exceed the maximum rate of non-usurious interest permitted
by applicable Law (the "Maximum Rate"). If Administrative Agent or any Lender
------------
shall receive interest or a fee in an amount that exceeds the Maximum Rate, the
excessive interest or fee shall be applied to the principal of the Outstanding
Obligations or, if it exceeds the unpaid principal, refunded to Borrower. In
determining whether the interest or a fee contracted for, charged, or received
by Administrative Agent or a Lender exceeds the Maximum Rate, such Person may,
to the extent permitted by applicable Law, (a) characterize any payment that is
not principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations.
10.09 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.10 Integration. This Agreement, together with the other Loan Documents
and any letter agreements referred to herein, comprises the complete and
integrated agreement of the parties on the subject matter hereof and supersedes
all prior agreements, written or oral, on the subject matter hereof. In the
event of any conflict between the provisions of this Agreement and those of any
other Loan Document, the provisions of this Agreement shall control and govern;
provided that the inclusion of supplemental rights or remedies in favor of
--------
Administrative Agent or Lenders in any other Loan Document shall not be deemed a
conflict with this Agreement. Each Loan Document was drafted with the joint
participation of the respective parties thereto and shall be construed neither
against nor in favor of any party, but rather in accordance with the fair
meaning thereof.
10.11 Nature of Lenders' Obligations. The obligations of Lenders hereunder
are several and not joint or joint and several. Nothing contained in this
Agreement or any other Loan Document and no action taken by Administrative Agent
or Lenders or any of them pursuant hereto or thereto may, or may be deemed to,
make Lenders a partnership, an association, a joint venture or other entity,
either among themselves or with Borrower or any Affiliate of Borrower. Each
Lender's obligation to make any Loan pursuant hereto is several and not joint or
joint and several, and in the case of the initial Loan only is conditioned upon
the performance by all other Lenders of their obligations to make initial Loans.
A default by any Lender will not increase the Pro Rata Share attributable to any
other Lender.
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10.12 Survival of Representations and Warranties. All representations and
warranties made hereunder and in any Loan Document, certificate or statement
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery thereof but shall terminate the later
of (a) when the Commitments are terminated and (b) when no Obligations remain
outstanding under any Loan Document. Such representations and warranties have
been or will be relied upon by Administrative Agent and each Lender,
notwithstanding any investigation made by Administrative Agent or any Lender or
on their behalf.
10.13 Indemnity by Borrower. Borrower agrees to indemnify, save and hold
harmless each Administrative Agent-Related Person and each Lender and their
respective Affiliates, directors, officers, agents, attorneys and employees
(collectively the "Indemnitees") from and against: (a) any and all claims,
-----------
demands, actions or causes of action that are asserted against any Indemnitee by
any Person (other than the Administrative Agent or any Lender) relating directly
or indirectly to a claim, demand, action or cause of action that such Person
asserts or may assert against Borrower, any of their Affiliates or any of their
officers or directors; (b) any and all claims, demands, actions or causes of
action arising out of or relating to, the Loan Documents, any predecessor loan
documents, the Commitments, the use or contemplated use of the proceeds of any
Loan, or the relationship of Borrower, the Administrative Agent and Lenders
under this Agreement; (c) any administrative or investigative proceeding by any
Governmental Authority arising out of or related to a claim, demand, action or
cause of action described in subsection (a) or (b) above; and (d) any and all
liabilities, losses, costs or expenses (including Attorney Costs) that any
Indemnitee suffers or incurs as a result of the assertion of any foregoing
claim, demand, action, cause of action or proceeding, or as a result of the
preparation of any defense in connection with any foregoing claim, demand,
action, cause of action or proceeding, in all cases, whether or not an
Indemnitee is a party to such claim, demand, action, cause of action or
proceeding, including those liabilities caused by an Indemnitee's own negligence
(all the foregoing, collectively, the "Indemnified Liabilities"); provided that
----------------------- --------
no Indemnitee shall be entitled to indemnification for any loss caused by its
own gross negligence or willful misconduct or for any loss asserted against it
by another Indemnitee.
10.14 Nonliability of Lenders. Borrower acknowledges and agrees that:
(a) Any inspections of any property of Borrower made by or through
Administrative Agent or Lenders are for purposes of administration of the Loan
Documents only, and Borrower is not entitled to rely upon the same (whether or
not such inspections are at the expense of Borrower);
(b) By accepting or approving anything required to be observed, performed,
fulfilled or given to Administrative Agent or Lenders pursuant to the Loan
Documents, neither Administrative Agent nor Lenders shall be deemed to have
warranted or represented the sufficiency, legality, effectiveness or legal
effect of the same, or of any term, provision or condition thereof, and such
acceptance or approval thereof shall not constitute a warranty or representation
to anyone with respect thereto by Administrative Agent or Lenders;
(c) The relationship between Borrower and Administrative Agent and Lenders
is, and shall at all times remain, solely that of borrowers and lenders; neither
Administrative Agent nor
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Lenders shall under any circumstance be construed to be partners or joint
venturers of Borrower or their Affiliates; neither Administrative Agent nor
Lenders shall under any circumstance be deemed to be in a relationship of
confidence or trust or a fiduciary relationship with Borrower or their
Affiliates, or to owe any fiduciary duty to Borrower or their Affiliates;
neither Administrative Agent nor Lenders undertake or assume any responsibility
or duty to Borrower or their Affiliates to select, review, inspect, supervise,
pass judgment upon or inform Borrower or their Affiliates of any matter in
connection with their Property or the operations of Borrower or their
Affiliates; Borrower and their Affiliates shall rely entirely upon their own
judgment with respect to such matters; and any review, inspection, supervision,
exercise of judgment or supply of information undertaken or assumed by
Administrative Agent or Lenders in connection with such matters is solely for
the protection of Administrative Agent and Lenders and neither Borrower nor any
other Person is entitled to rely thereon; and
(d) Administrative Agent and Lenders shall not be responsible or liable to
any Person for any loss, damage, liability or claim of any kind relating to
injury or death to Persons or damage to Property caused by the actions, inaction
or negligence of Borrower and/or its Affiliates and Borrower hereby indemnifies
and holds Administrative Agent and Lenders harmless from any such loss, damage,
liability or claim.
10.15 No Third Parties Benefited. This Agreement is made for the purpose
of defining and setting forth certain obligations, rights and duties of
Borrower, Administrative Agent and Lenders in connection with the Loans, and is
made for the sole benefit of Borrower, Administrative Agent and Lenders, and
Administrative Agent's and Lenders' successors and assigns. Except as provided
in Sections 10.04 and 10.13, no other Person shall have any rights of any nature
-------------- -----
hereunder or by reason hereof.
10.16 Severability. Any provision of the Loan Documents that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.17 Confidentiality. Administrative Agent and each Lender shall use any
confidential non-public information concerning Borrower and its Subsidiaries
that is furnished to Administrative Agent or such Lender by or on behalf of
Borrower and its Subsidiaries in connection with the Loan Documents
(collectively, "Confidential Information") solely for the purpose of evaluating
------------------------
and providing products and services to them and administering and enforcing the
Loan Documents, and it will hold the Confidential Information in confidence.
Notwithstanding the foregoing, Administrative Agent and each Lender may disclose
Confidential Information to (a) any governmental agency or regulatory body
having or claiming to have authority to regulate or oversee any aspect of
Administrative Agent's or such Lender's business or that of their affiliates or
any of their or their affiliates' directors, officers, employees, advisors, or
representatives (collectively, the "Representatives") in connection with the
---------------
exercise of such authority or claimed authority; (b) the extent necessary or
appropriate to effect or preserve Administrative Agent's or such Lender's or any
of their Affiliates' security (if any) for any Obligation or to enforce any
right or remedy or in connection with any claims asserted by or
-61-
against Administrative Agent or such Lender or any of their Representatives; (c)
Representatives whom it determines need to know such information for the
purposes set forth in this Section; and (d) any bank or financial institution or
other entity to which such Lender has assigned or desires to assign an interest
or participation in the Loan Documents or the Obligations, provided that any
--------
such recipient of such Confidential Information agrees to keep such Confidential
Information confidential as specified herein. For purposes hereof, the term
"Confidential Information" shall not include information that (x) is in
Administrative Agent's or a Lender's possession prior to its being provided by
or on behalf of Borrower, provided that such information is not known by
--------
Administrative Agent or such Lender to be subject to another confidentiality
agreement with, or other legal or contractual obligation of confidentiality to,
a Borrower, (y) is or becomes publicly available (other than through a breach
hereof by Administrative Agent or such Lender), or (z) becomes available to
Administrative Agent or such Lender on a nonconfidential basis, provided that
--------
the source of such information was not known by Administrative Agent or such
Lender to be bound by a confidentiality agreement or other legal or contractual
obligation of confidentiality with respect to such information.
10.18 Further Assurances. Borrower and its Subsidiaries shall, at their
expense and without expense to Lenders or Administrative Agent, do, execute and
deliver such further acts and documents as any Lender or Administrative Agent
from time to time reasonably requires for the assuring and confirming unto
Lenders or Administrative Agent of the rights hereby created or intended now or
hereafter so to be, or for carrying out the intention or facilitating the
performance of the terms of any Loan Document.
10.19 Headings. Section headings in this Agreement and the other Loan
Documents are included for convenience of reference only and are not part of
this Agreement or the other Loan Documents for any other purpose.
10.20 Time of the Essence. Time is of the essence of the Loan Documents.
10.21 Foreign Lenders and Participants. Each Lender, and each holder of a
participation interest herein, that is a "foreign corporation, partnership or
trust" within the meaning of the Code shall deliver to Administrative Agent,
within 20 days after the Closing Date (or after accepting an assignment or
receiving a participation interest herein) two duly signed completed copies of
either Form W-8BEN (relating to such Person and entitling it to a complete
exemption from withholding on all payments to be made to such Person by Borrower
pursuant to this Agreement) or Form W-8ECI (relating to all payments to be made
to such Person by Borrower pursuant to this Agreement) of the United States
Internal Revenue Service or such other evidence satisfactory to Borrower and
Administrative Agent that no withholding under the federal income tax laws is
required with respect to such Person. Thereafter and from time to time, each
such Person shall (a) promptly submit to Administrative Agent such additional
duly completed and signed copies of one of such forms (or such successor forms
as shall be adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United States laws and
regulations to avoid, or such evidence as is satisfactory to Borrower and
Administrative Agent of any available exemption from, United States withholding
taxes in respect of all payments to be made to such Person by Borrower pursuant
to this Agreement and (b) take such steps as shall not be materially
disadvantageous to it, in the
-62-
reasonable judgment of such Lender, and as may be reasonably necessary
(including the re-designation of its Lending Office, if any) to avoid any
requirement of applicable Laws that Borrower make any deduction or withholding
for taxes from amounts payable to such Person. If such Persons fails to deliver
the above forms or other documentation, then Administrative Agent may withhold
from any interest payment to such Person an amount equivalent to the applicable
withholding tax imposed by Sections 1441 and 1442 of the Code, without
reduction. If any Governmental Authority asserts that Administrative Agent did
not properly withhold any tax or other amount from payments made in respect of
such Person, such Person shall indemnify Administrative Agent therefor,
including all penalties and interest and costs and expenses (including Attorney
Costs) of Administrative Agent. The obligation of Lenders under this subsection
shall survive the payment of all Obligations and the resignation or replacement
of Administrative Agent.
10.22 Governing Law.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE GOVERNING STATE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE; PROVIDED THAT ADMINISTRATIVE AGENT AND EACH LENDER
SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF THE GOVERNING
STATE OR OF THE UNITED STATES FOR THE DISTRICT OF THE GOVERNING STATE, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, BORROWER, ADMINISTRATIVE AGENT AND
EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-
EXCLUSIVE JURISDICTION OF THOSE COURTS. BORROWER, ADMINISTRATIVE AGENT AND EACH
LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED HERETO. BORROWER,
ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
THE LAW OF THE GOVERNING STATE.
10.23 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTY HERETO OR ANY OF THEM WITH
RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
-63-
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
10.24 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
10.25 Certain Agreements Not Enforceable. UNDER OREGON LAW, MOST
AGREEMENTS, PROMISES AND COMMITMENTS MADE BY THE LENDERS AFTER OCTOBER 3, 1989,
CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY
OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S RESIDENCE MUST BE IN
WRITING, EXPRESS CONSIDERATION, AND BE SIGNED BY LENDERS TO BE ENFORCEABLE.
-64-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
FLIR SYSTEMS, INC., an Oregon corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
BANK OF AMERICA, N.A., as
Administrative Agent
By:_____________________________________
Name:___________________________________
Title:__________________________________
BANK OF AMERICA, N.A., as
Issuing Lender, a Lender and Swing Line Lender
By:_____________________________________
Name:___________________________________
Title:__________________________________
BANK ONE, N.A., as a Lender
By:_____________________________________
Name:___________________________________
Title:__________________________________
ABN AMRO BANK N.V., as a Lender
By:_____________________________________
Name:___________________________________
Title:__________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
-65-
KEYBANK, N.A., a Lender
By:_____________________________________
Name:___________________________________
Title:__________________________________
SVENSKA HANDELSBANKEN AB (publ),
a Lender
By:_____________________________________
Name:___________________________________
Title:__________________________________
-66-
EXHIBIT A
FORM OF REQUEST FOR EXTENSION OF CREDIT
Date: ____________, _______
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of
[___________, _____] between [____________________________, a
__________________] ("Borrower"), Lenders from time to time party thereto, Bank
--------
of America, N.A., as Administrative Agent and Issuing Lender (as amended,
restated, extended, supplemented or otherwise modified in writing from time to
time, the "Agreement;" the terms defined therein being used herein as therein
---------
defined).
The undersigned hereby requests (select one):
[_] A Borrowing of Loans [_] A Conversion or Continuation of Loans
1. On_________________________________________.
2. In the amount of $_________________________.
3. Comprised of_______________________________.
[type of Loan requested]
4. If applicable: with an Interest Period of_________ months.
The foregoing request complies with the requirements of Section 2.01 of the
------------
Agreement. The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the above date, before and after
giving effect and to the application of the proceeds therefrom:
(a) The representations and warranties made by Borrower in the
Agreement, or which are contained in any certificate, document or financial
or other statement furnished at any time under or in connection therewith,
are and will be correct on and as of the date of this Extension of Credit,
except to the extent that such representations and warranties specifically
refer to any earlier date; and
A-1
(b) no Default or Event of Default has occurred and is continuing on
the date hereof or after giving effect to this Extension of Credit.
[BORROWER]
By:________________________________
Name:______________________________
Title:_____________________________
A-2
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: ___________, ______
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of
[___________, _____] between [____________________________, a
__________________] ("Borrower"), Lenders from time to time party thereto, Bank
--------
of America, N.A., as Administrative Agent and Issuing Lender (as amended,
restated, extended, supplemented or otherwise modified in writing from time to
time, the "Agreement;" the terms defined therein being used herein as therein
---------
defined).
The undersigned Responsible Officer hereby certifies as of the date hereof
that he is the _______________________________________________________ of
Borrower, and that, as such, he is authorized to execute and deliver this
Certificate to Administrative Agent on the behalf of Borrower, and that:
[Use following for fiscal year-end financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial
----------
statements required by Section 6.01(a) of the Agreement for the fiscal year of
---------------
Borrower ended as of the above date, together with the report and opinion of an
independent certified public accountant required by such section.
[Use following for fiscal quarter-end financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements
----------
required by Section 6.01(b) of the Agreement for the fiscal quarter of Borrower
---------------
ended as of the above date. Such financial statements fairly present the
financial condition, results of operations and changes in financial position of
Borrower and its Subsidiaries in accordance with GAAP as at such date and for
such periods, subject only to normal year-end audit adjustments and the absence
of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his supervision, a
detailed review of the transactions and conditions (financial or otherwise) of
Borrower during the accounting period covered by the attached financial
statements.
3. A review of the activities of Borrower during such fiscal period has
been made under my supervision with a view to determining whether during such
fiscal period Borrower performed and observed all their respective Obligations
under the Loan Documents, and
[select one:]
B-1
[to the best knowledge of the undersigned during such fiscal period,
Borrower performed and observed each covenant and condition of the Loan
Documents applicable to it.]
--or--
[the following covenants or conditions have not been performed or observed
and the following is a list of all such Defaults and its nature and status:]
4. The following financial covenant analyses and information set forth on
Schedule 2 attached hereto are true and accurate on and as of the date of this
----------
Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of___________, ______.
[BORROWER]
By:_____________________________
Name:___________________________
Title:__________________________
B-2
For the Quarter/Year ended ___________________("Statement Date")
--------------
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
I. Section 7.12 -- Capital Expenditures.
A. Capital expenditures made during fiscal year to date: $____________
B. Maximum permitted capital expenditures for fiscal year: $12,000,000
C. Excess (deficient) for covenant compliance (Lines I.B - I.A): $____________
II. Section 7.14(a) - Consolidated Tangible Net Worth.
A. Actual Consolidated Tangible Net Worth at Statement Date:
1. Shareholders' Equity: $____________
2. Intangible Assets: $____________
3. Consolidated Tangible Net Worth (Lines II.A1
less Line II.A.2): $____________
----
B. 50% of Consolidated Net Income for each fiscal quarter
ending after __________________ (no reduction for losses): $____________
C. 90% of net proceeds from issuance of equity after date of
Agreement: $____________
D. Repurchases of capital stock permitted by Section 7.07: $____________
------------
E. Minimum required Consolidated Tangible Net Worth
(Lines II.B + II.C - II.D + $89,056,000): $____________
F. Excess (deficient) for covenant compliance (Lines II.A -
II.E): $____________
III. Section 7.14(b) - Interest Coverage Ratio.
A. Consolidated EBIT for four consecutive fiscal quarters ending
on above date ("Subject Period"):
--------------
1. Consolidated Net income for Subject Period: $____________
2. Consolidated Interest Expense for Subject Period: $____________
3. Provision for income taxes for Subject Period: $____________
4. Consolidated EBIT (Lines III.A.1 + 2 + 3): $____________
B. Lease and rental expense for Subject Period: $____________
C. Consolidated Interest Charges for Subject Period: $____________
B-3
D. Interest Coverage Ratio ((Line III.A.4 +Line III.B) /
(Line III.B + III.C)): ______________ to 1
Minimum required: ___________________
IV. Section 7.14(c) - Leverage Ratio.
A. Consolidated EBITDA for Subject Period: $__________________
1. Consolidated Net income for Subject Period: $__________________
2. Consolidated Interest Expense for Subject Period: $__________________
3. Provision for income taxes for Subject Period: $__________________
4. Depreciation expenses for Subject Period: $__________________
5. Amortization expenses for intangibles for Subject Period: $__________________
6. Consolidated EBITDA (Lines IV.A.1 + 2 + 3 + 4 + 5): $__________________
B. Consolidated Funded Indebtedness at Statement Date: $__________________
C. Leverage Ratio (Line IV.A/Line IV.B): ______________ to 1
Maximum permitted: ___________________
B-4
EXHIBIT C
FORM OF COMMITTED LOAN NOTE
$_______________________ _________________________
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises to
--------
pay to the order of _____________________________ (the "Lender"), on the
------
Revolving Credit Maturity Date, or if applicable, the Term Loan Maturity date
(as defined in the Credit Agreement referred to below) the principal amount of
_____________________(Dollars $[____________]), or such lesser principal amount
of Committed Loans (as defined in the Credit Agreement referred to below)
payable by Borrower to Lender on such Revolving Credit Maturity Date or Term
Loan Maturity Date under that certain Credit Agreement dated as of
________________________, _______among Borrower, Lenders from time to time
party thereto Bank of America, N.A., as Administrative Agent and Issuing Lender
(as amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the "Agreement;" the terms defined therein being used herein
---------
as therein defined).
Borrower promises to pay interest on the unpaid principal amount of each
Committed Loan from the date of such Committed Loan until such principal amount
is paid in full, at such interest rates, and payable at such times as are
specified in the Credit Agreement.
All payments of principal and interest shall be made to Administrative
Agent for the account of Lender in United States dollars in immediately
available funds at Administrative Agent's Payment office.
If any amount is not paid in full when due hereunder, such unpaid amount
shall bear interest, to be paid upon demand, from the due date thereof until the
date of actual payment (and before as well as after judgment) computed at the
per annum rate set forth in the Credit Agreement.
This Note is one of the "Committed Loan Notes" referred to in the Credit
--------------------
Agreement. Reference is hereby made to the Credit Agreement for rights and
obligations of payment and prepayment, events of default and the right of Lender
to accelerate the maturity hereof upon the occurrence of such events. Committed
Loans made by Lender shall be evidenced by one or more loan accounts or records
maintained by Lender in the ordinary course of business. Lender may also attach
schedules to this Note and endorse thereon the date, amount and maturity of its
Committed Loans and payments with respect thereto.
Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and non-
payment of this Note.
C-1
Borrower agrees to pay all collection expenses, court costs and Attorney
Costs (whether or not litigation is commenced) which may be incurred by Lender
in connection with the collection or enforcement of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF _______________.
[BORROWER]
By: _____________________________________
Name: ___________________________________
Title: __________________________________
C-2
EXHIBIT D
FORM OF NOTICE OF ASSIGNMENT AND ACCEPTANCE
________________, _____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of
[___________, _____] between [____________________________, a
__________________] ("Borrower"), Lenders from time to time party thereto, and
--------
Bank of America, N.A., as Administrative Agent and Issuing Lender (as amended,
restated, extended, supplemented or otherwise modified in writing from time to
time, the "Agreement;" the terms defined therein being used herein as therein
---------
defined).
1. We hereby give you notice of, and request your consent to, the
assignment by ______________________ (the "Assignor") to _______________________
--------
(the "Assignee") of % of the right, title and interest of the Assignor in and to
--------
the Loan Documents, including the right, title and interest of the Assignor in
and to the Commitment of the Assignor, all outstanding Loans made by the
Assignor and outstanding Letter of Credit Usage. Before giving effect to such
assignment:
(a) the aggregate amount of the Assignor's Commitment is $_______________;
(b) the aggregate principal amount of its outstanding Loans is $_____; and
(c) the aggregate face amount of Letter of Credit Usage is $_____________.
2. The Assignee hereby represents and warrants that it has complied with
the requirements of Section 10.04 of the Agreement in connection with this
-------------
assignment and acknowledges and agrees that: (a) other than the representation
and warranty that it is the legal and beneficial owner of the Pro Rata Share
being assigned thereby free and clear of any adverse claim, the Assignor has
made no representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with the
Agreement or the execution, legality, validity, enforceability, genuineness or
sufficiency of the Agreement or any other Loan Document; (b) the Assignor has
made no representation or warranty and assumes no responsibility with respect to
the financial condition of Borrower or the performance by Borrower of the
Obligations; (c) it has received a copy of the Agreement, together with copies
of the most recent financial statements delivered pursuant to Section 6.1
-----------
thereof and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Assignment and
Acceptance; (d) it will, independently and without reliance upon Administrative
Agent or any Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Agreement; (e) it appoints and authorizes
Administrative Agent to take such action and to exercise such powers under the
Agreement and the other Loan Documents as are delegated to Administrative Agent
by the Agreement and such
D-1
other Loan Documents; and (f) it will perform in accordance with their terms all
of the obligations which by the terms of the Agreement are required to be
performed by it as a Lender.
3. The Assignee agrees that, upon receiving your consent to such
assignment and from and after ____________________, the Assignee will be bound
by the terms of the Loan Documents, with respect to the interest in the Loan
Documents assigned to it as specified above, as fully and to the same extent as
if the Assignee were Lender originally holding such interest in the Loan
Documents.
4. The following administrative details apply to the Assignee:
(a) Offshore Lending Office:
Assignee name:___________________________________
Address:_________________________________________
_________________________________________________
Attention: ______________________________________
Telephone: (_) _________________________________
Telecopier: (_) _________________________________
(b) Domestic Lending Office:
Assignee name:___________________________________
Address:_________________________________________
_________________________________________________
Attention:_______________________________________
Telephone: (_) _________________________________
Telecopier: (_) _________________________________
(c) Notice Address:
Assignee name:___________________________________
Address:_________________________________________
Attention:_______________________________________
Telephone: (_) _________________________________
Telecopier: (_) _________________________________
(d) Payment Instructions: Account No.:
Account No.______________________________________
Attention:_______________________________________
Reference:_______________________________________
D-2
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this Notice
of Assignment and Acceptance to be executed by their respective duly authorized
officials, officers or agents as of the date first above mentioned.
Very truly yours,
[ASSIGNOR]
By:___________________________________________
Name:_________________________________________
Title:________________________________________
[ASSIGNEE]
By:___________________________________________
Name:_________________________________________
Title:________________________________________
We hereby consent to the
foregoing assignment.
[BORROWER]
By: ___________________________
Name: _________________________
Title: ________________________
BANK OF AMERICA, N.A., as Administrative
Agent
By: ___________________________
Name: _________________________
Title: ________________________
D-3
SCHEDULE 1
BREAKFUNDING COST
Breakfunding costs shall apply in the event that the Offshore Rate component of
the interest rate applicable to the Loan in question is greater than the
Available Offshore Rate. The breakfunding cost will be equal to such Loan
multiplied by the difference between the Offshore Rate component of the interest
rate applicable to such Loan and the Available Offshore Rate, with such
difference applied as an annual rate to the amount of such Loan for the duration
of the Interest Period applicable to such Loan remaining after the Prepayment
Date. "Available Offshore Rate" shall mean the Offshore Rate available on the
Prepayment Date for a sum equal to such Loan for a period beginning on the
Prepayment Date and ending at the end of the Interest Period applicable to such
Loan. "Prepayment Date" shall mean the date upon which any of the events
described in Section 3.05(a) or 3.05(b) of the Credit Agreement occurs.
Schedule 1 - Page 1
SCHEDULE 2.01
Lender Commitment Lender's Percentage of
Combined Commitments
Bank of America, N.A. $ 37,500,000 37.5%
Bank One, N.A. $ 20,000,000 20%
KeyBank National Association $ 17,500,000 17.5%
ABN AMRO Bank N.V. $ 15,000,000 15%
Svenska Handelsbanken AB (publ) $ 10,000,000 10%
Total Combined Commitments $100,000,000 100%
Schedule 2.01 - Page 1
SCHEDULE 10.02
INFORMATION FOR ADMINISTRATIVE AGENT
AND LENDERS
Administrative Agent:
---------------------
Bank of America, N.A.
Agency Management Services
Consumer & Commercial Banking
WA1-102-16-20
000 Xxxxx Xxxxxx, Xxxxx 00
Xxxxxxx XX 00000-0000
Attention: Xxxx X. Xxxxx, Vice President
---------
Telephone: (000) 000-0000
Fax: (000) 000-0000
Lenders:
--------
BANK OF AMERICA, N.A.
Commercial Banking
000 XX Xxxxxxxx, Xxxxx 0000
Xxxxxxxx XX 00000
Attention: Xxx Xxxxx, Vice President SCM
---------
Telephone: (000) 000-0000
Fax: (000) 000-0000
KEYBANK NATIONAL ASSOCIATION
0000 XX 0/xx/, Xxxxx 000
Xxxxxxxx XX 00000
Attention: L. Xxxxx Xxxxx, Vice President
---------
Telephone: (000) 000-0000
Fax: (000) 000-0000
BANK ONE, N.A.
000 Xxxxx Xxxxxxxx Xxxxxx, 0/xx/ Xxxxx
Xxx Xxxxxxx XX 00000
Credit Contact: Xxxxxxxx X. XxXxx, Vice President
--------------
Telephone: (000) 000-0000
Fax: (000) 000-0000
Operations Contact:
------------------
X. Xxxxxxxxx, Client Svcs. Assoc.
Xxx Xxxx Xxx Xxxxx
Xxxxxxx XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
ABN AMRO BANK, N.V.
Schedule 10.02 - Page 1
Credit, Documentation, Other Business Matters:
---------------------------------------------
One Union Square
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx XX 00000-0000
Attention: Xxxxx XxXxxxxx, Group Vice President
---------
Telephone: (000) 000-0000
Fax: (000) 000-0000
Loan Compliance, Required Financial Reports (with copy to Seattle address):
--------------------------------------------------------------------------
Ms. Sirirat Thavornrat
000 Xxxxx XxXxxxx, Xxxxx 0000
Xxxxxxx XX 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Loan Administration:
-------------------
Telephone: (000) 000-0000
Fax: (000) 000-0000
SVENSKA HANDELSBANKEN AB (publ)
000 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx XX 00000-0000
Credit Contact: Mr. Xxxxxx Xxxxxx, Vice President
--------------
Telephone: (000) 000-0000
Fax: (000) 000-0000
Operations Contact:
------------------
Xxxxxx Xx, Assistant Vice President
Telephone (000) 000-0000
Fax (000) 000-0000
Schedule 10.02 - Page 2
