CREDIT AGREEMENT DATED AS OF MAY 20, 2004 AMONG KIMBALL INTERNATIONAL, INC., THE LENDERS, AND BANK ONE, NA AS AGENT AND AS LC ISSUER
Exhibit 10(f)
CREDIT AGREEMENT
DATED AS OF MAY 20, 2004
AMONG
XXXXXXX INTERNATIONAL, INC.,
THE LENDERS,
AND
BANK ONE, NA
AS AGENT AND AS LC ISSUER
BANC ONE CAPITAL MARKETS, INC.
AS LEAD ARRANGER AND SOLE BOOK RUNNER
TABLE OF CONTENTS
ARTICLE I.Β DEFINITIONS |
1 |
Β |
Β |
ARTICLE II.Β THE CREDITS |
13 |
Β 2.1.Β Commitment |
13 |
Β 2.2.Β Determination of Dollar Amounts; Required Payments; Termination |
14 |
Β 2.3.Β Ratable Loans |
14 |
Β 2.4.Β Types of Advances |
14 |
Β 2.5.Β Swing Line Loans |
14 |
Β Β Β 2.5.1.Β Amount of Swing Line Loans |
14 |
Β Β Β 2.5.2.Β Borrowing Notice |
15 |
Β Β Β 2.5.3.Β Making of Swing Line Loans |
15 |
Β Β Β 2.5.4.Β Repayment of Swing Line Loans |
15 |
Β 2.6.Β Commitment Fee; Reductions in Aggregate Commitment |
16 |
Β 2.7.Β Minimum Amount of Each Advance/Maximum Number of Eurocurrency Advances |
16 |
Β 2.8.Β Optional Principal Payments |
16 |
Β 2.9.Β Method of Selecting Types and Interest Periods for New Advances |
17 |
Β 2.10.Β Conversion and Continuation of Outstanding Advances |
17 |
Β 2.11.Β Changes in Interest Rate, etc |
18 |
Β 2.12.Β Rates Applicable After Default |
18 |
Β 2.13.Β Method of Payment |
19 |
Β 2.14.Β Method of Borrowing |
19 |
Β 2.15.Β Telephonic Notices |
20 |
Β 2.16.Β Interest Payment Dates; Interest and Fee Basis |
20 |
Β 2.17.Β Notification of Advances, Interest Rates, Prepayments and Commitment Reductions |
20 |
Β 2.18.Β Lending Installations |
20 |
Β 2.19.Β Facility LCs |
21 |
Β Β Β 2.19.1.Β Issuance |
21 |
Β Β Β 2.19.2.Β Participations |
21 |
Β Β Β 2.19.3.Β Notice |
21 |
Β Β Β 2.19.4.Β LC Fees |
22 |
Β Β Β 2.19.5.Β Administration; Reimbursement by Lenders |
22 |
Β Β Β 2.19.6.Β Reimbursement by Borrower |
22 |
Β Β Β 2.19.7.Β Obligations Absolute |
23 |
Β Β Β 2.19.8.Β Actions of LC Issuer |
23 |
Β Β Β 2.19.9.Β Indemnification |
24 |
Β Β Β 2.19.10.Β Lenders' Indemnification |
24 |
Β Β Β 2.19.11.Β Facility LC Collateral Account |
24 |
Β Β Β 2.19.12.Β Rights as a Lender |
25 |
Β 2.20.Β Non-Receipt of Funds by the Agent |
25 |
Β 2.21.Β Replacement of Lender |
25 |
Β 2.22.Β Increase in Aggregate Commitment |
26 |
Β 2.23.Β Amendment and Restatement |
26 |
Β 2.24.Β Noteless Agreement; Evidence of Indebtedness |
26 |
Β 2.25.Β Market Disruption |
27 |
Β 2.26.Β Judgment Currency |
27 |
Β | Β |
ARTICLE III. YIELD PROTECTION; TAXES |
28 |
Β 3.1.Β Yield Protection |
28 |
Β 3.2.Β Changes in Capital Adequacy Regulations |
29 |
Β 3.3.Β Availability of Types of Advances |
29 |
Β 3.4.Β Funding Indemnification |
29 |
Β 3.5.Β Taxes |
30 |
Β 3.6.Β Lender Statements; Survival of Indemnity |
31 |
Β | Β |
ARTICLE IV. CONDITIONS PRECEDENT |
32 |
Β 4.1. Initial Credit Extension |
32 |
Β 4.2. Each Credit Extension |
33 |
Β 4.3. Post-Closing Covenant |
33 |
Β | Β |
ARTICLE V. REPRESENTATIONS AND WARRANTIES |
34 |
Β 5.1. Existence and Standing |
34 |
Β 5.2. Authorization and Validity |
34 |
Β 5.3. No Conflict; Government Consent |
34 |
Β 5.4. Financial Statements |
34 |
Β 5.5. Material Adverse Change |
35 |
Β 5.6. Taxes |
35 |
Β 5.7. Litigation and Contingent Obligations |
35 |
Β 5.8. Subsidiaries |
35 |
Β 5.9. ERISA |
35 |
Β 5.10. Accuracy of Information |
35 |
Β 5.11. Regulation U |
36 |
Β 5.12. Material Agreements |
36 |
Β 5.13. Compliance With Laws |
36 |
Β 5.14. Ownership of Properties |
36 |
Β 5.15. Plan Assets; Prohibited Transactions |
36 |
Β 5.16. Environmental Matters |
36 |
Β 5.17. Investment Company Act |
36 |
Β 5.18. Public Utility Holding Company Act |
37 |
Β 5.19. Post-Retirement Benefits |
37 |
Β | Β |
ARTICLE VI. COVENANTS |
37 |
Β 6.1.Β Financial Reporting |
37 |
Β 6.2.Β Use of Proceeds |
38 |
Β 6.3.Β Notice of Default |
38 |
Β 6.4.Β Conduct of Business |
38 |
Β 6.5.Β Taxes |
39 |
Β 6.6.Β Insurance |
39 |
Β 6.7.Β Compliance with Laws |
39 |
Β 6.8.Β Maintenance of Properties |
39 |
Β 6.9.Β Inspection |
39 |
Β 6.10.Β Indebtedness |
39 |
Β 6.11.Β Merger |
40 |
Β 6.12.Β Sale of Assets |
40 |
Β 6.13.Β Investments and Acquisitions |
40 |
Β 6.14.Β Liens |
41 |
Β 6.15.Β Affiliates |
42 |
Β 6.16.Β Rate Management Obligations |
42 |
Β 6.17.Β Addition of Guarantors; Addition of Pledged Stock |
42 |
Β 6.18.Β Financial Covenants |
43 |
Β Β Β 6.18.1.Β Interest Coverage Ratio |
43 |
Β Β Β 6.18.2.Β Minimum Net Worth |
43 |
Β | Β |
ARTICLE VII. DEFAULTS |
43 |
Β | Β |
ARTICLE VIII. ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES |
46 |
Β 8.1. Acceleration; Facility LC Collateral Account |
46 |
Β 8.2. Amendments |
47 |
Β 8.3. Preservation of Rights |
47 |
Β | Β |
ARTICLE IX. GENERAL PROVISIONS |
48 |
Β 9.1.Β Survival of Representations |
48 |
Β 9.2.Β Governmental Regulation |
48 |
Β 9.3.Β Headings |
48 |
Β 9.4.Β Entire Agreement |
48 |
Β 9.5.Β Several Obligations; Benefits of this Agreement |
48 |
Β 9.6.Β Expenses; Indemnification |
48 |
Β 9.7.Β Numbers of Documents |
49 |
Β 9.8.Β Accounting |
49 |
Β 9.9.Β Severability of Provisions |
49 |
Β 9.10.Β Nonliability of Lenders/Mutual Release of Consequential Damages |
49 |
Β 9.11.Β Confidentiality |
50 |
Β 9.12.Β Nonreliance |
50 |
Β 9.13.Β Disclosure |
50 |
Β 9.14.Β USA PATRIOT ACT NOTIFICATION |
50 |
Β | Β |
ARTICLE X. THE AGENT |
51 |
Β 10.1.Β Appointment; Nature of Relationship |
51 |
Β 10.2.Β Powers |
51 |
Β 10.3.Β General Immunity |
51 |
Β 10.4.Β No Responsibility for Loans, Recitals, etc. |
51 |
Β 10.5.Β Action on Instructions of Lenders |
52 |
Β 10.6.Β Employment of Agents and Counsel |
52 |
Β 10.7.Β Reliance on Documents; Counsel |
52 |
Β 10.8.Β Agent's Reimbursement and Indemnification |
52 |
Β 10.9.Β Notice of Default |
53 |
Β 10.10.Β Rights as a Lender |
53 |
Β 10.11.Β Lender Credit Decision |
53 |
Β 10.12.Β Successor Agent |
53 |
Β 10.13.Β Agent and Arranger Fees |
54 |
Β 10.14.Β Delegation to Affiliates |
54 |
Β 10.15.Β Collateral Releases |
54 |
Β | Β |
ARTICLE XI. SETOFF; RATABLE PAYMENTS |
54 |
Β 11.1.Β Setoff |
54 |
Β 11.2.Β Ratable Payments |
55 |
Β | Β |
ARTICLE XII. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS |
55 |
Β 12.1.Β Successors and Assigns |
55 |
Β 12.2.Β Participations |
56 |
Β Β Β 12.2.1.Β Permitted Participants; Effect |
56 |
Β Β Β 12.2.2.Β Voting Rights |
56 |
Β Β Β 12.2.3.Β Benefit of Certain Provisions |
56 |
Β 12.3.Β Assignments |
56 |
Β Β Β 12.3.1.Β Permitted Assignments |
56 |
Β Β Β 12.3.2.Β Consents |
57 |
Β Β Β 12.3.3.Β Effect; Effective Date |
57 |
Β Β Β 12.3.4.Β Register |
58 |
Β 12.4.Β Dissemination of Information |
58 |
Β 12.5.Β Tax Treatment |
58 |
Β | Β |
ARTICLE XIII. NOTICES |
58 |
Β 13.1.Β Notices; Effectiveness; Electronic Communication |
58 |
Β Β Β (i)Β Notices Generally |
58 |
Β Β Β (ii)Β Electronic Communications |
59 |
Β Β Β (iii)Β Change of Address, Etc. |
59 |
Β | Β |
ARTICLE XIV. COUNTERPARTS |
59 |
Β 14.1.Β Counterparts; Effectiveness |
59 |
Β 14.2.Β Electronic Execution of Assignments |
59 |
Β | Β |
ARTICLE XV. CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL |
60 |
Β 15.1.Β CHOICE OF LAW |
60 |
Β 15.2.Β CONSENT TO JURISDICTION |
60 |
Β 15.3.Β WAIVER OF JURY TRIAL |
60 |
Β | Β |
The following schedules and exhibits have been omitted from this filing: |
Β |
Exhibit AΒ Form of Note |
Β |
Exhibit BΒ Compliance Certificate |
Β |
Exhibit CΒ Assignment and Assumption Agreement |
Β |
Exhibit DΒ Loan/Credit Related Money Transfer Instruction |
Β |
Schedule 2.19Β Existing Letters of Credit |
Β |
Schedule 5.7Β Litigation |
Β |
Schedule 5.8 Subsidiaries |
Β |
Schedule 5.14Β Ownership of Properties |
Β |
Schedule 6.10Β Indebtedness |
Β |
Schedule 6.12Β Sale of Assets |
Β |
Schedule 6.13Β Existing Investments |
Β |
Schedule 6.14Β Liens |
Β |
Β Β Β This Agreement, dated as of May 20, 2004, is among Xxxxxxx
International, Inc., the Lenders and Bank One, NA, a national banking
association having its principal office in Chicago, Illinois, as LC Issuer and
as Agent. The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Β Β Β As used in this Agreement:
Β Β Β "Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary voting
power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage
or voting power) of the outstanding ownership interests of a partnership or
limited liability company.
Β Β Β "Advance" means a borrowing hereunder, (i) made by some or
all of the Lenders on the same Borrowing Date, or (ii) converted or continued by
the Lenders on the same date of conversion or continuation, consisting, in
either case, of the aggregate amount of the several Loans of the same Type and,
in the case of Eurocurrency Loans, in the same Agreed Currency and for the same
Interest Period. The term "Advance" shall include Swing Line Loans unless
otherwise expressly provided.
Β Β Β "Affected Lender" is defined in Section 2.21.
Β Β Β "Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such Person.
A Person shall be deemed to control another Person if the controlling Person
owns 10% or more of any class of voting securities (or other ownership
interests) of the controlled Person or possesses, directly or indirectly, the
power to direct or cause the direction of the management or policies of the
controlled Person, whether through ownership of stock, by contract or otherwise.
Β Β Β "Agent" means Bank One in its capacity as contractual
representative of the Lenders pursuant to Article X, and not in its individual
capacity as a Lender, and any successor Agent appointed pursuant to Article X.
Β Β Β "Aggregate Commitment" means the aggregate of the Commitments
of all the Lenders, as reduced or increased from time to time pursuant to the
terms hereof.
Β Β Β "Aggregate Outstanding Credit Exposure" means, at any time,
the aggregate of the Outstanding Credit Exposure of all the Lenders.
Β Β Β "Agreed Currencies" means (i) Dollars, (ii) so long as it
remains an Eligible Currency, Euros, and (iii) any other Eligible Currency which
the Borrower requests the Agent to include as Agreed Currency hereunder and
which is acceptable to all of the Lenders.
Β Β Β "Agreement" means this credit agreement, as it may be amended
or modified and in effect from time to time.
Β Β Β "Alternate Base Rate" means, for any day, a rate of interest
per annum equal to the higher of (i) the Prime Rate for such day and (ii) the
sum of the Federal Funds Effective Rate for such day plus 1/2% per annum.
Β Β Β "Applicable Fee Rate" means, at any time, the percentage rate
per annum at which Commitment Fees are accruing on the unused portion of the
Aggregate Commitment or, with respect to any outstanding Facility LC, the
percentage rate per annum of the LC Fee under Section 2.19.4, at such time as
set forth in the Pricing Schedule.
Β Β Β "Applicable Margin" means, with respect to Advances of any
Type at any time, the percentage rate per annum which is applicable at such time
with respect to Advances of such Type as set forth in the Pricing Schedule.
Β Β Β "Approved Fund" means any Fund that is administered or
managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
Β Β Β "Approximate Equivalent Amount" of any currency with respect
to any amount of Dollars shall mean the Equivalent Amount of such currency with
respect to such amount of Dollars on or as of such date, rounded up to the
nearest amount of such currency as determined by the Agent from time to time.
Β Β Β "Arranger" means Banc One Capital Markets, Inc., a Delaware
corporation, and its successors, in its capacity as Lead Arranger and Sole Book
Runner.
Β Β Β "Article" means an article of this Agreement unless another
document is specifically referenced.
Β Β Β "Authorized Officer" means any of the President, Chief
Financial Officer, Treasurer, and Assistant Treasurer of the Borrower, acting
singly; provided, that, two Authorized Officers shall be required for execution
of this Agreement or any amendment, modification or extension of this Agreement.
Β Β Β "Available Aggregate Commitment" means, at any time, the
Aggregate Commitment then in effect minus the Aggregate Outstanding Credit
Exposure at such time.
Β Β Β "Bank One" means Bank One, NA, a national banking association
having its principal office in Chicago, Illinois, in its individual capacity,
and its successors.
Β Β Β "Borrower" means Xxxxxxx International, Inc., an Indiana
corporation, and its successors and assigns.
Β Β Β "Borrowing Date" means a date on which an Advance is made
hereunder.
2
Β Β Β "Borrowing Notice" is defined in Section 2.9.
Β Β Β "Business Day" means (i) with respect to any borrowing,
payment or rate selection of Eurocurrency Advances, a day (other than a Saturday
or Sunday) on which banks generally are open in Chicago and New York City for
the conduct of substantially all of their commercial lending activities,
interbank wire transfers can be made on the Fedwire system and dealings in
Dollars and the other Agreed Currencies are carried on in the London interbank
market (and, if the Advances which are the subject of such borrowing, payment or
rate selection are denominated in Euro, a day upon which such clearing system as
is determined by the Agent to be suitable for clearing or settlement of the Euro
is open for business), and (ii) for all other purposes, a day (other than a
Saturday or Sunday) on which banks generally are open in Chicago for the conduct
of substantially all of their commercial lending activities and interbank wire
transfers can be made on the Fedwire system.
Β Β Β "Capital Expenditures" means, without duplication, any
expenditures for any purchase or other acquisition of any asset which would be
classified as a fixed or capital asset on a consolidated balance sheet of the
Borrower and its Subsidiaries prepared in accordance with GAAP.
Β Β Β "Capitalized Lease" of a Person means any lease of Property
by such Person as lessee which would be capitalized on a balance sheet of such
Person prepared in accordance with GAAP.
Β Β Β "Capitalized Lease Obligations" of a Person means the amount
of the obligations of such Person under Capitalized Leases which would be shown
as a liability on a balance sheet of such Person prepared in accordance with
GAAP.
Β Β Β "Cash Equivalent Investments" means (i) short-term
obligations of, or fully guaranteed by, the United States of America, (ii)
commercial paper rated A-1 or better by S&P or P-1 or better by Xxxxx'x, (iii)
demand deposit accounts maintained in the ordinary course of business, (iv)
investments included in the Investment Guidelines, and (v) certificates of
deposit issued by and time deposits with commercial banks (whether domestic or
foreign) having capital and surplus in excess of $100,000,000; provided in each
case that the same provides for payment of both principal and interest (and not
principal alone or interest alone) and is not subject to any contingency
regarding the payment of principal or interest.
Β Β Β "Change in Control" means (i) the Family Group owns less than
35% of the Class A voting stock, or (ii) the acquisition by any Person (other
than a member of the Family Group), or two or more Persons (other than members
of the Family Group) acting in concert, of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of more of the Class A voting stock of the
Borrower than that owned by the Family Group.
Β Β Β "Code" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
Β Β Β "Collateral Documents" means each Pledge Agreement, in the
form prescribed by the Agent, duly executed by certain of the Borrower's
Subsidiaries to the Agent for the benefit of the Lenders to secure the
Obligations, constituting a first priority pledge of 65% of the capital stock
3
of
the Borrower's first tier non-U.S. Subsidiaries now or hereafter owned by the
Borrower or its U.S. Subsidiaries, including any amendment or modification
thereof.
Β Β Β "Collateral Shortfall Amount" is defined in Section 8.1.
Β Β Β "Commitment" means, for each Lender, the obligation of such
Lender to make Revolving Loans, and participate in Facility LCs issued
hereunder, in Agreed Currencies in the Equivalent Amounts not exceeding the
amount set forth opposite its signature below, as it may be modified as a result
of any assignment that has become effective pursuant to Section 12.3.2 or as
otherwise modified from time to time pursuant to the terms hereof.
Β Β Β "Computation Date" is defined in Section 2.2.
Β Β Β "Consolidated EBIT" means Consolidated Net Income
plus, to
the extent deducted from revenues in determining Consolidated Net Income, (i)
Consolidated Interest Expense, (ii) expense for taxes paid or accrued, and (iii)
extraordinary losses incurred other than in the ordinary course of business,
minus, to the extent included in Consolidated Net Income, extraordinary gains
realized other than in the ordinary course of business, all calculated for the
Borrower and its Subsidiaries on a consolidated basis.
Β Β Β "Consolidated EBITDA" means Consolidated EBIT plus, to the
extent deducted from revenues in determining Consolidated Net Income,
depreciation and amortization of the Borrower and its Subsidiaries determined on
a consolidated basis.
Β Β Β "Consolidated Indebtedness" means at any time the
Indebtedness of the Borrower and its Subsidiaries calculated on a consolidated
basis as of such time.
Β Β Β "Consolidated Interest Expense" means, with reference to any
period, the interest expense of the Borrower and its Subsidiaries calculated on
a consolidated basis for such period.
Β Β Β "Consolidated Net Income" means, with reference to any
period, the net income (or loss) of the Borrower and its Subsidiaries calculated
on a consolidated basis for such period.
Β Β Β "Consolidated Net Worth" means at any time the consolidated
stockholders' equity of the Borrower and its Subsidiaries calculated on a
consolidated basis as of such time.
Β Β Β "Consolidated Total Capitalization" means at any time the sum
of Consolidated Indebtedness and Consolidated Net Worth, each calculated at such
time.
Β Β Β "Contingent Obligation" of a Person means, without
duplication, any agreement, undertaking or arrangement by which such Person
assumes, guarantees, endorses, contingently agrees to purchase or provide funds
for the payment of, or otherwise becomes or is contingently liable upon, the
obligation or liability of any other Person, or agrees to maintain the net worth
or working capital or other financial condition of any other Person, or
otherwise assures any creditor of such other Person against loss, including,
without limitation, any comfort letter, operating agreement, take-or-pay
contract or the obligations of any such Person as general partner of a
partnership with respect to the liabilities of the partnership.
Β Β Β "Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common
4
control which, together with the Borrower or any
of its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
Β Β Β "Conversion/Continuation Notice" is defined in Section 2.10.
Β Β Β "Credit Extension" means the making of an Advance or the
issuance of a Facility LC hereunder.
Β Β Β "Credit Extension Date" means the Borrowing Date for an
Advance or the issuance date for a Facility LC.
Β Β Β "Default" means an event described in Article VII.
Β Β Β "Dollar Amount" of any currency at any date shall mean (i)
the amount of such currency if such currency is Dollars or (ii) the equivalent
in Dollars of such amount if such currency is any currency other than Dollars,
calculated on the basis of the arithmetical mean of the buy and sell spot rates
of exchange of the Agent for such currency on the London market at 11:00 a.m.,
London time, on or as of the most recent Computation Date provided for in
Section 2.2.
Β Β Β "Dollars" and "$" shall mean the lawful currency of the
United States of America.
Β Β Β "Eligible Currency" means any currency other than Dollars (i)
that is readily available, (ii) that is freely traded, (iii) in which deposits
are customarily offered to banks in the London interbank market, (iv) which is
convertible into Dollars in the international interbank market and (v) as to
which an Equivalent Amount may be readily calculated. If, after the designation
by the Lenders of any currency as an Agreed Currency, (x) currency control or
other exchange regulations are imposed in the country in which such currency is
issued with the result that different types of such currency are introduced, (y)
such currency is, in the determination of the Agent, no longer readily available
or freely traded or (z) in the determination of the Agent, an Equivalent Amount
of such currency is not readily calculable, the Agent shall promptly notify the
Lenders and the Borrower, and such currency shall no longer be an Agreed
Currency until such time as all of the Lenders agree to reinstate such currency
as an Agreed Currency and promptly, but in any event within five Business Days
of receipt of such notice from the Agent, the Borrower shall repay all Loans in
such affected currency or convert such Loans into Loans in Dollars or another
Agreed Currency, subject to the other terms set forth in Article II.
Β Β Β "Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
Β Β Β "Equivalent Amount" of any currency with respect to any
amount of Dollars at any date shall mean the equivalent in such currency of such
amount of Dollars, calculated on the basis of the arithmetical mean of the buy
and sell spot rates of exchange of the Agent for such other currency at 11:00
a.m., London time, on the date on or as of which such amount is to be
determined.
5
Β Β Β "ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any rule or regulation issued thereunder.
Β Β Β "Euro" and/or "EUR" means the euro referred to in Council
Regulation (EC) No. 1103/97 dated June 17, 1997 passed by the Council of the
European Union, or, if different, the then lawful currency of the member states
of the European Union that participate in the third stage of Economic and
Monetary Union.
Β Β Β "Eurocurrency" means any Agreed Currency.
Β Β Β "Eurocurrency Advance" means an Advance which, except as
otherwise provided in Section 2.12, bears interest at the applicable
Eurocurrency Rate.
Β Β Β "Eurocurrency Loan" means a Loan which, except as otherwise
provided in Section 2.12, bears interest at the applicable Eurocurrency Rate.
Β Β Β "Eurocurrency Payment Office" of the Agent shall mean, for
each of the Agreed Currencies, the office, branch, affiliate or correspondent
bank of the Agent specified as the "Eurocurrency Payment Office" for such
currency in Schedule 1 hereto or such other office, branch, affiliate or
correspondent bank of the Agent as it may from time to time specify to the
Borrower and each Lender as its Eurocurrency Payment Office.
Β Β Β "Eurocurrency Rate" means, with respect to a Eurocurrency
Advance for the relevant Interest Period, the sum of (i) the quotient of (a) the
Eurocurrency Reference Rate applicable to such Interest Period, divided by (b)
one minus the Reserve Requirement (expressed as a decimal) applicable to such
Interest Period, plus (ii) the Applicable Margin.
Β Β Β "Eurocurrency Reference Rate" means, with respect to a
Eurocurrency Advance for the relevant Interest Period, the applicable British
Bankers' Association LIBOR rate for deposits in U.S. dollars as reported by any
generally recognized financial information service as of 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period, and
having a maturity equal to such Interest Period, provided that, if no such
British Bankers' Association LIBOR rate is available to the Agent, the
applicable Eurocurrency Reference Rate for the relevant Interest Period shall
instead be the rate determined by the Agent to be the rate at which Bank One or
one of its Affiliate banks offers to place deposits in U.S. dollars with first-class banks in the interbank market at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, in the
approximate amount of Bank One's relevant Eurocurrency Loan and having a
maturity equal to such Interest Period.
Β Β Β "Excluded Taxes" means, in the case of each Lender or
applicable Lending Installation and the Agent, taxes imposed on its overall net
income, real estate property taxes and franchise taxes imposed on it, by (i) the
jurisdiction under the laws of which such Lender or the Agent is incorporated or
organized or (ii) the jurisdiction in which the Agent's or such Lender's
principal executive office or such Lender's applicable Lending Installation is
located.
Β Β Β "Exhibit" refers to an exhibit to this Agreement, unless
another document is specifically referenced.
6
Β Β Β "Facility LC" is defined in Section 2.19.1 and also includes
the letters of credit set forth on Schedule 2.19.
Β Β Β "Facility LC Application" is defined in Section 2.19.3.
Β Β Β "Facility LC Collateral Account" is defined in Section
2.19.11.
Β Β Β "Facility Termination Date" means May 20, 2009, or any
earlier date on which the Aggregate Commitment is reduced to zero or otherwise
terminated pursuant to the terms hereof.
Β Β Β "Family Group" means all Persons who are members of the
combined, extended families of Xx. Xxxxxx Xxxxx and Xx. Xxxxxxx Xxxxx, both of
Xxxxxx County, Indiana, including, but not limited to:
(i) the spouses of Xx. Xxxxx and Xx. Xxxxx;
(ii) the descendants, no matter the degrees of relationship, of Xx. Xxxxx and Xx. Xxxxx;
(iii) the nieces and nephews, no matter the degrees of relationship, of Xx. Xxxxx and Xx. Xxxxx;Β Β Β
(iv) in-laws of Xx. Xxxxx and Xx. Xxxxx;
(v) the in-laws of any Person who is a member of (i), (ii) or (iii) above;
(vi) any trust created for the benefit of a Person described in (i), (ii), (iii), (iv) or (v) above-and
(vii) a corporation all of the outstanding capital stock of which is owned by, or a partnership all of the partners of which are, or any other organization all of the members of which are, members of the Family Group.
Β Β Β "Federal Funds Effective Rate" means, for any
day, an interest rate per annum 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 for such day (or, if
such day is not a Business Day, for the immediately preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations at approximately
10:00 a.m. (Chicago time) on such day on such transactions received by the Agent
from three Federal funds brokers of recognized standing selected by the Agent in
its sole discretion.
Β Β Β "Floating Rate" means, for any day, a rate per annum equal to
the Alternate Base Rate for such day, in each case changing when and as the
Alternate Base Rate changes.
Β Β Β "Floating Rate Advance" means an Advance which, except as
otherwise provided in Section 2.12, bears interest at the Floating Rate.
Β Β Β "Floating Rate Loan" means a Loan which, except as otherwise
provided in Section 2.12, bears interest at the Floating Rate.
Β Β Β "Fund" means any Person (other than a natural person) that is
(or will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business.
7
Β Β Β "GAAP" means generally accepted accounting principles as in
effect from time to time in the United States, applied in a manner consistent
with that used in preparing the financial statements referred to in Section 5.4.
Β Β Β "Guarantor" means each U.S. domestic Subsidiary of Borrower,
now or hereafter existing, and its successors and assigns.
Β Β Β "Guaranty" means each Subsidiary Guaranty, in the form
prescribed by the Agent, executed by a Guarantor in favor of the Agent, for the
ratable benefit of the Lenders, as it may be amended or modified and in effect
from time to time.
Β Β Β "Indebtedness" of a Person means, without duplication, such
Person's (i) obligations for borrowed money, (ii) obligations representing the
deferred purchase price of Property or services (other than accounts payable
arising in the ordinary course of such Person's business payable on terms
customary in the trade), (iii) obligations, whether or not assumed, secured by
Liens or payable out of the proceeds or production from Property now or
hereafter owned or acquired by such Person, (iv) obligations which are evidenced
by notes, acceptances, or other instruments, (v) obligations of such Person to
purchase securities or other Property arising out of or in connection with the
sale of the same or substantially similar securities or Property, (vi)
Capitalized Lease Obligations, (vii) Contingent Obligations, (viii)
reimbursement or other obligations in connection with Letters of Credit, (ix)
obligations in connection with Sale and Leaseback Transactions and (x) any other
obligation for borrowed money or other financial accommodation which in
accordance with GAAP would be shown as a liability on the consolidated balance
sheet of such Person.
Β Β Β "Interest Period" means, with respect to a Eurocurrency
Advance, a period of one, two, three or six months commencing on a Business Day
selected by the Borrower pursuant to this Agreement. Such Interest Period shall
end on the day which corresponds numerically to such date one, two, three or six
months thereafter, provided, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such
Interest Period shall end on the last Business Day of such next, second, third
or sixth succeeding month. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
Β Β Β "Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such
Person; any deposit accounts and certificate of deposit owned by such Person;
and structured notes, derivative financial instruments and other similar
instruments or contracts owned by such Person.
Β Β Β "Investment Guidelines" means the Borrower's existing
Investment Guidelines dated October 31, 2003 as in effect as of the date hereof,
and any amendments or modifications thereto that are approved by the Borrower's
chief financial officer with the written consent of the Required Lenders.
Β Β Β "LC Fee" is defined in Section 2.19.4.
8
Β Β Β "LC Issuer" means Bank One (or any subsidiary or affiliate of
Bank One designated by Bank One) in its capacity as issuer of Facility LCs
hereunder.
Β Β Β "LC Obligations" means, at any time, the sum, without
duplication, of (i) the aggregate undrawn stated amount under all Facility LCs
outstanding at such time plus (ii) the aggregate unpaid amount at such time of
all Reimbursement Obligations.
Β Β Β "LC Payment Date" is defined in Section 2.19.5.
Β Β Β "Lenders" means the lending institutions listed on the
signature pages of this Agreement and their respective successors and assigns.
Unless otherwise specified, the term "Lenders" includes Bank One in its capacity
as Swing Line Lender.
Β Β Β "Lending Installation" means, with respect to a Lender or the
Agent, the office, branch, subsidiary or affiliate of such Lender or the Agent
with respect to each Agreed Currency listed on the signature pages hereof or on
the administrative information sheets provided to the Agent in connection
herewith or otherwise selected by such Lender or the Agent pursuant to Section
2.18.
Β Β Β "Letter of Credit" of a Person means a letter of credit or
similar instrument which is issued upon the application of such Person or upon
which such Person is an account party or for which such Person is in any way
liable.
Β Β Β "Leverage Ratio" means, as of any date of calculation, the
ratio of (i) Consolidated Indebtedness outstanding on such date to (ii)
Consolidated Total Capitalization on such date.
Β Β Β "Lien" means any lien (statutory or other), mortgage,
security interest, pledge, hypothecation, assignment, deposit arrangement,
encumbrance or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, the
interest of a vendor or lessor under any conditional sale, Capitalized Lease or
other title retention agreement).
Β Β Β "Loan" means a Revolving Loan or a Swing Line Loan.
Β Β Β "Loan Documents" means this Agreement, the Facility LC
Applications, any Notes issued pursuant to Section 2.24, the Fee Letter, any
Guaranty, any Collateral Documents, and any other documents or instruments now
or hereafter executed and delivered by or on behalf of Borrower to any Lender or
the Agent to evidence, govern or secure the Obligations.
Β Β Β "Material Adverse Effect" means a material adverse effect on
(i) the business, Property, condition (financial or otherwise), results of
operations, or prospects of the Borrower and its Subsidiaries taken as a whole,
(ii) the ability of the Borrower to perform its obligations under the Loan
Documents to which it is a party, or (iii) the validity or enforceability of any
of the Loan Documents or the rights or remedies of the Agent, the LC Issuer or
the Lenders thereunder.
Β Β Β "Material Indebtedness" means Indebtedness in an outstanding
principal amount of $10,000,000 or more in the aggregate (or the equivalent
thereof in any currency other than U.S. dollars).
9
Β Β Β "Material Indebtedness Agreement" means any agreement under
which any Material Indebtedness was created or is governed or which provides for
the incurrence of Indebtedness in an amount which would constitute Material
Indebtedness (whether or not an amount of Indebtedness constituting Material
Indebtedness is outstanding thereunder).
Β Β Β "Modify" and "Modification" are defined in Section 2.19.1.
Β Β Β "Moody's" means Xxxxx'x Investors Service, Inc.
Β Β Β "Multiemployer Plan" means a Plan maintained pursuant to a
collective bargaining agreement or any other arrangement to which the Borrower
or any member of the Controlled Group is a party to which more than one employer
is obligated to make contributions.
Β Β Β "National Currency Unit" means the unit of currency (other
than a Euro unit) of each member sate of the European Union that participates in
the third stage of Economic and Monetary Union.
Β Β Β "Non-U.S. Lender" is defined in Section 3.5(iv).
Β Β Β "Note" is defined in Section 2.24.
Β Β Β "Obligations" means all unpaid principal of and accrued and
unpaid interest on the Loans, all Reimbursement Obligations, all accrued and
unpaid fees and all expenses, reimbursements, indemnities and other obligations
of the Borrower to the Lenders or to any Lender, the Agent, the LC Issuer or any
indemnified party arising under the Loan Documents.
Β Β Β "Other Taxes" is defined in Section 3.5(ii).
Β Β Β "Outstanding Credit Exposure" means, as to any Lender at any
time, the sum of (i) the aggregate principal amount of its Revolving Loans
outstanding at such time, plus (ii) an amount equal to its Pro Rata Share of the
aggregate principal amount of Swing Line Loans outstanding at such time, plus
(iii) an amount equal to its Pro Rata Share of the LC Obligations at such time.
Β Β Β "Participants" is defined in Section 12.2.1.
Β Β Β "Payment Date" means the last day of each calendar quarter.
Β Β Β "PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
Β Β Β "Person" means any natural person, corporation, firm, joint
venture, partnership, limited liability company, association, enterprise, trust
or other entity or organization, or any government or political subdivision or
any agency, department or instrumentality thereof.
Β Β Β "Plan" means an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code as to which the Borrower or any member of the Controlled
Group may have any liability.
Β Β Β "Prior Credit Agreement" is defined in Section 2.23.
10
Β Β Β "Pro Rata Share" means, with respect to a Lender, a portion
equal to a fraction the numerator of which is such Lender's Commitment and the
denominator of which is the Aggregate Commitment.
Β Β Β "Pricing Schedule" means the Schedule attached hereto
identified as such.
Β Β Β "Prime Rate" means a rate per annum equal to the prime rate
of interest announced from time to time by Bank One or its parent (which is not
necessarily the lowest rate charged to any customer), changing when and as said
prime rate changes.
Β Β Β "Property" of a Person means any and all property, whether
real, personal, tangible, intangible, or mixed, of such Person, or other assets
owned, leased or operated by such Person.
Β Β Β "Purchasers" is defined in Section 12.3.1.
Β Β Β "Rate Management Obligations" of a Person means any and all
obligations of such Person, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired (including all renewals,
extensions and modifications thereof and substitutions therefor), under (i) any
and all agreements, contracts, devices or arrangements primarily designed to
protect the Borrower from the fluctuations of interest rates, commodity prices,
exchange rates or forward rates applicable to the Borrower's assets, liabilities
or exchange transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants or any similar derivative
transactions, and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any of the foregoing; excluding, however, in (i)
and (ii) above, any and all real estate leases, equipment leases and agreements
for the purchase or sale of products, all of which are entered into by the
Borrower and/or any Subsidiary in the normal and ordinary course of business.
Β Β Β "Regulation D" means Regulation D of the Board of Governors
of the Federal Reserve System as from time to time in effect and any successor
thereto or other regulation or official interpretation of said Board of
Governors relating to reserve requirements applicable to member banks of the
Federal Reserve System.
Β Β Β "Regulation U" means Regulation U of the Board of Governors
of the Federal Reserve System as from time to time in effect and any successor
or other regulation or official interpretation of said Board of Governors
relating to the extension of credit by banks for the purpose of purchasing or
carrying margin stocks applicable to member banks of the Federal Reserve System.
Β Β Β "Reimbursement Obligations" means, at any time, the aggregate
of all obligations of the Borrower then outstanding under Section 2.19 to
reimburse the LC Issuer for amounts paid by the LC Issuer in respect of any one
or more drawings under Facility LCs.
Β Β Β "Reportable Event" means a reportable event as defined in
Section 4043 of ERISA and the regulations issued under such section, with
respect to a Plan, excluding, however, such events as to which the PBGC has by
regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event, provided, however, that
a failure to meet the minimum funding standard of Section 412 of the Code and of
Section 302 of
11
ERISA shall be a Reportable Event regardless of the issuance of
any such waiver of the notice requirement in accordance with either Section
4043(a) of ERISA or Section 412(d) of the Code.
Β Β Β "Required Lenders" means at least 2 Lenders in the aggregate
having at least a majority of the Aggregate Commitment or, if the Aggregate
Commitment has been terminated, at least 2 Lenders in the aggregate holding at
least a majority of the Aggregate Outstanding Credit Exposure.
Β Β Β "Reserve Requirement" means, with respect to an Interest
Period, the maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves) which is imposed under Regulation D
on Eurocurrency liabilities.
Β Β Β "Revolving Loan" means, with respect to a Lender, such
Lender's loan made pursuant to its commitment to lend set forth in Section 2.1
(or any conversion or continuation thereof).
Β Β Β "S&P" means Standard and Poor's Ratings Services, a division
of The McGraw Hill Companies, Inc.
Β Β Β "Sale and Leaseback Transaction" means any sale or other
transfer of Property by any Person with the intent to lease such Property as
lessee.
Β Β Β "Schedule" refers to a specific schedule to this Agreement,
unless another document is specifically referenced.
Β Β Β "Section" means a numbered section of this Agreement, unless
another document is specifically referenced.
Β Β Β "Single Employer Plan" means a Plan maintained by the
Borrower or any member of the Controlled Group for employees of the Borrower or
any member of the Controlled Group.
Β Β Β "Subsidiary" of a Person means (i) any corporation more than
50% of the outstanding securities having ordinary voting power of which shall at
the time be owned or controlled, directly or indirectly, by such Person or by
one or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, or (ii) any partnership, limited liability company, association,
joint venture or similar business organization more than 50% of the ownership
interests having ordinary voting power of which shall at the time be so owned or
controlled. Unless otherwise expressly provided, all references herein to a
"Subsidiary" shall mean a Subsidiary of the Borrower.
Β Β Β "Substantial Portion" means, with respect to the Property of
the Borrower and its Subsidiaries, Property which represents more than 25% of
the consolidated assets of the Borrower and its Subsidiaries as would be shown
in the consolidated financial statements of the Borrower and its Subsidiaries on
a cumulative basis.
Β Β Β "Swing Line Borrowing Notice" is defined in Section 2.5.2.
Β Β Β "Swing Line Commitment" means the obligation of the Swing
Line Lender to make Swing Line Loans up to a maximum principal amount of
$5,000,000 at any one time outstanding.
12
Β Β Β "Swing Line Lender" means Bank One or such other Lender which
may succeed to its rights and obligations as Swing Line Lender pursuant to the
terms of this Agreement.
Β Β Β "Swing Line Loan" means a Loan made available to the Borrower
by the Swing Line Lender pursuant to Section 2.5.
Β Β Β "Taxes" means any and all present or future taxes, duties,
levies, imposts, deductions, charges or withholdings, and any and all
liabilities with respect to the foregoing, but excluding Excluded Taxes
and Other Taxes.
Β Β Β "Transferee" is defined in Section 12.4.
Β Β Β "Type" means, with respect to any Advance, its nature as a
Floating Rate Advance or a Eurocurrency Advance and with respect to any Loan,
its nature as a Floating Rate Loan or a Eurocurrency Loan.
Β Β Β "Unfunded Liabilities" means the amount (if any) by which the
present value of all vested and unvested accrued benefits under all Single
Employer Plans exceeds the fair market value of all such Plan assets allocable
to such benefits, all determined as of the then most recent valuation date for
such Plans using PBGC actuarial assumptions for single employer plan
terminations.
Β Β Β "Unmatured Default" means an event which but for the lapse of
time or the giving of notice, or both, would constitute a Default.
Β Β Β "Wholly-Owned Subsidiary" of a Person means (i) any
Subsidiary all of the outstanding voting securities of which shall at the time
be owned or controlled, directly or indirectly, by such Person or one or more
Wholly-Owned Subsidiaries of such Person, or by such Person and one or more
Wholly-Owned Subsidiaries of such Person, or (ii) any partnership, limited
liability company, association, joint venture or similar business organization
100% of the ownership interests having ordinary voting power of which shall at
the time be so owned or controlled.
Β Β Β The foregoing definitions shall be equally applicable to both
the singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
Β Β Β 2.1. Commitment. From and including the date of this Agreement and prior to the Facility Termination Date, each Lender severally agrees, on the terms and conditions set forth in this Agreement, to (i) make Loans to the Borrower in Agreed Currencies from time to time in Dollar Amounts, provided that all Floating Rate Loans shall be made in Dollars, and (ii) participate in Facility LCs issued upon the request of the Borrower, provided that, after giving effect to the making of each such Loan and the issuance of each such Facility LC, such Lender's Outstanding Credit Exposure shall not exceed its Commitment. Subject to the terms of this Agreement, the Borrower may borrow, repay and reborrow at any time prior to the Facility Termination Date. The Commitments to extend credit hereunder shall expire on the Facility
13
Termination Date. The LC Issuer will issue Facility LCs
hereunder on the terms and conditions set forth in Section 2.19.
Β Β Β 2.2. Determination of Dollar Amounts; Required Payments;
Termination. (i) The Agent will determine the Dollar Amount of:
Β Β Β (a) each Advance as of the date three Business Days prior to
the Borrowing Date or, if applicable, date of conversion/continuation of such
Advance, and
Β Β Β (b) all outstanding Advances on and as of the last Business
Day of each quarter and on any other Business Day elected by the Agent in its
discretion or upon instruction by the Required Lenders.
Each day upon or as of which the Agent determines Dollar Amounts as described in
the preceding clauses (a) and (b) is herein described as a "Computation Date"
with respect to each Advance for which a Dollar Amount is determined on or as of
such day. If at any time the Dollar Amount of the sum of the aggregate principal
amount of all outstanding Advances (calculated, with respect to those Advances
denominated in Agreed Currencies other than Dollars, as of the most recent
Computation Date with respect to each such Advance) exceeds the Aggregate
Commitment, the Borrower shall immediately repay Advances in an aggregate
principal amount sufficient to eliminate any such excess.
Β Β Β (ii) The Aggregate Outstanding Credit Exposure and all other
unpaid Obligations shall be paid in full by the Borrower on the Facility
Termination Date.
Β Β Β 2.3. Ratable Loans. Each Advance hereunder (other than
any Swing Line Loan) shall consist of Revolving Loans made from the several
Lenders ratably in proportion to the ratio that their respective Commitments
bear to the Aggregate Commitment.
Β Β Β 2.4. Types of Advances. The Advances may be Floating
Rate Advances or Eurocurrency Advances, or a combination thereof, selected by
the Borrower in accordance with Sections 2.9 and 2.10, or Swing Line Loans
selected by the Borrower in accordance with Section 2.5.
Β Β Β 2.5. Swing Line Loans.
Β Β Β Β Β Β Β 2.5.1. Amount of Swing Line Loans.
Upon the satisfaction of the conditions precedent set forth in Section 4.2 and,
if such Swing Line Loan is to be made on the date of the initial Advance
hereunder, the satisfaction of the conditions precedent set forth in Section 4.1
as well, from and including the date of this Agreement and prior to the Facility
Termination Date, the Swing Line Lender agrees, on the terms and conditions set
forth in this Agreement, to make Swing Line Loans to the Borrower in Dollars
from time to time in an aggregate principal amount not to exceed the Swing Line
Commitment, provided that the Aggregate Outstanding Credit Exposure shall
not at any time exceed the Aggregate Commitment, and provided further
that at no time shall the sum of (i) the Swing Line Lender's Pro Rata Share of
the Swing Line Loans, plus (ii) the outstanding Revolving Loans made by
the Swing Line Lender pursuant to Section 2.1, exceed the Swing Line Lender's
Commitment at such time. Subject to the terms of this Agreement, the Borrower
may borrow, repay and reborrow Swing Line Loans at any time prior to the
Facility Termination Date.
14
Β Β Β Β Β Β Β 2.5.2. Borrowing Notice. The
Borrower shall deliver to the Agent and the Swing Line Lender irrevocable notice
(a "Swing Line Borrowing Notice") not later than noon (Chicago, Illinois time)
on the Borrowing Date of each Swing Line Loan, specifying (i) the applicable
Borrowing Date (which date shall be a Business Day), and (ii) the aggregate
amount of the requested Swing Line Loan which shall be an amount not less than
$100,000. The Swing Line Loans shall bear interest at the Floating Rate.
Β Β Β Β Β Β Β 2.5.3. Making of Swing Line Loans.
Promptly after receipt of a Swing Line Borrowing Notice, the Agent shall notify
each Lender by fax, or other similar form of transmission, of the requested
Swing Line Loan. Not later than 2:00 p.m. (Chicago, Illinois time) on the
applicable Borrowing Date, the Swing Line Lender shall make available the Swing
Line Loan, in funds immediately available to the Agent at its address specified
pursuant to Article XIII. The Agent will promptly make the funds so received
from the Swing Line Lender available to the Borrower on the Borrowing Date at
the Agent's aforesaid address.
Β Β Β Β Β Β Β 2.5.4. Repayment of Swing Line
Loans. Each Swing Line Loan shall be paid in full by the Borrower on or
before the 10th Business Day after the Borrowing Date for such Swing Line Loan.
In addition, the Swing Line Lender (i) may at any time in its sole discretion
with respect to any outstanding Swing Line Loan, or (ii) shall on the 10th
Business Day after the Borrowing Date of any Swing Line Loan, require each
Lender (including the Swing Line Lender) to make a Revolving Loan in the amount
of such Lender's Pro Rata Share of such Swing Line Loan (including, without
limitation, any interest accrued and unpaid thereon), for the purpose of
repaying such Swing Line Loan. Not later than noon (Chicago, Illinois time) on
the date of any notice received pursuant to this Section 2.5.4, each Lender
shall make available its required Revolving Loan, in funds immediately available
to the Agent at its address specified pursuant to Article XIII. Revolving Loans
made pursuant to this Section 2.5.4 shall initially be Floating Rate Loans and
thereafter may be continued as Floating Rate Loans or converted into
Eurocurrency Loans in the manner provided in Section 2.10 and subject to the
other conditions and limitations set forth in this Article II. Unless a Lender
shall have notified the Swing Line Lender, prior to its making any Swing Line
Loan, that any applicable condition precedent set forth in Sections 4.1 or 4.2
had not then been satisfied, such Lender's obligation to make Revolving Loans
pursuant to this Section 2.5.4 to repay Swing Line Loans shall be unconditional,
continuing, irrevocable and absolute and shall not be affected by any
circumstances, including, without limitation, (a) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the Agent,
the Swing Line Lender or any other Person, (b) the occurrence or continuance of
a Default or Unmatured Default, (c) any adverse change in the condition
(financial or otherwise) of the Borrower, or (d) any other circumstances,
happening or event whatsoever. In the event that any Lender fails to make
payment to the Agent of any amount due under this SectionΒ 2.5.4, the Agent shall
be entitled to receive, retain and apply against such obligation the principal
and interest otherwise payable to such Lender hereunder until the Agent receives
such payment from such Lender or such obligation is otherwise fully satisfied.
In addition to the foregoing, if for any reason any Lender fails to make payment
to the Agent of any amount due under this Section 2.5.4, such Lender shall be
deemed, at the option of the Agent, to have unconditionally and irrevocably
purchased from the Swing Line Lender, without recourse or warranty, an undivided
interest and participation in the applicable Swing Line Loan in the amount of
such
15
Revolving Loan, and such interest and participation may be recovered from
such Lender together with interest thereon at the Federal Funds Effective Rate
for each day during the period commencing on the date of demand and ending on
the date such amount is received. On the Facility Termination Date, the Borrower
shall repay in full the outstanding principal balance of the Swing Line Loans.
Β Β Β 2.6. Commitment Fee; Reductions in Aggregate Commitment.
The Borrower agrees to pay to the Agent for the account of each Lender a
commitment fee at a per annum rate equal to the Applicable Fee Rate on the
average daily Available Aggregate Commitment from the date hereof to and
including the Facility Termination Date, payable on each Payment Date hereafter
and on the Facility Termination Date. Swing Line Loans shall not count as usage
of any Lender's Commitment for the purpose of calculating the commitment fee due
hereunder. The Borrower may permanently reduce the Aggregate Commitment in
whole, or in part ratably among the Lenders in integral multiples of $5,000,000
(or the Approximate Equivalent Amount if denominated in an Agreed Currency other
than Dollars), upon at least five Business Days' written notice to the Agent,
which notice shall specify the amount of any such reduction, provided, however,
that the amount of the Aggregate Commitment may not be reduced below the
aggregate principal Dollar Amount of the outstanding Advances. All accrued
commitment fees shall be payable on the effective date of any termination of the
obligations of the Lenders to make Loans hereunder. For purposes of calculating
the commitment fee hereunder, the principal amount of each Advance made in an
Agreed Currency other than Dollars shall be at any time the Dollar Amount of
such Advance as determined on the most recent Computation Date with respect to
such Advance.
Β Β Β 2.7. Minimum Amount of Each Advance/Maximum Number of
Eurocurrency Advances. Each Eurocurrency Advance shall be in the minimum
amount of $1,000,000 (and in multiples of $100,000 if in excess thereof) (or the
Approximate Equivalent Amounts if denominated in an Agreed Currency other than
Dollars), and each Floating Rate Advance (other than an Advance to repay Swing
Line Loans) shall be in the minimum amount of $250,000 (and in multiples of
$50,000 if in excess thereof), provided, however, that any Floating Rate Advance
may be in the amount of the unused Aggregate Commitment. Notwithstanding
anything contained herein, not more than eight Eurocurrency Advances may be
outstanding at any one time.
Β Β Β 2.8. Optional Principal Payments. The Borrower may
from time to time pay, without penalty or premium, all outstanding Floating Rate
Advances (other than Swing Line Loans), or, in a minimum aggregate amount of
$250,000 or any integral multiple of $50,000 in excess thereof, any portion of
the outstanding Floating Rate Advances (other than Swing Line Loans) upon two
Business Days' prior notice to the Agent. The Borrower may at any time pay,
without penalty or premium, all outstanding Swing Line Loans, or, in a minimum
amount of $100,000 and increments of $50,000 in excess thereof, any portion of
the outstanding Swing Line Loans, with notice to the Agent and the Swing Line
Lender by 11:00 a.m. (Chicago, Illinois time) on the date of repayment. The
Borrower may from time to time pay, subject to the payment of any funding
indemnification amounts required by Section 3.4 but without penalty or premium,
all outstanding Eurocurrency Advances, or, in a minimum aggregate amount of
$1,000,000 or any integral multiple of $100,000 in excess thereof (or the
Approximate Equivalent Amounts if denominated in an Agreed Currency other than
Dollars), any portion of the outstanding Eurocurrency Advances upon three
Business Days' prior notice to the Agent.
16
Β Β Β 2.9. Method of Selecting Types and Interest Periods for New Advances. The Borrower shall select the Type of Advance and, in the case of each Eurocurrency Advance, the Interest Period and Agreed Currency applicable thereto from time to time. The Borrower shall give the Agent irrevocable notice (a "Borrowing Notice") not later than 11:00 a.m. (Chicago, Illinois time) on the Borrowing Date of each Floating Rate Advance (other than a Swing Line Loan), and not later than 10:00 a.m. (Chicago, Illinois time) at least three Business Days before the Borrowing Date for each Eurocurrency Advance denominated in Dollars and four business days before the Borrowing Date for each Eurocurrency Advance denominated in an Agreed Currency other than Dollars, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurocurrency Advance, the Interest Period and the Agreed Currency applicable thereto.
Not later than 3:00 p.m. (Chicago, Illinois time) on each
Borrowing Date, each Lender shall make available its Revolving Loan or Revolving
Loans in funds immediately available to the Agent at its address specified
pursuant to Article XIII. The Agent will make the funds so received from the
Lenders available to the Borrower at the Agent's aforesaid address.
Β Β Β 2.10. Conversion and Continuation of Outstanding Advances.
Floating Rate Advances (other than Swing Line Loans) shall continue as Floating
Rate Advances unless and until such Floating Rate Advances are converted into
Eurocurrency Advances pursuant to this Section 2.10 or are repaid in accordance
with Section 2.8. Each Eurocurrency Advance shall continue as a Eurocurrency
Advance until the end of the then applicable Interest Period therefor, at which
time:
(i) each such Eurocurrency Advance denominated in Dollars shall be automatically converted into a Floating Rate Advance unless (x) such Eurocurrency Advance is or was repaid in accordance with Section 2.8 or (y) the Borrower shall have given the Agent a Conversion/Continuation Notice (as defined below) requesting that, at the end of such Interest Period, such Eurocurrency Advance either continue as a Eurocurrency Advance for the same or another Interest Period or be converted into a Floating Rate Advance; and
(ii) each such Eurocurrency Advance denominated in an Agreed Currency other than Dollars shall automatically continue as a Eurocurrency Advance in the same Agreed Currency with an Interest Period of one month unless (x) such Eurocurrency Advance is or was repaid in accordance with Section 2.8 or (y) the Borrower shall have given the Agent a Conversion/Continuation Notice (as defined below) requesting that, at the end of such Interest Period, such Eurocurrency Advance continue as a Eurocurrency Advance for the same or another Interest Period.
Subject to the terms of Section 2.7, the Borrower may elect from time to time to convert all or any part of a Floating Rate Advance (other than a Swing Line Loan) into a Eurocurrency
17
Advance. The Borrower shall give the Agent irrevocable notice (a "Conversion/Continuation Notice") of each conversion of a Floating Rate Advance into a Eurocurrency Advance or continuation of a Eurocurrency Advance not later than 10:00 a.m. (Chicago, Illinois time) at least three Business Days, in the case of a conversion into or continuation of a Eurocurrency Advance denominated in Dollars, or at least four Business Days, in the case of a conversion into a continuation of a Eurocurrency Advance denominated in an Agreed Currency other than Dollars, prior to the date of the requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such conversion or continuation,
(ii) the Agreed Currency, the aggregate amount and Type of the Advance which is to be converted or continued, and
(iii) the amount of such Advance which is to be converted into or continued as a Eurocurrency Advance and the duration of the Interest Period applicable thereto.
Β Β Β 2.11. Changes in Interest Rate, etc.
Each Floating Rate Advance (other than a Swing Line Loan) shall bear interest on
the outstanding principal amount thereof, for each day from and including the
date such Advance is made or is automatically converted from a Eurocurrency
Advance into a Floating Rate Advance pursuant to Section 2.10, to but excluding
the date it is paid or is converted into a Eurocurrency Advance pursuant to
Section 2.10 hereof, at a rate per annum equal to the Floating Rate for such
day. Each Swing Line Loan shall bear interest on the outstanding principal
amount thereof, for each day from and including the day such Swing Line Loan is
made to but excluding the date it is paid, at a rate per annum equal to the
Floating Rate for such day. Changes in the rate of interest on that portion of
any Advance maintained as a Floating Rate Advance will take effect
simultaneously with each change in the Alternate Base Rate. Each Eurocurrency
Advance shall bear interest on the outstanding principal amount thereof from and
including the first day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the interest rate determined
by the Agent as applicable to such Eurocurrency Advance based upon the
Borrower's selections under Sections 2.9 and 2.10 and otherwise in accordance
with the terms hereof. No Interest Period may end after the Facility Termination
Date.
Β Β Β 2.12. Rates Applicable After Default. Notwithstanding
anything to the contrary contained in Section 2.9, 2.10 or 2.11, during the
continuance of a Default or Unmatured Default the Required Lenders may, at their
option, by notice to the Borrower (which notice may be revoked at the option of
the Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that no
Advance may be made as, converted into or continued as a Eurocurrency Advance.
During the continuance of a Default the Required Lenders may, at their option,
by notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that (i)
each Eurocurrency Advance shall bear interest for the remainder of the
applicable Interest Period at the rate otherwise applicable to such Interest
Period plus 2% per annum, (ii) each Floating Rate Advance shall bear interest at
a rate per annum equal to the Floating Rate in effect from time to time plus 2%
per annum and the LC Fee shall be increased by 2% per annum, provided that,
during the continuance of a Default under Section 7.6 or 7.7, the interest rates
set forth in clauses (i) and (ii) above and the increase in the LC Fee set forth
in clause (iii) above
18
shall be applicable to all Credit Extensions without any
election or action on the part of the Agent or any Lender.
Β Β Β 2.13. Method of Payment. (i) Each Advance shall be
repaid and each payment of interest thereon shall be paid in the currency in
which such Advance was made or, where such currency has converted to Euro, in
the Euro. All payments of the Obligations hereunder shall be made, without
setoff, deduction, or counterclaim, in immediately available funds to the Agent
at (except as set forth in the next sentence) the Agent's address specified
pursuant to Article XIII, or at any other Lending Installation of the Agent
specified in writing by the Agent to the Borrower, by noon (local time) on the
date when due and shall (except with respect to repayments of Swing Line Loans
and except in the case of Reimbursement Obligations for which the LC Issuer has
not been fully indemnified by the Lenders, or as otherwise specifically required
hereunder) be applied ratably by the Agent among the Lenders. All payments to be
made by the Borrower hereunder in any currency other than Dollars shall be made
in such currency on the date due in such funds as may then be customary for the
settlement of international transactions in such currency for the account of the
Agent, at its Eurocurrency Payment Office for such currency and shall be applied
ratably by the Agent among the Lenders. Each payment delivered to the Agent for
the account of any Lender shall be delivered promptly by the Agent to such
Lender in the same type of funds that the Agent received at, (a) with respect to
Floating Rate Loans and Eurocurrency Loans denominated in Dollars, its address
specified pursuant to Article XIII or at any Lending Installation specified in a
notice received by the Agent from such Lender and (b) with respect to
Eurocurrency Loans denominated in an Agreed Currency other than Dollars, in the
funds received from the Borrower at the address of the Agent's Eurocurrency
Payment Office for such currency. The Agent is hereby authorized to charge the
account of the Borrower maintained with Bank One for each payment of principal,
interest and fees as it becomes due hereunder. Each reference to the Agent in
this Section 2.13 shall also be deemed to refer, and shall apply equally, to the
LC Issuer, in the case of payments required to be made by the Borrower to the LC
Issuer pursuant to Section 2.19.6.
Β Β Β (ii) Notwithstanding the foregoing provisions of this
Section, if, after the making of any Advance in any currency other than Dollars,
currency control or exchange regulations are imposed in the country which issues
such currency with the result that the type of currency in which the Advance was
made (the "Original Currency") no longer exists or the Borrower is not able to
make payment to the Agent for the account of the Lenders in such Original
Currency, then all payments to be made by the Borrower hereunder in such
currency shall instead be made when due in Dollars in an amount equal to the
Dollar Amount (as of the date of repayment) of such payment due, it being the
intention of the parties hereto that the Borrower take all risks of the
imposition of any such currency control or exchange regulations. For purposes of
this Section 2.13(ii), the commencement of the third stage of European Economic
and Monetary Union shall not constitute the imposition of currency control or
exchange regulations.
Β Β Β (iii) If any Advance is capable of being made in either the
Euro or in a National Currency Unit, such Advance shall be made in the Euro.
Β Β Β 2.14. Method of Borrowing. On each Borrowing Date,
each Lender shall make available its Loan or Loans, if any, (i) if such Loan is
denominated in Dollars, not later than noon, Chicago, Illinois time, in Federal
or other funds immediately available to the Agent, in Chicago, Illinois at its
address specified in or pursuant to Article XIII and, (ii) if such Loan is
denominated in an Agreed Currency other than Dollars, not later than noon, local
time, in the city of the Agent's Eurocurrency Payment Office for such currency,
in such funds as may then be
19
customary for the settlement of international
transactions in such currency in the city of and at the address of the Agent's
Eurocurrency Payment Office for such currency. Unless the Agent determines that
any applicable condition specified in Article IV has not been satisfied, the
Agent will make the funds so received from the Lenders available to the Borrower
at the Agent's aforesaid address. Notwithstanding the foregoing provisions of
this Section 2.14, to the extent that a Loan made by a Lender matures on the
Borrowing Date of a requested Loan, such Lender shall apply the proceeds of the
Loan it is then making to the repayment of principal of the maturing Loan.
Β Β Β
2.15. Telephonic Notices. The Borrower hereby authorizes the Lenders and the
Agent to extend, convert or continue Advances, effect selections of Agreed
Currencies and Types of Advances and to transfer funds based on telephonic
notices made by any person or persons the Agent or any Lender in good faith
believes to be acting on behalf of the Borrower, it being understood that the
foregoing authorization is specifically intended to allow Borrowing Notices and
Conversion/Continuation Notices to be given telephonically. The Borrower agrees
to deliver promptly to the Agent a written confirmation, if such confirmation is
requested by the Agent or any Lender, of each telephonic notice signed by an
Authorized Officer. If the written confirmation differs in any material respect
from the action taken by the Agent and the Lenders, the records of the Agent and
the Lenders shall govern absent manifest error.
Β Β Β
2.16. Interest Payment Dates; Interest and Fee Basis. Interest accrued on each
Floating Rate Advance shall be payable on each Payment Date, commencing with the
first such date to occur after the date hereof and at maturity. Interest accrued
on each Eurocurrency Advance shall be payable on the last day of its applicable
Interest Period, on any date on which the Eurocurrency Advance is prepaid,
whether by acceleration or otherwise, and at maturity. Interest accrued on each
Eurocurrency Advance having an Interest Period longer than three months shall
also be payable on the last day of each three-month interval during such
Interest Period. Interest, commitment fees and LC Fees shall be calculated for
actual days elapsed on the basis of a 360-day year, except for interest on any
Loans denominated in British Pounds Sterling which shall be calculated for
actual days elapsed on the basis of a 365-day year. Interest shall be payable
for the day an Advance is made but not for the day of any payment on the amount
paid if payment is received prior to noon (local time) at the place of payment.
If any payment of principal of or interest on an Advance shall become due on a
day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and, in the case of a principal payment, such extension
of time shall be included in computing interest in connection with such payment.
Β Β Β
2.17. Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions. Promptly after receipt thereof, the Agent will notify each Lender of
the contents of each Aggregate Commitment reduction notice, Borrowing Notice,
Swing Line Borrowing Notice, Conversion/Continuation Notice, and repayment
notice received by it hereunder. Promptly after notice from the LC Issuer, the
Agent will notify each Lender of the contents of each request for issuance of a
Facility LC hereunder. The Agent will notify each Lender of the interest rate
applicable to each Eurocurrency Advance promptly upon determination of such
interest rate and will give each Lender prompt notice of each change in the
Alternate Base Rate.
Β Β Β
2.18. Lending Installations. Each Lender may book its Loans and its
participation in any LC Obligations and the LC Issuer may book the Facility LCs
at any Lending Installation selected by such Lender or the LC Issuer, as the
case may be, and may change its Lending Installation from time to time. All
terms of this Agreement shall apply to any such Lending Installation and the
Loans, Facility LCs, participations in LC Obligations and any Notes issued
20
hereunder shall be deemed held by each Lender or the LC Issuer, as the case may
be, for the benefit of any such Lending Installation. Each Lender and the LC
Issuer may, by written notice to the Agent and the Borrower in accordance with
Article XIII, designate replacement or additional Lending Installations through
which Loans will be made by it or Facility LCs will be issued by it and for
whose account Loan payments or payments with respect to Facility LCs are to be
made.
Β Β Β
2.19. Facility LCs.
Β Β Β Β Β Β Β 2.19.1 Issuance. The LC Issuer hereby agrees, on the terms and conditions set forth in this Agreement, to issue standby and commercial Letters of Credit in Dollars (each, a "Facility LC") and to renew, extend, increase, decrease or otherwise modify each Facility LC ("Modify," and each such action a "Modification"), from time to time from and including the date of this Agreement and prior to the Facility Termination Date upon the request of the Borrower; provided that immediately after each such Facility LC is issued or Modified, (i) the aggregate amount of the outstanding LC Obligations shall not exceed $20,000,000 and (ii) the Aggregate Outstanding Credit Exposure shall not exceed the Aggregate Commitment. No Facility LC shall have an expiry date later than eighteen months after its issuance and any Facility LC having an expiry date beyond the Facility Termination Date must be fully collateralized by cash in the Facility LC Collateral Account as of the Facility Termination Date.
Β Β Β Β Β Β Β
2.19.2. Participations. Upon the issuance or Modification by the LC Issuer of a
Facility LC in accordance with this Section 2.19, the LC Issuer shall be deemed,
without further action by any party hereto, to have unconditionally and
irrevocably sold to each Lender, and each Lender shall be deemed, without
further action by any party hereto, to have unconditionally and irrevocably
purchased from the LC Issuer, a participation in such Facility LC (and each
Modification thereof) and the related LC Obligations in proportion to its Pro
Rata Share.
Β Β Β Β Β Β Β
2.19.3. Notice. Subject to Section 2.19.1, the Borrower shall give the LC Issuer
notice prior to 10:00 a.m. (Chicago, Illinois time) at least five Business Days
prior to the proposed date of issuance or Modification of each Facility LC,
specifying the beneficiary, the proposed date of issuance (or Modification) and
the expiry date of such Facility LC, and describing the proposed terms of such
Facility LC and the nature of the transactions proposed to be supported thereby.
Upon receipt of such notice, the LC Issuer shall promptly notify the Agent, and
the Agent shall promptly notify each Lender, of the contents thereof and of the
amount of such Lender's participation in such proposed Facility LC. The issuance
or Modification by the LC Issuer of any Facility LC shall, in addition to the
conditions precedent set forth in Article IV (the satisfaction of which the LC
Issuer shall have no duty to ascertain), be subject to the conditions precedent
that such Facility LC shall be satisfactory to the LC Issuer and that the
Borrower shall have executed and delivered such application agreement and/or
such other instruments and agreements relating to such Facility LC as the LC
Issuer shall have reasonably requested (each, a "Facility LC Application"). In
the event of any conflict between the terms of this Agreement and the terms of
any Facility LC Application, the terms of this Agreement shall control.
21
Β Β Β Β Β Β Β
2.19.4. LC Fees. The Borrower shall pay to the Agent, for the account of the
Lenders ratably in accordance with their respective Pro Rata Shares, (i) with
respect to each standby Facility LC, a letter of credit fee at a per annum rate
equal to the Applicable Fee Rate in effect from time to time on the average
daily undrawn stated amount under such standby Facility LC, such fee to be
payable in arrears on each Payment Date, and (ii) with respect to each
commercial Facility LC, a one-time letter of credit fee in an amount equal to
the LC Issuer's standard fee then in effect for commercial letters of credit
(or, with respect to a Modification of any such commercial Facility LC which
increases the stated amount thereof, such increase in the stated amount)
thereof, such fee to be payable on the date of such issuance or increase (each
such fee described in this sentence an "LC Fee"). The Borrower shall also pay to
the LC Issuer for its own account (x) at the time of issuance of each Facility
LC, a fronting fee in an amount to be agreed upon between the LC Issuer and the
Borrower, and (y) documentary and processing charges in connection with the
issuance or Modification of and draws under Facility LCs in accordance with the
LC Issuer's standard schedule for such charges as in effect from time to time.
Β Β Β Β Β Β Β
2.19.5. Administration; Reimbursement by Lenders. Upon receipt from the
beneficiary of any Facility LC of any demand for payment under such Facility LC,
the LC Issuer shall notify the Agent and the Agent shall promptly notify the
Borrower and each other Lender as to the amount to be paid by the LC Issuer as a
result of such demand and the proposed payment date (the "LC Payment Date"). The
responsibility of the LC Issuer to the Borrower and each Lender shall be only to
determine that the documents (including each demand for payment) delivered under
each Facility LC in connection with such presentment shall be in conformity in
all material respects with such Facility LC. The LC Issuer shall endeavor to
exercise the same care in the issuance and administration of the Facility LCs as
it does with respect to letters of credit in which no participations are
granted, it being understood that in the absence of any gross negligence or
willful misconduct by the LC Issuer, each Lender shall be unconditionally and
irrevocably liable without regard to the occurrence of any Default or any
condition precedent whatsoever, to reimburse the LC Issuer on demand for (i)
such Lender's Pro Rata Share of the amount of each payment made by the LC Issuer
under each Facility LC to the extent such amount is not reimbursed by the
Borrower pursuant to Section 2.19.6 below, plus (ii) interest on the foregoing
amount to be reimbursed by such Lender, for each day from the date of the LC
Issuer's demand for such reimbursement (or, if such demand is made after 11:00
a.m. (Chicago, Illinois time) on such date, from the next succeeding Business
Day) to the date on which such Lender pays the amount to be reimbursed by it, at
a rate of interest per annum equal to the Federal Funds Effective Rate for the
first three days and, thereafter, at a rate of interest equal to the rate
applicable to Floating Rate Advances.
Β Β Β Β Β Β Β
2.19.6. Reimbursement by Borrower. The Borrower shall be irrevocably and
unconditionally obligated to reimburse the LC Issuer on or before the applicable
LC Payment Date for any amounts to be paid by the LC Issuer upon any drawing
under any Facility LC, without presentment, demand, protest or other formalities
of any kind; provided that neither the Borrower nor any Lender shall hereby be
precluded from asserting any claim for direct (but not consequential) damages
suffered by the Borrower or such Lender to the extent, but only to the extent,
caused by (i) the willful misconduct or gross negligence of the LC Issuer in
determining whether a request presented under any Facility LC issued by it
complied with the terms of such Facility LC or (ii) the LC
22
Issuer's failure to
pay under any Facility LC issued by it after the presentation to it of a request
strictly complying with the terms and conditions of such Facility LC. All such
amounts paid by the LC Issuer and remaining unpaid by the Borrower shall bear
interest, payable on demand, for each day until paid at a rate per annum equal
to (x) the rate applicable to Floating Rate Advances for such day if such day
falls on or before the applicable LC Payment Date and (y) the sum of 2% plus the
rate applicable to Floating Rate Advances for such day if such day falls after
such LC Payment Date. The LC Issuer will pay to each Lender ratably in
accordance with its Pro Rata Share all amounts received by it from the Borrower
for application in payment, in whole or in part, of the Reimbursement Obligation
in respect of any Facility LC issued by the LC Issuer, but only to the extent
such Lender has made payment to the LC Issuer in respect of such Facility LC
pursuant to Section 2.19.5. Subject to the terms and conditions of this
Agreement (including without limitation the submission of a Borrowing Notice in
compliance with Section 2.8 and the satisfaction of the applicable conditions
precedent set forth in Article IV), the Borrower may request an Advance
hereunder for the purpose of satisfying any Reimbursement Obligation.
Β Β Β Β Β Β Β
2.19.7. Obligations Absolute. The Borrower's obligations under this Section 2.19
shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against the LC Issuer, any Lender or any
beneficiary of a Facility LC. The Borrower further agrees with the LC Issuer and
the Lenders that the LC Issuer and the Lenders shall not be responsible for, and
the Borrower's Reimbursement Obligation in respect of any Facility LC shall not
be affected by, among other things, the validity or genuineness of documents or
of any endorsements thereon, even if such documents should in fact prove to be
in any or all respects invalid, fraudulent or forged, or any dispute between or
among the Borrower, any of its Affiliates, the beneficiary of any Facility LC or
any financing institution or other party to whom any Facility LC may be
transferred or any claims or defenses whatsoever of the Borrower or of any of
its Affiliates against the beneficiary of any Facility LC or any such
transferee. The LC Issuer shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Facility LC. The Borrower
agrees that any action taken or omitted by the LC Issuer or any Lender under or
in connection with each Facility LC and the related drafts and documents, if
done without gross negligence or willful misconduct, shall be binding upon the
Borrower and shall not put the LC Issuer or any Lender under any liability to
the Borrower. Nothing in this Section 2.19.7 is intended to limit the right of
the Borrower to make a claim against the LC Issuer for damages as contemplated
by the proviso to the first sentence of Section 2.19.6.
Β Β Β Β Β Β Β
2.19.8. Actions of LC Issuer. The LC Issuer shall be entitled to rely, and shall
be fully protected in relying, upon any Facility LC, draft, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document 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, independent
accountants and other experts selected by the LC Issuer. The LC Issuer shall be
fully justified in failing or refusing to take any action under this Agreement
unless it shall first have received such advice or concurrence of the Required
Lenders as it reasonably deems appropriate or it shall first be indemnified to
its reasonable satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action.
23
Notwithstanding any other provision of this Section 2.19, the
LC Issuer shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement in accordance with a request of the Required
Lenders, and such request and any action taken or failure to act pursuant
thereto shall be binding upon the Lenders and any future holders of a
participation in any Facility LC.
Β Β Β Β Β Β Β
2.19.9. Indemnification. The Borrower hereby agrees to indemnify and hold
harmless each Lender, the LC Issuer and the Agent, and their respective
directors, officers, agents and employees from and against any and all claims
and damages, losses, liabilities, costs or expenses which such Lender, the LC
Issuer or the Agent may incur (or which may be claimed against such Lender, the
LC Issuer or the Agent by any Person whatsoever) by reason of or in connection
with the issuance, execution and delivery or transfer of or payment or failure
to pay under any Facility LC or any actual or proposed use of any Facility LC,
including, without limitation, any claims, damages, losses, liabilities, costs
or expenses which the LC Issuer may incur by reason of or in connection with (i)Β the
failure of any other Lender to fulfill or comply with its obligations to the LC
Issuer hereunder (but nothing herein contained shall affect any rights the
Borrower may have against any defaulting Lender) or (ii)Β by reason of or on
account of the LC Issuer issuing any Facility LC which specifies that the term
"Beneficiary" included therein includes any successor by operation of law of the
named Beneficiary, but which Facility LC does not require that any drawing by
any such successor Beneficiary be accompanied by a copy of a legal document,
satisfactory to the LC Issuer, evidencing the appointment of such successor
Beneficiary; provided that the Borrower shall not be required to indemnify any
Lender, the LC Issuer or the Agent for any claims, damages, losses, liabilities,
costs or expenses to the extent, but only to the extent, caused by (x) the
willful misconduct or gross negligence of the LC Issuer in determining whether a
request presented under any Facility LC complied with the terms of such Facility
LC or (y) the LC Issuer's failure to pay under any Facility LC after the
presentation to it of a request strictly complying with the terms and conditions
of such Facility LC. Nothing in this Section 2.19.9 is intended to limit the
obligations of the Borrower under any other provision of this Agreement.
Β Β Β Β Β Β Β
2.19.10. Lenders' Indemnification. Each Lender shall, ratably in accordance with
its Pro Rata Share, indemnify the LC Issuer, its affiliates and their respective
directors, officers, agents and employees (to the extent not reimbursed by the
Borrower) against any cost, expense (including reasonable counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from such indemnitees' gross negligence or willful misconduct or the LC Issuer's
failure to pay under any Facility LC after the presentation to it of a request
strictly complying with the terms and conditions of the Facility LC) that such
indemnitees may suffer or incur in connection with this Section 2.19 or any
action taken or omitted by such indemnitees hereunder.
Β Β Β Β Β Β Β
2.19.11. Facility LC Collateral Account. The Borrower agrees that it will, upon
the request of the Agent or the Required Lenders and until the final expiration
date of any Facility LC and thereafter as long as any amount is payable to the
LC Issuer or the Lenders in respect of any Facility LC, maintain a special
collateral account pursuant to arrangements satisfactory to the Agent (the
"Facility LC Collateral Account") at the Agent's office at the address specified
pursuant to Article XIII, in the name of such Borrower but under the sole
dominion and control of the Agent, for the benefit of the Lenders and in which
such Borrower shall have no interest other than as set forth in
24
Section 8.1. The
Borrower hereby pledges, assigns and grants to the Agent, on behalf of and for
the ratable benefit of the Lenders and the LC Issuer, a security interest in all
of the Borrower's right, title and interest in and to all funds which may from
time to time be on deposit in the Facility LC Collateral Account to secure the
prompt and complete payment and performance of the Obligations. The Agent will
invest any funds on deposit from time to time in the Facility LC Collateral
Account in certificates of deposit of Bank One having a maturity not exceeding
30 days. Nothing in this Section 2.19.11 shall either obligate the Agent to
require the Borrower to deposit any funds in the Facility LC Collateral Account
or limit the right of the Agent to release any funds held in the Facility LC
Collateral Account in each case other than as required by Section 8.1 and
Section 2.19.1.
Β Β Β Β Β Β Β
2.19.12. Rights as a Lender. In its capacity as a Lender, the LC Issuer shall
have the same rights and obligations as any other Lender.
Β Β Β
2.20. Non-Receipt of Funds by the Agent. Unless the Borrower or a Lender, as the
case may be, notifies the Agent prior to the date on which it is scheduled to
make payment to the Agent of (i) in the case of a Lender, the proceeds of a Loan
or (ii) in the case of the Borrower, a payment of principal, interest or fees to
the Agent for the account of the Lenders, that it does not intend to make such
payment, the Agent may assume that such payment has been made. The Agent may,
but shall not be obligated to, make the amount of such payment available to the
intended recipient in reliance upon such assumption. If such Lender or the
Borrower, as the case may be, has not in fact made such payment to the Agent,
the recipient of such payment shall, on demand by the Agent, repay to the Agent
the amount so made available together with interest thereon in respect of each
day during the period commencing on the date such amount was so made available
by the Agent until the date the Agent recovers such amount at a rate per annum
equal to (x) in the case of payment by a Lender, the Federal Funds Effective
Rate for such day for the first three days and, thereafter, the interest rate
applicable to the relevant Loan or (y) in the case of payment by the Borrower,
the interest rate applicable to the relevant Loan.
Β Β Β
2.21. Replacement of Lender. If the Borrower is required pursuant to Section
3.1, 3.2 or 3.5 to make any additional payment to any Lender or if any Lender's
obligation to make or continue, or to convert Floating Rate Advances into,
Eurocurrency Advances shall be suspended pursuant to Section 3.3 (any Lender so
affected an "Affected Lender"), the Borrower may elect, if such amounts continue
to be charged or such suspension is still effective, to replace such Affected
Lender as a Lender party to this Agreement, provided that no Default or Unmatured Default shall have occurred and be continuing at the time of such
replacement, and provided further that, concurrently with such replacement, (i)
another bank or other entity which is reasonably satisfactory to the Borrower
and the Agent shall agree, as of such date, to purchase for cash the Advances
and other Obligations due to the Affected Lender pursuant to an assignment
substantially in the form of Exhibit C and to become a Lender for all purposes
under this Agreement and to assume all obligations of the Affected Lender to be
terminated as of such date and to comply with the requirements of Section 12.3
applicable to assignments, and (ii) the Borrower shall pay to such Affected
Lender in same day funds on the day of such replacement (A) all interest, fees
and other amounts then accrued but unpaid to such Affected Lender by the
Borrower hereunder to and including the date of determination, including without
limitation payments due to such Affected Lender under Sections 3.1, 3.2 and 3.5,
and (B) an amount, if any, equal to the payment which would have been due to
such Lender on the day of such replacement under Section 3.4 had the Loans of
such Affected Lender been prepaid on such date rather than sold to the
replacement Lender.
25
Β Β Β
2.22 Increase in Aggregate Commitment. If no Default shall have occurred and be
continuing at such time, the Borrower may, if it so elects, increase the
Aggregate Commitment hereunder, either by designating a Person not theretofore a
Lender and acceptable to the Agent to become a Lender or by agreeing with an
existing Lender that such Lender's Commitment shall be increased. Upon execution
and delivery by the Borrower and such Lender or other Person of an instrument of
assumption in form and amount reasonably satisfactory to the Agent, such
existing Lender shall have a Commitment as therein set forth or such other
Person shall become a Lender with a Commitment as therein set forth and all the
rights and obligations of the Lender with such a Commitment hereunder; provided
that (i) the Borrower shall provide prompt notice of such increase to the Agent,
which shall promptly notify the other Lenders, (ii) the aggregate amount of each
such increase which is effective on any day shall be at least $5,000,000, (iii)
the Aggregate Commitment shall at no time exceed $125,000,000, (iv) the Agent
shall have consented in writing, (v) not more than 2 Aggregate Commitment
increases may be issued in any calendar year, and (vi) a Person becoming a
Lender with a Commitment or a Lender increasing its Commitment, as appropriate,
shall have received any required customary closing conditions, including,
without limitation, the Borrower's authorizing resolutions and opinions of
counsel. Any request received by the Agent from the Borrower to increase the
Aggregate Commitment shall be delivered to each Lender and shall be implemented
by one or more existing Lenders agreeing to increase their Commitments or by a
Person agreeing to become a Lender with a Commitment; provided that no Lender
shall have any obligation to increase its Commitment but each Lender shall have
the right to elect to increase its Commitment in its sole discretion pro rata
with any other one or more Persons agreeing to become a Lender hereunder or by
any combination of the foregoing, as determined by the Agent in consultation
with the Borrower. An increase in the Aggregate Commitment and any amendments to
the Credit Agreement to evidence such increase shall not require the consent of
any Lender not participating in such increase.
Β Β Β
2.23 Amendment and Restatement. This Agreement amends and restates the Credit
Agreement dated December 20, 2002 among the Borrower, the lenders party thereto
and the Agent (the "Prior Credit Agreement"). All Advances and Letters of Credit
outstanding under the Prior Credit Agreement shall constitute Advances and
Letters of Credit under this Agreement and all fees and other obligations
accrued under the Prior Credit Agreement will continue to accrue and be paid
under this Agreement under the terms of this Agreement. The Advances and other
obligations pursuant hereto are issued in exchange and replacement for the
Advances and other obligations under the Prior Credit Agreement, and shall not
be a novation or satisfaction thereof. The Lenders acknowledge and agree that
such transfers of rights and interests under the Loan Documents shall take place
among the Lenders as of the effective date of this Agreement to give effect to
Commitments set forth on the signature pages hereof.
Β Β Β
2.24 Noteless Agreement; Evidence of Indebtedness. (i) Each Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder.
Β Β Β
(ii) The Agent shall also maintain accounts in which it will record (a) the
amount of each Loan made hereunder, the Agreed Currency and Type thereof and the
Interest Period with respect thereto, (b) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder, (c) the original stated amount of each
26
Facility LC and the
amount of LC Obligations outstanding at any time, and (d) the amount of any sum
received by the Agent hereunder from the Borrower and each Lender's share
thereof.
Β Β Β
(iii) The entries maintained in the accounts maintained pursuant to paragraphs (i)
and (ii) above shall be prima facie evidence of the existence and amounts of the
Obligations therein recorded; provided, however, that the failure of the Agent
or any Lender to maintain such accounts or any error therein shall not in any
manner affect the obligation of the Borrower to repay the Obligations in
accordance with their terms.
Β Β Β
(iv) Any Lender may request that its Loans be evidenced by a promissory note or,
in the case of the Swing Line Lender, promissory notes representing its
Revolving Loans and Swing Line Loans, respectively, substantially in the form of
Exhibit A, with appropriate changes for notes evidencing Swing Line Loans (each
a "Note"). In such event, the Borrower shall prepare, execute and deliver to
such Lender such Note or Notes payable to the order of such Lender. Thereafter,
the Loans evidenced by each such Note and interest thereon shall at all times
(prior to any assignment pursuant to Section 12.3) be represented by one or more
Notes payable to the order of the payee named therein, except to the extent that
any such Lender subsequently returns any such Note for cancellation and requests
that such Loans once again be evidenced as described in paragraphs (i) and (ii)
above.
Β Β Β
2.25. Market Disruption. Notwithstanding the satisfaction of all conditions
referred to in Article II and Article IV with respect to any Advance in any
Agreed Currency other than Dollars, if there shall occur on or prior to the date
of such Advance any change in national or international financial, political or
economic conditions or currency exchange rates or exchange controls which would
in the reasonable opinion of the Agent or the Required Lenders make it
impracticable for the Eurocurrency Loans comprising such Advance to be
denominated in the Agreed Currency specified by the Borrower, then the Agent
shall forthwith give notice thereof to the Borrower and the Lenders, and such
Loans shall not be denominated in such Agreed Currency but shall be made on such
Borrowing Date in Dollars, in an aggregate principal amount equal to the Dollar
Amount of the aggregate principal amount specified in the related Borrowing
Notice or Conversion/Continuation Notice, as the case may be, as Floating Rate
Loans, unless the Borrower notifies the Agent at least one Business Day before
such date that (i) it elects not to borrow on such date or (ii) it elects to
borrow on such date in a different Agreed Currency, as the case may be, in which
the denomination of such Loans would in the opinion of the Agent and the
Required Lenders be practicable and in an aggregate principal amount equal to
the Dollar Amount of the aggregate principal amount specified in the related
Borrowing Notice or Conversion/Continuation Notice, as the case may be.
Β Β Β
2.26. Judgment Currency. If for the purposes of obtaining judgment in any court
it is necessary to convert a sum due from the Borrower hereunder in the currency
expressed to be payable herein (the "specified currency") into another currency,
the parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Agent could purchase the specified currency with such
other currency at the Agent's main office on the Business Day preceding that on
which final, non appealable judgment is given. The obligations of the Borrower
in respect of any sum due to any Lender or the Agent hereunder shall,
notwithstanding any judgment in a currency other than the specified currency, be
discharged only to the extent that on the Business Day following receipt by such
Lender or the Agent (as the case may be) of any sum adjudged to be so due in
such other currency such Lender or the Agent (as the case may be) may in
accordance with normal, reasonable banking procedures purchase the specified
currency with such other
27
currency. If the amount of the specified currency so purchased is less than the sum originally due to such Lender or the Agent, as the case may be, in the specified currency, the Borrower agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding any such judgment, to indemnify such Lender or the Agent, as the case may be, against such loss, and if the amount of the specified currency so purchased exceeds (a) the sum originally due to any Lender or the Agent, as the case may be, in the specified currency and (b) any amounts shared with other Lenders as a result of allocations of such excess as a disproportionate payment to such Lender under Section 11.2, such Lender or the Agent, as the case may be, agrees to remit such excess to the Borrower.
ARTICLE III
YIELD PROTECTION; TAXES
Β Β Β
3.1. Yield Protection. If, on or after the date of this Agreement, the adoption
of any law or any governmental or quasi-governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law), or any change
in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation or the LC Issuer with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
Β Β Β
(i) subjects any Lender or any applicable Lending Installation or the LC Issuer
to any Taxes, or changes the basis of taxation of payments (other than with
respect to Excluded Taxes) to any Lender or the LC Issuer in respect of its
Eurocurrency Loans, Facility LCs or participations therein, or
Β Β Β
(ii) imposes or increases or deems applicable any reserve, assessment, insurance
charge, special deposit or similar requirement against assets of, deposits with
or for the account of, or credit extended by, any Lender or any applicable
Lending Installation or the LC Issuer (other than reserves and assessments taken
into account in determining the interest rate applicable to Eurocurrency
Advances), or
Β Β Β
(iii) imposes any other condition the result of which is to increase the cost to
any Lender or any applicable Lending Installation or the LC Issuer of making,
funding or maintaining its Eurocurrency Loans (including, without limitation,
any conversion of any Loan denominated in an Agreed Currency other than Euro
into a Loan denominated in Euro), or of issuing or participating in Facility LCs,
or reduces any amount receivable by any Lender or any applicable Lending
Installation or the LC Issuer in connection with its Eurocurrency Loans,
Facility LCs or participations therein, or requires any Lender or any applicable
Lending Installation or the LC Issuer to make any payment calculated by
reference to the amount of Eurocurrency Loans, Facility LCs or participations
therein held or interest or LC Fees received by it, by an amount deemed material
by such Lender or the LC Issuer as the case may be,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or the LC Issuer, as the case may be, of making
or maintaining its Eurocurrency Loans (including, without limitation, any
conversion of any Loan denominated in an Agreed
28
Currency other than Euro into a
Loan denominated in Euro) or Commitment or of issuing or participating in
Facility LCs or to reduce the return received by such Lender or applicable
Lending Installation or the LC Issuer, as the case may be, in connection with
such Eurocurrency Loans, Commitment, Facility LCs or participations therein,
then, within 15 days of demand by such Lender or the LC Issuer, as the case may
be, the Borrower shall pay such Lender or the LC Issuer, as the case may be,
such additional amount or amounts as will compensate such Lender or the LC
Issuer, as the case may be, for such increased cost or reduction in amount
received.
Β Β Β
3.2. Changes in Capital Adequacy Regulations. If a Lender or the LC Issuer
determines the amount of capital required or expected to be maintained by such
Lender or the LC Issuer, any Lending Installation of such Lender or the LC
Issuer or any corporation controlling such Lender or the LC Issuer is increased
as a result of a Change, then, within 15 days of demand by such Lender or the LC
Issuer, the Borrower shall pay such Lender or the LC Issuer the amount necessary
to compensate for any shortfall in the rate of return on the portion of such
increased capital which such Lender or the LC Issuer determines is attributable
to this Agreement, its Outstanding Credit Exposure or its Commitment to make
Loans and issue or participate in Facility LCs, as the case may be, hereunder
(after taking into account such Lender's or the LC Issuer's policies as to
capital adequacy). "Change" means (i) any change after the date of this
Agreement in the Risk-Based Capital Guidelines or (ii) any adoption of or change
in any other law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of law)
after the date of this Agreement which affects the amount of capital required or
expected to be maintained by any Lender or the LC Issuer or any Lending
Installation or any corporation controlling any Lender or the LC Issuer. "Risk-Based Capital Guidelines" means (i) the risk-based capital guidelines in effect
in the United States on the date of this Agreement, including transition rules,
and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.
Β Β Β
3.3. Availability of Types of Advances. If any Lender determines that
maintenance of its Eurocurrency Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or if the Required Lenders determine that (i) deposits
of a type and maturity appropriate to match fund Eurocurrency Advances are not
available or (ii) the interest rate applicable to Eurocurrency Advances does not
accurately reflect the cost of making or maintaining Eurocurrency Advances, then
the Agent shall suspend the availability of Eurocurrency Advances and require
any affected Eurocurrency Advances to be repaid or converted to Floating Rate
Advances, subject to the payment of any funding indemnification amounts required
by Section 3.4.
Β Β Β
3.4. Funding Indemnification. If any payment of a Eurocurrency Advance occurs on
a date which is not the last day of the applicable Interest Period, whether
because of acceleration, prepayment or otherwise, or a Eurocurrency Advance is
not made on the date specified by the Borrower for any reason other than default
by the Lenders, the Borrower will indemnify each Lender for any loss or cost
incurred by it resulting therefrom, including, without limitation, any loss or
cost in liquidating or employing deposits acquired to fund or maintain such
Eurocurrency Advance.
29
Β Β Β
3.5. Taxes. (i) All payments by the Borrower to or for the account of any
Lender, the LC Issuer or the Agent hereunder or under any Note or Facility LC
Application shall be made free and clear of and without deduction for any and
all Taxes. If the Borrower shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder to any Lender, the LC Issuer or the
Agent, (a) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 3.5) such Lender, the LC Issuer or the Agent (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (b) the Borrower shall make such deductions, (c) the
Borrower shall pay the full amount deducted to the relevant authority in
accordance with applicable law and (d) the Borrower shall furnish to the Agent
the original copy of a receipt evidencing payment thereof within 30 days after
such payment is made.
Β Β Β
(ii) In addition, the Borrower hereby agrees to pay any present or future stamp
or documentary taxes and any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under any Note or Facility
LC Application or from the execution or delivery of, or otherwise with respect
to, this Agreement or any Note or Facility LC Application ("Other Taxes").
Β Β Β
(iii) The Borrower hereby agrees to indemnify the Agent, the LC Issuer and each
Lender for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed on amounts payable under this
Section 3.5) paid by the Agent, the LC Issuer or such Lender as a result of its
Commitment, any Loans made by it hereunder, or otherwise in connection with its
participation in this Agreement and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto. Payments due under this
indemnification shall be made within 30 days of the date the Agent, the LC
Issuer or such Lender makes demand therefor pursuant to Section 3.6.
Β Β Β
(iv) Each Lender that is not incorporated under the laws of the United States of
America or a state thereof (each a "Non-U.S. Lender") agrees that it will, not
more than ten Business Days after the date of this Agreement, (i) deliver to the
Agent two duly completed copies of United States Internal Revenue Service Form
W-8BEN or W-8ECI, certifying in either case that such Lender is entitled to
receive payments under this Agreement without deduction or withholding of any
United States federal income taxes, and (ii) deliver to the Agent a United
States Internal Revenue Form W-8 or W-9, as the case may be, and certify that it
is entitled to an exemption from United States backup withholding tax. Each Non-U.S.
Lender further undertakes to deliver to each of the Borrower and the Agent (x)
renewals or additional copies of such form (or any successor form) on or before
the date that such form expires or becomes obsolete, and (y) after the
occurrence of any event requiring a change in the most recent forms so delivered
by it, such additional forms or amendments thereto as may be reasonably
requested by the Borrower or the Agent. All forms or amendments described in the
preceding sentence shall certify that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes, unless an event (including without limitation any
change in treaty, law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form or amendment with respect to it and such Lender advises
the Borrower and the Agent that it is not capable of receiving payments without
any deduction or withholding of United States federal income tax.
30
Β Β Β
(v) For any period during which a Non-U.S. Lender has failed to provide the
Borrower with an appropriate form pursuant to clause (iv), above (unless such
failure is due to a change in treaty, law or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to indemnification under
this Section 3.5 with respect to Taxes imposed by the United States; provided
that, should a Non-U.S. Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because of its failure
to deliver a form required under clause (iv), above, the Borrower shall take
such steps as such Non-U.S. Lender shall reasonably request to assist such Non-U.S.
Lender to recover such Taxes.
Β Β Β
(vi) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty shall deliver to
the Borrower (with a copy to the Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without withholding or at
a reduced rate.
Β Β Β
(vii) If the U.S. Internal Revenue Service or any other governmental authority
of the United States or any other country or any political subdivision thereof
asserts a claim that the Agent did not properly withhold tax from amounts paid
to or for the account of any Lender (because the appropriate form was not
delivered or properly completed, because such Lender failed to notify the Agent
of a change in circumstances which rendered its exemption from withholding
ineffective, or for any other reason), such Lender shall indemnify the Agent
fully for all amounts paid, directly or indirectly, by the Agent as tax,
withholding therefor, or otherwise, including penalties and interest, and
including taxes imposed by any jurisdiction on amounts payable to the Agent
under this subsection, together with all costs and expenses related thereto
(including attorneys fees and time charges of attorneys for the Agent, which
attorneys may be employees of the Agent). The obligations of the Lenders under
this Section 3.5(vii) shall survive the payment of the Obligations and
termination of this Agreement.
Β Β Β
3.6. Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurocurrency Loans to reduce any liability of the Borrower to
such Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurocurrency Advances under Section 3.3, so long as such designation is not, in
the judgment of such Lender, disadvantageous to such Lender. Each Lender shall
deliver a written statement of such Lender to the Borrower (with a copy to the
Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4 or 3.5. Such
written statement shall set forth in reasonable detail the calculations upon
which such Lender determined such amount and shall be final, conclusive and
binding on the Borrower in the absence of manifest error. Determination of
amounts payable under such Sections in connection with a Eurocurrency Loan shall
be calculated as though each Lender funded its Eurocurrency Loan through the
purchase of a deposit of the type, currency and maturity corresponding to the
deposit used as a reference in determining the Eurocurrency Rate applicable to
such Loan, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement of any Lender shall be
payable on demand after receipt by the Borrower of such written statement. The
obligations of the Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive
payment of the Obligations and termination of this Agreement.
31
ARTICLE IV
CONDITIONS PRECEDENT
Β Β Β
4.1. Initial Credit Extension. The Lenders shall not be required to make the
initial Credit Extension hereunder until satisfaction of the following
conditions precedent:
Β Β Β
(i) The Agent shall have received copies of the articles or certificate of
incorporation of the Borrower and each Guarantor, together with all amendments,
and a certificate of good standing, each certified by the appropriate
governmental officer in its jurisdiction of incorporation, as well as any other
information required by Section 326 of the USA PATRIOT ACT or necessary for the
Agent or any Lender to verify the identity of Borrower as required by Section
326 of the USA PATRIOT Act.
Β Β Β
(ii) The Agent shall have received copies, certified by the Secretary or
Assistant Secretary of the Borrower and each Guarantor, of its by-laws and of
its Board of Directors' resolutions and of resolutions or actions of any other
body authorizing the execution of the Loan Documents to which the Borrower or
such Guarantor, as applicable, is a party.
Β Β Β
(iii) The Agent shall have received an incumbency certificate, executed by the
Secretary or Assistant Secretary of the Borrower and each Guarantor, which shall
identify by name and title and bear the signatures of the Authorized Officers
and any other officers of the Borrower and such Guarantor authorized to sign the
Loan Documents to which the Borrower or such Guarantor is a party, upon which
certificate the Agent and the Lenders shall be entitled to rely until informed
of any change in writing by the Borrower.
Β Β Β
(iv) The Agent shall have received a certificate, signed by the chief financial
officer of the Borrower, stating that on the initial Credit Extension Date no
Default or Unmatured Default has occurred and is continuing.
Β Β Β
(v) The Agent shall have received a written opinion of the Borrower's and the
Guarantors' counsel, addressed to the Lenders, in form and substance acceptable
to the Lenders.
Β Β Β
(vi) Lender shall have received any Note requested by a Lender pursuant to
Section 2.24 payable to the order of each such requesting Lender.
Β Β Β
(vii) The Agent shall have received written money transfer instructions, in
substantially the form of Exhibit D, addressed to the Agent and signed by an
Authorized Officer, together with such other related money transfer
authorizations as the Agent may have reasonably requested.
Β Β Β
(viii) Each of the Loan Documents shall have been duly executed and delivered by
the Borrower and the Guarantors, as applicable, to the Agent.
32
Β Β Β
(ix) The Agent shall have received the original stock certificates of the
pledged securities required by the Collateral Documents, endorsed in blank.
Β Β Β
(x) The Lenders shall have received the Borrower's audited June 30, 2003
financial statements and the Borrower's December 31, 2003 financial statements.
Β Β Β
(xi) The Agent shall have received satisfactory return after search in
accordance with the Uniform Commercial Code or the applicable law in such
governmental offices as the Agent shall have deemed appropriate.
Β Β Β
(xii) The Agent shall have received a compliance certificate, in substantially
the form of Exhibit B, duly completed and executed by the Borrower.
Β Β Β
(xiii) The Agent shall have received a solvency certificate, in the form
prescribed by the Agent, duly executed by the Borrower.
Β Β Β
(xiv) The Agent shall have determined that (i) since March 11, 2004, there is an
absence of any material adverse change or disruption in primary or secondary
loan syndication markets, financial markets or in capital markets generally that
would likely impair syndication of the Loans hereunder and (ii) the Borrower
have fully cooperated with the Agent's syndication efforts including, without
limitation, by providing the Agent with information regarding the Borrower's
operations and prospects and such other information as the Agent deems necessary
to successfully syndicate the Loans hereunder.
Β Β Β
(xv) The Lenders shall have received such other documents as any Lender or its
counsel may have reasonably requested.
Β Β Β
4.2. Each Credit Extension. The Lenders shall not be required to make any Credit
Extension unless on the applicable Credit Extension Date:
Β Β Β
(i) There exists no Default or Unmatured Default.
Β Β Β
(ii) The representations and warranties contained in Article V are true and
correct as of such Credit Extension Date except to the extent any such
representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty shall have been true and correct on
and as of such earlier date.
Β Β Β
(iii) All legal matters incident to the making of such Credit Extension Date
shall be satisfactory to the Lenders and their counsel.
Each Borrowing Notice or request for issuance of a Facility LC with respect to
each such Credit Extension shall constitute a representation and warranty by the
Borrower that the conditions contained in Sections 4.2(i) and (ii) have been
satisfied. Any Lender may require a duly completed compliance certificate in
substantially the form of Exhibit B as a condition to making a Credit Extension.
Β Β Β
4.3. Post-Closing Covenant. Notwithstanding the provisions of Sections 4.1 and
4.2, the Borrower shall have until July 30, 2004 to cause the Collateral
Document applicable to
33
the pledge of capital stock in Xxxxxxx Electronics Poland, Sp. z o.o. to be executed and delivered to the Agent.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Β Β Β
The Borrower represents and warrants to the Lenders that:
Β Β Β
5.1. Existence and Standing. Each of the Borrower and its Subsidiaries is a
corporation, partnership (in the case of Subsidiaries only) or limited liability
company duly and properly incorporated or organized, as the case may be, validly
existing and (to the extent such concept applies to such entity) in good
standing under the laws of its jurisdiction of incorporation or organization and
has all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
Β Β Β
5.2. Authorization and Validity. The Borrower has the power and authority and
legal right to execute and deliver the Loan Documents to which it is a party and
to perform its obligations thereunder. The execution and delivery by the
Borrower of the Loan Documents to which it is a party and the performance of its
obligations thereunder have been duly authorized by proper corporate
proceedings, and the Loan Documents to which the Borrower is a party constitute
legal, valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with their terms, except as enforceability may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally.
Β Β Β
5.3. No Conflict; Government Consent. Neither the execution and delivery by the
Borrower of the Loan Documents to which it is a party, nor the consummation of
the transactions therein contemplated, nor compliance with the provisions
thereof will violate (i) any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the Borrower or any of its Subsidiaries
or (ii) the Borrower's or any Subsidiary's articles or certificate of
incorporation, partnership agreement, certificate of partnership, articles or
certificate of organization, by-laws, or operating or other management
agreement, as the case may be, or (iii) the provisions of any indenture,
instrument or agreement to which the Borrower or any of its Subsidiaries is a
party or is subject, or by which it, or its Property, is bound, or conflict with
or constitute a default thereunder, or result in, or require, the creation or
imposition of any Lien in, of or on the Property of the Borrower or a Subsidiary
pursuant to the terms of any such indenture, instrument or agreement. No order,
consent, adjudication, approval, license, authorization, or validation of, or
filing, recording or registration with, or exemption by, or other action in
respect of any governmental or public body or authority, or any subdivision
thereof, which has not been obtained by the Borrower or any of its Subsidiaries,
is required to be obtained by the Borrower or any of its Subsidiaries in
connection with the execution and delivery of the Loan Documents, the borrowings
under this Agreement, the payment and performance by the Borrower of the
Obligations or the legality, validity, binding effect or enforceability of any
of the Loan Documents.
Β Β Β
5.4. Financial Statements. The June 30, 2003 and December 31, 2003 consolidated
financial statements of the Borrower and its Subsidiaries heretofore delivered
to the Lenders were prepared in accordance with generally accepted accounting
principles in effect on the date
34
such statements were prepared and fairly
present the consolidated financial condition and operations of the Borrower and
its Subsidiaries at such date and the consolidated results of their operations
for the period then ended.
Β Β Β
5.5. Material Adverse Change. Since June 30, 2003 there has been no change in
the business, Property, prospects, condition (financial or otherwise) or results
of operations of the Borrower and its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect.
Β Β Β
5.6. Taxes. The Borrower and its Subsidiaries have filed all United States
federal tax returns and all other tax returns which are required to be filed and
have paid all taxes due pursuant to said returns or pursuant to any assessment
received by the Borrower or any of its Subsidiaries, except such taxes, if any,
as are being contested in good faith and as to which adequate reserves have been
provided in accordance with GAAP and as to which no Lien exists. The United
States income tax returns of the Borrower and its Subsidiaries have been audited
by the Internal Revenue Service through the fiscal year ended June 30, 2001. No
tax liens have been filed and no claims are being asserted with respect to any
such taxes. The charges, accruals and reserves on the books of the Borrower and
its Subsidiaries in respect of any taxes or other governmental charges are
adequate.
Β Β Β
5.7. Litigation and Contingent Obligations. Except as set forth on Schedule 5.7,
there is no litigation, arbitration, governmental investigation, proceeding or
inquiry pending or, to the knowledge of any of their officers, threatened
against or affecting the Borrower or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect or which seeks to
prevent, enjoin or delay the making of any Credit Extensions. Other than any
liability incident to any litigation, arbitration or proceeding which (i) could
not reasonably be expected to have a Material Adverse Effect or (ii) is set
forth on Schedule 5.7, the Borrower has no material contingent obligations not
provided for or disclosed in the financial statements referred to in Section
5.4.
Β Β Β
5.8. Subsidiaries. Schedule 5.8 contains an accurate list of all Subsidiaries of
the Borrower as of the date of this Agreement, setting forth their respective
jurisdictions of organization and the percentage of their respective capital
stock or other ownership interests owned by the Borrower or other Subsidiaries.
All of the issued and outstanding shares of capital stock or other ownership
interests of such Subsidiaries have been (to the extent such concepts are
relevant with respect to such ownership interests) duly authorized and issued
and are fully paid and non-assessable.
Β Β Β
5.9. ERISA. The Unfunded Liabilities of all Single Employer Plans do not in the
aggregate exceed $10,000,000. Neither the Borrower nor any other member of the
Controlled Group has incurred, or is reasonably expected to incur, any
withdrawal liability to Multiemployer Plans in excess of $10,000,000 in the
aggregate. Each Plan complies in all material respects with all applicable
requirements of law and regulations, no Reportable Event has occurred with
respect to any Plan, neither the Borrower nor any other member of the Controlled
Group has withdrawn from any Plan or initiated steps to do so, and no steps have
been taken to reorganize or terminate any Plan.
Β Β Β
5.10. Accuracy of Information. No information, exhibit or report furnished by
the Borrower or any of its Subsidiaries to the Agent or to any Lender in
connection with the negotiation of, or compliance with, the Loan Documents
contained any material misstatement of
35
fact or omitted to state a material fact
or any fact necessary to make the statements contained therein not misleading.
Β Β Β
5.11. Regulation U. Margin stock (as defined in Regulation U) constitutes less
than 25% of the value of those assets of the Borrower and its Subsidiaries which
are subject to any limitation on sale, pledge, or other restriction hereunder.
Β Β Β
5.12. Material Agreements. Neither the Borrower nor any Subsidiary is a party to
any agreement or instrument or subject to any charter or other corporate
restriction which could reasonably be expected to have a Material Adverse
Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect or (ii) any
agreement or instrument evidencing or governing Indebtedness.
Β Β Β
5.13. Compliance With Laws. The Borrower and its Subsidiaries have complied with
all applicable statutes, rules, regulations, orders and restrictions of any
domestic or foreign government or any instrumentality or agency thereof having
jurisdiction over the conduct of their respective businesses or the ownership of
their respective Property except for any failure to comply with any of the
foregoing which could not reasonably be expected to have a Material Adverse
Effect.
Β Β Β
5.14. Ownership of Properties. Except as set forth on Schedule 5.14, on the date
of this Agreement, the Borrower and its Subsidiaries will have good title, free
of all Liens other than those permitted by Section 6.14, to all of the Property
and assets reflected in the Borrower's most recent consolidated financial
statements provided to the Agent as owned by the Borrower and its Subsidiaries.
Β Β Β
5.15. Plan Assets; Prohibited Transactions. The Borrower is not an entity deemed
to hold "plan assets" within the meaning of 29 C.F.R. Β§ 2510.3-101 of an
employee benefit plan (as defined in Section 3(3) of ERISA) which is subject to
Title I of ERISA or any plan (within the meaning of Section 4975 of the Code),
and neither the execution of this Agreement nor the making of Credit Extensions
hereunder gives rise to a prohibited transaction within the meaning of Section
406 of ERISA or Section 4975 of the Code.
Β Β Β
5.16. Environmental Matters. In the ordinary course of its business, the
officers of the Borrower consider the effect of Environmental Laws on the
business of the Borrower and its Subsidiaries, in the course of which they
identify and evaluate potential risks and liabilities accruing to the Borrower
due to Environmental Laws. On the basis of this consideration, the Borrower has
concluded that Environmental Laws cannot reasonably be expected to have a
Material Adverse Effect. Neither the Borrower nor any Subsidiary has received
any notice to the effect that its operations are not in material compliance with
any of the requirements of applicable Environmental Laws or are the subject of
any federal or state investigation evaluating whether any remedial action is
needed to respond to a release of any toxic or hazardous waste or substance into
the environment, which non-compliance or remedial action could reasonably be
expected to have a Material Adverse Effect.
Β Β Β
5.17. Investment Company Act. Neither the Borrower nor any Subsidiary is an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
36
Β Β Β 5.18. Public Utility Holding Company Act. Neither the Borrower nor any Subsidiary 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, as amended.
Β Β Β 5.19. Post-Retirement Benefits. The present value of the expected cost of post-retirement medical and insurance benefits payable by the Borrower and its Subsidiaries to its employees and former employees, as estimated by the Borrower in accordance with procedures and assumptions deemed reasonable by the Required Lenders, does not exceed $7,500,000.
ARTICLE VI
COVENANTS
Β Β Β
During the term of this Agreement, unless the Required Lenders shall otherwise
consent in writing:
Β Β Β
6.1. Financial Reporting. The Borrower will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance
with generally accepted accounting principles, and furnish to the Lenders:
Β Β Β
(i) Within 90 days after the close of each of its fiscal years, an unqualified
audit report certified by Deloitte & Touche, Ernst & Young, KPMG or
PricewaterhouseCoopers (and their respective successors) or other independent
certified public accountants reasonably acceptable to the Lenders, prepared in
accordance with GAAP on a consolidated basis for itself and its Subsidiaries,
including balance sheets as of the end of such period, related profit and loss
and reconciliation of surplus statements, and a statement of cash flows,
accompanied by any management letter prepared by said accountants.
Β Β Β
(ii) Within 45 days after the close of the first three quarterly periods of each
of its fiscal years, for itself and its Subsidiaries, consolidated unaudited
balance sheets as at the close of each such period and consolidated profit and
loss and reconciliation of surplus statements and a statement of cash flows for
the period from the beginning of such fiscal year to the end of such quarter,
all certified by its chief financial officer.
Β Β Β
(iii) Together with the financial statements required under Sections 6.1(i) and
(ii), a compliance certificate in substantially the form of Exhibit B signed by
its chief financial officer showing the calculations necessary to determine
compliance with this Agreement and stating that no Default or Unmatured Default
exists, or if any Default or Unmatured Default exists, stating the nature and
status thereof.
Β Β Β
(iv) With respect to each Single Employer Plan in existence, within 270 days
after the close of each fiscal year, a statement of the Unfunded Liabilities of
each such Single Employer Plan, certified as correct by an actuary enrolled
under ERISA.
37
Β Β Β
(v) As soon as possible and in any event within 10 days after the Borrower knows
that any Reportable Event has occurred with respect to any Plan, a statement,
signed by the chief financial officer of the Borrower, describing said
Reportable Event and the action which the Borrower proposes to take with respect
thereto.
Β Β Β
(vi) As soon as possible and in any event within 10 days after receipt by the
Borrower, a copy of (a) any notice or claim to the effect that the Borrower or
any of its Subsidiaries is or may be liable to any Person as a result of the
release by the Borrower, any of its Subsidiaries, or any other Person of any
toxic or hazardous waste or substance into the environment, and (b) any notice
alleging any violation of any federal, state or local environmental, health or
safety law or regulation by the Borrower or any of its Subsidiaries, which, in
either case, could reasonably be expected to have a Material Adverse Effect.
Β Β Β
(vii) Promptly upon the furnishing thereof to the shareholders of the Borrower,
copies of all financial statements, reports and proxy statements so furnished.
Β Β Β
(viii) Promptly upon the filing thereof, copies of all registration statements
and annual, quarterly, monthly or other regular reports which the Borrower or
any of its Subsidiaries files with the Securities and Exchange Commission.
Β Β Β
(ix) Such other information (including non-financial information) as the Agent
or any Lender may from time to time reasonably request.
Β Β Β
If any information which is required to be furnished to the Lenders under this
Section 6.1 is required by law or regulation to be filed by the Borrower with a
government body on an earlier date, then the information required hereunder
shall be furnished to the Lenders at such earlier date.
Β Β Β
6.2. Use of Proceeds. The Borrower will, and will cause each Subsidiary to, use
the proceeds of the Credit Extensions for general corporate purposes, including
acquisitions. The Borrower will not, nor will it permit any Subsidiary to, use
any of the proceeds of the Advances to purchase or carry any "margin stock" (as
defined in Regulation U).
Β Β Β
6.3. Notice of Default. The Borrower will, and will cause each Subsidiary to,
give prompt notice in writing to the Lenders of the occurrence of any Default or Unmatured Default and of any other development, financial or otherwise, which
could reasonably be expected to have a Material Adverse Effect.
Β Β Β
6.4. Conduct of Business. The Borrower will, and will cause each Subsidiary to,
carry on and conduct its business in substantially the same manner, including
through permitted joint venture Investments, and in substantially the same
fields of enterprise as it is presently conducted and do all things necessary to
remain duly incorporated or organized, validly existing and (to the extent such
concept applies to such entity) in good standing as a corporation, partnership
or limited liability company in its jurisdiction of incorporation or
organization, as the case may be, and maintain all requisite authority to
conduct its business in each jurisdiction in which its business is conducted.
38
Β Β Β
6.5. Taxes. The Borrower will, and will cause each Subsidiary to, timely file
complete and correct United States federal and applicable foreign, state and
local tax returns required by law and pay when due all taxes, assessments and
governmental charges and levies upon it or its income, profits or Property,
except those which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves have been set aside in accordance
with GAAP.
Β Β Β
6.6. Insurance. The Borrower will, and will cause each Subsidiary to, maintain
with financially sound and reputable insurance companies insurance on
substantially all their Property in such amounts and covering such risks as is
consistent with sound business practice, and the Borrower will furnish to any
Lender upon request full information as to the insurance carried.
Β Β Β
6.7. Compliance with Laws. The Borrower will, and will cause each Subsidiary to,
materially comply with all laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject including, without
limitation, all Environmental Laws.
Β Β Β
6.8. Maintenance of Properties. The Borrower will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition, and make all necessary
and proper repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times, provided that the
Borrower may discontinue operations in the ordinary course of business.
Β Β Β
6.9. Inspection. The Borrower will, and will cause each Subsidiary to, permit
the Agent and the Lenders, by their respective representatives and agents, to
inspect any of the Property, books and financial records of the Borrower and
each Subsidiary, to examine and make copies of the books of accounts and other
financial records of the Borrower and each Subsidiary, and to discuss the
affairs, finances and accounts of the Borrower and each Subsidiary with, and to
be advised as to the same by, their respective officers at such reasonable times
and intervals as the Agent or any Lender may designate.
Β Β Β
6.10. Indebtedness. The Borrower will not, nor will it permit any Subsidiary to,
create, incur or suffer to exist any Indebtedness, except:
Β Β Β
(i) The Loans and the Reimbursement Obligations, including Loans made hereunder
pursuant to any increase in the Aggregate Commitment in accordance with Section
2.22.
Β Β Β
(ii) Indebtedness existing on the date hereof and described in Schedule 6.10.
Β Β Β
(iii) Indebtedness owed to the Borrower by a Guarantor or by a non-U.S.
Subsidiary, of which the Borrower has granted a first priority pledge of 65% of
such non-U.S. Subsidiary's capital stock to the Agent pursuant to the Collateral
Documents.
Β Β Β
(iv) Other Indebtedness of the Borrower outstanding at any time not exceeding
the sum of (a) $100,000,000, minus (b) the then outstanding principal balance of
Indebtedness permitted under Section 6.10(v).
39
Β Β Β
(v) Other Indebtedness of the Borrower's Subsidiaries not exceeding in the
aggregate outstanding at any time an amount equal to 15% of Borrower's
Consolidated Net Worth.
Β Β Β
6.11. Merger. The Borrower will not, nor will it permit any Subsidiary to, merge
or consolidate with or into any other Person, except that a Subsidiary may merge
into the Borrower or a Wholly-Owned Subsidiary and except as provided in
Sections 6.13(v) and (vi).
Β Β Β
6.12. Sale of Assets. The Borrower will not, nor will it permit any Subsidiary
to, lease, sell or otherwise dispose of its Property to any other Person,
except:
Β Β Β
(i) Sales of inventory in the ordinary course of business.
Β Β Β
(ii) Leases, sales or other dispositions of its Property that, together with all
other Property of the Borrower and its Subsidiaries previously leased, sold or
disposed of (other than inventory in the ordinary course of business) as
permitted by this Section during the period commencing on the date of this
Agreement and ending with the month in which any such lease, sale or other
disposition occurs, do not constitute a Substantial Portion of the Property of
the Borrower and its Subsidiaries.
Β Β Β
(iii) Any transfer of an interest in accounts or notes receivable on a limited
recourse basis, provided that such transfer qualifies as a sale under GAAP and
that the amount of such financing does not exceed $100,000,000 at any one time
outstanding.
Β Β Β
(iv) As described in Schedule 6.12.
Β Β Β
6.13. Investments and Acquisitions. The Borrower will not, nor will it permit
any Subsidiary to, make or suffer to exist any Investments (including without
limitation, loans and advances to, and other Investments in, Subsidiaries), or
commitments therefor, or to create any Subsidiary or to become or remain a
partner in any partnership or joint venture, or to make any Acquisition of any
Person, except:
Β Β Β
(i) Cash Equivalent Investments.
Β Β Β
(ii) Existing Investments in Subsidiaries and other Investments in existence on
the date hereof and described in Schedule 6.13.
Β Β Β
(iii) Investments by the Borrower in and to the Guarantors, and Investments by
the Borrower in and to non-U.S. Subsidiaries, of which the Borrower has granted
a first priority pledge of 65% of such non-U.S. Subsidiary's capital stock to
the Agent pursuant to the Collateral Documents.
Β Β Β
(iv) Other Investments by the Borrower not exceeding $25,000,000 in the
aggregate outstanding at any time.
Β Β Β
(v) Acquisitions by the Borrower or a Subsidiary of the Borrower on the
conditions that: (a) in the event of a merger, the Borrower or the Subsidiary is
the legal surviving corporation; (b) no Default or Unmatured Default has
occurred and is
40
continuing at the time of such Acquisition or will result or
occur after the consummation of such Acquisition; (c) the entity or business
acquired is substantially in the same field or enterprise as presently conducted
by the Borrower or its Subsidiaries; and (d) the aggregate amount of
consideration (including, without limitation, all direct payments, all earnout
and other deferred payments, and all Indebtedness assumed or incurred and any
other form of consideration) paid or payable for such Acquisition or Investment
does not exceed in the aggregate an amount equal to $25,000,000.
Β Β Β
(vi) Acquisitions by the Borrower or a Subsidiary of the Borrower having an
aggregate amount of consideration (including, without limitation, all direct
payments, all earnout and other deferred payments, and all Indebtedness assumed
or incurred and any other form of consideration) paid or payable for such
Acquisition in excess of $25,000,000 but less than $100,000,000 on the
conditions that: (a) in the event of a merger, the Borrower or the Subsidiary is
the legal surviving corporation; (b) no Default or Unmatured Default has
occurred and is continuing at the time of such Acquisition or will result or
occur after the consummation of such Acquisition; (c) the Agent receives prior
notice of all material details of such Acquisition or Investment, and the entity
or business acquired is substantially in the same field or enterprise as
presently conducted by the Borrower or its Subsidiaries; (d) the Borrower
provides satisfactory written evidence to the Agent that the Borrower's ratio of
Consolidated Indebtedness to Consolidated EBITDA, calculated on a pro forma
basis for the prior 12 month period giving effect to the consummation of such
Acquisition, is less than 2.25 to 1.0; and (e)Β the Agent receives satisfactory
evidence that the board of directors of the target entity, in the case of a
corporation, or the members or managers (as applicable) of the target entity, in
the case of a limited liability company, have approved the subject Acquisition.
Β Β Β
(vii) Other Acquisitions and Investments approved in writing by the Required
Lenders.
Β Β Β
6.14. Liens. The Borrower will not, nor will it permit any Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Property of the
Borrower or any of its Subsidiaries, except:
Β Β Β
(i) Liens for taxes, assessments or governmental charges or levies on its
Property if the same shall not at the time be delinquent or thereafter can be
paid without penalty, or are being contested in good faith and by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books.
Β Β Β
(ii) Liens imposed by law, such as carriers', warehousemen's and mechanics'
liens and other similar liens arising in the ordinary course of business which
secure payment of obligations not more than 60 days past due or which are being
contested in good faith by appropriate proceedings and for which adequate
reserves shall have been set aside on its books.
Β Β Β
(iii) Liens arising out of pledges or deposits under worker's compensation laws,
unemployment insurance, old age pensions, or other social security or retirement
benefits, or similar legislation.
41
Β Β Β
(iv) Utility easements, building restrictions and such other encumbrances or
charges against real property as are of a nature generally existing with respect
to properties of a similar character and which do not in any material way affect
the marketability of the same or interfere with the use thereof in the business
of the Borrower or its Subsidiaries.
Β Β Β
(v) Liens on Property of the Borrower or any of its Subsidiaries created solely
for the purpose of securing purchase money Indebtedness and Capitalized Lease
Obligations in an aggregate principal amount not to exceed 10% of the Borrower's
total assets at any one time outstanding, representing or incurred to finance,
refinance or refund the purchase price of the Property, provided that no such
Liens shall extend to or cover other Property of the Borrower or such Subsidiary
so acquired, and the principal amount of Indebtedness secured by such Lien shall
at not time exceed the original purchase price of the Property.
Β Β Β
(vi) Liens existing on the date hereof and described in Schedule 6.14 and future
Liens, provided that the aggregate Indebtedness securing such existing and
future Liens does not exceed $10,000,000 in the aggregate outstanding at any
time.
Β Β Β
(vii) Liens in favor of the Agent, for the benefit of the Lenders, granted
pursuant to any Collateral Document.
Β Β Β
6.15. Affiliates. The Borrower will not, and will not permit any Subsidiary to,
enter into any transaction (including, without limitation, the purchase or sale
of any Property or service) with, or make any payment or transfer to, any
Affiliate except in the ordinary course of business and pursuant to the
reasonable requirements of the Borrower's or such Subsidiary's business and upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary
than the Borrower or such Subsidiary would obtain in a comparable arms-length
transaction.
Β Β Β
6.16. Rate Management Obligations. The Borrower will not, nor will it permit any
Subsidiary to, incur Rate Management Obligations, other than Rate Management
Obligations incurred in connection with interest rate, foreign currency or
commodity exchange, swap, collar, cap or similar agreements entered into by the
Borrower or any Subsidiary pursuant to which the Borrower or such Subsidiary has
hedged its reasonably estimated interest rate, foreign currency or commodity
exposure.
Β Β Β
6.17. Addition of Guarantors; Addition of Pledged Stock. Borrower will cause
each new Subsidiary (other than a Subsidiary organized or incorporated outside
the United States of America), whether hereafter created or acquired by Borrower
or a Subsidiary pursuant to Section 6.13, to execute and deliver to the Agent a
Guaranty. Such Guaranty shall be executed and delivered within thirty (30) days
of the initial capitalization or Acquisition of such Subsidiary but in any event
not later than the date Borrower obtains an Advance hereunder to be used in
connection with, or related to, such capitalization or Acquisition or otherwise
used in connection with such new Subsidiary's business. With delivery to the
Agent of such Guaranty, Borrower shall also furnish, or cause to be furnished,
to the Agent (a) copies of the certificate or articles of incorporation of such
Guarantor, together with all amendments, and a certificate of good standing or
existence, both certified by the appropriate governmental officer in its
jurisdiction of incorporation; (b) copies, certified by the Secretary or
Assistant Secretary of such Guarantor, of its by-laws and of its Board of
Directors' resolutions (and resolutions of other bodies, if any are
42
reasonably
deemed necessary by counsel for any Lender) authorizing the execution of the
Guaranty; (c) an incumbency certificate, executed by the Secretary or Assistant
Secretary of such Guarantor, which shall identify by name and title and bear the
signature of the officers of such Guarantor authorized to sign the Guaranty; and
(d) a favorable written opinion of such Guarantor's counsel, addressed to the
Agent in a form acceptable to the Agent, opining (i) as to such Guarantor's
existence, (ii) as to such Guarantor's authorization to execute the Guaranty,
(iii) as to the enforceability of the Guaranty, and (iv) that the execution and
performance of the Guaranty will not conflict with or result in a breach under
any material contract, indenture, instrument or other agreement by which such
Guarantor is bound or to which it is party. Simultaneously with the Borrower's
Acquisition or capitalization of a non-U.S. Subsidiary, the Borrower shall (or,
if the capital stock of such Subsidiary is owned by another Subsidiary, shall
cause such other Subsidiary to) deliver to the Agent an executed supplement to
the existing Collateral Document or a new stock pledge agreement, together with
appropriate corporate resolutions, stock certificates, UCC filings or amendments
and other documentation, in each case in form and substance reasonably
satisfactory to the Agent and the Agent shall be reasonably satisfied that the
Agent has a first priority perfected pledge of 65% of the capital stock of such
non-U.S. Subsidiary owned by the Borrower and its Subsidiaries.
Β Β Β
6.18. Financial Covenants.
Β Β Β Β Β Β Β
6.18.1. Interest Coverage Ratio. The Borrower will not permit the ratio,
determined as of the end of each of its fiscal quarters for the then
most-recently ended four fiscal quarters, of (i) Consolidated EBIT to (ii)
Consolidated Interest Expense to be less than 3.0 to 1.0.
Β Β Β Β Β Β Β
6.18.2. Minimum Net Worth. The Borrower will at all times maintain Consolidated
Net Worth of not less than $387,000,000.
ARTICLE VII
DEFAULTS
Β Β Β
The occurrence of any one or more of the following events shall constitute a
Default:
Β Β Β
7.1. Any representation or warranty made or deemed made by or on behalf of the
Borrower or any of its Subsidiaries to the Lenders or the Agent under or in
connection with this Agreement, any Credit Extension, or any certificate or
information delivered in connection with this Agreement or any other Loan
Document shall be materially false on the date as of which made.
Β Β Β
7.2. Nonpayment of principal of any Loan when due, nonpayment of any
Reimbursement Obligation within one Business Day after the same becomes due, or
nonpayment of interest upon any Loan or of any commitment fee, LC Fee or other
obligations under any of the Loan Documents within five days after the same
becomes due.
Β Β Β
7.3. The breach by the Borrower of any of the terms or provisions of Section
6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16 or 6.18.
43
Β Β Β
7.4. The breach by the Borrower (other than a breach which constitutes a Default
under another Section of this Article VII) of any of the terms or provisions of
this Agreement which is not remedied within five days after written notice from
the Agent or any Lender.
Β Β Β
7.5. Failure of the Borrower or any of its Subsidiaries to pay when due any
Material Indebtedness; or the default by the Borrower or any of its Subsidiaries
in the performance (beyond the applicable grace period with respect thereto, if
any) of any term, provision or condition contained in any Material Indebtedness
Agreement, or any other event shall occur or condition exist, the effect of
which default, event or condition is to cause, or to permit the holder(s) of
such Material Indebtedness or the lender(s) under any Material Indebtedness
Agreement to cause, such Material Indebtedness to become due prior to its stated
maturity or any commitment to lend under any Material Indebtedness Agreement to
be terminated prior to its stated expiration date; or any Material Indebtedness
of the Borrower or any of its Subsidiaries shall be declared to be due and
payable or required to be prepaid or repurchased (other than by a regularly
scheduled payment) prior to the stated maturity thereof; or the Borrower or any
of its Subsidiaries shall not pay, or admit in writing its inability to pay, its
debts generally as they become due.
Β Β Β
7.6. The Borrower or any of its Subsidiaries shall (i) have an order for relief
entered with respect to it under the Federal bankruptcy laws as now or hereafter
in effect, (ii) make an assignment for the benefit of creditors, (iii) apply
for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
Substantial Portion of its Property, (iv) institute any proceeding seeking an
order for relief under the Federal bankruptcy laws as now or hereafter in effect
or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (v)
take any corporate or partnership action to authorize or effect any of the
foregoing actions set forth in this Section 7.6 or (vi) fail to contest in good
faith any appointment or proceeding described in Section 7.7.
Β Β Β
7.7. Without the application, approval or consent of the Borrower or any of its
Subsidiaries, a receiver, trustee, examiner, liquidator or similar official
shall be appointed for the Borrower or any of its Subsidiaries or any
Substantial Portion of its Property, or a proceeding described in Section
7.6(iv) shall be instituted against the Borrower or any of its Subsidiaries and
such appointment continues undischarged or such proceeding continues undismissed
or unstayed for a period of 30 consecutive days.
Β Β Β
7.8. Any court, government or governmental agency shall condemn, seize or
otherwise appropriate, or take custody or control of, all or any portion of the
Property of the Borrower and its Subsidiaries which, when taken together with
all other Property of the Borrower and its Subsidiaries so condemned, seized,
appropriated, or taken custody or control of, during the period commencing on
the date of this Agreement and ending with the month in which any such action
occurs, constitutes a Substantial Portion.
Β Β Β
7.9. The Borrower or any of its Subsidiaries shall fail within 30 days to pay,
bond or otherwise discharge one or more (i) judgments or orders for the payment
of money in excess of $10,000,000 (or the equivalent thereof in currencies other
than U.S. Dollars) in the aggregate, or (ii) nonmonetary judgments or orders
which, individually or in the aggregate, could reasonably
44
be expected to have a
Material Adverse Effect, which judgment(s), in any such case, is/are not stayed
on appeal or otherwise being appropriately contested in good faith.
Β Β Β
7.10. The Unfunded Liabilities of all Single Employer Plans shall exceed in the
aggregate $10,000,000 or any Reportable Event shall occur in connection with any
Plan.
Β Β Β
7.11. Nonpayment by the Borrower or any Subsidiary of any Rate Management
Obligation within five days after the same becomes due.
Β Β Β
7.12. Any Change in Control shall occur.
Β Β Β
7.13. The Borrower or any other member of the Controlled Group shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred withdrawal
liability to such Multiemployer Plan in an amount which, when aggregated with
all other amounts required to be paid to Multiemployer Plans by the Borrower or
any other member of the Controlled Group as withdrawal liability (determined as
of the date of such notification), exceeds $10,000,000 or requires payments
exceeding $5,000,000 per annum.
Β Β Β
7.14. The Borrower or any other member of the Controlled Group shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or is being terminated, within the meaning of Title IV of
ERISA, if as a result of such reorganization or termination the aggregate annual
contributions of the Borrower and the other members of the Controlled Group
(taken as a whole) to all Multiemployer Plans which are then in reorganization
or being terminated have been or will be increased over the amounts contributed
to such Multiemployer Plans for the respective plan years of each such
Multiemployer Plan immediately preceding the plan year in which the
reorganization or termination occurs by an amount exceeding $10,000,000.
Β Β Β
7.15. The Borrower or any of its Subsidiaries shall (i) be the subject of any
proceeding or investigation pertaining to the release by the Borrower, any of
its Subsidiaries or any other Person of any toxic or hazardous waste or
substance into the environment, or (ii) violate any Environmental Law, which, in
the case of an event described in clause (i) or clause (ii), could reasonably be
expected to have a Material Adverse Effect.
Β Β Β
7.16. The occurrence of any "default", as defined in any Loan Document (other
than this Agreement) or the breach of any of the terms or provisions of any Loan
Document (other than this Agreement), which default or breach continues beyond
any period of grace therein provided.
Β Β Β
7.17. Any Guaranty shall fail to remain in full force or effect or any action
shall be taken to discontinue or to assert the invalidity or unenforceability of
any Guaranty, or any Guarantor shall fail to comply with any of the terms or
provisions of any Guaranty to which it is a party, or any Guarantor shall deny
that it has any further liability under any Guaranty to which it is a party, or
shall give notice to such effect.
Β Β Β
7.18. Any Collateral Document shall for any reason fail to create a valid and
perfected first priority security interest in any collateral purported to be
covered thereby, except as permitted by the terms of any Collateral Document, or
any Collateral Document shall fail to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Collateral Document, or the Borrower shall fail to
comply with any of the terms or provisions of any Collateral Document.
45
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
Β Β Β
8.1. Acceleration; Facility LC Collateral Account. (i) If any Default described
in Section 7.6 or 7.7 occurs with respect to the Borrower, the obligations of
the Lenders to make Loans hereunder and the obligation and power of the LC
Issuer to issue Facility LCs shall automatically terminate and the Obligations
shall immediately become due and payable without any election or action on the
part of the Agent, the LC Issuer or any Lender and the Borrower will be and
become thereby unconditionally obligated, without any further notice, act or
demand, to pay to the Agent an amount in immediately available funds, which
funds shall be held in the Facility LC Collateral Account, equal to the
difference of (x) the amount of LC Obligations at such time, less (y) the amount
on deposit in the Facility LC Collateral Account at such time which is free and
clear of all rights and claims of third parties and has not been applied against
the Obligations (such difference, the "Collateral Shortfall Amount"). If any
other Default occurs, the Required Lenders (or the Agent with the consent of the
Required Lenders) may (a) terminate or suspend the obligations of the Lenders to
make Loans hereunder and the obligation and power of the LC Issuer to issue
Facility LCs, or declare the Obligations to be due and payable, or both,
whereupon the Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which the Borrower
hereby expressly waives, and (b) upon notice to the Borrower and in addition to
the continuing right to demand payment of all amounts payable under this
Agreement, make demand on the Borrower to pay, and the Borrower will, forthwith
upon such demand and without any further notice or act, pay to the Agent the
Collateral Shortfall Amount, which funds shall be deposited in the Facility LC
Collateral Account.
Β Β Β
(ii) If at any time while any Default is continuing, the Agent determines that
the Collateral Shortfall Amount at such time is greater than zero, the Agent may
make demand on the Borrower to pay, and the Borrower will, forthwith upon such
demand and without any further notice or act, pay to the Agent the Collateral
Shortfall Amount, which funds shall be deposited in the Facility LC Collateral
Account.
Β Β Β
(iii) The Agent may at any time or from time to time after funds are deposited
in the Facility LC Collateral Account, apply such funds to the payment of the
Obligations and any other amounts as shall from time to time have become due and
payable by the Borrower to the Lenders or the LC Issuer under the Loan
Documents.
Β Β Β
(iv) At any time while any Default is continuing, neither the Borrower nor any
Person claiming on behalf of or through the Borrower shall have any right to
withdraw any of the funds held in the Facility LC Collateral Account. After all
of the Obligations have been indefeasibly paid in full and the Aggregate
Commitment has been terminated, any funds remaining in the Facility LC
Collateral Account shall be returned by the Agent to the Borrower or paid to
whomever may be legally entitled thereto at such time.
Β Β Β
(v) If, within 30 days after acceleration of the maturity of the Obligations or
termination of the obligations of the Lenders to make Loans and the obligations
and power of the LC Issuer to issue Facility LCs hereunder as a result of any
Default (other than any Default as described in Section 7.6 or 7.7 with respect
to the Borrower) and before any judgment or decree for the payment of the
Obligations due shall have been obtained or entered, the Required Lenders (in
46
their sole discretion) shall so direct, the Agent shall, by notice to the
Borrower, rescind and annul such acceleration and/or termination.
Β Β Β
8.2. Amendments. Subject to the provisions of this Section 8.2, the Required
Lenders (or the Agent with the consent in writing of the Required Lenders) and
the Borrower may enter into agreements supplemental hereto for the purpose of
adding or modifying any provisions to the Loan Documents or changing in any
manner the rights of the Lenders or the Borrower hereunder or waiving any
Default hereunder; provided, however, that no such supplemental agreement shall,
without the consent of all of the Lenders:
Β Β Β
(i) Extend the final maturity of any Loan, or extend the expiry date of any
Facility LC to a date after the Facility Termination Date or forgive all or any
portion of the principal amount thereof or any Reimbursement Obligation related
thereto, or reduce the rate or extend the time of payment of interest or fees
thereon or Reimbursement Obligations related thereto.
Β Β Β
(ii) Reduce the percentage specified in the definition of Required Lenders.
Β Β Β
(iii) Extend the Facility Termination Date, or reduce the amount or extend the
payment date for, the mandatory payments required under Section 2.2, or permit
the Borrower to assign its rights under this Agreement.
Β Β Β
(iv) Except as provided in Section 2.22, increase the amount of the Aggregate
Commitment, the Commitment of any Lender hereunder or the commitment to issue
Facility LCs.
Β Β Β
(v) Amend this Section 8.2.
Β Β Β
(vi) Release any guarantor of any Advance or, except as provided in the
Collateral Documents, release all or substantially all of the Collateral.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent, and no amendment of any
provision relating to the LC Issuer shall be effective without the written
consent of the LC Issuer. The Agent may waive payment of the fee required under
Section 12.3.2 without obtaining the consent of any other party to this
Agreement.
Β Β Β
8.3. Preservation of Rights. No delay or omission of the Lenders, the LC Issuer
or the Agent to exercise any right under the Loan Documents shall impair such
right or be construed to be a waiver of any Default or an acquiescence therein,
and the making of a Credit Extension notwithstanding the existence of a Default
or the inability of the Borrower to satisfy the conditions precedent to such
Credit Extension shall not constitute any waiver or acquiescence. Any single or
partial exercise of any such right shall not preclude other or further exercise
thereof or the exercise of any other right, and no waiver, amendment or other
variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by the Lenders required
pursuant to Section 8.2, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Agent, the LC
Issuer and the Lenders until the Obligations have been paid in full.
47
ARTICLE IX
GENERAL PROVISIONS
Β Β Β
9.1. Survival of Representations. All representations and warranties of the
Borrower contained in this Agreement shall survive the making of the Credit
Extensions herein contemplated.
Β Β Β
9.2. Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, neither the LC Issuer nor any Lender shall be
obligated to extend credit to the Borrower in violation of any limitation or
prohibition provided by any applicable statute or regulation.
Β Β Β
9.3. Headings. Section headings in the Loan Documents are for convenience of
reference only, and shall not govern the interpretation of any of the provisions
of the Loan Documents.
Β Β Β
9.4. Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Agent, the LC Issuer and the Lenders and
supersede all prior agreements and understandings among the Borrower, the Agent,
the LC Issuer and the Lenders relating to the subject matter thereof other than
those contained in the fee letter described in Section 10.13 which shall survive
and remain in full force and effect during the term of this Agreement.
Β Β Β
9.5. Several Obligations; Benefits of this Agreement. The respective obligations
of the Lenders hereunder are several and not joint and no Lender shall be the
partner or agent of any other (except to the extent to which the Agent is
authorized to act as such). The failure of any Lender to perform any of its
obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns, provided, however, that the parties
hereto expressly agree that the Arranger shall enjoy the benefits of the
provisions of Sections 9.6, 9.10 and 10.11 to the extent specifically set forth
therein and shall have the right to enforce such provisions on its own behalf
and in its own name to the same extent as if it were a party to this Agreement.
Β Β Β
9.6. Expenses; Indemnification. (i) The Borrower shall reimburse the Agent and
the Arranger for any costs, internal charges and out-of-pocket expenses
(including reasonable attorneys' fees and time charges of attorneys for the
Agent, which attorneys may be employees of the Agent) paid or incurred by the
Agent or the Arranger in connection with the preparation, negotiation,
execution, delivery, syndication, distribution (including, without limitation,
via the internet), review, amendment, modification, and administration of the
Loan Documents. The Borrower also agrees to reimburse the Agent, the Arranger,
the LC Issuer and the Lenders for any costs, internal charges and out-of-pocket
expenses (including reasonable attorneys' fees and time charges of attorneys for
the Agent, the Arranger, the LC Issuer and the Lenders, which attorneys may be
employees of the Agent, the Arranger, the LC Issuer or the Lenders) paid or
incurred by the Agent, the Arranger, the LC Issuer or any Lender in connection
with the collection and enforcement of the Loan Documents.
48
Β Β Β
(ii) The Borrower hereby further agrees to indemnify the Agent, the Arranger,
the LC Issuer, each Lender, their respective affiliates, and each of their
directors, officers and employees against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without limitation,
all expenses of litigation or preparation therefor whether or not the Agent, the
Arranger, the LC Issuer, any Lender or any affiliate is a party thereto) which
any of them may pay or incur arising out of or relating to this Agreement, the
other Loan Documents, the transactions contemplated hereby or the direct or
indirect application or proposed application of the proceeds of any Credit
Extension hereunder except to the extent that they are determined in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the party seeking
indemnification. The obligations of the Borrower under this Section 9.6 shall
survive the termination of this Agreement.
Β Β Β
9.7. Numbers of Documents. All statements, notices, closing documents, and
requests hereunder shall be furnished to the Agent with sufficient counterparts
so that the Agent may furnish one to each of the Lenders.
Β Β Β
9.8. Accounting. Except as provided to the contrary herein, all accounting terms
used herein shall be interpreted and all accounting determinations hereunder
shall be made in accordance with GAAP in a manner consistent with that used in
preparing the financial statements referred to in Section 5.4. If at any time
any change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and the Borrower, the Agent or the
Required Lenders shall so request, the Agent, the Lenders and the Loan Parties
shall negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the approval
of the Required Lenders), provided that, until so amended, such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and the Borrower shall provide to the Agent and the Lenders
reconciliation statements showing the difference in such calculation, together
with the delivery of monthly, quarterly and annual financial statements required
hereunder.
Β Β Β
9.9. Severability of Provisions. Any provision in any Loan Document that is held
to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to
that jurisdiction, be inoperative, unenforceable, or invalid without affecting
the remaining provisions in that jurisdiction or the operation, enforceability,
or validity of that provision in any other jurisdiction, and to this end the
provisions of all Loan Documents are declared to be severable.
Β Β Β
9.10. Nonliability of Lenders/Mutual Release of Consequential Damages. The
relationship between the Borrower on the one hand and the Lenders, the LC Issuer
and the Agent on the other hand shall be solely that of borrower and lender.
Neither the Agent, the Arranger, the LC Issuer nor any Lender shall have any
fiduciary responsibilities to the Borrower. Neither the Agent, the Arranger, the
LC Issuer nor any Lender undertakes any responsibility to the Borrower to review
or inform the Borrower of any matter in connection with any phase of the
Borrower's business or operations. The Borrower agrees that neither the Agent,
the Arranger, the LC Issuer nor any Lender shall have liability to the Borrower
(whether sounding in tort, contract or otherwise) for losses suffered by the
Borrower in connection with, arising out of, or in any way related to, the
transactions contemplated and the relationship established by the Loan
Documents, or any act, omission or event occurring in connection therewith,
unless it is determined in a final non-appealable judgment by a court of
competent jurisdiction that such losses resulted from the gross negligence or
willful misconduct of the party from which recovery is sought. Except as
expressly provided in this Agreement, neither the Agent, the Arranger, the
49
LC
Issuer, any Lender nor the Borrower shall have any liability with respect to,
and the Borrower, each Lender, the LC Issuer, the Arranger and the Agent hereby
waives, releases and agrees not to xxx for, any special, indirect, consequential
or punitive damages suffered by it in connection with, arising out of, or in any
way related to the Loan Documents or the transactions contemplated thereby.
Β Β Β
9.11. Confidentiality. The Agent and each Lender agrees to hold any confidential
information which it may receive from the Borrower in connection with this
Agreement in confidence, except for disclosure (i) to its Affiliates and to the
Agent and any other Lender and their respective Affiliates, (ii) to legal
counsel, accountants, and other professional advisors to such Lender or to a
Transferee, (iii) to regulatory officials, (iv) to any Person as requested
pursuant to or as required by law, regulation, or legal process, (v) to any
Person in connection with any legal proceeding to which it is a party, (vi) to
its direct or indirect contractual counterparties in swap agreements or to legal
counsel, accountants and other professional advisors to such counterparties,
(vii) permitted by Section 12.4, and (viii) to rating agencies if requested or
required by such agencies in connection with a rating relating to the Advances
hereunder. Without limiting Section 9.4, the Borrower agrees that the terms of
this Section 9.11 shall set forth the entire agreement between the Borrower and
each Lender (including the Agent) with respect to any confidential information
previously or hereafter received by such Lender in connection with this
Agreement, and this Section 9.11 shall supersede any and all prior
confidentiality agreements entered into by such Lender with respect to such
confidential information.
Β Β Β
9.12. Nonreliance. Each Lender hereby represents that it is not relying on or
looking to any margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) for the repayment of the Credit
Extensions provided for herein.
Β Β Β
9.13. Disclosure. The Borrower and each Lender hereby acknowledge and agree that
Bank One and/or its Affiliates from time to time may hold investments in, make
other loans to or have other relationships with the Borrower and its Affiliates.
Β Β Β
9.14. USA PATRIOT ACT NOTIFICATION. The following notification is provided to
Borrower pursuant to Section 326 of the USA Patriot Act of 2001, 31 U.S.C.
Section 5318:
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the
government fight the funding of terrorism and money laundering activities,
Federal law requires all financial institutions to obtain, verify, and record
information that identifies each person or entity that opens an account,
including any deposit account, treasury management account, loan, other
extension of credit, or other financial services product. What this means for
Borrower: When Borrower opens an account, if Borrower is an individual, Agent
and the Lenders will ask for Borrower's name, residential address, tax
identification number, date of birth, and other information that will allow
Agent and the Lenders to identify Borrower, and, if Borrower is not an
individual, Agent and the Lenders will ask for Borrower's name, tax
identification number, business address, and other information that will allow
Agent and the Lenders to identify Borrower. Agent and the Lenders may also ask,
if Borrower is an individual, to see Borrower's driver's license or other
identifying documents, and, if Borrower is not an individual, to see Borrower's
legal organizational documents or other identifying documents.
50
ARTICLE X
THE AGENT
Β Β Β
10.1. Appointment; Nature of Relationship. Bank One, NA is hereby appointed by
each of the Lenders as its contractual representative (herein referred to as the
"Agent") hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Agent to act as the contractual representative of
such Lender with the rights and duties expressly set forth herein and in the
other Loan Documents. The Agent agrees to act as such contractual representative
upon the express conditions contained in this Article X. Notwithstanding the use
of the defined term "Agent," it is expressly understood and agreed that the
Agent shall not have any fiduciary responsibilities to any Lender by reason of
this Agreement or any other Loan Document and that the Agent is merely acting as
the contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Agent (i) does not
hereby assume any fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of the term "secured party"
as defined in the Indiana Uniform Commercial Code and (iii) is acting as an
independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents. Each of the
Lenders hereby agrees to assert no claim against the Agent on any agency theory
or any other theory of liability for breach of fiduciary duty, all of which
claims each Lender hereby waives.
Β Β Β
10.2. Powers. The Agent shall have and may exercise such powers under the Loan
Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The
Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Agent.
Β Β Β
10.3. General Immunity. Neither the Agent nor any of its directors, officers,
agents or employees shall be liable to the Borrower, the Lenders or any Lender
for any action taken or omitted to be taken by it or them hereunder or under any
other Loan Document or in connection herewith or therewith except to the extent
such action or inaction is determined in a final non-appealable judgment by a
court of competent jurisdiction to have arisen from the gross negligence or
willful misconduct of such Person.
Β Β Β
10.4. No Responsibility for Loans, Recitals, etc. Neither the Agent nor any of
its directors, officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into, or verify (a) any statement, warranty or
representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Agent; (d) the existence
or possible existence of any Default or Unmatured Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith; (f) the
value, sufficiency, creation, perfection or priority of any Lien in any
collateral security; or (g) the financial condition of the Borrower or any
guarantor of any of the Obligations or of any of the Borrower's or any such
guarantor's respective Subsidiaries.
51
Β Β Β
10.5. Action on Instructions of Lenders. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder and under any other
Loan Document in accordance with written instructions signed by the Required
Lenders, and such instructions and any action taken or failure to act pursuant
thereto shall be binding on all of the Lenders. The Lenders hereby acknowledge
that the Agent shall be under no duty to take any discretionary action permitted
to be taken by it pursuant to the provisions of this Agreement or any other Loan
Document unless it shall be requested in writing to do so by the Required
Lenders. The Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
Β Β Β
10.6. Employment of Agents and Counsel. The Agent may execute any of its duties
as Agent hereunder and under any other Loan Document by or through employees,
agents, and attorneys-in-fact and shall not be answerable to the Lenders, except
as to money or securities received by it or its authorized agents, for the
default or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care. The Agent shall be entitled to advice of counsel
concerning the contractual arrangement between the Agent and the Lenders and all
matters pertaining to the Agent's duties hereunder and under any other Loan
Document.
Β Β Β
10.7. Reliance on Documents; Counsel. The Agent shall be entitled to rely upon
any Note, notice, consent, certificate, affidavit, letter, telegram, facsimile,
telex, electronic mail message, statement, paper or document believed by it to
be genuine and correct and to have been signed or sent by the proper person or
persons, and, in respect to legal matters, upon the opinion of counsel selected
by the Agent, which counsel may be employees of the Agent. For purposes of
determining compliance with the conditions specified in Sections 4.1 and 4.2,
each Lender that has signed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Agent shall have received notice from such
Lender prior to the applicable date specifying its objection thereto.
Β Β Β
10.8. Agent's Reimbursement and Indemnification. The Lenders agree to reimburse
and indemnify the Agent ratably in proportion to their respective Commitments
(or, if the Commitments have been terminated, in proportion to their Commitments
immediately prior to such termination) (i) for any amounts not reimbursed by the
Borrower for which the Agent is entitled to reimbursement by the Borrower under
the Loan Documents, (ii) for any other expenses incurred by the Agent on behalf
of the Lenders, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents (including, without
limitation, for any expenses incurred by the Agent in connection with any
dispute between the Agent and any Lender or between two or more of the Lenders)
and (iii) for any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the Agent in
any way relating to or arising out of the Loan Documents or any other document
delivered in connection therewith or the transactions contemplated thereby
(including, without limitation, for any such amounts incurred by or asserted
against the Agent in connection with any dispute between the Agent and any
Lender or between two or more of the Lenders), or the enforcement of any of the
terms of the Loan Documents or of any such other documents, provided that (i) no
Lender shall be liable for any of the foregoing to the extent any of the
foregoing is found in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the Agent and (ii) any
52
indemnification required pursuant to Section 3.5(vii)
shall, notwithstanding the provisions of this Section 10.8, be paid by the
relevant Lender in accordance with the provisions thereof. The obligations of
the Lenders under this Section 10.8 shall survive payment of the Obligations and
termination of this Agreement.
Β Β Β
10.9. Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Unmatured Default hereunder unless
the Agent has received written notice from a Lender or the Borrower referring to
this Agreement describing such Default or Unmatured Default and stating that
such notice is a "notice of default". In the event that the Agent receives such
a notice, the Agent shall give prompt notice thereof to the Lenders.
Β Β Β
10.10. Rights as a Lender. In the event the Agent is a Lender, the Agent shall
have the same rights and powers hereunder and under any other Loan Document with
respect to its Commitment and its Loans as any Lender and may exercise the same
as though it were not the Agent, and the term "Lender" or "Lenders" shall, at
any time when the Agent is a Lender, unless the context otherwise indicates,
include the Agent in its individual capacity. The Agent and its Affiliates may
accept deposits from, lend money to, and generally engage in any kind of trust,
debt, equity or other transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Borrower or any of its
Subsidiaries in which the Borrower or such Subsidiary is not restricted hereby
from engaging with any other Person. The Agent, in its individual capacity, is
not obligated to remain a Lender.
Β Β Β
10.11. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, the Arranger or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents. Except for any notice, report, document
or other information expressly required to be furnished to the Lenders by the
Agent or Arranger hereunder, neither the Agent nor the Arranger shall have any
duty or responsibility (either initially or on a continuing basis) to provide
any Lender with any notice, report, document, credit information or other
information concerning the affairs, financial condition or business of the
Borrower or any of its Affiliates that may come into the possession of the Agent
or Arranger (whether or not in their respective capacity as Agent or Arranger)
or any of their Affiliates.
Β Β Β
10.12. Successor Agent. The Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower, such resignation to be effective
upon the appointment of a successor Agent or, if no successor Agent has been
appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. The Agent may be removed at any time with or without cause
by written notice received by the Agent from the Required Lenders, such removal
to be effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint, on
behalf of the Borrower and the Lenders, a successor Agent. If no successor Agent
shall have been so appointed by the Required Lenders within thirty days after
the resigning Agent's giving notice of its intention to resign, then the
resigning Agent may appoint, on behalf of the Borrower and the Lenders, a
successor Agent. Notwithstanding the previous sentence, the Agent may at any
time without the consent of the Borrower or any Lender, appoint any of its
Affiliates which is a
53
commercial bank as a successor Agent hereunder. If the
Agent has resigned or been removed and no successor Agent has been appointed,
the Lenders may perform all the duties of the Agent hereunder and the Borrower
shall make all payments in respect of the Obligations to the applicable Lender
and for all other purposes shall deal directly with the Lenders. No successor
Agent shall be deemed to be appointed hereunder until such successor Agent has
accepted the appointment. Any such successor Agent shall be a commercial bank
having capital and retained earnings of at least $100,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning or removed Agent. Upon
the effectiveness of the resignation or removal of the Agent, the resigning or
removed Agent shall be discharged from its duties and obligations hereunder and
under the Loan Documents. After the effectiveness of the resignation or removal
of an Agent, the provisions of this Article X shall continue in effect for the
benefit of such Agent in respect of any actions taken or omitted to be taken by
it while it was acting as the Agent hereunder and under the other Loan
Documents. In the event that there is a successor to the Agent by merger, or the
Agent assigns its duties and obligations to an Affiliate pursuant to this
Section 10.12, then the term "Prime Rate" as used in this Agreement shall mean
the prime rate, base rate or other analogous rate of the new Agent.
Β Β Β
10.13. Agent and Arranger Fees. The Borrower agrees to pay to the Agent and the
Arranger, for their respective accounts, the fees agreed to by the Borrower, the
Agent and the Arranger pursuant to that certain letter agreement dated March 11,
2004, or as otherwise agreed from time to time.
Β Β Β
10.14. Delegation to Affiliates. The Borrower and the Lenders agree that the
Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under Articles IX and X.
Β Β Β
10.15. Collateral Releases. The Lenders hereby empower and authorize the Agent
to execute and deliver to the Borrower on their behalf any agreements, documents
or instruments as shall be necessary or appropriate to effect any releases of
Collateral which shall be permitted by the terms hereof or of any other Loan
Document or which shall otherwise have been approved by the Required Lenders
(or, if required by the terms of Section 8.2, all of the Lenders) in writing.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
Β Β Β 11.1. Setoff. In addition to, and without limitation of, any rights of the Lenders under applicable law, if the Borrower becomes insolvent, however evidenced, or any Default occurs, any and all deposits (including all account balances, whether provisional or final and whether or not collected or available) and any other Indebtedness at any time held or owing by any Lender or any Affiliate of any Lender to or for the credit or account of the Borrower may be offset and applied toward the payment of the Obligations owing to such Lender, whether or not the Obligations, or any part thereof, shall then be due.
54
Β Β Β 11.2. Ratable Payments. If any Lender, whether by setoff or otherwise, has payment made to it upon its Outstanding Credit Exposure (other than payments received pursuant to Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than that received by any other Lender, such Lender agrees, promptly upon demand, to purchase a portion of the Aggregate Outstanding Credit Exposure held by the other Lenders so that after such purchase each Lender will hold its Pro Rata Share of the Aggregate Outstanding Credit Exposure. If any Lender, whether in connection with setoff or amounts which might be subject to setoff or otherwise, receives collateral or other protection for its Obligations or such amounts which may be subject to setoff, such Lender agrees, promptly upon demand, to take such action necessary such that all Lenders share in the benefits of such collateral ratably in proportion to their respective Pro Rata Shares of the Aggregate Outstanding Credit Exposure. In case any such payment is disturbed by legal process, or otherwise, appropriate further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
Β Β Β 12.1. Successors and Assigns. The terms and provisions of the Loan Documents shall be binding upon and inure to the benefit of the Borrower and the Lenders and their respective successors and assigns permitted hereby, except that (i) the Borrower shall not have the right to assign its rights or obligations under the Loan Documents without the prior written consent of each Lender, (ii) any assignment by any Lender must be made in compliance with Section 12.3, and (iii) any transfer by Participation must be made in compliance with Section 12.2. Any attempted assignment or transfer by any party not made in compliance with this Section 12.1 shall be null and void, unless such attempted assignment or transfer is treated as a participation in accordance with Section 12.3.2. The parties to this Agreement acknowledge that clause (ii) of this Section 12.1 relates only to absolute assignments and this Section 12.1 does not prohibit assignments creating security interests, including, without limitation, (x) any pledge or assignment by any Lender of all or any portion of its rights under this Agreement and any Note to a Federal Reserve Bank or (y) in the case of a Lender which is a Fund, any pledge or assignment of all or any portion of its rights under this Agreement and any Note to its trustee in support of its obligations to its trustee; provided, however, that no such pledge or assignment creating a security interest shall release the transferor Lender from its obligations hereunder unless and until the parties thereto have complied with the provisions of Section 12.3. The Agent may treat the Person which made any Loan or which holds any Note as the owner thereof for all purposes hereof unless and until such Person complies with Section 12.3; provided, however, that the Agent may in its discretion (but shall not be required to) follow instructions from the Person which made any Loan or which holds any Note to direct payments relating to such Loan or Note to another Person. Any assignee of the rights to any Loan or any Note agrees by acceptance of such assignment to be bound by all the terms and provisions of the Loan Documents. Any request, authority or consent of any Person, who at the time of making such request or giving such authority or consent is the owner of the rights to any Loan (whether or not a Note has been issued in evidence thereof), shall be conclusive and binding on any subsequent holder or assignee of the rights to such Loan.
55
Β Β Β
12.2. Participations.
Β Β Β Β Β Β Β
12.2.1. Permitted Participants; Effect. Any Lender may at any time sell to one
or more banks or other entities ("Participants") participating interests in any
Outstanding Credit Exposure owing to such Lender, any Note held by such Lender,
any Commitment of such Lender or any other interest of such Lender under the
Loan Documents. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan Documents
shall remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the owner of its Outstanding Credit Exposure and the holder of any Note issued
to it in evidence thereof for all purposes under the Loan Documents, all amounts
payable by the Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrower and the Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under the Loan Documents.
Β Β Β Β Β Β Β
12.2.2. Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Credit Exposure or Commitment in which such
Participant has an interest which would require consent of all of the Lenders
pursuant to the terms of Section 8.2 or of any other Loan Document.
Β Β Β Β Β Β Β
12.2.3. Benefit of Certain Provisions. The Borrower agrees that each Participant
shall be deemed to have the right of setoff provided in Section 11.1 in respect
of its participating interest in amounts owing under the Loan Documents to the
same extent as if the amount of its participating interest were owing directly
to it as a Lender under the Loan Documents, provided that each Lender shall
retain the right of setoff provided in Section 11.1 with respect to the amount
of participating interests sold to each Participant. The Lenders agree to share
with each Participant, and each Participant, by exercising the right of setoff provided in Section 11.1, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be shared in
accordance with Section 11.2 as if each Participant were a Lender. The Borrower
further agrees that each Participant shall be entitled to the benefits of
Sections 3.1, 3.2, 3.4, 3.5, 9.6 and 9.10 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to Section 12.3,
provided that (i) a Participant shall not be entitled to receive any greater
payment under Section 3.1, 3.2 or 3.5 than the Lender who sold the participating
interest to such Participant would have received had it retained such interest
for its own account, unless the sale of such interest to such Participant is
made with the prior written consent of the Borrower, and (ii) any Participant
not incorporated under the laws of the United States of America or any State
thereof agrees to comply with the provisions of Section 3.5 to the same extent
as if it were a Lender.
Β Β Β
12.3. Assignments.
Β Β Β Β Β Β Β
12.3.1. Permitted Assignments. Any Lender may at any time assign to one or more
banks or other entities ("Purchasers") all or any part of its rights and
obligations under the Loan Documents. Such assignment shall be substantially in
the form of Exhibit C or in such other form as may be agreed to by the parties
thereto. Each such assignment with respect to a Purchaser which is not a Lender
or an Affiliate of a Lender
56
or an Approved Fund shall either be in an amount
equal to the entire applicable Commitment and Loans of the assigning Lender or
(unless each of the Borrower and the Agent otherwise consents) be in an
aggregate amount not less than $5,000,000. The amount of the assignment shall be
based on the Commitment or outstanding Loans (if the Commitment has been
terminated) subject to the assignment, determined as of the date of such
assignment or as of the "Trade Date," if the "Trade Date" is specified in the
assignment.
Β Β Β Β Β Β Β
12.3.2. Consents. The consent of the Borrower shall be required prior to an
assignment becoming effective unless the Purchaser is a Lender, an Affiliate of
a Lender or an Approved Fund, provided that the consent of the Borrower shall
not be required if a Default has occurred and is continuing. The consent of the
Agent shall be required prior to an assignment becoming effective unless the
Purchaser is a Lender, an Affiliate of a Lender or an Approved Fund. The consent
of the LC Issuer shall be required prior to an assignment of a Revolving
Commitment becoming effective unless the Purchaser is a Lender with a Revolving
Commitment. Any consent required under this Section 12.3.2 shall not be
unreasonably withheld or delayed.
Β Β Β Β Β Β Β
12.3.3. Effect; Effective Date. Upon (i) delivery to the Agent of an assignment,
together with any consents required by Sections 12.3.1 and 12.3.2, and (ii)
payment of a $3,500 fee to the Agent for processing such assignment (unless such
fee is waived by the Agent), such assignment shall become effective on the
effective date specified in such assignment. The assignment shall contain a
representation by the Purchaser to the effect that none of the consideration
used to make the purchase of the Commitment and Outstanding Credit Exposure
under the applicable assignment agreement constitutes "plan assets" as defined
under ERISA and that the rights and interests of the Purchaser in and under the
Loan Documents will not be "plan assets" under ERISA. On and after the effective
date of such assignment, such Purchaser shall for all purposes be a Lender party
to this Agreement and any other Loan Document executed by or on behalf of the
Lenders and shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party thereto, and the
transferor Lender shall be released with respect to the Commitment and
Outstanding Credit Exposure assigned to such Purchaser without any further
consent or action by the Borrower, the Lenders or the Agent. In the case of an
assignment covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a Lender hereunder but shall
continue to be entitled to the benefits of, and subject to, those provisions of
this Agreement and the other Loan Documents which survive payment of the
Obligations and termination of the applicable agreement. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this Section 12.3 shall be treated for purposes of this Agreement as
a sale by such Lender of a participation in such rights and obligations in
accordance with Section 12.2. Upon the consummation of any assignment to a
Purchaser pursuant to this Section 12.3.3, the transferor Lender, the Agent and
the Borrower shall, if the transferor Lender or the Purchaser desires that its
Loans be evidenced by Notes, make appropriate arrangements so that new Notes or,
as appropriate, replacement Notes are issued to such transferor Lender and new
Notes or, as appropriate, replacement Notes, are issued to such Purchaser, in
each case in principal amounts reflecting their respective Commitments, as
adjusted pursuant to such assignment.
57
Β Β Β Β Β Β Β
12.3.4. Register. The Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at one of its offices in Chicago, Illinois a copy of
each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Agent and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower at any
reasonable time and from time to time upon reasonable prior notice.
Β Β Β
12.4. Dissemination of Information. The Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries; provided
that each Transferee and prospective Transferee agrees to be bound by Section
9.11 of this Agreement.
Β Β Β
12.5. Tax Treatment. If any interest in any Loan Document is transferred to any
Transferee which is not incorporated under the laws of the United States or any
State thereof, the transferor Lender shall cause such Transferee, concurrently
with the effectiveness of such transfer, to comply with the provisions of
Section 3.5(iv).
ARTICLE XIII
NOTICES
Β Β Β
13.1. Notices; Effectiveness; Electronic Communication
Β Β Β
(i) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in
paragraph (ii) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopier as follows:
Β Β Β Β Β Β Β
(a) if to the Borrower, at its address or telecopier number set forth on the
signature page hereof;
Β Β Β Β Β Β Β
(b) if to the Agent, at its address or telecopier number set forth on the
signature page hereof;
Β Β Β Β Β Β Β
(c) if to the LC Issuer, at its address or telecopier number set forth on the
signature page hereof;
Β Β Β Β Β Β Β
(d) if to a Lender, to it at its address (or telecopier number) set forth in its
Administrative Questionnaire.
58
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next Business Day for the
recipient). Notices delivered through electronic communications to the extent
provided in paragraph (ii) below, shall be effective as provided in said
paragraph (ii).
Β Β Β
(ii) Electronic Communications. Notices and other communications to the Lenders
and the LC Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and internet or intranet websites) pursuant to
procedures approved by the Agent or as otherwise determined by the Agent,
provided that the foregoing shall not apply to notices to any Lender or the LC
Issuer pursuant to Article II if such Lender or the LC Issuer, as applicable,
has notified the Agent that it is incapable of receiving notices under such
Article by electronic communication. The Agent or the Borrower may, in its
respective discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it or
as it otherwise determines, provided that such determination or approval may be
limited to particular notices or communications.
Β Β Β
Unless the Agent otherwise prescribes, (a) notices and other communications sent
to an e-mail address shall be deemed received upon the sender's receipt of an
acknowledgement from the intended recipient (such as by the "return receipt
requested" function, as available, return e-mail or other written
acknowledgement), provided that if such notice or other communication is not
given during the normal business hours of the recipient, such notice or
communication shall be deemed to have been given at the opening of business on
the next Business Day for the recipient, and (b) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (a) of notification that such notice or communication is
available and identifying the website address therefor.
Β Β Β
(iii) Change of Address, Etc. Any party hereto may change its address or telecopier number for notices and other communications hereunder by notice to
the other parties hereto.
ARTICLE XIV
COUNTERPARTS; INTEGRATION; EFFECTIVENESS; ELECTRONIC EXECUTION
Β Β Β
14.1 Counterparts; Effectiveness. This Agreement may be executed in counterparts
(and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. Except as provided in Article IV, this Agreement shall become
effective when it shall have been executed by the Agent and when the Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the parties hereto, and thereafter shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns. Delivery of an executed counterpart of a signature page of this
Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
Β Β Β
14.2 Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any assignment and assumption agreement
shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of
59
which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, or any other state laws based on the Uniform Electronic Transactions Act.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
Β Β Β
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY
EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS (BUT WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE
STATE OF INDIANA, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
Β Β Β
15.2. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR INDIANA STATE COURT
SITTING IN INDIANAPOLIS, INDIANA IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE AGENT, THE LC ISSUER OR ANY LENDER TO BRING PROCEEDINGS AGAINST
THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY
THE BORROWER AGAINST THE AGENT, THE LC ISSUER OR ANY LENDER OR ANY AFFILIATE OF
THE AGENT, THE LC ISSUER OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN INDIANAPOLIS, INDIANA.
Β Β Β
15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT, THE LC ISSUER AND EACH
LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
Β Β Β
IN WITNESS WHEREOF, the Borrower, the Lenders, the LC Issuer and the Agent have
executed this Agreement as of the date first above written.
60
SIGNATURE PAGE OF
XXXXXXX INTERNATIONAL, INC.
TO THE CREDIT AGREEMENT
Β | Β |
Β | XXXXXXX INTERNATIONAL, INC. |
Β | Β |
Β | Β |
By:Β Β Β | /s/ Xxxxxx X. Xxxxxxxxx |
Β | Xxxxxx X. Xxxxxxxxx, Executive Vice President, Chief Financial Officer, Treasurer |
Β | Β |
Β | Β |
Β | Β |
Β | Β |
By:Β Β Β | /s/ R. Xxxxxxx Xxxxxx |
Β | R. Xxxxxxx Xxxxxx, Vice President, Business Development, Assistant Treasurer |
Β | Β |
Β | Β |
Address:Β Β Β | 0000 Xxxxx Xxxxxx |
Β | Xxxxxx, Xxxxxxx 00000 |
Attention:Β Β Β | Chief Financial Officer |
Β | Telephone:Β (000) 000-0000 |
Β | FAX:Β (000) 000-0000 |
Β | Β |
Β | Β |
SIGNATURE PAGE OF
BANK ONE, NA
TO THE CREDIT AGREEMENT
Β | Β | Β | Β |
Commitments | Β | Β | Β |
Β | Β | Β | |
Β | $40,000,000 | Β | BANK ONE, NA, |
Β | (Equivalent Amount Sublimit for Agreed Currencies other than Dollars, $26,666,666) | Β Β Β | Individually, as Agent and as LC Issuer |
Β | Β | By:Β Β Β | Β |
Β | |||
Β | Β | Β | Β |
Β | Β | Title:Β Β Β | Β |
Β | |||
Β | Β | Β | 000 Xxxxxxxx Xxxxxx 0xx Xxxxx |
Β | Β | Β | Xxxxxxxxxxxx, XxxxxxxΒ 00000 |
Β | Β | Β | Β |
Β | Β | Attention:Β Β Β | Xxxxxxx X. Xxxxxxxx |
Β | Β | Β | Telephone:Β (000) 000-0000 |
Β | Β | Β | FAX:Β (000) 000-0000 |
Β | Β | Β | Β |
Β | Β | Β | Β |
SIGNATURE PAGE OF
LASALLE BANK NATIONAL ASSOCIATION
TO THE CREDIT AGREEMENT
Β | Β | Β | Β |
Β | $17,500,000 | Β | LASALLE BANK NATIONAL ASSOCIATION |
Β | (Equivalent Amount Sublimit for Agreed Currencies other than Dollars, $11,666,667) | Β Β Β | Β |
Β | Β | By:Β Β Β | Β |
Β | |||
Β | Β | Β | Β |
Β | Β | Title:Β Β Β | Β |
Β | |||
Β | Β | Β | Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000 |
Β | Β | Β | Xxxxxxxxxxxx, XxxxxxxΒ 00000 |
Β | Β | Β | Β |
Β | Β | Attention:Β Β Β | Xxxx X. Xxxxx, Vice President |
Β | Β | Β | Telephone:Β (000) 000-0000 |
Β | Β | Β | FAX:Β (000) 000-0000 |
Β | Β | Β | Β |
Β | Β | Β | Β |
SIGNATURE PAGE OF
NATIONAL CITY BANK OF INDIANA
TO THE CREDIT AGREEMENT
Β | Β | Β | Β |
Β | $17,500,000 | Β | NATIONAL CITY BANK OF INDIANA |
Β | (Equivalent Amount Sublimit for Agreed Currencies other than Dollars, $11,666,667) | Β Β Β | Β |
Β | Β | By:Β Β Β | Β |
Β | |||
Β | Β | Β | Β |
Β | Β | Title:Β Β Β | Β |
Β | |||
Β | Β | Β | Xxx Xxxxxxxx Xxxx Xxxxxx |
Β | Β | Β | Xxxxx 000X |
Β | Β | Β | Xxxxxxxxxxxx, XxxxxxxΒ 00000 |
Β | Β | Β | Β |
Β | Β | Attention:Β Β Β | Xxxx X. Xxxxxxx, Vice President |
Β | Β | Β | Telephone:Β (000) 000-0000 |
Β | Β | Β | FAX:Β (000) 000-0000 |
Β | Β | Β | Β |
Β | Β | Β | Β |