1
EXHIBIT 10.5
COMPX INTERNATIONAL INC.
______________________________
$100,000,000
CREDIT AGREEMENT
dated as of February 26, 1998
______________________________
BANKERS TRUST COMPANY,
as Agent
and
VARIOUS LENDING INSTITUTIONS
2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Accounting Terms, Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
1.3 Other Definitional Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE II
AMOUNT AND TERMS OF CREDIT
2.1 The Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(a) Revolving Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(b) Swing Line Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.2 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(a) Evidence of Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(b) Notation of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.3 Minimum Amount of Each Borrowing; Maximum Number of Borrowings . . . . . . . . . . . . . . . . . . . 28
2.4 Borrowing Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.5 Notice of Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.6 Conversion or Continuation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.7 Disbursement of Funds; Funding Assumptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.8 Pro Rata Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.9 Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE III.
INTEREST AND FEES
3.1 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
(a) Base Rate Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
(b) Eurodollar Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
(c) Payment of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
(d) Notification of Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
(e) Default Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
(f) Maximum Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3.2 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
(a) Facility Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
(b) Agency Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3.3 Computation of Interest and Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3.4 Interest Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3.5 Compensation for Funding Losses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
3
3.6 Increased Costs, Illegality, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
(a) Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
(b) Eurodollar Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(c) Capital Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(d) Change of Lending Office. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
3.7 Replacement of Affected Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE IV.
REDUCTION OF COMMITMENTS; PAYMENTS AND PREPAYMENTS
4.1 Voluntary Reduction of Commitments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
4.2 Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
4.3 Mandatory Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
(a) Prepayment Upon Overadvance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
(b) Payment at Termination Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
(c) Mandatory Prepayment Upon Asset Disposition . . . . . . . . . . . . . . . . . . . . . . . . 46
(d) Mandatory Prepayment Upon Incurrence of Indebtedness. . . . . . . . . . . . . . . . . . . 46
4.4 Application of Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
4.5 Method and Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
4.6 Net Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
5.1 Corporate Existence; Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
5.2 Corporate Power; Authorization; No Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
5.3 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
5.4 Purpose of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
5.5 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
5.6 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
5.7 Financial Statements; Financial Condition; Undisclosed Liabilities;Projections, etc. . . . . . . . . 51
(a) Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
(b) Solvency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
(c) No Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
(d) Projections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
5.8 No Material Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
5.9 Performance of Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
5.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
5.11 Governmental Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
5.12 Ownership of Property; Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
5.13 Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
5.14 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
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5.15 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
5.16 Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
5.17 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
5.18 Public Utility Holding Company Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE VI.
CONDITIONS OF CREDIT
6.1 Conditions Precedent to Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
(a) Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
(b) Corporate Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
(c) Corporate Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
(d) Incumbency Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
(e) Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
(f) Legal Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
(g) Termination of Existing Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . . 55
(h) Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
(i) Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
(j) Appointment of Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
(k) Tax and Accounting Aspects of Transactions . . . . . . . . . . . . . . . . . . . . . . . . 56
(l) Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
(m) Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
(n) Additional Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
6.2 Certain Conditions Precedent to Each Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
(a) Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
(b) No Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
(c) Available Revolving Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
(d) Other Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE VII.
AFFIRMATIVE COVENANTS
7.1 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.2 Certificates; Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
(a) Accountant's Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
(b) Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
(c) Audit Reports and Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
(d) Public Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
(e) Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
(f) Other Requested Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
7.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
(a) Event of Default or Unmatured Event of Default . . . . . . . . . . . . . . . . . . . . . . 59
(b) Litigation and Related Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
(c) Notice of Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
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7.4 Conduct of Business and Maintenance of Existence . . . . . . . . . . . . . . . . . . . . . . . . . . 59
7.5 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
7.6 Inspection of Property, Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.7 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.8 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
7.9 Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
7.10 Additional Subsidiary Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE VIII.
NEGATIVE COVENANTS
8.1 Financial Condition Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
(a) Maintenance of Consolidated Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
(b) Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
(c) Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
8.2 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
8.3 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.4 Fundamental Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.5 Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.6 Distributions from Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.7 Sales of Assets and Subsidiary Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
8.8 Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
8.9 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
8.10 Sale-Leasebacks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
8.11 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
8.12 Amendments to Organizational Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
8.13 Accounting Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
8.14 Lines of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE IX.
EVENTS OF DEFAULT
9.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
(a) Failure to Make Payments When Due . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
(b) Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
(c) Breach of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
(d) Other Defaults Under Agreement or Loan Documents . . . . . . . . . . . . . . . . . . . . . 67
(e) Default Under Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
(f) Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
(g) Voluntary Insolvency, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
(h) Involuntary Insolvency, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
(i) Unenforceability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
(j) ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
(k) Change of Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
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(l) Environmental Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
9.2 Rescission of Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
9.3 Rights Not Exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE X.
AGENT
10.1 Appointment and Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
10.2 Nature of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
10.3 Liability of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
10.4 Reliance by Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
10.5 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
10.6 Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
10.7 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
10.8 Agent in Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.9 Resignation by Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE XI.
MISCELLANEOUS
11.1 No Waiver; Modifications in Writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
11.2 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
11.3 Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
11.4 Costs, Expenses and Taxes; Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
(a) Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
(b) Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
11.5 Confirmations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
11.6 Transfer of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
11.7 Adjustments; Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
11.8 Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
11.9 Binding Effect; Assignment; Addition and Substitution of Lenders . . . . . . . . . . . . . . . . . . 80
11.10 CONSENT TO JURISDICTION; MUTUAL WAIVER OR JURY TRIAL. . . . . . . . . . . . . . . . . . . . . . . . 82
11.11 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
11.12 Registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
11.13 Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
11.14 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
11.15 Independent Nature of Lenders' Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
11.16 Survival of Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
11.17 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
11.18 Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
11.19 Waiver of Immunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
-v-
7
Schedules
Schedule 1.1 -- Revolving Commitments
Schedule 5.5 -- Subsidiaries
Schedule 5.6 -- Indebtedness
Schedule 5.7(c) -- Liabilities
Schedule 5.7(d) -- Projections
Schedule 8.2(d) -- Outstanding Subsidiary Indebtedness
Schedule 8.3 -- Permitted Liens
Schedule 8.6(a) -- Certain Restrictions
Schedule 11.3 -- Addresses for Notice; Payment and Lending Offices
Exhibits
Exhibit 1.1 -- Form of Subsidiary Guarantee Agreement
Exhibit 2.1(b)(iii) -- Form of Swing Line Loan Participation Certificate
Exhibit 2.2(a)-1 -- Form of Revolving Note
Exhibit 2.2(a)-2 -- Form of Swing Line Note
Exhibit 2.5 -- Form of Notice of Borrowing
Exhibit 2.6 -- Form of Notice of Conversion or Continuation
Exhibit 2.9 -- Form of Letter of Credit Report
Exhibit 4.6(d) -- Form of Section 4.6(d)(ii) Certificate
Exhibit 6.1(f) -- Form of Opinion of Borrower's in-house counsel
Exhibit 6.1(j) -- Form of CT Letter
Exhibit 6.1(m) -- Form of Officer's Certificate
Exhibit 7.2(b) -- Form of Certificate of Financial Officer
Exhibit 11.9 -- Form of Assignment and Assumption Agreement
-vi-
8
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of February 26, 1998, among
CompX International Inc., a Delaware corporation ("Borrower"), the several
banks and other financial institutions from time to time parties to this
Agreement (the "Lenders"), and BANKERS TRUST COMPANY, a New York banking
corporation, as agent for the Lenders hereunder (in such capacity, the
"Agent").
The parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the
following terms shall have the following meanings, such meanings to be equally
applicable to both the singular and plural forms of the terms defined:
"Acquisition" means any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly,
in (a) the acquisition of all or substantially all of the assets of a
Person, or of any business or division of a Person, (b) the
acquisition of in excess of 50% of the capital stock, partnership
interests, membership interests or equity of any Person, or otherwise
causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person (other than
a Person that is a Subsidiary) provided that the Company or the
Subsidiary is the surviving entity.
"Agent": as defined in the preamble.
"Affiliate": with respect to any Person, any Person or group
acting in concert in respect of the Person in question that, directly
or indirectly, controls or is controlled by or is under common control
with such Person. For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" and
"under common control with") shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of
management and policies of a Person, whether through the ownership of
voting securities or by contract or otherwise.
"Agent-Related Persons": as defined in Section 10.3.
"Agreement": this Agreement, as amended, supplemented or
otherwise modified from time to time.
"Applicable Facility Fee": at any date, the applicable
percentage amount of the aggregate Revolving Commitments of the
Lenders as such percentage amount is set forth in the table below
based upon the Most Recent Ratio of Consolidated Debt to Consolidated
EBITDA on such date:
9
MOST RECENT RATIO OF CONSOLIDATED FACILITY FEE
DEBT TO CONSOLIDATED EBITDA
Less than 1.0 to 1.0 .200%
Less than 1.5 to 1.0 but
greater than or equal to .225%
1.0 to 1.0
Less than 2.0 to 1.0 but
greater than or equal to .250%
1.5 to 1.0
Less than 2.5 to 1.0
but greater than or equal .300%
to 2.0 to 1.0
Greater than 2.5 to 1.0 .350%
"Applicable Margin": with respect to each Revolving Loan at
any date shall be the applicable percentage amount set forth in the
table below based upon the Type of such Loan and the Most Recent Ratio
of Consolidated Debt to Consolidated EBITDA on such date.
MOST RECENT RATIO OF CONSOLIDATED EURODOLLAR LOANS BASE RATE LOANS
DEBT TO CONSOLIDATED EBITDA
Less than 1.0 to 1.0 .300% 0%
Less than 1.5 to 1.0 but 0%
greater than or equal to .400%
1.0 to 1.0
Less than 2.0 to 1.0 but .625% 0%
greater than or equal to
1.5 to 1.0
Less than 2.5 to 1.0 .825% 0%
but greater than or equal
to 2.0 to 1.0
Greater than or equal to 1.025% 0%
2.5 to 1.0
-2-
10
provided, however, that upon consummation of an initial public offering of
common stock with Net Offering Proceeds to Borrower of not less than $50
million, the Applicable Margin for Eurodollar Loans as set forth above shall be
reduced by .125%.
"Asset Disposition": any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or
dispositions) of shares of Capital Stock of a Subsidiary of Borrower
(other than directors' qualifying shares), property or other assets
(each referred to for the purposes of this definition as a
"disposition") by Borrower or any of its Subsidiaries the fair market
value of which, as determined in good faith by the board of directors
of Borrower or such Subsidiary, as the case may be, exceeds $3,000,000
(other than (i) a disposition by a Subsidiary to Borrower or by
Borrower or a Subsidiary to a Wholly-Owned Subsidiary, (ii) a
disposition of property or other assets at fair market value in the
ordinary course of business, including non-exclusive licenses to use
trademarks, trade names or other similar property of Borrower or its
Subsidiaries and (iii) a disposition of obsolete property or other
assets in the ordinary course of business).
"Assignee": an Eligible Assignee which is an "Assignee" party
to an Assignment and Assumption Agreement pursuant to Section 11.9.
"Assignment and Assumption Agreement": an Assignment and
Assumption Agreement substantially in the form of Exhibit 11.9 annexed
hereto and made a part hereof made by any applicable Lender, as
assignor and such Lender's assignee in accordance with Section 11.9,
with such modifications (including, without limitation, additional
representations, warranties and covenants) as such assignor Lender and
assignee Lender may agree to from time to time which solely affect the
relative rights and/or obligations of the assignor Lender and assignee
Lender as between themselves.
"Attorney Costs": all reasonable fees and disbursements of
any law firm or other external counsel and the reasonable allocated
cost of internal legal services, including all reasonable
disbursements of internal counsel.
"Attributable Debt": as of the date of determination thereof
in connection with a Sale and Leaseback Transaction occurring after
the Closing Date, the greater of (1) the fair value of the assets
subject to such transaction (as determined in good faith by the
applicable lessee) and (2) the present value (discounted according to
GAAP at the cost of debt implied in the lease) of the obligations of
the lessee for rental payments during the term of any applicable
lease.
"Available Revolving Commitment": as to any Lender at any
time, an amount in Dollars equal to the excess, if any, of (a) such
Lender's Revolving Commitment over (b) the sum of (i) the aggregate
principal amount then outstanding of Revolving Loans made by such
Lender and (ii) such Lender's Commitment Percentage of the LC
Obligations and Commitment Percentage of the Swing Line Loans then
outstanding.
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11
"Bankruptcy Code": Title 11 of the United States Code
entitled Bankruptcy as now or hereafter in effect or any successor
thereto.
"Base Rate": the higher of (i) the Prime Lending Rate and
(ii) the Federal Funds Effective Rate plus one-half of one percent
(1/2%).
"Base Rate Loans": Revolving Loans bearing interest at a rate
determined by reference to the Base Rate or Swing Line Loans, as the
context shall require.
"Board": the Board of Governors of the Federal Reserve System
(or any successor thereto).
"Borrower": as defined in the preamble.
"Borrowing": a group of Loans of a single Type made by the
Lenders or the Swing Line Lender, as appropriate, on a single date and
as to which a single Interest Period is in effect.
"BT": Bankers Trust Company, a New York banking corporation.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close; provided, however, that when used in
connection with a Eurodollar Loan, the term "Business Day" shall also
exclude any day on which banks are not open for dealings in dollar
deposits in the London interbank market.
"Canadian Credit Agreement": Revolver and Term Credit
Agreement between Waterloo Furniture Components Limited and the Bank
of Montreal dated May 30, 1990, as amended.
"Capital Lease": as applied to any Person, any lease of any
property (whether real, personal or mixed) by that Person as lessee
which would, in conformity with GAAP, be required to be accounted for
as a capital lease on the balance sheet of that Person.
"Capital Stock": with respect to any Person, any and all
shares, interests, participations, rights in or other equivalents
(however designated) of such Person's capital stock partnership
interests, membership interests or other equivalent interests and any
rights (other than debt securities convertible into or exchangeable
for capital stock or such interests), warrants or options exchangeable
for or convertible into such capital stock or other interests.
"Capitalized Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the liability in
respect of a Capital Lease which would at such time be so required to
be capitalized on such a balance sheet in accordance with GAAP.
-4-
12
"Cash Equivalents" means Investments of the type specified in
clauses (i), (ii), (iii), (iv) and (ix) of the definition of
"Permitted Investments".
"Change of Control": (i) the sale, lease or transfer of all or
substantially all of Borrower's assets to any Person or group (as such
term is used in Section 13(d)(3) of the Exchange Act), (ii) the
liquidation or dissolution of Borrower, (iii) any person or group of
persons (within the meaning of the Exchange Act) other than the
Permitted Holders acquiring beneficial ownership (within the meaning
of Rule 13d-3 promulgated by the SEC under the Exchange Act) of 35% or
more of the issued and outstanding shares of Borrower's Voting
Securities; or (iv) during any period of twelve consecutive calendar
months, individuals who at the beginning of such period constituted
Borrower's board of directors (together with any new directors whose
election by Borrower's board of directors or whose nomination for
election by Borrower's stockholders was approved by a vote of at least
two-thirds of the directors then still in office who either were
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason other than death or disability to constitute a majority of the
directors then in office.
"Closing Date": February 26, 1998.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral Account" has the meaning assigned to that term in
Section 4.4(a).
"Commercial Letter of Credit" has the meaning assigned to that
term in Section 2.9(a).
"Committed Loan": any Revolving Loan or Swing Line Loan.
"Commitment": as to any Lender at any time, the aggregate of
such Lender's outstanding Revolving Commitment and its Swing Line
Commitment.
"Commitment Percentage": as to any Lender at any time, the
percentage which such Lender's Revolving Commitment then constitutes
of the aggregate Revolving Commitments (or, at any time after the
Revolving Commitments shall have expired or terminated, the percentage
which the aggregate principal amount of such Lender's Loans then
outstanding constitutes of the aggregate principal amount of the Loans
then outstanding; provided, however, that for purposes of determining
the amount of a Lender's Loans, Swing Line Loans shall be deemed to be
held not by the Swing Line Lender, but rather each Lender shall be
deemed to hold the amount of Swing Line Loans equal to its Commitment
Percentage of the Swing Line Loans then outstanding).
"Commitment Period": the period from and including the date
hereof to but not including the Termination Date.
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13
"Commodity Price Protection Agreement" any Contractual
Obligation or other arrangement designed to protect Borrower or any of
its Subsidiaries from fluctuations in the price of commodities.
"Consolidated Capital Expenditures": for any period, the
aggregate of all expenditures (whether paid in cash or accrued as a
liability and including that portion of Capital Leases which is
capitalized on the consolidated balance sheet of Borrower and its
Subsidiaries for the applicable period) by Borrower and its
Subsidiaries during that period that, in conformity with GAAP, are
included in "additions to property, plant or equipment" or comparable
items reflected in the consolidated statement of cash flows of
Borrower and its Subsidiaries.
"Consolidated Debt": indebtedness for money borrowed of
Borrower and its Subsidiaries that should be shown as a liability on a
consolidated balance sheet of Borrower and its Subsidiaries prepared
in accordance with GAAP plus, without duplication, the amount of
Indebtedness of the type described in clauses (iii) and (x) of the
definition thereof plus, without duplication, Attributable Debt.
"Consolidated EBITDA": without duplication for any Person for
any period for which such amount is being determined, Consolidated Net
Income or Consolidated Net Loss for such period plus the sum of the
amounts for such period of (i) Consolidated Interest Expense, (ii)
provision for taxes based on income, (iii) depreciation expense, and
(iv) amortization expense, minus any non-cash non-operating income for
such period to the extent included in Consolidated Net Income or
Consolidated Net Loss and excluding any gain or loss recognized in
respect of post-retirement benefits as a result of the application of
FASB 106 and any foreign currency translation adjustments as a result
of the application of FASB 52, all as determined on a consolidated
basis for such Person and its consolidated Subsidiaries in accordance
with GAAP. For purpose of this definition, "Consolidated EBITDA"
shall be calculated after giving effect on a pro forma basis to any
Acquisition as if such Acquisition occurred on the first day of the
applicable period on the same basis as is required in clauses (A)
through (C) for the pro forma test under clause (iii) of the
definition of Permitted Acquisition.
"Consolidated Interest Expense": with respect to any Person,
for any period for which such amount is being determined, total
interest expense of such Person and its Subsidiaries on a consolidated
basis in accordance with GAAP for such period.
"Consolidated Net Income" and "Consolidated Net Loss": for
any Person for any period for which such amount is being determined,
the net income (loss) of such Person and its consolidated Subsidiaries
during such period determined on a consolidated basis for such period
taken as a single accounting period in accordance with GAAP, provided
that there shall be excluded (i) income (or loss) of any Person (other
than a consolidated Subsidiary of such Person) in which any other
Person (other than such Person or any of its consolidated
Subsidiaries) has a joint interest, except to the extent of the amount
of
-6-
14
dividends or other distributions actually paid to such Person or any
of its consolidated Subsidiaries by such other Person during such
period, (ii) the income (or loss) of any Person accrued prior to the
date it becomes a consolidated Subsidiary of such Person or is merged
into or consolidated with such Person or any of its consolidated
Subsidiaries or the Person's assets are acquired by such Person or any
of its consolidated Subsidiaries and (iii) the income of any
consolidated Subsidiary of such Person to the extent that the
declaration or payment of dividends or similar distributions by that
consolidated Subsidiary of the income is not at the time permitted by
operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to that consolidated Subsidiary.
"Consolidated Net Worth": the total amount shown on the
balance sheet of Borrower and its consolidated Subsidiaries,
determined on a consolidated basis in accordance with GAAP, as (i) the
par or stated value of all outstanding Capital Stock of such Person
plus (ii) paid-in capital or capital surplus relating to such Capital
Stock plus (iii) any retained earnings or earned surplus less (A) any
accumulated deficit, (B) any amounts attributable to Redeemable Stock
and (C) any amounts attributable to Exchangeable Stock, excluding,
where applicable, any adjustments in respect of foreign currency
translation.
"Contaminant": any material with respect to which any
Environmental Law imposes a duty, obligation or standard of conduct,
including without limitation any pollutant, contaminant (as those
terms are defined in 42 U.S.C. Section 9601(33)), toxic pollutant (as
that term is defined in 33 U.S.C. Section 1362(13)), hazardous
substance (as that term is defined in 42 U.S.C. Section 9601(14)),
hazardous chemical (as that term is defined by 29 CFR Section
1910.1200(c)), hazardous waste (as that term is defined in 42 U.S.C.
Section 6903(5)), or any state or local equivalent of such laws and
regulations, including, without limitation, radioactive material,
special waste, polychlorinated biphenyls, asbestos, petroleum,
including crude oil or any petroleum- derived substance, (or any
fraction thereof), waste, or breakdown or decomposition product
thereof, or any constituent of any such substance or waste, including
but not limited to polychlorinated biphenyls and asbestos.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or
any of its property is bound or to which it may be subject.
"Credit Event" means the making of any Loan or the issuance of
any Letter of Credit.
"Currency Protection Agreement": any foreign exchange
contract, currency swap agreement, or other financial agreement or
arrangement designed to protect Borrower or any of its Subsidiaries
against fluctuations in currency values.
"Debts": all liabilities, whether matured or unmatured,
liquidated or unliquidated, absolute, fixed or contingent.
-7-
15
"Default Rate": a variable rate per annum which shall be two
percent (2%) per annum plus either (i) the then applicable interest
rate hereunder in respect of the amount on which the Default Rate is
being assessed, or (ii) if there is no such applicable interest rate,
the Base Rate plus the Applicable Margin, but in no event in excess of
that permitted by applicable law.
"Defaulting Lender" shall mean any Lender with respect to
which a Lender Default is in effect.
"Dollars" and "$": dollars in lawful currency of the U.S.
"Domestic Subsidiary": any Subsidiary of Borrower that is
incorporated under the laws of any State of the U.S., the District of
Columbia or any territory or possession of the U.S.
"Drawing" shall have the meaning set forth in Section
2.9(d)(ii).
"Effective Date": the effective date of the applicable
Assignment and Assumption Agreement, as defined therein.
"Eligible Assignee": (i) a commercial bank organized under the
laws of the U.S., or any State thereof, (ii) a commercial bank
organized under the laws of any other country which is a member of
OECD, or a political subdivision of any such country; provided,
however, that such bank is acting through a branch or agency located
in the country in which it is organized or another country which is
also a member of the OECD or the Cayman Islands, (iii) the central
bank of any country which is a member of the OECD, (iv) a finance
company or other financial institution or fund (whether a corporation,
partnership, trust or other entity) that is engaged in making,
purchasing or otherwise investing in commercial loans in the ordinary
course of its business, (v) an insurance company organized under the
laws of the U.S. (or any State thereof), (vi) a savings bank or
savings and loan association organized under the laws of the U.S., or
any State thereof, (vii) any Lender party to this Agreement, (viii)
any Affiliate of any Lender party to this Agreement, and (ix) any
other Person approved by Agent and Borrower, such approval not to be
unreasonably withheld; provided, however, that an affiliate of
Borrower shall not qualify as an Eligible Assignee.
"Environmental Laws": any and all foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority
or other Requirements of Law regulating, relating to or imposing
liability or standards of conduct concerning protection of human
health or the environment, as now or may at any time hereafter be in
effect that are applicable to the Borrower or its Subsidiaries.
-8-
16
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate": each trade or business (whether or not
incorporated) which together with Borrower or a Subsidiary of Borrower
would be deemed to be a "single employer" within the meaning of
Section 4001(b)(1) of ERISA or would be included in a "controlled
group of corporations," a group of "trades or businesses under common
control" or an "affiliated service group" within the meaning of
Section 414(b), (c), (m) or (o) of the Code. Unless otherwise
qualified, all references to an "ERISA Affiliate" in this Agreement
shall refer to an ERISA Affiliate of Borrower or any Subsidiary.
"Eurocurrency Reserve Requirements": for any day as applied
to a Eurodollar Loan, the aggregate (without duplication) of the
maximum rates (expressed as a decimal fraction) of reserve
requirements in effect on such day (including, without limitation,
basic, supplemental, marginal and emergency reserves under any
regulations of the Board or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve requirements
prescribed for Eurocurrency funding (currently referred to as
"Eurocurrency liabilities" in Regulation D of such Board) maintained
by a member bank of the Federal Reserve System.
"Eurodollar Borrowing": a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Loan": any Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate": the arithmetic average (rounded upwards to
the nearest 1/16 of 1%) of the offered quotation, if any, to first
class banks in the Eurodollar market by BT for Dollar deposits of
amounts in immediately available funds comparable to the principal
amount of the applicable Eurodollar Loan for which the Eurodollar Rate
is being determined with maturities comparable to the Interest Period
for which such Eurodollar Rate will apply, as of approximately 10:00
A.M. (New York City time) on the applicable Interest Rate
Determination Date. The determination of the Eurodollar Rate by Agent
shall be conclusive and binding on Borrower absent manifest error.
"Eurodollar Reserve Rate": with respect to each day during
each Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
Eurodollar Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section
9.1; provided, however, that any requirement for the giving of notice,
the lapse of time, or both, or any other condition, has been satisfied.
-9-
17
"Exchange Act": the Securities Exchange Act of 1934, as
amended and codified in U.S.C. 78a et seq. and as hereafter amended
from time to time.
"Exchangeable Stock": any Capital Stock which is exchangeable
or convertible into another security (other than Capital Stock of
Borrower which is neither Exchangeable Stock nor Redeemable Stock).
"Facing Agent" has the meaning assigned to that term in
Section 2.9(a).
"Federal Funds Effective Rate": for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next 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 for such day on such
transactions received by BT, as Agent, from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer": with respect to any Person, the chief
financial officer, principal accounting officer, a financial vice
president, treasurer or assistant treasurer of such Person.
"GAAP": generally accepted accounting principles in the U.S.
as in effect from time to time. If any changes in GAAP or the
application thereof from that used in the preparation of the financial
statements referred to in Section 7.1(a) hereof occur after the
Closing Date and such changes result in, in the judgment of Agent, a
material change in the calculation of any financial covenants or
restrictions set forth in this Agreement, then the parties hereto
agree to enter into and diligently pursue negotiations in order to
amend such financial covenants and restrictions so as to equitably
reflect such changes, with the desired result that the criteria for
evaluating the financial condition and results of operations of
Borrower and its Subsidiaries shall be the same after such changes as
if such changes had not been made.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of government.
"Guarantee Obligations" means, as to any Person, without
duplication, any direct or indirect obligation of such Person
guaranteeing or intended to guarantee any Indebtedness, Capital Lease
or operating lease, dividend or other obligation ("primary
obligations") of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation,
any obligation of such Person, whether or not contingent: (i) to
purchase any such primary obligation or any property constituting
direct or indirect security therefor; (ii) to advance or supply funds
(a) for the purchase or payment of any such primary
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18
obligation, or (b) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency
of the primary obligor; (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make
payment of such primary obligation; or (iv) otherwise to assure or
hold harmless the owner of such primary obligation against loss in
respect thereof; provided, however, that the term Guarantee Obligation
shall not include any endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any
Guarantee Obligation at any time shall be deemed to be an amount equal
to the lesser at such time of (y) the stated or determinable amount of
the primary obligation in respect of which such Guarantee Obligation
is made or (z) the maximum amount for which such Person may be liable
pursuant to the terms of the instrument embodying such Guarantee
Obligation; or, if not stated or determinable, the maximum reasonably
anticipated liability (assuming full performance) in respect thereof.
"Indebtedness": as applied to any Person (without
duplication):
(i) all indebtedness of such Person for borrowed
money;
(ii) the deferred and unpaid balance of the
purchase price of assets or services (other than trade
payables and other accrued liabilities incurred in the
ordinary course of business that are not overdue by more than
90 days unless being contested in good faith) which purchase
price is (y) due more than six months from the date of
incurrence of the obligation in respect thereof or (z)
evidenced by a note or a similar written instrument;
(iii) that portion of obligations of such Person
with respect to Capital Leases which is or should be
classified as a liability on a balance sheet in accordance
with GAAP;
(iv) all indebtedness secured by any Lien on any
property owned by such Person, whether or not such
indebtedness has been assumed by such Person or is nonrecourse
to such Person;
(v) notes payable and drafts accepted
representing extensions of credit whether or not representing
obligations for borrowed money (other than such notes or
drafts for the deferred purchase price of assets or services
which does not constitute Indebtedness pursuant to clause (ii)
above);
(vi) indebtedness or obligations of such Person,
in each case, evidenced by bonds, notes or similar written
instrument;
(vii) the face amount of all letters of credit and
bankers' acceptances issued for the account of such Person,
and without duplication, all drafts drawn thereunder other
than, in each case, commercial or standby letters of credit or
the functional
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19
equivalent thereof issued in connection with performance, bid
or advance payment obligations incurred in the ordinary course
of business, including, without limitation, performance
requirements under workers compensation or similar laws;
(viii) all obligations of such Person under Interest
Rate Protection Agreements or Currency Protection Agreements;
(ix) Guarantee Obligations of such Person; and
(x) the principal balance outstanding under any
synthetic lease, tax retention operation lease, off-balance
sheet loan or similar off-balance sheet financing product to
which such Person is a party, where such transaction is
considered borrowed money indebtedness for tax purposes but is
classified as an operating lease in accordance with GAAP.
"Insolvent": with respect to any Person, that the present
fair saleable value of the assets of such Person is less than the
amount that will be required to pay the probable liability on existing
Debts of such Person or such Person is unable to pay its Debts, as
such Debts become absolute and matured.
"Initial Borrowing" means the first Borrowing by Borrower
under this Agreement.
"Initial Borrowing Date" means the date of the Initial
Borrowing.
"Intellectual Property": as defined in Section 5.13.
"Intercompany Indebtedness": Indebtedness of Borrower or any
of its Subsidiaries which, in the case of Borrower, is owing to any
such Subsidiary and which, in the case of any Subsidiary of Borrower,
is owing to Borrower or any of its other Subsidiaries.
"Interest Payment Date": (a) as to any Base Rate Loan, the
last Business Day of each March, June, September and December to occur
while such Loan is outstanding and on the date all of the Loans
hereunder are paid in full, (b) as to any Eurodollar Loan, the last
day of the Interest Period applicable thereto and (c) as to any
Eurodollar Loan having an Interest Period longer than three months
each day which is three months after the first day of the Interest
Period applicable thereto; provided, however, that, in addition to the
foregoing, each of (x) the date upon which both the Revolving
Commitments have been terminated and the Loans have been paid in full
and (y) the Termination Date shall be deemed to be an "Interest
Payment Date" with respect to any interest which is then accrued
hereunder.
"Interest Period" has the meaning assigned to that term in
Section 3.4.
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"Interest Rate Determination Date": the date for calculating
the Eurodollar Rate for an Interest Period, which date shall be the
second Business Day prior to the first day of the related Interest
Period for such Eurodollar Loan.
"Interest Rate Protection Agreement": any interest rate swap
agreement, interest rate cap agreement or other financial agreement or
arrangement designed to protect Borrower or any of its Subsidiaries
against fluctuations in interest rates.
"Investment": as applied to any Person, any direct or
indirect purchase or other acquisition by that Person of, or a
beneficial interest in, stock or other securities of any other Person,
or a capital contribution by that Person to any other Person or any
direct or indirect loan or advance to any other Person or any purchase
by that Person of all or a significant part of the assets of a
business conducted by another Person or any purchase by that Person of
a futures contract or such person otherwise becoming liable for the
purchase or sale of currency or other commodity at a future date in
the nature of a futures contract. The amount of any Investment by any
Person shall be the original Investment (including the amount of any
liability assumed to the extent that such liability would be reflected
on a balance sheet prepared in accordance with GAAP) plus the cost of
all additions, thereto, without any adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment.
"IRS": the United States Internal Revenue Service, or any
successor or analogous organization.
"LC Commission" has the meaning assigned to that term in
Section 2.9(g)(ii).
"LC Obligations" means, at any time, an amount equal to the
sum of (a) the aggregate Stated Amount of the then outstanding Letters
of Credit and (b) the aggregate amount of Unpaid Drawings. The LC
Obligation of any Lender at any time shall mean its pro rata Share of
the aggregate LC Obligations outstanding at such time.
"LC Participant" shall have the meaning assigned to that term
in Section 2.9(e).
"LC Supportable Indebtedness" shall mean (i) obligations of
Borrower or its Subsidiaries incurred in the ordinary course of
business with respect to insurance obligations and workers'
compensation, surety bonds and other similar statutory obligations and
(ii) such other obligations of Borrower or any of its Subsidiaries as
are reasonably acceptable to Agent and the respective Facing Agent and
otherwise permitted to exist pursuant to the terms of this Agreement.
"Lender Default" shall mean (i) the refusal (which has not
been retracted) of a Lender to make available its portion of any
Borrowing or to fund its portion of any unreimbursed payment under
Section 2.1(b)or (ii) a Lender having notified in writing Borrower
and/or Agent that it does not intend to comply with its obligations
under Section 2.1, as a result of any takeover of such Lender by any
regulatory authority or agency.
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"Lenders": as defined in the preamble.
"Lending Office": with respect to each Lender, the office
specified on such Lender's signature page or in the applicable
Assignment and Assumption Agreement with respect to each type of Loan,
or such other office as such Lender may designate in writing from time
to time to Borrower and Agent with respect thereto.
"Letter of Credit" has the meaning assigned to that term in
Section 2.9(a).
"Letter of Credit Payment" means as applicable (a) all
payments made by the Facing Agent pursuant to either a draft or demand
for payment under a Letter of Credit or (b) all payments made by the
Lenders to the Facing Agent in respect thereof.
"Letter of Credit Request" has the meaning assigned to that
term in Section 2.9(c).
"Lien": any judgment lien or execution, attachment, levy,
distraint or similar legal process and any mortgage, pledge, security
interest, encumbrance, lien, option, charge or deposit arrangement
(other than a deposit in the ordinary course of business and not
intended as security) of any kind (including, without limitation, any
conditional sale or other title retention agreement or lease in the
nature thereof, any sale of receivables with recourse (in whole or in
part) against the seller or any other Person except the account
debtors, any filing or agreement to file a financing statement as
debtor under the UCC or any similar statute other than to reflect
ownership by a third party of property leased to Borrower or any of
its Subsidiaries under a lease which is not in the nature of a
conditional sale or title retention agreement, or any subordination
arrangement in favor of another Person).
"Liquidity": as of any date of determination cash and Cash
Equivalents of the Borrower (determined on a consolidated basis) plus
the Total Available Revolving Commitments.
"Loan": a Revolving Loan or a Swing Line Loan, as the context
shall require; collectively, the "Loans."
"Loan Documents": this Agreement, the Notes, each Letter of
Credit, the Subsidiary Guarantee Agreement and any other instruments,
documents and agreements delivered to Agent in favor of the Lenders or
for the benefit of the Lenders.
"Loan Party": Borrower or any Subsidiary or Affiliate thereof
which is a party to any Loan Document.
"Majority Lenders": at any time, Lenders whose Commitment
Percentages represent at least 51%.
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"Material Adverse Effect": a material adverse effect on (a)
the business, condition (financial or otherwise), assets, liabilities,
property or operations of Borrower and its Subsidiaries taken as a
whole, (b) the ability of Borrower or any Subsidiary to perform its
obligations under any Loan Document to which it is a party, or (c) the
validity or enforceability of this Agreement, any Note, or the
Subsidiary Guarantee Agreement or the rights or remedies of Agent and
the Lenders hereunder or thereunder.
"Material Asset Disposition": any Asset Disposition of all or
any substantial part of the assets of Borrower and its Subsidiaries,
taken as a whole, to any Person (other than Borrower or any of its
Subsidiaries). For purposes of this definition, any subsidiary or the
assets of a business operation which, in each case, if separately
counted would constitute a "significant subsidiary" within the meaning
of Rule 1-02 of Regulation S-X promulgated by the United States
Securities and Exchange Commission shall be deemed to constitute a
"substantial part of the assets" of such Borrower and its
Subsidiaries, taken as a whole.
"Material Subsidiary": a Subsidiary, including its
subsidiaries, which meets any of the following conditions:
(i) the Borrower's and its Subsidiaries' other
investments in and advances to the Subsidiary exceed 10
percent of the total assets of the Borrower and its
Subsidiaries as of the end of the most recently completed
fiscal year (for a proposed business combination to be
accounted for as a pooling of interests, this condition is
also met when the number of common shares exchanged or to be
exchanged by the Borrower exceeds 10 percent of its total
common shares outstanding at the date the combination is
initiated); or
(ii) the Borrower's and its other Subsidiaries'
proportionate share of the total assets (after intercompany
eliminations) of the subsidiary exceeds 10 percent of the
total assets of the Borrower and its Subsidiaries consolidated
as of the end of the most recently completed fiscal year; or
(iii) the Borrower's and its other Subsidiaries'
equity in the income from continuing operations before income
taxes, extraordinary items and cumulative effect of a change
in accounting principle of the Subsidiary exceeds 10 percent
of such income of the Borrower and its Subsidiaries
consolidated for the most recently completed fiscal year.
"Minimum Borrowing Amount" means, with respect to Base Rate
Loans, $5,000,000, and with respect to Eurodollar Loans, $5,000,000,
and with respect to Swing Line Loans, $1,000,000.
"Modification": as defined in Section 11.1.
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"Moody's": Xxxxx'x Investors Service, Inc. or any successor
to the rating agency business thereof.
"Most Recent Ratio of Consolidated Debt to Consolidated
EBITDA": at any date, the ratio of Consolidated Debt as of the end of
the most recently ended fiscal quarter of Borrower for which financial
statements have been delivered pursuant to Section 7.1 (after giving
effect to all payments made on such date) to Consolidated EBITDA for
the period of four consecutive fiscal quarters ending on the last day
of the most recently ended fiscal quarter of Borrower for which
financial statements have been delivered pursuant to Section 7.1;
provided, however, that on the date of any Acquisition, the "Most
Recent Ratio of Consolidated Debt to Consolidated EBITDA" shall be
recalculated effective until the date of delivery of the next
quarterly financial statements as the ratio of Consolidated Debt as of
the date of any such Acquisition (and after giving effect to any
Indebtedness incurred or assumed in connection therewith) to
Consolidated EBITDA for the four fiscal quarter period ending as of
the most recently ended fiscal quarter for which financial statements
have been delivered pursuant to Section 7.1 (calculated on a pro forma
basis as set forth in the definition of Consolidated EBITDA after
giving effect to the Acquisition); provided, further, however, that if
Borrower fails to deliver such financial statements as required by
Article VII and further fails to remedy such default within five days
of notice thereof from Agent, then, without prejudice to any other
rights of any Lender hereunder, the Most Recent Ratio of Consolidated
Debt to Consolidated EBITDA" shall be deemed to be greater than 2.5 to
1.0 as of the date such financial statements were required to be
delivered under Section 7.1.
"Multiemployer Plan": any plan described in Section 4001(a)(3)
of ERISA to which contributions are or, within the immediately
preceding six years, have been made or required by Borrower or any of
its Subsidiaries or ERISA Affiliates.
"Net Offering Proceeds" means the proceeds received from (a)
the issuance of any Capital Stock or (b) the incurrence of any
Indebtedness, in each case net of the actual liabilities for
reasonably anticipated cash taxes in connection with such issuance or
incurrence, if any, any underwriting, brokerage and other customary
selling commissions incurred in connection with such issuance or
incurrence, and reasonable legal, advisory and other fees and
expenses, including title and recording tax expenses, if any, incurred
in connection with such issuance or incurrence.
"Net Sale Proceeds": means the aggregate cash proceeds
received from any Asset Disposition (including, without limitation,
cash received by way of deferred payment pursuant to a note
receivable, conversion of non- cash consideration, cash payments in
respect of purchase price adjustments or otherwise, but only as and
when such cash is received) by Borrower or any Subsidiary minus the
reasonable costs and expenses incurred in connection therewith and any
provision for taxes in respect thereof made in accordance with GAAP.
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"Non-Convertible Capital Stock": with respect to any
corporation, any non-convertible Capital Stock of such corporation and
any Capital Stock of such corporation convertible solely into
non-convertible common stock of such corporation; provided, however,
that Non-Convertible Capital Stock shall not include any Redeemable
Stock or Exchangeable Stock.
"Non-Defaulting Lender" shall mean each Lender which is not a
Defaulting Lender.
"Notes": means, respectively (i) individually, each Revolving
Note or Swing Line Note and (ii) collectively, all such promissory
notes.
"Notice of Borrowing" has the meaning assigned to that term in
Section 2.5.
"Notice of Conversion or Continuation" has the meaning
assigned to that term in Section 2.6.
"Obligations": all Loans and other Indebtedness, advances,
debts, liabilities, obligations, covenants and duties owing by any
Loan Party to any Lender, any Agent or any other Person required to be
indemnified under any Loan Document, of any kind or nature, present or
future, whether or not evidenced by any note, guaranty or other
instrument, arising under this Agreement or under any other Loan
Document, whether or not for the payment of money, whether arising by
reason of an extension of credit, loan, guaranty, indemnification or
in any other manner, whether direct or indirect (including those
acquired by assignment), absolute or contingent, due or to become due,
now existing or hereafter arising and however acquired.
"OECD": the Organization for Economic Cooperation and
Development.
"Payment Office": the address for such payments for such
Loans set forth on Schedule 11.3 hereto in relation to Agent, or such
other address as Agent may from time to time specify in accordance
with Section 11.3.
"PBGC": the Pension Benefit Guaranty Corporation created by
Section 4002(a) of ERISA or any successor thereto.
"Permitted Acquisition": means any Acquisition where (i) the
Person or assets to be acquired are in a business which is reasonably
related to the business the Borrower or any Subsidiary of the Borrower
is engaged in as of the date hereof; (ii) the Person acquired is a
Wholly-Owned Subsidiary or the assets acquired are owned by the
Borrower or a Wholly-Owned Subsidiary; (iii) after giving effect
thereto on a pro forma basis for the period (the "Pro Forma Period")
of four fiscal quarters ending with the fiscal quarter for which
financial statements have most recently been delivered (or were
required to be delivered) under Section 7.1 (on the basis that (A)
Indebtedness incurred or assumed in connection with such Acquisition
was incurred or assumed at the beginning of the Pro
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Forma Period, (B) if such Indebtedness bears interest at a floating
rate, interest expense for the Pro Forma Period shall be calculated
at the rate in effect on the date of such Acquisition, and (C) all
income and expenses associated with the assets or entity acquired in
connection with such Acquisition for the most recently ended four
fiscal quarter period for which such income and expense amounts are
available (with good faith estimates thereof being permitted if
financial statements indicating such amounts are not available) shall
be treated as being earned or incurred by Borrower over the Pro Forma
Period on a pro forma basis), no Event of Default or Unmatured Event
of Default would exist hereunder; (iv) after giving effect thereto on
a pro forma basis the Borrower's Liquidity shall not be less than
$20,000,000; (v) Borrower and its Subsidiaries have complied with the
requirement of Section 7.10 hereof with respect to any required
execution of the Subsidiary Guarantee Agreement; and (vi) such
Acquisition has been approved by the board of directors of the Person
to be acquired;
"Permitted Holders" means (i) Xxxxxx X. Xxxxxxx, (ii) the
trustees of the Xxxxxx X. Xxxxxxx Family Trust No. 1 dated January 1,
1964, the Xxxxxx X. Xxxxxxx Family Trust No. 2 dated January 1, 1964
and any trust or trusts, established after the Closing Date for the
benefit of Xxxxxx X. Xxxxxxx and/or his spouse or his descendants
whether natural or adopted (such trusts collectively, the "Trusts" and
such individuals collectively, the "Beneficiaries"), (iii) each of the
Trusts, (iv) each of the Beneficiaries, (v) any Person controlled,
directly or indirectly, by one or more of the Persons described in
clauses (i) through (iv) above, (v) any employee benefit plan or
pension fund of the Company or any Subsidiary, (vi) any Person holding
Voting Securities for or pursuant to the terms of any such plan or
fund, and (vii) any group made up of Persons described in clauses (i)
through (vi) above.
"Permitted Investments":
(i) any demand deposits with any bank or trust
company maintained in the ordinary course of business or
shares of any money market mutual fund rated at least AAA or
the equivalent thereof by S&P or at least Aaa or the
equivalent thereof by Moody's, including, without limitation,
any such mutual fund managed or advised by any Lender or
Agent;
(ii) any evidence of Indebtedness, maturing not
more than two (2) years after the date of acquisition thereof,
issued by the U.S., or an instrumentality or agency thereof
and guaranteed fully as to principal, interest and premium, if
any, by the U.S.;
(iii) any certificate of deposit that is
denominated in Dollars, maturing not more than six (6) months
after the date of purchase, issued by a Lender or a commercial
banking institution which is a member of the Federal Reserve
System and which has a combined capital and surplus and
undivided profits of not less than $200,000,000;
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(iv) commercial paper, maturing not more than
ninety (90) days after the date of acquisition, issued by a
corporation organized and existing under the laws of any State
of the U.S. or the District of Columbia or Canada, which is
denominated in Dollars, with a rating, at any date of
determination, of "Prime-2" (or better) according to Moody's,
or "A-2" (or better) according to S & P;
(v) Intercompany Indebtedness to the extent
permitted by Section 8.2(b);
(vi) Investments made solely as a result of
mergers, acquisitions or consolidations permitted under
Section 8.4;
(vii) Investments in connection with a Permitted
Acquisition;
(viii) loans or advances to employees made in the
ordinary course of business;
(ix) Investments in overnight Nassau time deposits
and Eurodollar deposits in branches or offices of banking
institutions described in clause (ii) of this definition of
the term "Permitted Investments";
(x) Investments in Subsidiaries;
(xi) Investments not otherwise permitted hereunder
not to exceed $5,000,000 in the aggregate outstanding at any
time.
"Permitted Liens": The following Liens:
(i) Liens for property taxes and assessments or
governmental charges or levies and Liens securing claims or
demands of mechanics and materialmen; provided, however,
payment thereof is not later than the time required by Section
7.5;
(ii) Liens in an aggregate amount not to exceed
$3,000,000 at any time of or resulting from any judgment or
award, the time for the appeal or petition for rehearing of
which shall not have expired, or in respect of which Borrower
or a Subsidiary of Borrower shall at any time in good faith be
prosecuting an appeal or proceeding for a review and in
respect of which a stay of execution pending such appeal or
proceeding for review shall have been secured;
(iii) Liens incidental to the conduct of business
or the ownership of properties and assets (including Liens in
connection with worker's compensation, unemployment insurance
and other like laws, warehousemen's and attorneys' liens and
statutory landlords' liens) and Liens to secure the
performance of bids, tenders or trade contracts, or to secure
statutory obligations, surety or appeal bonds or
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other Liens of like general nature incurred in the ordinary
course of business and not in connection with the borrowing of
money; provided, however, in each case, the obligation secured
is not overdue or, if overdue, is being contested in good
faith by appropriate actions or proceedings;
(iv) minor survey exceptions or minor
encumbrances, easements or reservations, or rights of others
for rights-of-way, utilities and other similar purposes, or
zoning or other restrictions as to the use of real properties,
which customarily exist on properties of corporations engaged
in similar activities and similarly situated and which do not
in any event materially impair their use in the operation of
the business of Borrower and its Subsidiaries;
(v) Liens securing Indebtedness of a Subsidiary
of Borrower to Borrower;
(vi) Liens existing as of the Closing Date and
reflected on Schedule 8.3 hereto and Liens incurred in
connection with the refinancing of Indebtedness secured
thereby so long as no such Lien extends to any property not
subject thereto as of the Closing Date (other than
improvements thereto or, if required by the terms of the
document or instrument creating or governing such Lien as in
effect on the Closing Date, additions thereto and replacements
and substitutions therefor);
(vii) customary rights of setoff, revocation,
refund or chargeback under deposit agreements or under the UCC
of banks or other financial institutions where Borrower or its
Subsidiaries maintain deposits in the ordinary course of
business; and
(viii) additional Liens incurred by Borrower and its
Subsidiaries so long as the value of the property subject to
such Liens and other obligations secured thereby, do not
exceed $5,000,000.
"Person": an individual or a corporation, limited liability
company, partnership, trust, incorporated or unincorporated
association, joint venture, joint stock company, government (or an
agency or political subdivision thereof) or other entity of any kind
provided; references to Persons include their respective permitted
successors and assigns or, in the case of governmental Persons,
Persons succeeding to the relevant functions of such persons; and all
references to statutes and related regulations shall include any
amendments of same and any successor statutes and regulations.
"Plan": any plan described in Section 4021(a) of ERISA and
not excluded pursuant to Section 4021(b) thereof, which may hereafter
be or has been established or maintained, within the immediately
preceding six years, or to which contributions are or, within the
immediately preceding six years, have been made, by Borrower or any of
its Subsidiaries or ERISA Affiliates, but not including any
Multiemployer Plan.
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"Plan Administrator": has the meaning assigned to the term
"administrator" in Section 3(16)(A) of ERISA.
"Plan Sponsor": has the meaning assigned to the term "plan
sponsor" in Section 3(16)(B) of ERISA.
"Prime Lending Rate": the rate which BT announces from time
to time as its prime lending rate, base rate or equivalent, as in
effect from time to time. The Prime Lending Rate is a reference rate
and does not necessarily represent the lowest or best rate actually
charged to any customer. Any Lender may make commercial loans or
other loans at rates of interest at, above or below the Prime Lending
Rate. The Prime Lending Rate shall change automatically and without
notice from time to time as and when BT changes its prime lending
rates, base rates or equivalent.
"Quarterly Payment Date" means the last Business Day of each
March, June, September and December of each year.
"Redeemable Stock": any Capital Stock that by its terms or
otherwise is required to be redeemed on or prior to the first
anniversary of the Termination Date (as the same may be extended
pursuant to the terms hereof) or is redeemable at the option of the
holder thereof at any time on or prior to the first anniversary of
such Termination Date.
"Refunded Swing Line Loans": as defined in Section 2.2(d).
"Register": as defined in Section 11.9(c).
"Regulation D", "Regulation G", "Regulation T", "Regulation U"
and "Regulation X": respectively, Regulation D, G, T, U and X of the
Board as from time to time in effect and any successor to all or a
portion of any thereof.
"Release": any release, spill, emission, leaking, pumping,
pouring, emptying, dumping, injection, deposit, disposal, discharge,
dispersal, escape, leaching or migration in violation of any
Environmental Law into the indoor or outdoor environment or into or
out of any property of Borrower or its Subsidiaries, or at any other
location, including any location to which Borrower or any Subsidiary
has transported or arranged for the transportation of any Contaminant,
including the movement of Contaminants through or in the air, soil,
surface water, groundwater or property of Borrower or its Subsidiaries
or at any other location, including any location to which Borrower or
any Subsidiary has transported or arranged for the transportation of
any Contaminant.
"Remedial Action": actions required to (i) clean up, remove,
treat or in any other way address Contaminants in the indoor or
outdoor environment, (ii) prevent or minimize the Release or threat of
Release of Contaminants so they do not migrate or endanger or threaten
to endanger public health or welfare or the indoor or outdoor
environment; or (iii) perform
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pre-remedial or post-remedial studies and investigations and
post-remedial monitoring and care or any other studies, reports or
investigations relating to Contaminants.
"Reportable Event": a "reportable event" described in Section
4043(b) of ERISA or in the regulations thereunder or receipt of a
notice of withdrawal liability with respect to a Multiemployer Plan
pursuant to Section 4202 of ERISA.
"Requirement of Law": as to any Person, any law (including
common law), treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, including
without limitation, any Environmental Law, in each case applicable to
or binding upon such Person or any of its property or to which such
Person or any of its property is subject.
"Responsible Officer": means any of the President, any
Executive Vice President, the Chief Financing Officer or the Treasurer
of Borrower.
"Revolving Commitment": as to any Lender, the obligation of
such Lender to (a) make Revolving Loans to Borrower, (b) participate
in Swing Line Loans made to Borrower and (c) to participate in Letters
of Credit, in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule 1.1 under the heading "Revolving Commitment", as such
amount may be reduced from time to time in accordance with the terms
hereof; collectively, as to all Lenders, the "Revolving Commitments".
"Revolving Loans": as defined in Section 2.1(a).
"Revolving Note": as defined in Section 2.1(b).
"Sale and Leaseback Transaction": any arrangement, directly
or indirectly, with any Person whereby a seller or transferor shall
sell or otherwise transfer any real or personal property and then or
thereafter lease, or repurchase under an extended purchase contract,
conditional sales or other title retention agreement, the same or
similar property.
"S&P": Standard & Poor's Ratings Services, a division of the
McGraw Hill Companies, Inc. or any successor to the rating agency
business thereof.
"Standby Letter of Credit" shall have the meaning set forth in
Section 2.9(a).
"Stated Amount" or "Stated Amounts" means with respect to any
Letter of Credit issued in Dollars, the stated or face amount of such Letter of
Credit to the extent available at the time for drawing (subject to presentment
of all requisite documents), as the same may be increased or decreased from
time to time in accordance with the terms of such Letter of Credit. For
purposes of calculating the Stated Amount of any Letter of Credit at any time:
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(i) any increase in the Stated Amount of any
Letter of Credit by reason of any amendment to any Letter of Credit
shall be deemed effective under this Agreement as of the date Facing
Agent actually issues an amendment purporting to increase the Stated
Amount of such Letter of Credit, whether or not Facing Agent receives
the consent of the Letter of Credit beneficiary or beneficiaries to
the amendment, except that if Borrower has required that the increase
in Stated Amount be given effect as of an earlier date and Facing
Agent issues an amendment to that effect, then such increase in Stated
Amount shall be deemed effective under this Agreement as of such
earlier date requested by Borrower; and
(ii) any reduction in the Stated Amount of any
Letter of Credit by reason of any amendment to any Letter of Credit
shall be deemed effective under this Agreement as of the later of (x)
the date Facing Agent actually issues an amendment purporting to
reduce the Stated Amount of such Letter of Credit, whether or not the
amendment provides that the reduction be given effect as of an earlier
date, or (y) the date Facing Agent receives the written consent
(including by telex or facsimile transmission) of the Letter of Credit
beneficiary or beneficiaries to such reduction, whether written
consent must be dated on or after the date of the amendment issued by
Facing Agent purporting to effect such reduction.
"Subsidiary": as to any Person, any corporation of which at
least a majority of the outstanding stock having by the terms thereof
ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether or not at the time stock of
any other class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency) is at
the time owned by such Person, or by one or more Subsidiaries, or by
such Person and one or more Subsidiaries. Unless otherwise qualified,
all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of Borrower.
"Subsidiary Guarantee Agreement": the Subsidiary Guarantee
Agreement in substantially the form of Exhibit 1.1 hereto, as the same
may be amended, supplemented or otherwise modified from time to time
in accordance with its terms and the terms hereof.
"Subsidiary Guarantor": such Material Subsidiaries which
pursuant to Section 7.10 from time to time become a party to the
Subsidiary Guarantee Agreement and collectively, all of such Material
Subsidiaries.
"Swing Line Commitment": of the Swing Line Lender at any
date, the obligation of the Swing Line Lender to make Swing Line Loans
pursuant to Section 2.2 in the amount referred to therein.
"Swing Line Lender": BT.
"Swing Line Loans": as defined in Section 2.2(a).
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"Swing Line Loan Participation Certificate": a certificate,
substantially in the form of Exhibit 2.2(e).
"Swing Line Note": as defined in Section 2.2(b).
"Syndication Date" shall mean that date upon which the Agent
determines in its sole discretion (and notifies Borrower) that the
primary syndication (and resultant additions of institutions as
Lenders pursuant to Section 11.9(c)) has been completed.
"Taxes": any present or future taxes, levies, imposts, duties
or other charges of whatever nature imposed by any government or any
political subdivision or taxing authority thereof, other than any tax
on, or measured by, the net income of any applicable Lender pursuant
to the income tax laws of the U.S. or the jurisdictions where such
Lender's principal or Lending Offices are located.
"Termination Date": the earlier to occur of
(a) February 26, 2003; and
(b) the date on which the Revolving Commitments
shall otherwise terminate in accordance with the provisions of
this Agreement.
"Termination Event" means (i) a Reportable Event (other than a
Reportable Event not subject to the provisions for 30-day notice to
the PBGC under such regulations), or (ii) the withdrawal of Borrower
or any of its ERISA Affiliates from a Plan during a plan year in which
it was a "substantial employer" as defined in Section 4001(a)(2) of
ERISA, or (iii) the filing of a notice of intent to terminate a Plan
in a distress termination under Section 4041 of ERISA, or (iv) the
institution of proceedings to terminate a Plan by the PBGC, or (v) any
other event or condition which might constitute grounds under Section
4042 of ERISA for the involuntary termination of, or the appointment
of a trustee to administer, any Plan, or (vi) the imposition of
liability of Borrower or any of its ERISA Affiliates pursuant to
Sections 4064 or 4069 of ERISA, which, in the case of any event
described in clauses (i) through (vi) above, would cause the sum of
Borrower's and its ERISA Affiliates' liabilities (after giving effect
to the tax consequences thereof) resulting from or otherwise
associated with such event to exceed $10,000,000.
"Total Available Revolving Commitment" means, at the time any
determination thereof is made, the sum of the respective Available
Revolving Commitments of the Lenders at such time.
"Transaction" shall mean and include each of the Borrowings
occurring on the Closing Date and the payment of fees and expenses in
connection with the foregoing.
"Type": as to any Loan, its nature as a Base Rate Loan or a
Eurodollar Loan.
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"Unmatured Event of Default": an event, act, condition or
occurrence which with the giving of notice or the lapse of time (or
both) would become an Event of Default.
"Unpaid Drawing" shall have the meaning set forth in Section
2.9(d).
"U.S.": the United States of America, its territories, its
possessions and all other areas subject to its jurisdiction.
"Valcor Note" means that certain demand promissory note, dated
December 12, 1997, issued by the Borrower to Valcor, Inc. in the
original principal amount of $50,000,000.
"Voting Securities": any class of Capital Stock of a Person
pursuant to which the holders thereof have, at the time of
determination, the general voting power under ordinary circumstances
to vote for the election of directors, managers, trustees or general
partners of such Person (irrespective of whether or not at the time
any other class or classes will have or might have voting power by
reason of the happening of any contingency).
"Wholly-Owned Subsidiary": with respect to any Person, any
Subsidiary of such Person, all of the outstanding shares of capital
stock of which (other than qualifying shares required to be owned by
directors) are at the time owned directly or indirectly by such Person
and/or one or more Wholly-Owned Subsidiaries of such Person.
"Withdrawal Liability": liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of
ERISA.
"written" or "in writing": any form of written communication
or a communication by means of a telecopier device or authenticated
telex, telegraph or cable.
1.2 Accounting Terms, Financial Statements. All
accounting terms used herein shall have the respective meanings given to them
in accordance with GAAP, unless otherwise provided herein. All computations
and determinations for purposes of determining compliance with the financial
requirements of this Agreement shall be made in accordance with GAAP, unless
otherwise provided herein.
1.3 Other Definitional Terms. The words "hereof",
"herein" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Article, Section, Recital, Schedule, Exhibit
and like references are to this Agreement unless otherwise specified.
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ARTICLE II
AMOUNT AND TERMS OF CREDIT
2.1 The Commitments.
(a) Revolving Loans. Each Lender having a Revolving
Commitment, severally and for itself alone, hereby agrees, on the terms and
subject to the conditions hereinafter set forth and in reliance upon the
representations and warranties set forth herein and in the other Loan
Documents, to make loans to Borrower on a revolving basis from time to time
during the Commitment Period, in an amount not to exceed its Commitment
Percentage of the Total Available Revolving Commitment (each such loan by any
Lender, a "Revolving Loan" and collectively, the "Revolving Loans"). All
Revolving Loans comprising the same Borrowing hereunder shall be made by the
Revolving Lenders simultaneously and in proportion to their respective
Revolving Commitments. Prior to the Termination Date, Revolving Loans may be
repaid and reborrowed by Borrower in accordance with the provisions hereof and,
except as otherwise specifically provided in Section 3.6, all Revolving Loans
comprising the same Borrowing shall at all times be of the same Type and no
Revolving Loans maintained as Eurodollar Loans may be incurred prior to the
earlier of (1) the 30th day after the Initial Borrowing Date and (2) the
Syndication Date.
(b) Swing Line Loans.
(i) Swing Line Commitment. Subject to the terms
and conditions hereof, the Swing Line Lender in its individual capacity agrees
to make swing line loans in Dollars ("Swing Line Loans") to Borrower on any
Business Day from time to time during the Commitment Period in an aggregate
principal amount at any one time outstanding not to exceed $10,000,000;
provided, however, that in no event may the amount of any Borrowing of Swing
Line Loans (A) exceed the Total Available Revolving Commitment immediately
prior to such Borrowing (after giving effect to the use of proceeds thereof) or
(B) cause the outstanding Revolving Loans of any Lender, when added to such
Lender's Commitment Percentage of the then outstanding Swing Line Loans and
Commitment Percentage of the aggregate LC Obligations (exclusive of Unpaid
Drawings relating to LC Obligations which are repaid with the proceeds of, and
simultaneously with the incurrence of, Revolving Loans or Swing Line Loans) to
exceed such Lender's Revolving Commitment. Amounts borrowed by Borrower under
this Section 2.1(b)(i) may be repaid and, to but excluding the Termination
Date, reborrowed. The Swing Line Loans shall be made in Dollars and maintained
as Base Rate Loans and, notwithstanding Section 2.6, shall not be entitled to
be converted into any other Type of Loan.
(ii) Refunding of Swing Line Loans. The Swing
Line Lender, at any time in its sole and absolute discretion, may on behalf of
Borrower (which hereby irrevocably directs the Swing Line Lender to so act on
its behalf) notify each Lender (including the Swing Line Lender) to make a
Revolving Loan in an amount equal to such Lender's Commitment Percentage of the
principal amount of the Swing Line Loans (the "Refunded Swing Line Loans")
outstanding on the date such notice is given, provided, however, that such
notice shall be deemed to have automatically been given upon the occurrence of
an Event of Default under Sections 9.1(g) or 9.1(h) or upon the occurrence of a
Change of Control. Unless any of the events described in Sections 9.1(g) or
9.1(h)
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shall have occurred (in which event the procedures of Section 2.1(b)(iii) shall
apply) and regardless of whether the conditions precedent set forth in this
Agreement to the making of a Revolving Loan are then satisfied, each Lender
shall make the proceeds of its Revolving Loan available to the Swing Line
Lender at the Payment Office prior to 11:00 A.M., New York City time, in funds
immediately available on the Business Day next succeeding the date such notice
is given. The proceeds of such Revolving Loans shall be immediately applied to
repay the Refunded Swing Line Loans.
(iii) Participation in Swing Line Loans. If, prior
to refunding a Swing Line Loan with a Revolving Loan pursuant to Section
2.1(b)(ii), one of the events described in Sections 9.1(g) or 9.1(h) shall have
occurred, or if for any other reason a Revolving Loan cannot be made pursuant
to Section 2.1(b)(ii), then, subject to the provisions of Section 2.1(c)(iv)
below, each Lender will, on the date such Revolving Loan was to have been made,
purchase (without recourse or warranty) from the Swing Line Lender an undivided
participation interest in the Swing Line Loans in an amount equal to its
Commitment Percentage of such Swing Line Loans. Upon request, each Lender will
immediately transfer to the Swing Line Lender, in immediately available funds,
the amount of its participation and upon receipt thereof the Swing Line Lender
will deliver to such Lender a Swing Line Loan Participation Certificate dated
the date of receipt of such funds and in such amount.
(iv) Lenders' Obligations Unconditional. Each
Lender's obligation to make Revolving Loans in accordance with Section
2.1(b)(ii) and to purchase participating interests in accordance with Section
2.1(b)(iii) above shall be absolute and unconditional and shall not be affected
by any circumstance, including, without limitation, (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have
against the Swing Line Lender, Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of any Event of Default or
Unmatured Event of Default; (C) any adverse change in the condition (financial
or otherwise) of Borrower or any other Person; (D) any breach of this Agreement
by Borrower or any other Person; (E) any inability of Borrower to satisfy the
conditions precedent to borrowing set forth in this Agreement on the date upon
which such participating interest is to be purchased or (F) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing. If any Lender does not make available to the Swing Line Lender
the amount required pursuant to Section 2.1(b)(ii) or (iii) above, as the case
may be, the Swing Line Lender shall be entitled to recover such amount on
demand from such Lender, together with interest thereon for each day from the
date of non-payment until such amount is paid in full at the Federal Funds Rate
for the first two Business Days and at the Base Rate thereafter.
Notwithstanding the foregoing provisions of this Section 2.1(b)(iv), no Lender
shall be required to make a Revolving Loan to Borrower for the purpose of
refunding a Swing Line Loan pursuant to Section 2.1(b)(ii) above or to purchase
a participating interest in a Swing Line Loan pursuant to Section 2.1(b)(iii)
if an Event of Default or Unmatured Event of Default has occurred and is
continuing and, prior to the making by the Swing Line Lender of such Swing Line
Loan, the Swing Line Lender had received written notice from such Lender
specifying that such Event of Default or Unmatured Event of Default has
occurred and is continuing, describing the nature thereof and stating that, as
a result thereof, such Lender shall cease to make such Refunded Swing Line
Loans and purchase such participating interests, as the case may be; provided,
however, that the obligation of such Lender to make such Refunded Swing Line
Loans and to purchase such participating interests shall be reinstated upon the
earlier to occur of (y) the date
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upon which such Lender notifies the Swing Line Lender that its prior notice has
been withdrawn and (z) the date upon which the Event of Default or Unmatured
Event of Default specified in such notice no longer is continuing.
2.2 Notes.
(a) Evidence of Indebtedness. Borrower's obligation to
pay the principal of and interest on all the Loans made to it by each Lender
shall be evidenced, (y) if Revolving Loans, by a promissory note (each, a
"Revolving Note" and, collectively, the "Revolving Notes") duly executed and
delivered by Borrower substantially in the form of Exhibit 2.2(a)-1 hereto,
with blanks appropriately completed in conformity herewith and (z) if Swing
Line Loans, by a promissory note (the "Swing Line Note") duly executed and
delivered by Borrower substantially in the form of Exhibit 2.2(a)-2 hereto,
with blanks appropriately completed in conformity herewith.
(i) Provisions of the Revolving Notes. The
Revolving Note issued to each Lender shall (A) be executed by
Borrower, (B) be payable to the order of such Lender and be dated the
Initial Borrowing Date, (C) be in a stated principal amount equal to
the Revolving Commitment of such Revolving Lender and be payable in
the aggregate principal amount of the Revolving Loans evidenced
thereby, (D) mature, with respect to each Loan evidenced thereby, on
the Termination Date, (E) be subject to mandatory prepayment as
provided in Section 4.3, (F) bear interest as provided in the
appropriate clause of Section 3.1 in respect of the Base Rate Loans or
Eurodollar Loans, as the case may be, evidenced thereby and (G) be
entitled to the benefits of this Agreement and the other applicable
Loan Documents.
(ii) Provisions of the Swing Line Note. The Swing
Line Note issued to the Swing Line Lender shall (A) be executed by
Borrower, (B) be payable to the order of Swing Line Lender or its
registered assigns and be dated the Initial Borrowing Date, (C) be in
a stated principal amount equal to the Swing Line Commitment and be
payable in the aggregate principal amount of the Swing Line Loans
evidenced thereby, (D) mature, with respect to each Loan evidenced
thereby, five (5) Business Days prior to the Termination Date, (E) be
subject to mandatory prepayment as provided in Section 4.3, (F) bear
interest as provided in Section 3.1 in respect of the Base Rate Loans
evidenced thereby and (G) be entitled to the benefits of this
Agreement and the other applicable Loan Documents.
(b) Notation of Payments. Each Lender will note on its
internal records the amount of each Loan made by it and each payment in respect
thereof and will, prior to any transfer of any of its Notes, endorse on the
reverse side thereof the outstanding principal amount of Loans evidenced
thereby. Failure to make any such notation shall not affect Borrower's or any
guarantor's obligations hereunder or under the other applicable Loan Documents
in respect of such Loans.
2.3 Minimum Amount of Each Borrowing; Maximum Number of
Borrowings. The aggregate principal amount of each Borrowing by Borrower
hereunder shall be not less than (i) in the case of a Base Rate Loan,
$5,000,000 and, if greater, shall be in integral multiples of $1,000,000 above
such minimum (or, if less, the then Total Available Revolving Commitment) and
(ii) in the
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case of a Eurodollar Loan, $5,000,000 and, if greater, shall be in integral
multiples of $1,000,000 above such minimum and (iii) in the case of a Swing
Line Loan, $1,000,000 and, if greater, shall be in integral multiples of
$500,000 above such minimum. More than one Borrowing may be incurred on any
date; provided that at no time shall there be outstanding more than five (5)
Borrowings of Eurodollar Loans.
2.4 Borrowing Options. The Revolving Loans shall, at the option of
Borrower except as otherwise provided in this Agreement, be (i) Base Rate
Loans, (ii) Eurodollar Loans, or (iii) part Base Rate Loans and part Eurodollar
Loans. As to any Eurodollar Loan, any Lender may, if it so elects, fulfill its
commitment by causing a foreign branch or affiliate to make or continue such
Loan, provided that in such event that Lender's Commitment Percentage of the
Loan shall, for the purposes of this Agreement, be considered to have been made
by that Lender and the obligation of Borrower to repay that Lender's Commitment
Percentage of the Loan shall nevertheless be to that Lender and shall be deemed
held by that Lender, for the account of such branch or affiliate.
2.5 Notice of Borrowing. Whenever Borrower desires to make a
Borrowing of any Loan hereunder, it shall give Agent at its office located at
One Bankers Trust Plaza, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or such
other address as the Agent may hereafter designate in writing to the parties
hereto) (the "Notice Address") at least one Business Day's prior written notice
(or telephonic notice promptly confirmed in writing), given not later than
12:00 P.M. (New York City time) of each Base Rate Loan, and at least three
Business Days' prior written notice (or telephonic notice promptly confirmed in
writing), given not later than 12:00 P.M. (New York City time), of each
Eurodollar Loan to be made hereunder; provided, however, that a Notice of
Borrowing with respect to Borrowings to be made on the date hereof may, at the
discretion of Agent, be delivered later than the time specified above.
Whenever Borrower desires that Swing Line Lender make a Swing Line Loan under
Section 2.1(d), it shall deliver to Swing Line Lender prior to 11:00 A.M. (New
York City time) on the date of Borrowing written notice (or telephonic notice
promptly confirmed in writing). Each such notice (each a "Notice of
Borrowing"), which shall be in the form of Exhibit 2.5 hereto, shall be
irrevocable, shall be deemed a representation by Borrower that all conditions
precedent to such Borrowing have been satisfied and shall specify (i) the
aggregate principal amount of the Loans to be made pursuant to such Borrowing,
(ii) the date of Borrowing (which shall be a Business Day) and (iii) whether
the Loans being made pursuant to such Borrowing are to be Base Rate Loans or
Eurodollar Loans and, with respect to Eurodollar Loans, the Interest Period to
be applicable thereto. Agent shall as promptly as practicable give each Lender
written or telephonic notice (promptly confirmed in writing) of each proposed
Borrowing, of such Lender's Commitment Percentage thereof and of the other
matters covered by the Notice of Borrowing. Without in any way limiting
Borrower's obligation to confirm in writing any telephonic notice, Agent or the
Swing Line Lender (in the case of Swing Line Loans) may act without liability
upon the basis of telephonic notice believed by Agent in good faith to be from
a Responsible Officer of Borrower prior to receipt of written confirmation.
Agent's records shall, absent manifest error, be final, conclusive and binding
on Borrower with respect to evidence of the terms of such telephonic Notice of
Borrowing. Borrower hereby agrees not to dispute the Agent's or BT's record of
the time of telephonic notice.
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2.6 Conversion or Continuation. Borrower may elect (i) on any
Business Day occurring on or after the earlier of (i) the 30th day after the
Initial Borrowing Date and (ii) the Syndication Date to convert Base Rate Loans
or any portion thereof to Eurodollar Loans and (ii) at the end of any Interest
Period with respect thereto, to convert Eurodollar Loans or any portion thereof
into Base Rate Loans or to continue such Eurodollar Loans or any portion
thereof for an additional Interest Period; provided, however, that the
aggregate principal amount of the Eurodollar Loans for each Interest Period
therefor must be in an aggregate principal amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof. Each conversion or continuation of
Revolving Loans shall be allocated among the Revolving Loans of the Lenders in
accordance with their respective Commitment Percentages. Each such election
shall be in substantially the form of Exhibit 2.6 hereto (a "Notice of
Conversion or Continuation") and shall be made by giving Agent at least three
Business Days' prior written notice thereof to the Notice Address specifying
(i) the amount and type of conversion or continuation, (ii) in the case of a
conversion to or a continuation of Eurodollar Loans, the Interest Period
therefor, and (iii) in the case of a conversion, the date of conversion (which
date shall be a Business Day and, if a conversion from Eurodollar Loans, shall
also be the last day of the Interest Period therefor). Notwithstanding the
foregoing, no conversion in whole or in part of Base Rate Loans to Eurodollar
Loans, and no continuation in whole or in part of Eurodollar Loans upon the
expiration of any Interest Period therefor, shall be permitted at any time at
which an Unmatured Event of Default or an Event of Default shall have occurred
and be continuing. If, within the time period required under the terms of this
Section 2.6, Agent does not receive a Notice of Conversion or Continuation from
Borrower containing a permitted election to continue any Eurodollar Loans for
an additional Interest Period or to convert any such Loans, then, upon the
expiration of the Interest Period therefor, such Loans will be automatically
converted to Base Rate Loans. Each Notice of Conversion or Continuation shall
be irrevocable.
2.7 Disbursement of Funds; Funding Assumptions.
(a) No later than 12:00 P.M. (New York City time) on the
date specified in each Notice of Borrowing, each Lender will make available its
Commitment Percentage of Revolving Loans of the Borrowing requested to be made
on such date in Dollars and in immediately available funds, at the office (the
"Payment Office") of Agent located at One Bankers Trust Plaza, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (for the account of such non-U.S. office of
Agent as Agent may direct in the case of Eurodollar Loans) and Agent will make
available to Borrower at its Payment Office the aggregate of the amounts so
made available by the Lenders.
(b) Unless Agent shall have been notified by any Lender
at least one Business Day prior to the date of Borrowing that such Lender does
not intend to make available to Agent such Lender's portion of the Borrowing to
be made on such date, Agent may assume that such Lender has made such amount
available to Agent on such date of Borrowing and Agent may, but shall not be
required to, in reliance upon such assumption, make available to Borrower a
corresponding amount. If such corresponding amount is not in fact made
available to Agent by such Lender on the date of Borrowing, Agent shall be
entitled to recover such corresponding amount on demand from such Lender. If
such Lender does not pay such corresponding amount forthwith upon Agent's
demand therefor, Agent shall promptly notify Borrower and, if so notified,
Borrower shall immediately pay such corresponding amount to Agent. Agent shall
also be entitled to recover from Borrower interest
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on such corresponding amount in respect of each day from the date such
corresponding amount was made available by Agent to Borrower to the date such
corresponding amount is recovered by Agent, at a rate per annum equal to the
rate for Base Rate Loans or Eurodollar Loans, as the case may be, applicable
during the period in question, provided, however, that any interest paid to
Agent in respect of such corresponding amount shall be credited against
interest payable by Borrower to such lender under Section 3.1 in respect of
such corresponding amount. Any amount due hereunder to Agent from any Lender
which is not paid when due shall bear interest payable by such Lender, from the
date due until the date paid, at the Federal Funds Rate for the first three
days after the date such amount is due and thereafter at the Federal Funds Rate
plus 1%, together with Agent's standard interbank processing fee. Further,
such Lender shall be deemed to have assigned any and all payments made of
principal and interest on its Loans, amounts due with respect to its Letters
of Credit (or its participations therein) and any other amounts due to it
hereunder first to Agent to fund any outstanding Loans made available on behalf
of such Lender by Agent pursuant to this Section 2.7 until such Loans have been
funded (as a result of such assignment or otherwise) and then to fund Loans of
all Lenders other than such Lender until each Lender has outstanding Loans
equal to its Commitment Percentage of all Revolving Loans (as a result of such
assignment or otherwise). Such Lender shall not have recourse against Borrower
with respect to any amounts paid to Agent or any Lender with respect to the
preceding sentence; provided, that such Lender shall have full recourse against
Borrower to the extent of the amount of such loans it has so been deemed to
have made. Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Revolving Commitment hereunder or to prejudice any
rights which Borrower may have against the Lender as a result of any default by
such Lender hereunder.
2.8 Pro Rata Borrowings. All Borrowings of Revolving Loans under
this Agreement shall be loaned by the Lenders pro rata on the basis of their
Revolving Commitments, as the case may be. No Lender shall be responsible for
any default by any other Lender in its obligation to make Loans hereunder and
each Lender shall be obligated to make the Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to fulfill its
Revolving Commitment hereunder.
2.9 Letters of Credit.
(a) Letters of Credit Commitments. Subject to and upon
the terms and conditions herein set forth, Borrower may request that Bankers
Trust Company (the "Facing Agent") issue, at any time and from time to time on
and after the Initial Borrowing Date, and prior to the Business Day (or the
30th day in the case of Commercial Letters of Credit) preceding the Termination
Date, (x) for the account of Borrower and for the benefit of any holder (or any
trustee, agent or other similar representative for any such holder) of LC
Supportable Indebtedness of Borrower or any of its Subsidiaries, an irrevocable
standby letter of credit, in a form customarily used by such Facing Agent, or
in such other form as has been approved by such Facing Agent (each such standby
letter of credit, a "Standby Letter of Credit") in support of such LC
Supportable Indebtedness and (y) for the account of Borrower and in support of
trade obligations of Borrower or any of its Subsidiaries, an irrevocable sight
letter of credit in a form customarily used by such Facing Agent or in such
other form as has been approved by such Facing Agent (each such letter of
credit, a "Commercial Letter
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of Credit"; and each such Commercial Letter of Credit and each Standby Letter
of Credit, a "Letter of Credit"), in support of commercial transactions of
Borrower and its Subsidiaries.
(b) Obligation of Facing Agent to Issue Letter of Credit.
The Facing Agent may agree, in its sole discretion, that it will (subject to
the terms and conditions contained herein), at any time and from time to time
on or after the Initial Borrowing Date and prior to the Termination Date,
following its receipt of the respective Letter of Credit Request, issue for the
account of Borrower one or more Letters of Credit (x) in the case of Standby
Letters of Credit, in support of such LC Supportable Indebtedness of Borrower
or any of its Subsidiaries as is permitted to remain outstanding without giving
rise to an Event of Default or Unmatured Event of Default hereunder and (y) in
the case of Commercial Letters of Credit, in support of trade obligations as
referenced in Section 2.9(a), provided that the respective Facing Agent shall
be under no obligation to issue any Letter of Credit of the types described
above if at the time of such issuance:
(i) any order, judgment or decree of any
Governmental Authority or arbitrator shall purport by its terms
to enjoin or restrain such Facing Agent from issuing such
Letter of Credit or any Requirement of Law applicable to such
Facing Agent from any Governmental Authority with jurisdiction
over such Facing Agent shall prohibit, or request that such
Facing Agent refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall
impose upon such Facing Agent with respect to such Letter of
Credit any restriction or reserve or capital requirement (for
which such Facing Agent is not otherwise compensated) not in
effect on the date hereof, or any unreimbursed loss, cost or
expense which was not applicable, in effect or known to such
Facing Agent as of the date hereof and which such Facing Agent
in good xxxxx xxxxx material to it: or
(ii) such Facing Agent shall have received notice
from any Lender prior to the issuance of such Letter of Credit
of the type described in Section 2.9(b)(A)(vi).
(A) Notwithstanding the foregoing, (i) no Letter
of Credit shall be issued the Stated Amount of which, when added to the LC
Obligations (exclusive of Unpaid Drawings relating to Letters of Credit which
are repaid on the date of, and prior to the issuance of, the respective Letter
of Credit) at such time, would exceed either (x) $25,000,000 or (y) when added
to the aggregate principal amount of all Revolving Loans and Swing Line Loans
then outstanding, the Revolving Commitments at such time; (ii) (x) each Standby
Letter of Credit shall have an expiry date occurring not later than one year
after such Standby Letter of Credit's date of issuance, provided, that any
Standby Letter of Credit may be automatically extendable for periods of up to
one year so long as such Standby Letter of Credit provides that the respective
Facing Agent retains an option, satisfactory to such Facing Agent, to terminate
such Standby Letter of Credit within a specified period of time prior to each
scheduled extension date and (y) each Commercial Letter of Credit shall have an
expiry date occurring not later than 180 days after such Commercial Letter of
Credit's date
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of issuance; (iii) (x) no Standby Letter of Credit shall have an expiry date
occurring later than the Business Day next preceding the Termination Date and
(y) no Commercial Letter of Credit shall have an expiry date occurring later
than 30 days prior to the Termination Date; (iv) each Letter of Credit shall be
denominated in Dollars and be payable on a sight basis; (v) the Stated Amount
of each Letter of Credit shall not be less than $100,000 or such lesser amount
as is acceptable to the Facing Agent; and (vi) no Facing Agent will issue any
Letter of Credit after it has received written notice from Borrower or the
Required Lenders stating that an Event of Default or Unmatured Event of Default
exists until such time as Facing Agent shall have received a written notice of
(x) rescission of such notice from the party or parties originally delivering
the same or (y) a waiver of such Event of Default or Unmatured Event of Default
by the Required Lenders (or all the Lenders to the extent required by Section
12.1).
(B) Notwithstanding the foregoing, in the event a
Lender Default exists, no Facing Agent shall be required to issue any Letter of
Credit unless the respective Facing Agent has entered into arrangements
satisfactory to it and Borrower to eliminate such Facing Agent's risk with
respect to the participation in Letters of Credit of the Defaulting Lender or
Lenders, including by cash collateralizing such Defaulting Lender or Lenders'
applicable Commitment Percentage of the applicable LC Obligations.
(c) Letter of Credit Requests; Notices of Issuance.
Whenever it desires that a Letter of Credit be issued, Borrower shall give
Agent and the respective Facing Agent written notice thereof prior to 1:00 p.m.
(New York City time) at least five Business Days (or such shorter period as may
be acceptable to such Facing Agent) prior to the proposed date of issuance
(which shall be a Business Day) which written notice shall be in the form of
Exhibit 2.9(c) (each a "Letter of Credit Request"). Each such notice shall
specify (A) the proposed issuance date and expiration date, (B) the name(s) of
each obligor with respect to such Letter of Credit, (C) Borrower as the account
party, (D) the name and address of the beneficiary (which Person shall be
acceptable to Facing Agent), (E) the Stated Amount of such proposed Letter of
Credit and (F) the purpose of such Letter of Credit (which shall be acceptable
to Agent and Facing Agent) and such other information as Facing Agent may
reasonably request. In addition, each Letter of Credit Request shall contain a
description of the terms and conditions to be included in such proposed Letter
of Credit (all of which terms and conditions shall be acceptable to Facing
Agent). Unless otherwise specified, all Letters of Credit will be governed by
the Uniform Customs and Practice for Documentary Credits as in effect on the
date of issuance of such Letter of Credit. Each Letter of Credit Request
shall include any other documents as Facing Agent customarily requires in
connection therewith.
(i) In the case of Standby Letters of Credit,
each Facing Agent shall, on the date of each issuance of or amendment or
modification to a Standby Letter of Credit by it, give Agent, each Lender and
Borrower written notice of the issuance of or amendment or modification to such
Letter of Credit, accompanied by a copy to Agent and each Lender of the Letter
of Credit or Letters of Credit issued by it and each such amendment or
modification thereto.
(ii) As to any Letters of Credit issued by a
Facing Agent other than the Agent, the respective Facing Agent shall send to
Agent, on the first Business Day of each week, by telefax, its outstanding
Commercial Letter of Credit daily balances for the previous week. Agent
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shall deliver to each Revolving Lender by the end of each calendar month and
upon each Letter of Credit fee payment date a report setting forth for such
period the aggregate daily amount available to be drawn under Commercial
Letters of Credit issued by all Facing Agents that were outstanding during such
period.
(d) Agreement to Repay Letter of Credit Payments.
(i) Borrower hereby agrees to reimburse the respective Facing Agent, by making
payment to Agent in immediately available funds at the Payment Office, for any
payment or disbursement made by such Facing Agent under any Letter of Credit
(each such amount so paid or disbursed until reimbursed, an "Unpaid Drawing"),
no later than one Business Day after the date of such payment or disbursement,
with interest on the amount so paid or disbursed by such Facing Agent, to the
extent not reimbursed prior to 12:00 Noon (New York City time) on the date of
such payment or disbursement, from and including the date paid or disbursed to
but excluding the date such Facing Agent is reimbursed therefor by Borrower at
a rate per annum which shall be the Base Rate in effect from time to time plus
the Applicable Margin for Base Rate Loans, provided, however, to the extent
such amounts are not reimbursed prior to 12:00 Noon (New York City time) on the
fifth Business Day following such payment or disbursement, interest shall
thereafter accrue on the amounts so paid or disbursed by such Facing Agent (and
until reimbursed by Borrower) at a rate per annum which shall be the Base Rate
in effect from time to time plus the Applicable Margin for Revolving Loans
maintained as Base Rate Loans (plus an additional 2% per annum if not
reimbursed by the third Business Day after the date of such payment or
disbursement), such interest also to be payable on demand. The respective
Facing Agent shall give Borrower prompt notice of each Drawing under any Letter
of Credit, provided that the failure to give any such notice shall in no way
affect, impair or diminish Borrower's obligations hereunder.
(ii) The Obligations of Borrower under this
Section 2.9(d) to reimburse the respective Facing Agent with respect to
drawings on Letters of Credit (each, a "Drawing") (including, in each case,
interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to
payment which Borrower may have or have had against any Facing Agent, Agent or
any Lender (including in its capacity as issuer of the Letter of Credit or as
LC Participant), or any nonapplication or misapplication by the beneficiary of
the proceeds of such Drawing, the respective Facing Agent's only obligation to
Borrower being to confirm that any documents required to be delivered under
such Letter of Credit appear to have been delivered and that they appear to
comply on their face with the requirements of such Letter of Credit. Any
action taken or omitted to be taken by any Facing Agent under or in connection
with any Letter of Credit if taken or omitted in the absence of gross
negligence or willful misconduct, shall not create for such Facing Agent any
resulting liability to Borrower.
(e) Letter of Credit Participations. Immediately upon
the issuance by any Facing Agent of any Letter of Credit, such Facing Agent
shall be deemed to have sold and transferred to each Lender, other than such
Facing Agent (each such Lender, in its capacity under this Section 2.9(e), a
"LC Participant"), and each such LC Participant shall be deemed irrevocably and
unconditionally to have purchased and received from such Facing Agent, without
recourse or warranty, an undivided interest and participation, to the extent of
such Lender's Commitment Percentage, in such Letter of Credit, each substitute
Letter of Credit, each Drawing made thereunder
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and the obligations of Borrower under this Agreement with respect thereto
(although Letter of Credit fees shall be payable directly to Agent for the
account of the Lenders as provided in Section 2.9(g) and the LC Participants
shall have no right to receive any portion of the facing fees), and any
security therefor or guaranty pertaining thereto.
(i) In determining whether to pay under any
Letter of Credit, such Facing Agent shall have no obligation relative to the LC
Participants other than to confirm that any documents required to be delivered
under such Letter of Credit appear to have been delivered and that they appear
to substantially comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by any Facing Agent under or
in connection with any Letter of Credit issued by it if taken or omitted in the
absence of gross negligence or willful misconduct as determined by a court of
competent jurisdiction, shall not create for such Facing Agent any resulting
liability to Borrower or any Lender.
(f) Draws Upon Letter of Credit; Reimbursement
Obligations. In the event that any Facing Agent makes any payment under any
Letter of Credit issued by it and Borrower shall not have reimbursed such
amount in full to such Facing Agent pursuant to Section 2.9(d), such Facing
Agent shall promptly notify the Agent, and the Agent shall promptly notify
each LC Participant of such failure, and each such LC Participant shall
promptly and unconditionally pay to the Agent for the account of such Facing
Agent, the amount of such LC Participant's applicable Commitment Percentage of
such payment in Dollars and in same day funds; provided, however, that no LC
Participant shall be obligated to pay to Agent its applicable Commitment
Percentage of such unreimbursed amount for any wrongful payment made by such
Facing Agent under a Letter of Credit issued by it as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of
such Facing Agent. If Agent so notifies any LC Participant required to fund a
payment under a Letter of Credit prior to 11:00 A.M. (New York City time) on
any Business Day, such LC Participant shall make available to the Agent for the
account of the respective Facing Agent such LC Participant's applicable
Commitment Percentage of the amount of such payment on such Business Day in
same day funds. If and to the extent such LC Participant shall not have so
made its applicable Commitment Percentage of the amount of such payment
available to Agent for the account of the respective Facing Agent, such LC
Participant agrees to pay to Agent for the account of such Facing Agent,
forthwith on demand such amount, together with interest thereon, for each day
from such date until the date such amount is paid to Agent for the account of
such Facing Agent at the overnight Federal Funds rate. The failure of any LC
Participant to make available to Agent for the account of the respective Facing
Agent its applicable Commitment Percentage of any payment under any Letter of
Credit issued by it shall not relieve any other LC Participant of its
obligation hereunder to make available to Agent for the account of such Facing
Agent its applicable Commitment Percentage of any payment under any such Letter
of Credit on the day required, as specified above, but no LC Participant shall
be responsible for the failure of any other LC Participant to make available to
Agent for the account of such Facing Agent such other LC Participant's
applicable Commitment Percentage of any such payment.
(A) Whenever any Facing Agent receives a payment
of a reimbursement obligation as to which Agent has received for the account of
such Facing Agent any payments from the LC Participants pursuant to this
Section 2.9(f), such Facing Agent shall pay to Agent and Agent
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shall pay to each LC Participant which has paid its Commitment Percentage
thereof, in Dollars and in same day funds, an amounts equal to such LC
Participant's Commitment Percentage of the principal amount of such
reimbursement obligation and interest thereon accruing after the purchase of
the respective participations.
(B) Upon the request of any LC Participant, each
Facing Agent shall furnish to such LC Participant copies of any Letter of
Credit issued by it.
(C) The obligations of the LC Participants to
make payments to each Facing Agent with respect to Letters of Credit issued by
it shall be irrevocable and not subject to any qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of
this Agreement under all circumstances, including, without limitation, any of
the following circumstances:
(i) any lack of validity or
enforceability of this Agreement or any of the other Loan Documents;
(ii) The existence of any claim, setoff,
defense or other right which Borrower or any of its Subsidiaries may have at
any time against a beneficiary named in a Letter of Credit, any transferee of
any Letter of Credit (or any Person for whom any such transferee may be
acting), Agent, any LC Participant, or any other Person, whether in connection
with this Agreement, any Letter of Credit, the transactions contemplated herein
or any unrelated transactions (including any underlying transaction between
Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other
document presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect to any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any
security for the performance or observance of any of the terms of any of the
Loan Documents; or
(v) the occurrence of any Event of
Default or Unmatured Event of Default.
(g) Fees for Letters of Credit.
(i) Facing Agent Fees. Borrower agrees to pay
the following amount to Facing Agent with respect to the Letters of Credit
issued by it for the account of Borrower:
(A) with respect to drawings made under
any Letter of Credit, interest, payable on demand, on the amount paid by Facing
Agent in respect of each such drawing from the date of the drawing through the
date such amount is reimbursed by Borrower (including any such reimbursement
out of the proceeds of Revolving Loans pursuant to Section 2.9(c)) at a rate
which is at all times equal to 2% per annum in excess of the Base Rate;
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(B) with respect to the issuance or
amendment of each Letter of Credit and each drawing made thereunder,
documentary and processing charges in accordance with Facing Agent's standard
schedule for such charges in effect at the time of such issuance, amendment,
transfer or drawing, as the case may be; and
(C) a facing fee as agreed to between
Borrower and the applicable Facing Bank for the applicable Letter of Credit and
unless otherwise agreed, shall be payable with respect to the maximum Stated
Amount under such outstanding Letters of Credit payable in arrears on the last
Business Day of each fiscal quarter, on the Termination Date and thereafter, on
demand together with customary issuance and drawing charges payable pursuant to
clause (B) above; provided, however, if calculation of the facing fee in the
manner set forth above would result in a facing fee of less than $500 per year
per Letter of Credit, Borrower shall be obligated to pay such additional amount
to the applicable Facing Bank so as to provide for a minimum facing fee of $500
per year per Letter of Credit.
(ii) Participating Lender Fees. Borrower agrees
to pay to Agent for distribution to each participating Lender in respect of all
Letters of Credit outstanding such Lender's Commitment Percentage of a
commission equal to the then Applicable Eurocurrency Margin per annum with
respect to the maximum Stated Amount under such outstanding Letters of Credit
(the "LC Commission"), payable in arrears on the last Business Day of each
fiscal quarter, on the Termination Date and thereafter, on demand. The LC
Commission shall be computed from the first day of issuance of each Letter of
Credit and on the basis of the actual number of days elapsed over a year of 360
days.
Promptly upon receipt by Facing Agent or Agent of any
amount described in clause (i)(A) or (ii) of this Section 2.9(g), Facing Agent
or Agent shall distribute to each Lender that has reimbursed Facing Agent in
accordance with Section 2.9(d) its Commitment Percentage of such amount.
Amounts payable under clause (i)(B) and (C) of this Section 2.9(e) shall be
paid directly to Facing Agent.
(h) Indemnification. In addition to amounts payable as
elsewhere provided in this Agreement, Borrower hereby agrees to protect,
indemnify, pay and save Facing Agent harmless from and against any and all
claims, demands, liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' fees) (other than for Taxes, which shall be
covered by Section 4.6) which Facing Agent may incur or be subject to as a
consequence, direct or indirect, of (i) the issuance of the Letters of Credit,
other than as a result of the gross negligence or willful misconduct of Facing
Agent or (ii) the failure of Facing Agent to honor a Drawing under any Letter
of Credit as a result of any act or omissions, whether rightful or wrongful, of
any present or future de jure or de facto government or Governmental Authority
(all such acts or omissions herein called "Government Acts"). As between
Borrower and Facing Agent, Borrower assumes all risks of the acts and omissions
of, or misuse of the Letters of Credit issued by Facing Agent by, the
respective beneficiaries of such Letters of Credit. In furtherance and not in
limitation of the foregoing, Facing Agent shall not be responsible: (i) for the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for and
issuance of or any Drawing under such Letters of Credit, even if it should in
fact prove to be in any or all
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respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason; (iii) for failure of the
beneficiary of any such Letter of Credit to comply fully with conditions
required in order to draw upon such Letter of Credit; (iv) for errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, whether or not they be in
cipher; (v) for errors in interpretation of technical terms; (vi) for any loss
or delay in the transmission or otherwise of any document required in order to
make a Drawing under any such Letter of Credit or of the proceeds thereof;
(vii) for the misapplication by the beneficiary of any such Letter of Credit of
the proceeds of any Drawing under such Letter of Credit; and (viii) for any
consequences arising from causes beyond the control of Facing Agent, including,
without limitation, any acts of Government Authority. None of the above shall
affect, impair, or prevent the vesting of any of Facing Agent's rights or
powers hereunder.
In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by
Facing Agent under or in connection with the Letters of Credit issued by it or
the related certificates, if taken or omitted in good faith, shall not put
Facing Agent under any resulting liability to Borrower. Notwithstanding
anything to the contrary contained in this Agreement, Borrower shall have no
obligation to indemnify Facing Agent in respect of any liability incurred by
Facing Agent arising solely out of the gross negligence or willful misconduct
of Facing Agent as determined by a court of competent jurisdiction. The right
of indemnification in the first paragraph of this Section 2.9(h) shall not
prejudice any rights that Borrower may otherwise have against Facing Agent with
respect to a Letter of Credit issued hereunder.
(i) Increased Costs. If at any time after the date
hereof the introduction of or any change in any applicable law, rule,
regulation, order, guideline or request or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by Facing Agent or such
Lender with any request or directive by any such authority (whether or not
having the force of law or any change in GAAP), shall either (i) impose, modify
or make applicable any reserve, deposit, capital adequacy or similar
requirement against letters of credit issued by Facing Agent or participated in
by any Lender, or (ii) impose on Facing Agent or any Lender any other
conditions relating, directly or indirectly, to this Agreement or any Letter of
Credit; and the result of any of the foregoing is to increase the cost to
Facing Agent or any Lender of issuing, maintaining or participating in any
Letter of Credit, or reduce the amount of any sum received or receivable by
Facing Agent or any Lender hereunder or reduce the rate of return on its
capital with respect to Letters of Credit, then, upon demand to Borrower by
Facing Agent or any Lender (a copy of which demand shall be sent by Facing
Agent or such Lender to Agent), Borrower shall pay to Facing Agent or such
Lender such additional amount or amounts as will compensate such Lender for
such increased cost or reduction in the amount receivable or reduction on the
rate of return on its capital. Facing Agent or any Lender, upon determining
that any additional amounts will be payable pursuant to this Section 2.9(i),
will give prompt written notice thereof to Borrower, which notice shall include
a certificate submitted to Borrower by Facing Agent or such Lender (a copy of
which certificate shall be sent by Facing Agent or such Lender to Agent),
setting forth in reasonable detail the basis for the calculation of such
additional amount or amounts
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necessary to compensate Facing Agent or such Lender, although failure to give
any such notice shall not release or diminish Borrower's obligations to pay
additional amounts pursuant to this Section 2.9(i). The certificate required
to be delivered pursuant to this Section 2.9(i) shall, absent manifest error,
be final, conclusive and binding on Borrower.
ARTICLE 3.
INTEREST AND FEES
3.1 Interest.
(a) Base Rate Loans. Borrower agrees to pay interest in
respect of the unpaid principal amount of each Base Rate Loan at a rate per
annum equal to the Base Rate plus the Applicable Margin from the date the
proceeds thereof are made available to Borrower until the earlier of (i) the
maturity (whether by acceleration or otherwise) of such Base Rate Loan or (ii)
the conversion of such Base Rate Loan to a Eurodollar Loan pursuant to Section
2.6.
(b) Eurodollar Loans. Borrower agrees to pay interest in
respect of the unpaid principal amount of each Eurodollar Loan from the date
the proceeds thereof are made available to Borrower until the earlier of (i)
the maturity (whether by acceleration or otherwise) of such Eurodollar Loan or
(ii) the conversion of such Eurodollar Loan to a Base Rate Loan pursuant to
Section 2.6 at a rate per annum equal to the relevant Eurodollar Rate plus the
Applicable Margin
(c) Payment of Interest. Interest on each Loan shall be
payable in arrears on each Interest Payment Date; provided, however, that
interest accruing pursuant to Section 3.1(e) shall be payable from time to time
on demand. Interest shall also be payable on all then outstanding Revolving
Loans on the Termination Date and on all Loans on the date of repayment
(including prepayment) thereof (except that voluntary prepayments of Revolving
Loans that are Base Rate Loans made pursuant to Section 4.2 on any day other
than an Interest Payment Date or the Revolver Termination Date need not be made
with accrued interest from the most recent Quarterly Payment Date, provided
such accrued interest is paid on the next Interest Payment Date) and on the
date of maturity (by acceleration or otherwise) of such Loans. During the
existence of any Event of Default, interest on any Loan shall be payable on
demand.
(d) Notification of Rate. Agent, upon determining the
interest rate for any Borrowing of Eurodollar Loans for any Interest Period,
shall promptly notify Borrower and the Lenders thereof. Such determination
shall, absent manifest error and subject to Section 3.6, be final, conclusive
and binding upon all parties hereto.
(e) Default Interest. Notwithstanding the rates of
interest specified herein, effective on the date 30 days after the occurrence
and continuance during such 30 day period of any Event of Default (other than
the failure to pay Obligations when due) and for so long thereafter as any
Event of Default shall be continuing, and effective immediately upon any
failure to pay any Obligations or any other amounts due under any of the Loan
Documents when due, whether by
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acceleration or otherwise, the principal balance of each Loan then outstanding
and, to the extent permitted by applicable law, any interest payment on each
Loan not paid when due or other amounts then due and payable shall bear
interest payable on demand, after as well as before judgment at a rate per
annum equal to the Default Rate.
(f) Maximum Interest. If any interest payment or other
charge or fee payable hereunder exceeds the maximum amount then permitted by
applicable law, Borrower shall be obligated to pay the maximum amount then
permitted by applicable law and Borrower shall continue to pay the maximum
amount from time to time permitted by applicable law until all such interest
payments and other charges and fees otherwise due hereunder (in the absence of
such restraint imposed by applicable law) have been paid in full.
3.2 Fees.
(a) Facility Fee. On each Quarterly Payment Date, and on
the Termination Date (or, if earlier, on the date upon which the Revolving
Commitments are terminated and the Loans are paid in full and the LC
Obligations are paid in full or cash collateralized in a manner satisfactory to
Agent), Borrower shall pay to Agent, for the ratable benefit of the Lenders, a
facility fee equal to the Applicable Facility Fee which accrued during the
quarterly period most recently ended (or, in the case of the payment due on the
Termination Date, the portion thereof ending on such date). Such facility fee
shall be based upon the aggregate Revolving Commitments of the Lenders from
time to time, regardless of the utilization from time to time thereunder.
(b) Agency Fees. Borrower shall pay to Agent for its own
account, agency and other Loan fees in the amount and at the times set forth in
the letter agreement between Borrower and Agent.
3.3 Computation of Interest and Fees. Interest on all Loans and
fees payable hereunder shall be computed on the basis of the actual number of
days elapsed over a year of 360 days; provided that interest on all Base Rate
Loans shall be computed on the basis of the actual number of days elapsed over
a year of 365 or 366 days, as the case may be. Each determination of an
interest rate by Agent pursuant to any provision of this Agreement shall be
conclusive and binding on Borrower and the Lenders in the absence of manifest
error. Agent shall, at any time and from time to time upon request of
Borrower, deliver to Borrower a statement showing the quotations used by Agent
in determining any interest rate applicable to Revolving Loans pursuant to this
Agreement. Each change in the Applicable Margin, the Applicable Facility Fee or
any change in the applicable LC Commission as a result of a change in
Borrower's Most Recent Ratio of Total Debt to EBITDA shall become effective on
the date upon which such change in such ratio occurs.
3.4 Interest Periods. At the time it gives any Notice of
Borrowing or a Notice of Conversion or Continuation with respect to Eurodollar
Loans, Borrower shall elect, by giving Agent written notice, the interest
period (each an "Interest Period") which Interest Period shall, at the option
of Borrower, be one, two, three or six months or, if available to each of the
applicable Lenders (as determined by each such applicable Lender in its sole
discretion) a nine or twelve month period, provided that:
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(i) all Eurodollar Loans comprising a Borrowing
shall at all times have the same Interest Period;
(ii) the initial Interest Period for any
Eurodollar Loan shall commence on the date of such Borrowing of such Eurodollar
Loan (including the date of any conversion thereto from a Loan of a different
Type) and each Interest Period occurring thereafter in respect of such
Eurodollar Loan shall commence on the last day of the immediately preceding
Interest Period;
(iii) if any Interest Period relating to a
Eurodollar Loan begins on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire
on a day which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided, however, that if any Interest Period
for a Eurodollar Loan would otherwise expire on a day which is not a Business
Day but is a day of the month after which no further Business Day occurs in
such month, such Interest Period shall expire on the next preceding Business
Day;
(v) no Interest Period may be selected at any
time when an Unmatured Event of Default or Event of Default is then in
existence; and
(vi) no Interest Period shall extend beyond the
Termination Date.
3.5 Compensation for Funding Losses.
(a) Borrower shall compensate each Lender, upon its
written request (which request shall set forth the basis for requesting such
amounts), for all losses, expenses and liabilities (including, without
limitation, any interest paid by such Lender to lenders of funds borrowed by it
to make or carry its Eurodollar Loans to the extent not recovered by the Lender
in connection with the liquidation or re-employment of such funds and including
the compensation payable by such Lender to a Participant but excluding loss of
anticipated profit with respect to any Loans) and any loss sustained by such
Lender in connection with the liquidation or re-employment of such funds
(including, without limitation, a return on such liquidation or re-employment
that would result in such Lender receiving less than it would have received had
such Eurodollar Loan remained outstanding until the last day of the Interest
Period applicable to such Eurodollar Loans) which such Lender may sustain as a
result of: (i) for any reason (other than a default by such Lender or Agent) a
continuation or Borrowing of, or conversion from or into, Eurodollar Loans does
not occur on a date specified therefor in a Notice of Borrowing or Notice of
Conversion or Continuation (whether or not withdrawn); (ii) any payment,
prepayment or conversion or continuation of any of its Eurodollar Loans
occurring for any reason whatsoever on a date which is not the last day of an
Interest Period applicable thereto; (iii) any repayment of any of its
Eurodollar Loans not being made on the date specified in a notice of payment
given by Borrower; or (iv) (A) any other failure by Borrower to repay its
Eurodollar Loans when required by the terms of this Agreement or (B) an
election made by Borrower pursuant to Section 3.7. A written notice as to
additional amounts owed
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such Lender under this Section 3.5 and delivered to Borrower and Agent by such
Lender shall, absent manifest error, be final, conclusive and binding for all
purposes.
(b) Calculation of all amounts payable to a Lender under
this Section 3.5 shall be made as though that Lender had actually funded its
relevant Eurodollar Loan through the purchase of a Eurodollar deposit bearing
interest at the Eurodollar Rate in an amount equal to the amount of that Loan,
having a maturity comparable to the relevant Interest Period and through the
transfer of such Eurodollar deposit from an offshore office of that Lender to a
domestic office of that Lender in the United States of America; provided,
however, that each Lender may fund each of its Eurodollar Loans in any manner
it sees fit and the foregoing assumption shall be utilized only for the
calculation of amounts payable under this Section 3.5.
3.6 Increased Costs, Illegality, Etc.
(a) Generally. In the event that any Lender shall have
determined (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto but, with respect to clause (i)
below, may be made only by Agent):
(i) on any Interest Rate Determination Date that,
by reason of any changes arising after the date of this Agreement
affecting the interbank Eurodollar market, adequate and fair means do
not exist for ascertaining the applicable interest rate on the basis
provided for in the definition of Eurodollar Rate; or
(ii) at any time, that any Lender shall incur
increased costs or reduction in the amounts received or receivable
hereunder with respect to any Eurodollar Loan because of (x) any
change since the date of this Agreement in any applicable law or
governmental rule, regulation, order, guideline or request (whether or
not having the force of law) or in the interpretation or
administration thereof and including the introduction of any new law
or governmental rule, regulation, order, guideline or request, such
as, for example, but not limited to: (A) a change in the basis of
taxation of payments to any Lender of the principal of or interest on
the Notes or any other amounts payable hereunder (except for (a)
changes in the rate of tax on, or determined by reference to, the net
income or profits of such Lender imposed by the jurisdiction in which
its principal office or applicable lending office is located and (b)
United States withholding taxes, which shall be governed by the
provisions of Section 4.6) or (B) a change in official reserve
requirements (but, in all events, excluding reserves required under
Regulation D to the extent included in the computation of the
Eurodollar Rate) and/or (y) other circumstances since the date of this
Agreement affecting such Lender or the interbank Eurodollar market or
the position of such Lender in such market (excluding, however,
differences in a Lender's cost of funds from those of Agent which are
solely the result of credit differences between such Lender and
Agent); or
(iii) at any time, that the making or continuance
of any Eurodollar Loan has been made (x) unlawful by any law or
governmental rule, regulation or order, (y) impossible by compliance
by any Lender in good faith with any governmental request (whether or
not having force of law) or (z) impracticable as a result of a
contingency
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occurring after the date of this Agreement which materially and
adversely affects the interbank Eurodollar market;
then, and in any such event, such Lender (or Agent, in the case of clause (i)
above) shall promptly give notice (by telephone confirmed in writing) to
Borrower and, except in the case of clause (i) above, to Agent of such
determination (which notice Agent shall promptly transmit to each of the other
Lenders). Thereafter (x) in the case of clause (i) above, Eurodollar Loans
shall no longer be available until such time as Agent notifies Borrower and the
Lenders that the circumstances giving rise to such notice by Agent no longer
exist, and any Notice of Borrowing or Notice of Conversion or Continuation
given by Borrower with respect to Eurodollar Loans (other than with respect to
conversions to Base Rate Loans) which have not yet been incurred (including by
way of conversion) shall be deemed rescinded by Borrower, (y) in the case of
clause (ii) above, Borrower shall pay to such Lender, upon written demand
therefor, such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender shall
reasonably determine) as shall be required to compensate such Lender for such
increased costs or reductions in amounts received or receivable hereunder (a
written notice as to the additional amounts owed to such Lender, showing the
basis for the calculation thereof, submitted to Borrower by such Lender shall,
absent manifest error, be final and conclusive and binding on all the parties
hereto; however the failure to give any such notice (unless the respective
Lender has intentionally withheld or delayed such notice, in which case the
respective Lender shall not be entitled to receive additional amounts pursuant
to this Section 3.6 (a)(y) for periods occurring prior to the 180th day before
the giving of such notice) shall not release or diminish Borrower's obligations
to pay additional amounts pursuant to this Section 3.6 (a)(y) and (z) in the
case of clause (iii) above, Borrower shall take one of the actions specified in
Section 3.6(b) as promptly as possible and, in any event, within the time
period required by law. In determining such additional amounts pursuant to
clause (y) of the immediately preceding sentence, each Lender shall act
reasonably and in good faith and will, to the extent the increased costs or
reductions in amounts receivable relate to such Lender's loans in general and
are not specifically attributable to a Loan hereunder, use averaging and
attribution methods which are reasonable and which cover all loans similar to
the Loans made by such Lender whether or not the loan documentation for such
other loans permits the Lender to receive increased costs of the type described
in this Section 3.6(a).
(b) Eurodollar Loans. At any time that any Eurodollar
Loan is affected by the circumstances described in Section 3.6(a)(ii) or (iii),
Borrower may (and, in the case of a Eurodollar Loan affected by the
circumstances described in Section 3.6(a)(iii), shall) either (i) if the
affected Eurodollar Loan is then being made initially or pursuant to a
conversion, by giving Agent telephonic notice (confirmed in writing) on the
same date that Borrower was notified by the affected Lender or Agent pursuant
to Section 3.6(a)(ii) or (iii), cancel the respective Borrowing, or (ii) if the
affected Eurodollar Loan is then outstanding, upon at least three Business
Days' written notice to Agent, require the affected Lender to convert such
Eurodollar Loan into a Base Rate Loan, provided, that if more than one Lender
is affected at any time, then all affected Lenders must be treated the same
pursuant to this Section 3.6(b).
(c) Capital Requirements. If any Lender determines that
the introduction of or any change in any applicable law or governmental rule,
regulation, order, guideline or request
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(whether or not having the force of law) concerning capital adequacy, or any
change in (after the date of this Agreement) interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency, will
have the effect of increasing the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender based on
the existence of such Lender's Revolving Commitments hereunder or its
obligations hereunder, then Borrower shall pay to such lender, upon its written
demand therefor, such additional amounts as shall be required to compensate
such Lender or such other corporation for the increased cost to such Lender or
such other corporation or the reduction in the rate of return to such Lender or
such other corporation as a result of such increase of capital. In determining
such additional amounts, each Lender will act reasonably and in good faith and
will use averaging and attribution methods which are reasonable and which will,
to the extent the increased costs or reduction in the rate of return relates to
such Lender's commitments or obligations in general and are not specifically
attributable to the Revolving Commitments and obligations hereunder, cover all
commitments and obligations similar to the Revolving Commitments and
obligations of such Lender hereunder whether or not the loan documentation for
such other commitments or obligations permits the Lender to make the
determination specified in this Section 3.6(c), and such Lender's determination
of compensation owing under this Section 3.6(c) shall, absent manifest error,
be final and conclusive and binding on all the parties hereto. Each Lender,
upon determining that any additional amounts will be payable pursuant to this
Section 3.6(c), will give prompt written notice thereof to Borrower, which
notice shall show the basis for calculation of such additional amounts,
although the failure to give any such notice (unless the respective Lender has
intentionally withheld or delayed such notice, in which case the respective
Lender shall not be entitled to receive additional amounts pursuant to this
Section 3.6(c) for periods occurring prior to the 180th day before the giving
of such notice) shall not release or diminish any of Borrower's obligations to
pay additional amounts pursuant to this Section 3.6(c).
(d) Change of Lending Office. Each Lender which is or
will be owed compensation pursuant to Section 3.6(a) or (c) will, if requested
by Borrower, use reasonable efforts (subject to overall policy considerations
of such Lender) to cause a different branch or Affiliate to make or continue a
Loan or Letter of Credit if such designation will avoid the need for, or
materially reduce the amount of, such compensation to such Lender and will not,
in the judgment of such Lender, be otherwise disadvantageous to such Lender.
Borrower hereby agrees to pay all reasonable expenses incurred by any Lender in
utilizing a different branch or Affiliate pursuant to this Section 3.6(d).
Nothing in this Section 3.6(d) shall affect or postpone any of the obligations
of Borrower or the right of any Lender provided for herein.
3.7 Replacement of Affected Lenders. (x) If any Lender
becomes a Defaulting Lender or otherwise defaults in its Obligations to make
Revolving Loans or fund Unpaid Drawings, (y) if any Lender is owed increased
costs under Section 3.6(a)(ii) or (iii), Section 3.6(c) or Borrower is required
to make any payments under Section 4.6(c) to any Lender materially in excess of
those to the other Lenders or (z) as provided in Section 11.1(b) in the case of
certain refusals by a Lender to consent to certain proposed amendment, changes,
supplements, waivers, discharges or terminations with respect to this Agreement
which have been approved by the Majority Lenders, Borrower shall have the
right, if no Event of Default or Unmatured Event of Default then exists, to
replace such Lender (the "Replaced Lender") with one or more other Eligible
Assignee or Eligible Assignees, none of whom shall constitute a Defaulting
Lender at the time of such replacement
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(collectively, the "Replacement Lender") acceptable to Agent, provided that (i)
at the time of any replacement pursuant to this Section 3.7, the Replacement
Lender shall enter into one or more assignment agreements, in form and
substance satisfactory to Agent, pursuant to which the Replacement Lender shall
acquire all of the Revolving Commitments and outstanding Loans of the Replaced
Lender and (ii) all obligations of Borrower owning to the Replaced Lender
(including, without limitation, such increased costs and excluding those
specifically described in clause (i) above in respect of which the assignment
purchase price has been, or is concurrently being paid) shall be paid in full
to such Replaced Lender concurrently with such replacement. Upon the execution
of the respective assignment documentation, the payment of amounts referred to
in clauses (i) and (ii) above and, if so requested by the Replacement Lender,
delivery to the Replacement Lender of the appropriate Note or Notes executed by
Borrower, the Replacement Lender shall become a Lender hereunder and the
Replaced Lender shall cease to constitute a Lender hereunder, except with
respect to indemnification provisions under this Agreement, which shall survive
as to such Replaced Lender. Notwithstanding anything to the contrary contained
above, no Lender that acts as a Facing Agent may be replaced hereunder at any
time which it has Letters of Credit outstanding hereunder unless arrangements
satisfactory to such Facing Agent (including the furnishing of a standby letter
of credit in form and substance, and issued by an issuer satisfactory to such
Facing Agent or the depositing of cash collateral into the Collateral Account
in amounts and pursuant to arrangements satisfactory to such Facing Agent) have
been made with respect to such outstanding Letters of Credit.
ARTICLE IV.
REDUCTION OF COMMITMENTS; PAYMENTS AND PREPAYMENTS
4.1 Voluntary Reduction of Commitments. (a) Upon at least three
Business Days' prior written notice (or telephonic notice confirmed in writing)
to Agent at the Notice Office (which notice Agent shall promptly transmit to
each Lender), Borrower shall have the right, without premium or penalty, to
terminate the unutilized portion of the Revolving Commitments or the Swing Line
Commitment, as the case may be, in part or in whole; provided that (x) any such
voluntary termination of the Revolving Commitments shall apply to
proportionately and permanently reduce the Revolving Commitment of each Lender,
(y) any partial voluntary reduction pursuant to this Section 4.1 shall be in
the amount of at least $5,000,000 and integral multiples of $5,000,000 in
excess of that amount and (z) any such voluntary termination of the Revolving
Commitments shall occur simultaneously with a voluntary prepayment, pursuant to
Section 4.2 such that the total of the Revolving Commitments shall not be
reduced below the aggregate principal amount of outstanding Revolving Loans
plus the aggregate LC Obligations and the Swing Line Loan Commitment.
(b) In the event of certain refusals by a Lender to
consent to certain proposed changes, waivers, discharges or terminations with
respect to this Agreement which have been approved by the Majority Lenders as
provided in Section 11.1(b), Borrower shall have the right, upon five (5)
Business Days' prior written notice to Agent (which notice Agent shall promptly
transmit to each of the Lenders), to terminate the entire Revolving Commitment
of such Lender, so long as all Loans, together with accrued and unpaid
interest, fees and all other amounts, due and owing to such Lender are repaid
concurrently with the effectiveness of such termination at which time Schedule
1.1 shall be deemed modified to reflect such changed amounts pursuant to
Section
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4.1(a) and Borrower cash collateralizes such Lender's Commitment Percentage of
the LC Obligations. At such time, such Lender shall no longer constitute a
"Lender" for purposes of this Agreement, except with respect to
indemnifications under this Agreement which shall survive as to such repaid
Lender.
4.2 Voluntary Prepayments. (a) Borrower shall have the right to
prepay the Loans in whole or in part from time to time on the following terms
and conditions: (i) Borrower shall give Agent irrevocable written notice at its
Notice Office (or telephonic notice promptly confirmed in writing) of its
intent to prepay the Loans or Swing Line Loans, the amount of such prepayment
and the specific Borrowings to which such prepayment is to be applied, which
notice shall be given by Borrower to Agent by 12:00 noon (New York City time)
at least three Business on the date of such prepayment and which notice shall
(except in the case of Swing Line Loans) promptly be transmitted by Agent to
each of the applicable Lenders; (ii) each partial prepayment of any Borrowing
(other than a Borrowing of Swing Line Loans) shall be in an aggregate principal
amount of at least $1,000,000 and each partial prepayment of a Swing Line Loan
shall be in an aggregate principal amount of at least $500,000; provided that
no partial prepayment of Eurodollar Loans made pursuant to a single Borrowing
shall reduce the aggregate principal amount of the outstanding Loans made
pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount
applicable thereto; (iii) Eurodollar Loans may only be prepaid pursuant to this
Section 4.2 on the last day of an Interest Period applicable thereto or on any
other day subject to Section 3.5; (iv) each prepayment in respect of any
Borrowing shall be applied pro rata among the Loans comprising such Borrowing
provided, that such prepayment shall not be applied to any Revolving Loans of a
Default Lender at any time when the aggregate amount of Revolving Loans of any
Non-Defaulting Lender exceeds such Non-Defaulting Lender's Commitment
Percentage of all Revolving Loans then outstanding. The notice provisions, the
provisions with respect to the minimum amount of any prepayment, and the
provisions requiring prepayments in integral multiples above such minimum
amount of this Section 4.2 are for the benefit of Agent and may be waived
unilaterally by Agent.
(b) In the event of certain refusals by a Lender to
consent to certain proposed changes, waivers, discharges or terminations with
respect to this Agreement which have been approved by the Majority Lenders as
provided in Section 11.1(b), Borrower shall have the right, upon five (5)
Business Days' prior written notice to Agent (which notice Agent shall promptly
transmit to each of the Lenders), to repay all Loans, together with accrued and
unpaid interest, fees and all other amounts due and owing to such Lender in
accordance with said Section 11.1(b), so long as (A) in the case of the
repayment of Revolving Loans of any Lender pursuant to this clause (b), the
Revolving Commitment of such Lender is terminated concurrently with such
repayment pursuant to Section 4.1(b) and (B) in the case of the repayment of
Loans of any Lender, the consents required by Section 11.1(b) in connection
with the repayment pursuant to this clause (b) shall have been obtained.
4.3 Mandatory Prepayments.
(a) Prepayment Upon Overadvance. Borrower shall prepay
the outstanding principal amount of the Revolving Loans or the Swing Line Loan
on any date on which the aggregate outstanding principal amount of such Loans
together with the aggregate LC Obligations (after giving
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effect to any other repayments or prepayments on such day) exceeds the
aggregate Revolving Commitments or the Swing Line Loan Commitment, as the case
may be, in the amount of such excess. If, after giving effect to the
prepayment of all outstanding Revolving Loans, the aggregate LC Obligations
exceeds the Revolving Commitments then in effect, Borrower shall cash
collateralize LC Obligations by depositing, pursuant to a cash collateral
agreement to be entered into in form and substance reasonably satisfactory to
Agent, cash with Agent in an amount equal to the difference between such LC
Obligations and the Revolving Loan Commitments then in effect. Agent shall
establish in its name for the benefit of the Revolving Lenders a cash
collateral account (the "Collateral Account") into which it shall deposit such
cash to hold as collateral security for the LC Obligations.
(b) Payment at Termination Date. Borrower hereby
unconditionally promises to pay to each Lender on the Termination Date, the
unpaid principal amount of each Loan (including, without limitation, each Swing
Line Loan) made by such Lender. Borrower hereby further agrees to pay interest
in immediately available funds at the office of Administrative Agent on the
unpaid principal amount of such Loans from time to time from the date hereof
until payment in full thereof at the rates per annum, and on the dates, set
forth in Section 2.6.
(c) Mandatory Prepayment Upon Asset Disposition. If
Borrower or any of its Subsidiaries receives any Net Sale Proceeds attributable
to any Asset Disposition, the Aggregate Revolving Commitment shall be
permanently reduced by the amount of such Net Sale Proceeds. On the date of
receipt of such Net Sale Proceeds and after giving effect to the reductions in
the Revolving Commitments required by the preceding sentence, Borrower shall
prepay outstanding Loans to the extent required by Section 4.3(a).
(d) Mandatory Prepayment Upon Incurrence of Indebtedness.
On the date of receipt by Borrower and/or any of their Subsidiaries of Net
Offering Proceeds from the incurrence of Indebtedness, the Aggregate Revolving
Commitments shall be permanently reduced by an amount equal to 100% of such Net
Offering Proceeds. On the date of receipt of any such Net Offering Proceeds
and after giving effect to the reductions in the Revolving Commitments
required by the preceding sentence, Borrower shall prepay outstanding Loans
and/or cash collateralize LOC Obligations to the extent required by Section
4.3(a).
4.4 Application of Prepayments. Except as expressly provided in
this Agreement, all prepayments of principal made by Borrower pursuant to
Sections 4.2 and 4.3 shall be applied first to the payment of Base Rate Loans
and second to the payment of Eurodollar Loans; and with respect to Eurodollar
Loans, in such order as Borrower shall request (and in the absence of such
request, as Agent shall determine). If any prepayment of Eurodollar Loans made
pursuant to a single Borrowing shall reduce the outstanding Loans made pursuant
to such Borrowing to an amount less than the Minimum Borrowing Amount, such
Borrowing shall immediately be converted into Base Rate Loans. All prepayments
shall include payment of accrued interest on the principal amount so prepaid,
shall be applied to the payment of interest before application to principal and
shall include amounts payable, if any, under Section 3.5.
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4.5 Method and Place of Payment.
(a) Except as otherwise specifically provided herein, all
payments under this Agreement shall be made to Agent, for the ratable account
of the Lenders entitled thereto, not later than 12:00 Noon (New York City time)
on the date when due and shall be made in immediately available funds in lawful
money of the United States of America and in each case to the account specified
therefor for Agent or if no account has been so specified at the Payment
Office, it being understood that with respect to payments in Dollars, written
telex or telecopy notice by Borrower to Agent to make a payment from the funds
in Borrower's account at the Payment Office shall constitute the making of such
payment to the extent of such funds held in such account. Agent will
thereafter cause to be distributed on the same day (if payment was actually
received by Agent prior to 12:00 Noon (New York City time) on such day) like
funds relating to the payment of principal or interest or fees ratably to the
Lenders entitled to receive any such payment in accordance with the terms of
this Agreement. If and to the extent that any such distribution shall not be
so made by Agent in full on the same day (if payment was actually received by
Agent prior to 12:00 Noon (New York City time) on such day), Agent shall pay to
each Lender its ratable amount thereof and each such Lender shall be entitled
to receive from Agent interest on such amount at the overnight Federal Funds
Rate for each day from the date such amount is paid to Agent until the date
Agent pays such amount to such Lender.
(b) Any payments under this Agreement which are made by
Borrower later than 12:00 Noon (New York City time) shall, for the purpose of
calculation of interest, be deemed to have been made on the next succeeding
Business Day. Whenever any payment to be made hereunder shall be stated to be
due on a day which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day and, with respect to payments of
principal, interest shall be payable during such extension at the applicable
rate in effect immediately prior to such extension, except that with respect to
Eurodollar Loans, if such next succeeding Business Day is not in the same month
as the date on which such payment would otherwise be due hereunder or under any
Note, the due date with respect thereto shall be the next preceding applicable
Business Day.
4.6 Net Payments.
(a) All payments made by Borrower hereunder or under any
Loan Document will be made without setoff, counterclaim or other defense.
Except as provided in Section 4.6(d), all payments hereunder and under any of
the Loan Documents (including, without limitation, payments on account of
principal and interest and fees) shall be made by Borrower free and clear of
and without withholding for or on account of any present or future tax, duty,
levy, impost, assessment or other charge of whatever nature now or hereafter
imposed by any Governmental Authority, but excluding therefrom (i) a tax
imposed on the overall net income (including a franchise tax based on net
income) of the lending office of the Lender in respect of which the payment is
made by the jurisdiction in which the Lender is incorporated or the
jurisdiction (or political subdivision or taxing authority thereof) in which
its lending office is located, (ii) in the case of any Lender organized under
the laws of any jurisdiction other than the United States or any state thereof
(including the District of Columbia), any taxes imposed by the United States by
means of withholding at the source unless such withholding results from a
change in applicable law, treaty or regulations or the interpretation or
administration thereof (including, without limitation, any guideline or policy
not having the force of law) by any authority charged with the administration
thereof subsequent to the date such Lender
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becomes a Lender with respect to the Loan or portion thereof affected by such
change and (iii) any tax imposed on or measured by the overall net income
(including a franchise tax based on net income) of a Lender or an office or
branch thereof by the United States of America or any political subdivision or
taxing authority thereof or therein (such tax or taxes, other than excluded tax
or taxes, being herein referred to as "Tax" or "Taxes"). If Borrower is
required by law to make any deduction or withholding of any Taxes from any
payment due hereunder or under any of the Loan Documents, then the amount
payable will be increased to such amount which, after deduction from such
increased amount of all such Taxes required to be withheld or deducted
therefrom, will not be less than the amount due and payable hereunder had no
such deduction or withholding been required.
(b) If Borrower makes any payment hereunder or under any
of the Loan Documents in respect of which it is required by law to make any
deduction or withholding of any Taxes, it shall pay the full amount to be
deducted or withheld to the relevant taxation or other authority within the
time allowed for such payment under applicable law and shall deliver to the
Lenders within 30 days after it has made such payment to the applicable
authority a receipt issued by such authority evidencing the payment to such
authority of all amounts so required to be deducted or withheld from such
payment.
(c) Without prejudice to the provisions of Section
4.6(a), if any Lender, or Agent on its behalf, is required by law to make any
payment on account of Taxes on or in relation to any such received or
receivable tax hereunder or under any of the Loan Documents by such Lender, or
Agent on its behalf, or any liability for Tax in respect to any such payment is
imposed, levied or assessed against any Lender or Agent on its behalf, Borrower
will promptly indemnify such person against such Tax payment or liability,
together with any interest, penalties and expenses (including counsel fees and
expenses) payable or incurred in connection therewith, including any tax of any
Lender arising by virtue of payments under this Section 4.6(c), computed in a
manner consistent with Section 4.6(c). A certificate as to the amount of such
payment by such Lender, or Agent on its behalf, absent manifest error, shall be
final, conclusive and binding upon all parties hereto for all purposes.
(d) Each Lender that is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code) agrees to deliver to
Borrower and Agent on or prior to the Initial Borrowing Date, or in the case of
a Lender that is an Assignee of an interest under this Agreement pursuant to
Section 3.7 or 11.9 (unless the respective Lender was already a Lender
hereunder immediately prior to such assignment), on the date of such assignment
to such Lender, (i) two accurate and complete original signed copies of IRS
Form 4224 or 1001 (or successor forms) certifying to such Lender's entitlement
to a complete exemption from United States withholding tax with respect to
payments to be made under this Agreement and under any Note, or (ii) if the
Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code
and cannot deliver either IRS Form 1001 or 4224 pursuant to clause (i) above,
(x) a certificate substantially in the form of Exhibit 4.6(d) (any such
certificate, a "Section 4.6(d)(ii) Certificate") and (y) two accurate and
complete original signed copies of IRS Form W-8 (or successor form) certifying
to such Lender's entitlement to a complete exemption from United States
withholding tax with respect to payments of interest to be made under this
Agreement and under any Note. In addition, each Lender agrees that from time
to time after the Initial Borrowing Date, when a lapse in time or change in
circumstances renders the
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previous certification obsolete or inaccurate in any material respect, it will
deliver to Borrower and Agent two new accurate and complete original signed
copies of IRS Form 4224 or 1001, or Form W-8 and a Section 4.6(d)(ii)
Certificate, as the case may be, and such other forms as may be required in
order to confirm or establish the entitlement of such Lender to a continued
exemption from or reduction in United States withholding Tax with respect to
payments under this Agreement and any Note, or it shall immediately notify
Borrower and Agent of its inability to deliver any such form or certificate.
Notwithstanding anything to the contrary contained in Section 4.6(a), but
subject to Section 11.9(c) and the immediately succeeding sentence, (x)
Borrower shall be entitled, to the extent it is required to do so by law, to
deduct or withhold income or similar Taxes imposed by the United States (or any
political subdivision or taxing authority thereof or therein) from interest,
fees or other amounts payable hereunder for the account of any Lender which is
not a United States person (as such term is defined in Section 7701(a)(30) of
the Code) for United States Federal income tax purposes to the extent that such
Lender has not provided to Borrower IRS Forms that establish a complete
exemption from such deduction or withholding and (y) Borrower shall be
obligated pursuant to Section 4.6(a) hereof to gross-up payments to be made to
a Lender in respect of income or similar Taxes imposed by the United States
unless (I) upon timely notice from the Borrower, such Lender has not provided
to Borrower the IRS Forms required to be provided to Borrower pursuant to this
Section 4.6(d), or (II) in the case of a payment, other than interest, to a
Lender described in clause (ii) above, to the extent that such IRS Forms do not
establish a complete exemption from withholding of such Taxes. Notwithstanding
anything to the contrary contained in the preceding sentence or elsewhere in
this Section 4.6 and except as set forth in Section 11.9(c), Borrower agrees to
pay additional amounts and to indemnify each Lender in the manner set forth in
Section 4.6(a) (without regard to the identity of the jurisdiction requiring
the deduction or withholding) in respect of any amounts deducted or withheld by
it as described in the immediately preceding sentence as a result of any
changes after the Initial Borrowing Date in any applicable law, treaty,
governmental rule, regulation, guideline or order, or in the interpretation
thereof, relating to the deducting or withholding of income or similar Taxes.
(e) Each Lender agrees that, as promptly as practicable
after it becomes aware of the occurrence of any event or the existence of any
condition that would cause Borrower to make a payment in respect of any Taxes
to such Lender pursuant to Section 4.6(a) or a payment in indemnification for
any Taxes pursuant to Section 4.6(c), it will use reasonable efforts to make,
fund or maintain the Loan (or portion thereof) of such Lender with respect to
which the aforementioned payment is or would be made through another lending
office of such Lender if as a result thereof the additional amounts which would
otherwise be required to be paid by such Borrower in respect of such Loans (or
portions thereof) or participations in Letters of Credit pursuant to Section
4.6(a) or Section 4.6(c) would be materially reduced, and if, as determined by
such Lender, in its sole discretion, the making, funding or maintaining of such
Loans or participations in Letters of Credit (or portions thereof) through such
other lending office would not otherwise materially adversely affect such Loans
or such Lender. Borrower agrees to pay all reasonable expenses incurred by any
Lender in utilizing another lending office of such Lender pursuant to this
Section 4.6(e).
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ARTICLE V.
REPRESENTATIONS AND WARRANTIES
To induce Agent and each Lender to enter into this Agreement
and to make the Loans and issue (or participation in) the Letters of Credit,
Borrower hereby represents and warrants to Agent and each Lender, and hereby
agrees, as follows:
5.1 Corporate Existence; Compliance with Law. Each of Borrower
and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified and in good
standing as a foreign corporation, and is duly authorized to do business, in
each jurisdiction where the ownership or leasing of property or the character
of its operations makes such qualification necessary, except where the failure
to so qualify would not reasonably be expected to have a Material Adverse
Effect and (d) is in compliance with all Requirements of Law except to the
extent that all failures to comply therewith would not reasonably be expected
to have a Material Adverse Effect.
5.2 Corporate Power; Authorization; No Violation. The execution,
delivery and performance by each Loan Party of this Agreement and the other
Loan Documents to which it is a party (i) are within such Loan Party's
corporate power, (ii) have been duly authorized by all necessary corporate,
shareholder and other action on the part of each Person whose authorization is
required, (iii) do not violate any Requirement of Law or any material
Contractual Obligation applicable to such Loan Party, (iv) will not result in
or require the creation or imposition of any Lien of any nature upon or with
respect to any of the properties now owned or hereafter acquired by such Person
and (v) will not require any authorization or approval or other action by, or
notice to or filing or registration with, any Governmental Authority (other
than those which have been obtained and are in force and effect).
5.3 Binding Effect. This Agreement has been, and the other Loan
Documents to which any Loan Party is a party will be when executed and
delivered, duly executed and delivered on behalf of Borrower and the other Loan
Parties thereto. This Agreement constitutes, and the other Loan Documents to
which any Loan Party is a party when executed and delivered will constitute, a
legal, valid and binding obligation of Borrower and the other Loan Parties
party thereto, enforceable against Borrower and such other Loan Parties in
accordance with their respective terms, except as enforcement thereof may be
subject to (i) the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law).
5.4 Purpose of Loans. The proceeds of the Loans shall be used by
Borrower to (i) repay existing indebtedness under the Valcor Note and (ii) for
general corporate and working capital purposes. No proceeds of any of the
Loans will be used for "buying," "purchasing," or "carrying," any "margin
stock" within the respective meanings of each of the quoted terms under
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Regulation U or G of the Board as now and from time to time hereafter in effect
or for any purpose which might cause any of the loans or extensions of credit
under this Agreement to be considered a "purpose credit" within the meaning of
Regulation G, T, U or X of the Board.
5.5 Subsidiaries. Schedule 5.5 annexed hereto and made a part
hereof is a complete and correct list of all Subsidiaries of Borrower as of the
Closing Date and separately identifies all Material Subsidiaries of Borrower as
of the Closing Date. All of such Subsidiaries are Wholly-Owned Subsidiaries of
Borrower except as otherwise indicated on such Schedule 5.5. There does not
exist any encumbrance or restriction on the ability of (i) any Subsidiary of
Borrower to pay dividends or make any other distributions on its capital stock
or any other interest or participation in its profits owned by Borrower or any
Subsidiary of Borrower, or to pay any Indebtedness owed to Borrower or a
Subsidiary of Borrower, (ii) any Subsidiary of Borrower to make loans or
advances to Borrower or any of Borrower's Subsidiaries or (iii) Borrower or any
of its Subsidiaries to transfer any of its properties or assets to Borrower or
any of its Subsidiaries, except for such encumbrances or restrictions existing
under or by reason of (x) applicable law, (y) this Agreement or the other Loan
Documents or (z) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest of Borrower or a Subsidiary of
Borrower.
5.6 Indebtedness. Schedule 5.6 annexed hereto and made a part
hereof is a complete and correct list of all Indebtedness of Borrower and its
Subsidiaries which, in any individual instance exceeds $100,000 in principal
amount and which is outstanding as of the Closing Date (other than Indebtedness
which shall be prepaid with the proceeds of Revolving Loans made on the Closing
Date).
5.7 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections, etc.
(a) Financial Statements. The balance sheet of Borrower
at December 31, 1995, December 31, 1996, December 31, 1997 and the related
statements of operations, cash flows and shareholders' equity of Borrower for
the Fiscal Year or other period ended on such dates, as the case may be, copies
of which have been furnished to the Lenders prior to the date hereof which have
been examined by Coopers & Xxxxxxx L.L.P., independent certified public
accountants, who delivered an unqualified opinion in respect thereto, were
prepared in accordance with GAAP in effect on the date such statements were
prepared and fairly present the consolidated financial condition and results of
operations of the Borrower and its Subsidiaries at such dates and for the
periods then ended. Since December 31, 1997, there has been no Material
Adverse Effect.
(b) Solvency. On and as of the Closing Date, after
giving effect to the Transaction and to all Indebtedness (including the Loans)
being incurred, and to be incurred (and the use or proceeds thereof), and Liens
created, and to be created, by Borrower in connection with the transactions
contemplated hereby, (i) the sum of the assets, at a fair valuation, of
Borrower will exceed its debts; (ii) Borrower has not incurred nor intends to,
nor believes that it will, incur debts beyond its ability to pay such debts as
such debts mature; and (iii) Borrower will have sufficient capital with which
to conduct its business. For purposes of this Section 5.7(b) "debt"
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means any liability on a claim, and "claim" means (y) right to payment, whether
or not such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured, or unsecured (including all obligations, if any, under any Plan or the
equivalent for unfunded past serviced liability, and any other unfunded medical
and death benefits) or (z) right to an equitable remedy for breach of
performance if such breach gives rise to a payment, whether or not such right
to an equitable remedy is reduced to judgment, fixed, contingent, matured,
unmatured, disputed, undisputed, secured or unsecured.
(c) No Undisclosed Liabilities. Except as fully
reflected in the financial statements and the notes related thereto delivered
pursuant to Section 5.7(a) and on Schedule 5.7(d) there were as of the Closing
Date (and after giving effect to the Transaction and the other transactions
contemplated hereby) no liabilities or obligations with respect to Borrower of
any nature whatsoever (whether absolute, accrued, contingent or otherwise and
whether or not due) which, either individually or in aggregate, would be
material to Borrower. As of the Closing Date (and after giving effect to the
Transaction and the other transaction contemplated hereby), Borrower does not
know of any basis for the assertion against Borrower of any liability or
obligation of any nature whatsoever that is not fully reflected in the
financial statements or the notes related thereto delivered pursuant to Section
5.7(a) and on Schedule 5.6 which, either individually or in the aggregate,
could reasonably be expected to be material to Borrower.
(d) Projections. On and as of the Closing Date, the
financial projections, attached hereto as Exhibit 5.7(d) and previously
delivered to Agent and the Lenders (the "Projections") have been prepared on a
basis consistent with the financial statements referred to in Section 5.7(a)
and are based on good faith estimates and assumptions made by the management of
Borrower, and there are no statements or conclusions in any of the Projections
which are based upon or include information known to Borrower to be misleading
or which fail to take into account material information regarding the matters
reported therein. On the Closing Date, Borrower believed that the Projections
were reasonable and attainable, it being understood that uncertainty is
inherent in any forecasts or projections and that no assurance can be given
that the results set forth in the Projections will actually be obtained.
5.8 No Material Litigation. There are no actions, suits,
proceedings or investigations pending or, to the knowledge of Borrower,
threatened against or affecting Borrower or any of its Subsidiaries or any of
its or their respective properties or assets before any arbitrator or
Governmental Authority or against any of its or their respective properties or
revenues (a) with respect to this Agreement or any other Loan Document or any
of the actions contemplated hereby or thereby, or (b) which would reasonably be
expected to have a Material Adverse Effect.
5.9 Performance of Agreements. Neither Borrower nor any of its
Subsidiaries is in default in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any Contractual
Obligation of Borrower or any of its Subsidiaries and no event or condition has
occurred or become known or exists which with notice or the lapse of time or
both would constitute such a default except where such default or defaults, if
any, would not reasonably be expected to have a Material Adverse Effect.
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5.10 Taxes. Borrower and each of its Subsidiaries has filed or
caused to be filed all material tax returns and reports which are required to
be filed, and has paid all taxes shown to be due and payable on said returns or
on any assessments made against it or any of its properties or assets and all
other taxes, fees and other charges imposed on its or any of their respective
properties by any Governmental Authority other than those the amount or
validity of which are currently being contested in good faith by appropriate
proceedings diligently pursued and with respect to which reserves in conformity
with GAAP have been provided on the books of Borrower and/or its Subsidiaries,
as applicable) and no tax Lien has been filed or received. There is no
proposed tax assessment against Borrower or any of its Subsidiaries which would
reasonably be expected to have a Material Adverse Effect.
5.11 Governmental Regulation. (i) Neither Borrower nor any of its
Subsidiaries is an "investment company" or a company "controlled" by a company
required to be registered as an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, and (ii) neither Borrower nor any
of its Subsidiaries is engaged directly or indirectly, principally, or as one
of its important activities, in the business of extending, or arranging for the
extension of, credit for the purposes of purchasing or carrying any margin
stock, within the meaning of Regulation G, T, U or X of the Board.
5.12 Ownership of Property; Liens. Each of Borrower and its
Subsidiaries has good and indefeasible title in fee simple to, or a valid
leasehold interest in, all its material real property, and good title to, or a
valid leasehold interest in, all its other material property, and none of such
property is subject to any Lien except for Permitted Liens.
5.13 Intellectual Property. Borrower and each of its Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, copyrights,
technology, know-how, patents and processes necessary for the conduct of its
business as currently conducted, except for those the failure to own or be
licensed to use, which would not reasonably be expected to have a Material
Adverse Effect (the "Intellectual Property"). No claim has been asserted and
is pending by any Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such Intellectual
Property, nor does Borrower know of any valid basis for any such claim. To
Borrower's or any of its Subsidiaries' knowledge, the use of such Intellectual
Property by Borrower and its Subsidiaries does not infringe on the rights of
any Person, except for such claims and infringements that, in the aggregate,
would not reasonably be expected to have a Material Adverse Effect.
5.14 Disclosure. This Agreement and any other document,
certificate or statement furnished to Agent or any Lender by or on behalf of
Borrower or any of its Subsidiaries, taken as a whole, do not contain any
untrue statement of a material fact and do not omit to state a material fact
necessary in order to make the statements contained herein and therein not
misleading when made. There is no fact known to Borrower or any of its
Subsidiaries which now has or in the future would reasonably be expected to
have (so far as Borrower or any of its Subsidiaries can now reasonably foresee)
a Material Adverse Effect which has not been set forth in this Agreement,
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in the other documents and certificates furnished to Agent and each Lender
specifically for use in connection with the transactions contemplated hereby.
5.15 ERISA. Borrower and each of its ERISA Affiliates are in
compliance in all material respects with applicable provisions of ERISA and the
Code and the regulations and published interpretations thereunder with respect
to all Plans and, to the best of Borrower's knowledge, all Multiemployer Plans,
except where noncompliance would not reasonably be expected to have a Material
Adverse Effect. No Termination Event has occurred or is reasonably expected to
occur with respect to any Plan. The sum of the "amounts of unfunded benefit
commitments" (as defined in Section 4001(a)(18) of ERISA) under all Plans
(excluding each Plan with an amount of unfunded benefit commitments of zero or
less) is not more than $3,000,000. The aggregate Withdrawal Liability under
all Multiemployer Plans is not more than $3,000,000.
5.16 Labor Relations. Except to the extent that such practices,
circumstances, events or questions would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, (a) neither Borrower
nor any of its Subsidiaries is engaged in any unfair labor practice and (b) no
significant strike, labor dispute, slowdown or stoppage is pending against
Borrower or any of its Subsidiaries or, to the best knowledge of Borrower,
threatened against Borrower or any of its Subsidiaries.
5.17 Insurance. Except as otherwise permitted by Section 7.8, the
properties of Borrower and its Subsidiaries are insured with financially sound
and reputable insurance companies, in such amounts, with such deductibles and
covering such risks as are customarily carried by Persons engaged in the same
or similar businesses.
5.18 Public Utility Holding Company Act. Neither Borrower nor any
of its Subsidiaries 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.
ARTICLE VI.
CONDITIONS OF CREDIT
6.1 Conditions Precedent to Effectiveness. This Agreement shall
become effective upon the satisfaction of each of the following conditions:
(a) Loan Documents. Agent shall have received each of:
(i) this Agreement, executed and delivered by a
duly authorized officer of Borrower and each Lender;
(ii) for the account of each Lender, a Revolving
Note conforming to the requirements hereof and executed by a
duly authorized officer of Borrower;
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(iii) for the account of BT, a Swing Line Note
conforming to the requirements hereof and executed by a duly
authorized officer of Borrower;
(iv) the Subsidiary Guarantee Agreement, executed
and delivered by a duly authorized officer of each Subsidiary
Guarantor party thereto; and
(v) all other Loan Documents.
(b) Corporate Proceedings. Agent shall have received (i)
a copy of the resolutions, in form and substance satisfactory to Agent, of the
board of directors of Borrower authorizing (x) the execution, delivery and
performance of this Agreement, the Notes and the other Loan Documents to which
it is a party and (y) the borrowings and other extensions of credit
contemplated hereunder, certified by the Secretary or an Assistant Secretary of
Borrower as of the Closing Date, which certificate shall state that the
resolutions thereby certified have not been amended, revoked, or rescinded and
shall be in form and substance satisfactory to Agent and (ii) copies of all
documents and papers, including records of corporate proceedings, governmental
approvals, good standing certificates, and bring down telegrams, if any, which
Agent reasonably may have requested in connection therewith, such documents and
papers where appropriate to be certified by proper corporate or governmental
authorities.
(c) Corporate Documents. Agent shall have received, with
a counterpart for each Lender, true and complete copies of the certificate of
incorporation and by-laws of Borrower and each Subsidiary, certified as of the
Closing Date as complete and correct copies thereof by the Secretary or an
Assistant Secretary of such Person.
(d) Incumbency Certificate. Agent shall have received a
certificate of the Secretary or an Assistant Secretary of each Loan Party,
dated the Closing Date, as to the incumbency and signature of the officers of
such Person executing the Loan Documents to which it is a party and any
certificate or other documents to be delivered by it pursuant thereto.
(e) Fees. Agent shall have received, for the accounts of
Lenders and Agent, all accrued fees and expenses due and owing hereunder or in
connection herewith to Lenders and Agent.
(f) Legal Opinions. Agent shall have received, with a
counterpart for each Lender, the executed legal opinion of Xxxx Xxxxxxxxxxxxx,
in-house counsel to Borrower, substantially in the form of Exhibit 6.1(f).
Such legal opinions shall cover such other matters incident to the transactions
contemplated by this Agreement as Agent may reasonably require and such counsel
delivering the foregoing legal opinion is expressly instructed to deliver its
opinion for the benefit of each of Agent and the Lenders.
(g) Termination of Existing Credit Facility. Agent shall
have received evidence satisfactory to it that Borrower and its Subsidiaries
will terminate or will otherwise be released from its obligations under the
Canadian Credit Agreement, and that all agreements made by
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Borrower and its Subsidiaries in connection with the provision of credit
support and collateral security with respect thereto will be released and
terminated.
(h) Approvals. All necessary governmental (domestic and
foreign) and third party approvals in connection with the Agreement and the
transactions contemplated by the Loan Documents and otherwise referred to
herein or therein shall have been obtained and remain in effect, and all
applicable waiting periods shall have expired without any action being taken by
any competent authority which restrains, prevents or imposes materially adverse
conditions upon the consummation of all or any part of the Transaction or the
other transactions contemplated by the Loan Documents and otherwise referred to
herein or therein. Additionally, there shall not exist any judgment, order,
injunction or other restraint issued or filed or a hearing seeking injunctive
relief or other restraint pending or notified prohibiting or imposing
materially adverse conditions upon all or any part of the Transaction, the
transactions contemplated by the Loan Documents or the making of the Loans.
(i) Litigation. No litigation by any entity (private or
governmental) shall be pending or, to the best knowledge of Borrower,
threatened with respect to this Agreement, any of the Loan Documents or any
documentation executed in connection herewith or the transactions contemplated
hereby (including, without limitation, the Transaction), or the obligations
being refinanced in connection with the consummation of the Transaction or
which Agent or the Majority Lenders shall determine could reasonably be
expected to have a Material Adverse Effect.
(j) Appointment of Agent. Agent shall have received a
letter from CT Corporation System, presently located at 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, substantially in the form of Exhibit 6.1(j) hereto,
indicating its consent to its appointment by Borrower as its agent to receive
service of process as specified in Section 12.9 of this Agreement.
(k) Tax and Accounting Aspects of Transactions. Agent
and the Majority Lenders shall be reasonably satisfied with all tax and
accounting matters relating to the Transactions.
(l) Officer's Certificate. Agent shall have received a
certificate executed by a responsible officer on behalf of Borrower, dated the
date of this Agreement and in the form of Exhibit 6.1(l) hereto, stating that
the representations and warranties set forth in Article V hereof are true and
correct as of the date of the certificate, that no Event of Default or
Unmatured Event of Default has occurred and is continuing and that the
conditions of Section 6.1 hereof have been fully satisfied (except that no
opinion need be expressed as to the Agent's or Majority Lenders' satisfaction
with any document, instrument or other matter).
(m) Adverse Change. On or prior to the Closing Date,
nothing shall have occurred (and no Agent nor any Lender shall have become
aware of any facts or conditions not previously known) which Agent or the
Majority Lenders shall determine has or reasonably could be expected to have,
or could have a Material Adverse Effect.
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(n) Additional Matters. All corporate and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Agreement, and the other
Loan Documents shall be satisfactory in form and substance to Agent, and Agent
shall have received such other documents and legal opinions in respect of any
aspect or consequence of the transactions contemplated hereby or thereby as any
Agent or any Lender (acting through Agent) shall reasonably request.
6.2 Certain Conditions Precedent to Each Loan. The agreement of
each Lender to make a Loan (including, without limitation, its initial Loans
hereunder, but other than any Revolving Loan the proceeds of which are to be
used exclusively to repay Refunded Swing Line Loans) and the obligation of any
Facing Agent to issue or any Lender to participate in any Letter of Credit is
subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. All representations
and warranties of Borrower and each Loan Party contained herein and in the
other Loan Documents shall be true and correct in all material respects with
the same effect as though such representations and warranties had been made on
and as of the date of the making of such Loan;
(b) No Events of Default. There shall exist no Event of
Default or Unmatured Event of Default;
(c) Available Revolving Commitment. After giving effect
to the Loans requested to be made, no Lender will have an Available Revolving
Commitment which is less than zero; and
(d) Other Matters. Agent shall have received such other
documents or legal opinions as Agent may reasonably request, all in form and
substance reasonably satisfactory to Agent and its counsel including, with
respect to Revolving Loans, a request for a Borrowing in accordance with the
provisions of Section 2.2(a) hereof; and with respect to the issuance of a
Letter of Credit, Agent and the respective facing Agent shall have received a
Letter of Credit Request meeting the requirements of Section 2.9(b).
Each request for a Borrowing and the acceptance by Borrower of
the proceeds thereof shall constitute a representation and warranty by
Borrower, as of the date of the Loans comprising such Borrowing that the
conditions specified in Section 6.2(a), (b) and (c) have been satisfied.
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ARTICLE VII.
AFFIRMATIVE COVENANTS
Borrower hereby agrees that, so long as the Revolving
Commitments remain in effect, or any Loan or LC Obligation remains outstanding
and unpaid or any other amount is owing to any Lender or any Agent hereunder,
Borrower shall:
7.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 120
days after the end of each fiscal year of Borrower, a copy of the consolidated
balance sheet of Borrower and its consolidated Subsidiaries as at the end of
such year and the related consolidated statements of income, retained earnings
and of cash flows for such year, setting forth in each case in comparative form
the figures for the previous year; and
(b) as soon as available, but in any event not later than
60 days after the end of each of the first three quarterly periods of each
fiscal year of Borrower, the unaudited consolidated balance sheet of Borrower
and its consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income, retained earnings and of cash
flows of Borrower and its consolidated Subsidiaries for such quarter and the
portion of the fiscal year through the end of such quarter, setting forth in
each case in comparative form the figures for the previous year (except with
respect to balance sheet figures which shall be in comparative form for the
previous audited period only);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in accordance with GAAP applied consistently
throughout the periods reflected therein and with prior periods (except as
approved by the accountants preparing such statements or Financial Officer, as
the case may be, and disclosed therein) and, in the case of the consolidated
financial statements referred to in Section 7.1(a), accompanied by a report
thereon of independent certified public accountants of recognized national
standing, which report shall contain no qualifications with respect to the
continuance of Borrower and its Subsidiaries as going concerns and shall state
that such financial statements present fairly the financial position of
Borrower and its Subsidiaries as at the dates indicated and the results of
their operations and cash flow for the periods indicated in conformity with
GAAP and that the examination by such accountants in connection with such
financial statements has been made in accordance with generally accepted
auditing standards.
7.2 Certificates; Other Information. Furnish to each Lender (or,
if specified below, to Agent):
(a) Accountant's Certificates. Concurrently with the
delivery of the financial statements referred to in Section 7.1(a), (i) to the
extent not contrary to the then current recommendations of the American
Institute of Certified Public Accountants, a certificate from Coopers & Xxxxxxx
L.L.P. or other independent certified public accountants of nationally
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recognized standing, stating that, in the course of their annual audit of the
books and records of Borrower, no Event of Default or Unmatured Event of
Default has come to their attention which was continuing at the end of such
fiscal year or on the date of their certificate, or if such an Event of Default
or Unmatured Event of Default has come to their attention, the certificate
shall indicate the nature of such Event of Default or Unmatured Event of
Default and the action which Borrower proposes to take with respect thereto,
and (ii) a letter, in form satisfactory to Agent from such accountants with
respect to reliance on such accountant's certificate and report on the annual
consolidated financial statements referred to in this Section;
(b) Officer's Certificate. Concurrently with the
delivery of the financial statements referred to in Sections 7.1(a) and 7.1(b),
a certificate of a Financial Officer substantially in the form of Exhibit
7.2(b) stating that, to the best of such Financial Officer's knowledge, (i)
such financial statements present fairly, in accordance with GAAP, the
financial condition and results of operations of Borrower and its Subsidiaries
for the period referred to therein (subject, in the case of interim statements,
to normal recurring adjustments) and (ii) that no Event of Default or Unmatured
Event of Default has occurred, except as specified in such certificates, which
shall set forth detailed computations to the extent necessary to establish
Borrower's compliance with the covenants set forth in Section 8.1 of this
Agreement;
(c) Audit Reports and Statements. Promptly following
Borrower's receipt thereof, copies of all consolidated financial or other
consolidated reports or statements, if any, submitted to Borrower or any of its
Subsidiaries by independent public accountants relating to any annual or
interim audit of the books of Borrower or any of its Subsidiaries;
(d) Public Filings. Within 20 days after the same become
public, copies of all financial statements, filings, registrations and reports
which Borrower may make to, or file with, the United States Securities and
Exchange Commission or any successor or analogous Governmental Authority;
(e) Status. Within five Business Days after the
occurrence thereof, written notice to Agent of any change in the Most Recent
Ratio of Consolidated Debt to Consolidated EBITDA which results in a change in
the Applicable Margin or the Applicable Facility Fee, provided, however, that
the failure to provide such notice shall not delay or otherwise affect any
change in the Applicable Margin or other amount payable hereunder which is to
occur upon such a change pursuant to the terms of this Agreement; and
(f) Other Requested Information. Such other information
respecting the respective properties, business affairs, financial condition
and/or operations of Borrower or any of its Subsidiaries as Agent or any Lender
may from time to time reasonably request.
7.3 Notices. Promptly upon obtaining knowledge thereof, give
notice to Agent (which shall promptly provide a copy of such notice to each
Lender) of:
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(a) Event of Default or Unmatured Event of Default. The
occurrence of any Event of Default or Unmatured Event of Default, accompanied
by a statement of a Financial Officer setting forth details of the occurrence
referred to therein and stating what action Borrower proposes to take with
respect thereto.
(b) Litigation and Related Matters. The commencement of,
or any material development in any action, suit, proceeding or investigation
pending or threatened against or affecting Borrower or any of its Subsidiaries
or any of their respective properties before any arbitrator or Governmental
Authority, in which the amount involved that Borrower reasonably determines is
not covered by insurance is $1,000,000 or more, or which, if determined
adversely to Borrower or any of its Subsidiaries, would reasonably be expected
to have a Material Adverse Effect.
(c) Notice of Change of Control. Each occasion that
there shall occur a Change of Control, and such notice shall set forth in
reasonable detail the particulars of each such occasion.
7.4 Conduct of Business and Maintenance of Existence. Continue to
engage in business of the same general type as now conducted by it and
preserve, renew and keep in full force and effect its and each Subsidiary's
corporate existence and take all reasonable action to maintain all rights,
privileges and franchises material to its and those of each of its
Subsidiaries' businesses except as otherwise permitted pursuant to Sections 8.4
and 8.7 and comply and cause each of its Subsidiaries to comply with all
Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith would not in the aggregate reasonably be expected
to have a Material Adverse Effect.
7.5 Payment of Obligations. Pay or discharge or otherwise satisfy
at maturity or, to the extent permitted hereby, prior to maturity or before
they become delinquent, as the case may be, and cause each of its Subsidiaries
to pay or discharge or otherwise satisfy at or before maturity or before they
become delinquent, as the case may be:
(i) all its and their respective Indebtedness;
(ii) all taxes, assessments and governmental charges or
levies imposed upon any of them or upon any of their income or profits
or any of their respective properties or assets prior to the date on
which penalties attach thereto; and
(iii) all lawful claims prior to the time they become a
Lien (other than Permitted Liens) upon any of their respective
properties or assets;
provided, however, that neither Borrower nor any of its Subsidiaries shall be
required to pay or discharge any such Indebtedness, tax, assessment, charge,
levy or claim while the same is being contested by it in good faith and by
appropriate proceedings diligently pursued so long as Borrower or such
Subsidiary, as the case may be, shall have set aside on its books adequate
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reserves in accordance with GAAP (segregated to the extent required by GAAP)
with respect thereto and title to any material properties or assets is not
jeopardized in any material respect.
7.6 Inspection of Property, Books and Records. Keep, or cause to
be kept, and cause each of its Subsidiaries to keep or cause to be kept,
adequate records and books of account, in which complete entries are to be made
reflecting its and their business and financial transactions, such entries to
be made in accordance with sound accounting principles consistently applied and
will permit, and cause each of its Subsidiaries to permit, any Lender or its
respective representatives, at any reasonable time, and from time to time at
the reasonable request of such Lender made to Borrower and upon reasonable
notice, to visit and inspect its and their respective properties, to examine
and make copies of and take abstracts from its and their records and books of
account, and to discuss its and their respective affairs, finances and accounts
with its and their principal officers, directors and independent public
accountants (and by this provision Borrower authorizes such accountants to
discuss with the Lenders and such representatives the affairs, finances and
accounts of Borrower and its Subsidiaries; provided, however, that prior to the
occurrence and continuance of an Event of Default, all such discussions shall
take place in the presence of a Financial Officer of Borrower).
7.7 ERISA. (i) As soon as practicable and in any event within
thirty days after Borrower or any of its Subsidiaries or ERISA Affiliates knows
or has reason to know that a Reportable Event has occurred with respect to any
Plan which would have a material adverse effect on such Plan, its assets or
liabilities, deliver, or cause such Subsidiary or ERISA Affiliate to deliver,
to Agent a certificate of a responsible officer of Borrower or such Subsidiary
or ERISA Affiliate, as the case may be, setting forth the details of such
Reportable Event and the action, if any, which Borrower or such Subsidiary or
ERISA Affiliate is required or proposes to take, together with any notices
required or proposed to be given; (ii) upon the request of any Lender made from
time to time, deliver, or cause each Subsidiary or ERISA Affiliate to deliver,
to each Lender a copy of the most recent actuarial report completed and annual
report filed with respect to any Plan; (iii) as soon as possible and in any
event within ten (10) days after Borrower or any of its Subsidiaries or ERISA
Affiliates knows or has reason to know that any of the following have occurred
or is reasonably likely to occur with respect to any Plan: (A) the Plan Sponsor
intends to terminate such Plan, (B) the PBGC has instituted or will institute
proceedings under Section 4042 of ERISA to terminate such Plan, (C) that an
accumulated funding deficiency (as defined in Section 3.02(a) of ERISA and
Section 412(a) of the Code) has been incurred or that on application may be or
has been made to the Secretary of the Treasury for a waiver or modification of
the minimum funding standard (including any required installment payments) or
on extension of any amortization period under Section 412 of the Code, or (D)
that Borrower, or any Subsidiary of Borrower or any ERISA Affiliate will or may
incur any liability (including, but not limited to, contingent or secondary
liability) to or on account of the termination of or withdrawal from a Plan
under Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409 or
502(1) of ERISA, deliver, or cause such Subsidiary or ERISA Affiliate to
deliver, to Agent a written notice thereof; and (iv) as soon as possible and in
any event within thirty days after Borrower or any of its Subsidiaries or ERISA
Affiliates knows or has reason to know that any of them has caused a complete
withdrawal or partial withdrawal (within the meaning of Sections 4203 and 4205,
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respectively, of ERISA) from any Multiemployer Plan, deliver, or cause such
Subsidiary or ERISA Affiliate to deliver, to Agent a written notice thereof.
For purposes of this Section 7.7, Borrower shall be deemed to have knowledge of
all facts known by the Plan Administrator of any Plan of which Borrower is the
Plan Sponsor, and each Subsidiary and ERISA Affiliate of Borrower shall be
deemed to have knowledge of all facts known by the Plan Administrator of any
Plan of which such Subsidiary or ERISA Affiliate, respectively, is a Plan
Sponsor. In addition to its other obligations set forth in this Section 7.7,
Borrower shall, and shall cause each of its Subsidiaries and ERISA Affiliates
to,
(A) furnish to Agent, promptly after delivery of
the same to the PBGC, a copy of any delinquency notice
pursuant to Section 412(n) (4) of the Code,
(B) correct any such failure to satisfy funding
requirements or delinquency referred to in the foregoing
clauses (iii)(C) of the first sentence of this Section 7.7 and
clause (A) above within ninety (90) days after the occurrence
thereof, except where the failure to so satisfy would not
reasonably be expected to have a Material Adverse Effect, and
(C) comply in good faith with the requirements
set forth in Section 4980B of the Code and with Sections
601(a) and 606 of ERISA, except where the failure to so comply
could not reasonably be expected to have a Material Adverse
Effect.
7.8 Insurance. Borrower shall maintain, and shall cause each of
its Subsidiaries to maintain, with financially sound and reputable insurers,
insurance with respect to its properties and business against loss or damage of
the kinds customarily insured against by Persons engaged in the same or similar
business, or such types and in such amounts as are customarily carried under
similar circumstances by such other Persons. Such insurance shall be
maintained with financially sound and reputable insurers, except that a portion
of such insurance program (not to exceed that which is customary in the case of
companies engaged in the same or similar business or having similar properties
similarly situated) may be effected through self-insurance, provided adequate
reserves therefor, in accordance with GAAP, are maintained.
7.9 Environmental Laws.
(a) Comply with in all material respects, and cause its
Subsidiaries to comply with in all material respects, and, in each case take
reasonable steps to ensure compliance in all material respects by all tenants
and subtenants, if any, with, all applicable Environmental Laws and obtain and
comply in all material respects with and maintain, and take reasonable steps to
ensure that all tenants and subtenants obtain and comply in all material
respects with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws except to
the extent that failure to do so would not reasonably be expected to have a
Material Adverse Effect;
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(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions required
under Environmental Laws and promptly comply in all material respects with all
lawful orders, directives and information requests of all Governmental
Authorities regarding Environmental Laws except to the extent that the same are
being contested in good faith by appropriate proceedings and the pendency of
such proceedings would not reasonably be expected to have a Material Adverse
Effect; and
(c) Defend, indemnify and hold harmless Agent and the
Lenders, and their respective employees, agents, officers and directors, from
and against any and all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature known or
unknown, contingent or otherwise, arising out of, or in any way relating to the
violation of, noncompliance with or liability under, any Environmental Law
applicable to the operations of Borrower, any of its Subsidiaries or their
respective properties, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, reasonable
attorneys' and consultants' fees, investigation and laboratory fees, costs
arising from any Remedial Actions, court costs and litigation expenses, except
to the extent that any of the foregoing arise out of the gross negligence or
willful misconduct of the party seeking indemnification therefor. The
agreements in this clause (c) shall survive repayment of the Notes and all
other Obligations.
7.10 Additional Subsidiary Guarantors. In the event any Person
shall hereafter become a Material Subsidiary and in the further event such
Person is a Domestic Subsidiary, Borrower shall, within 30 days, cause such
Material Subsidiary to become a party to the Subsidiary Guarantee Agreement and
deliver such other corporate authorization documents as Agent may reasonably
request.
ARTICLE VIII.
NEGATIVE COVENANTS
Borrower hereby agrees that, so long as the Revolving
Commitments remain in effect or any Obligation is owing to any Lender or any
Agent hereunder, Borrower shall not, nor shall it permit any of its
Subsidiaries to, directly or indirectly:
8.1 Financial Condition Covenants.
(a) Maintenance of Consolidated Net Worth. Permit
Consolidated Net Worth on the last day of any fiscal quarter to be less than
the sum of (i) ($6,163,000) plus (ii) the amount equal to 50% of the aggregate
Consolidated Net Income of Borrower and its consolidated Subsidiaries since
December 31, 1997; provided, however, that in the event that Borrower and its
consolidated Subsidiaries have a consolidated net loss for any fiscal quarter,
Consolidated Net Income for purposes only of clause (ii) of this Section 8.1(a)
shall be deemed to be zero for such fiscal quarter plus (iii) the amount of any
additional equity contributed after the date hereof including without
limitation that resulting from any initial public offering.
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(b) Leverage Ratio. Permit the ratio of (a) Consolidated
Debt on the last day of any fiscal quarter of Borrower (after giving effect to
all payments and prepayments made on such date) to (b) Consolidated EBITDA for
the period of four consecutive fiscal quarters ending on the last day of any
fiscal quarter of Borrower to exceed 3.00 to 1.0.
(c) Interest Coverage Ratio. Permit the ratio of (i)
Consolidated EBITDA for the period of four consecutive fiscal quarters ending
on the last day of any fiscal quarter of Borrower to (ii) Consolidated Interest
Expense for such period to be less than 4.25 to 1.0.
8.2 Indebtedness. Incur, directly or indirectly, or suffer to
exist any Indebtedness except:
(a) Indebtedness incurred pursuant to this Agreement and
the other Loan Documents;
(b) Intercompany Indebtedness; provided, however, that in
the event of any subsequent issuance or transfer of any Capital Stock which
results in the holder of such Indebtedness ceasing to be a Subsidiary of
Borrower or any subsequent transfer of such Indebtedness (other than to
Borrower or any of its Subsidiaries) such Indebtedness shall be required to be
permitted under another clause of this Section 8.2; provided, further, however,
that in the case of Intercompany Indebtedness consisting of a loan or advance
to Borrower, each such loan or advance shall be subordinated to the
indefeasible payment in full of all of Borrower's obligations pursuant to this
Agreement and the other Loan Documents, and each such loan or advance shall be
on open account and shall not be evidenced by a promissory note or other
instrument;
(c) Indebtedness outstanding on the date hereof and
listed on Schedule 8.2(d) hereto, provided that the Indebtedness under the
Valcor Note shall be paid in full with the proceeds of the Initial Loans made
hereto;
(d) Indebtedness under Interest Rate Protection
Agreements entered into to protect Borrower or any of its Subsidiaries against
fluctuations in interest rates in respect of the Obligations;
(e) Indebtedness under Currency Protection Agreements so
long as management of Borrower or such Subsidiary, as the case may be, has
determined that entering into of such Currency Protection Agreements are bona
fide hedging activities; and
(f) other Indebtedness in an aggregate principal amount
at any one time outstanding not in excess of $5,000,000.
8.3 Liens. Create, incur, assume or suffer to exist or agree to
create, incur or assume any Lien (except for Permitted Liens) in, upon or with
respect to any of its properties or assets (including, without limitation, any
securities or debt instruments of any of its Subsidiaries),
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whether now owned or hereafter acquired, or assign or otherwise convey any
right to receive income to secure any obligation.
8.4 Fundamental Changes. Enter into any merger, consolidation or
amalgamation, or liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution); make any Material Asset Disposition; make any
Acquisition; or make any material change in its present method of conducting
business; provided, however, that as long as immediately after giving effect to
such transaction, the resulting, surviving or transferee Person shall have
Consolidated Net Worth in an amount which is not less than the Consolidated Net
Worth of such Person prior to such transaction:
(a) any Subsidiary of Borrower may be merged or
consolidated with or into Borrower (provided, however, that Borrower shall be
the continuing or surviving corporation) or with or into any one or more
Wholly-Owned Subsidiaries of Borrower (provided, however, that the (i)
Wholly-Owned Subsidiary or Subsidiaries shall be the continuing or surviving
corporation and (ii) in the case of any merger or consolidation between
Subsidiaries at least one of that is a Subsidiary Guarantor, a Subsidiary
Guarantor shall be the surviving Person);
(b) any Wholly-Owned Subsidiary may sell, lease, transfer
or otherwise dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to Borrower or any other Wholly-Owned Subsidiary of Borrower; and
(c) Borrower may make a Permitted Acquisition.
8.5 Restricted Payments. Either: (i) declare or pay any dividend
or make any distribution on or in respect of its Capital Stock or to the direct
or indirect holders of its Capital Stock (except dividends or distributions
payable solely in its Non-Convertible Capital Stock or in options, warrants or
other rights to purchase its Non-Convertible Capital Stock and except dividends
or distributions payable to Borrower or a Subsidiary of Borrower) or (ii)
purchase, redeem or otherwise acquire or retire for value any Capital Stock of
Borrower (any such dividend, distribution, purchase, redemption, repurchase,
defeasance, other acquisition, retirement or Investment being hereinafter
referred to as a "Restricted Payment"); provided, however, that after the
second year anniversary hereof as long as no Event of Default or Unmatured
Event of Default has occurred and is continuing or would result therefrom:
(a) Borrower or any Wholly-Owned Subsidiary of Borrower
may make any Restricted Payment which, together with all other Restricted
Payments made since the date hereof would not exceed the sum of:
(i) 50% of the Consolidated Net Income accrued
during the period (treated as one accounting period) from December 31,
1997 to the end of the most recent Fiscal Quarter ending at least 45
days prior to the date of such Restricted Payment (or, in case such
Consolidated Net Income shall be a deficit, minus 100% of such
deficit), minus 100% of the amount of any write-downs, write-offs,
other negative revaluations and other negative
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extraordinary charges not otherwise reflected in Consolidated Net
Income during such period excluding, for all purposes of this clause
(i), items treated as balance sheet adjustments in respect of foreign
currency translations; plus
(ii) $5,000,000;
(b) Borrower may pay dividends within 60 days after the
date of declaration thereof if at such date of declaration such dividend would
have complied with this Section 8.5; provided, however, that such dividend
shall be included (without duplication) in the calculation of the amount of
Restricted Payment for purpose of Section 8.5(a); and
(c) Borrower may prepay the Valcor Note and such payment
shall not be considered a Restricted Payment.
8.6 Distributions from Subsidiaries. Create or otherwise cause or
permit to exist or become effective any consensual encumbrance or restriction
on the ability of any Subsidiary of Borrower to (i) pay dividends or make any
other distributions on its Capital Stock or pay any Indebtedness or other
obligation owed to Borrower or any of its other Subsidiaries, (ii) make any
loans or advances to Borrower or any of its other Subsidiaries, or (iii)
transfer any of its property or assets to Borrower or any of its other
Subsidiaries, except:
(a) any encumbrance or restriction pursuant to an
agreement in effect at or entered into on the Closing Date and reflected on
Schedule 8.6(a) hereto;
(b) any encumbrance or restriction with respect to a
Subsidiary of Borrower pursuant to an agreement relating to any Indebtedness
issued by such Subsidiary on or prior to the date on which such Subsidiary
became a Subsidiary of Borrower or was acquired by Borrower (other than
Indebtedness issued as consideration in, or to provide all or any portion of
the funds utilized to consummate, the transaction or series of related
transactions in contemplation of or pursuant to which such Subsidiary became a
Subsidiary or was acquired by Borrower) and outstanding on such date;
(c) any such encumbrance or restriction consisting of
customary non-assignment provisions in leases governing leasehold interests to
the extent such provisions restrict the transfer of the lease; and
(d) in the case of clause (iii) above, restrictions
contained in security agreements securing Indebtedness of a Subsidiary of
Borrower to the extent such restrictions restrict the transfer of the property
subject to such security agreements.
8.7 Sales of Assets and Subsidiary Stock. Convey, sell, lease or
otherwise dispose of (or agree to do any of the foregoing without the Agent's
prior written consent) all or any part of the property or assets of a
Subsidiary of Borrower with a value in excess of $1,000,000 unless Borrower or
such Subsidiary receives consideration at the time of such disposition at least
equal
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to the fair market value, as determined in good faith by the board of directors
of such Person (including a determination as to the value of all noncash
consideration), of the shares and assets subject to such disposition. The Net
Sale Proceeds of any disposition shall be applied in the manner set forth in
Section 4.3.
8.8 Investments. Make any Investments except for Permitted
Investments.
8.9 Transactions with Affiliates. Conduct any business or enter
into any transaction or series of similar transactions (including the purchase,
sale, lease or exchange of any property or the rendering of any service) with
any Affiliate of Borrower or any legal or beneficial owner of 5% or more of any
class of Capital Stock of Borrower or with any Affiliate of such owner (other
than a Wholly-Owned Subsidiary of Borrower or an employee stock ownership plan
for the benefit of Borrower's or any of its Subsidiaries' employees) unless the
terms of such business, transaction or series of transactions are (i) as
favorable to Borrower or such Subsidiary as terms that would be obtainable at
the time for a comparable transaction or series of similar transactions in
arm's-length dealings with an unrelated third person or, if such transaction is
not one which by its nature could be obtained from such person, is on fair and
reasonable terms and (ii) are in the ordinary course of business or, if not in
the ordinary course of business, are set forth in writing and the board of
directors of Borrower or such Subsidiary, as the case may be, has determined in
good faith that such business or transaction or series of transactions meets
the applicable criteria set forth in clause (i) above.
8.10 Sale-Leasebacks. Lease any property as lessee in connection
with a Sale and Leaseback Transaction entered into after the Closing Date.
8.11 Fiscal Year. Change the fiscal year of Borrower.
8.12 Amendments to Organizational Documents. Amend, modify or
waive, or permit any amendment, modification or waiver as to any material
provision of its articles of incorporation, by-laws or other similar governing
documents if such amendment, modification or waiver would adversely affect the
interests of Agent or the Lenders.
8.13 Accounting Changes. Make or permit to be made any change in
accounting policies affecting the presentation of financial statements or
reporting practices from those employed by it on the date hereof, unless (i)
such change is required by GAAP, (ii) such change is disclosed to the Lenders
through Agent or otherwise and (iii) relevant prior financial statements that
are affected by such change are restated (in form and detail satisfactory to
Agent) as may be required by GAAP to show comparative results.
8.14 Lines of Business. Enter into or acquire any line of business
which is not reasonably related to the business engaged in as of the date
hereof.
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ARTICLE IX.
EVENTS OF DEFAULT
9.1 Events of Default. If any of the events, acts, conditions or
occurrences (each, an "Event of Default") hereinafter set forth shall occur or
exist (for any reason whatsoever, and whether such happening shall be voluntary
or involuntary or come about or be effected by operation of law or pursuant to
or in accordance with any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(a) Failure to Make Payments When Due. (i) Borrower
shall default in the payment when due of principal on any Loan in accordance
with the terms hereof or any reimbursement obligation with respect to any
Letter of Credit; or (ii) Borrower shall default in the payment when due of
interest on any Loan in accordance with the terms hereof and such default shall
continue for five (5) days after the date when due; or (iii) Borrower shall
default in the payment when due of any other amount owing hereunder or any
other Loan Document and such default shall continue for ten (10) days after the
date when due; or
(b) Representations. Any representation or warranty made
or deemed to be made by Borrower or any Loan Party herein or in any document,
instrument or certificate delivered pursuant hereto shall prove to have been
incorrect or misleading in any material respect on or as of the date made or
deemed made; or
(c) Breach of Certain Covenants. Borrower shall fail to
perform or comply with any term or condition contained in Sections 7.1, 7.2 or
7.3, Article VIII; or
(d) Other Defaults Under Agreement or Loan Documents.
Borrower or any of its Subsidiaries shall default in the performance or
observance of any term, covenant, condition or agreement contained in this
Agreement (other than as provided in clauses (a), (b) or (c) of this Section
9.1), and such default shall continue unremedied for a period of 30 days after
written notice thereof shall have been given to Borrower by Agent or the
Majority Lenders; or
(e) Default Under Other Agreements. Borrower or any of
its Subsidiaries (i) shall default in the payment when due (after giving effect
to any applicable grace period), whether at stated maturity or otherwise, of
principal or interest in respect of Indebtedness having an aggregate principal
amount of $3,000,000 or more; or (ii) shall fail to perform or observe any
other condition or covenant, or any other event shall occur or condition exist,
under any agreement or instrument relating to any such Indebtedness, if the
effect of any such failure, event or condition is to cause, or to permit the
holder or holders of such Indebtedness or beneficiary or beneficiaries of such
Indebtedness (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause (determined without regard to whether
any notice of acceleration or similar notice is required), such Indebtedness to
be declared to be due and payable prior to its stated maturity, or cash
collateral in respect thereof to be demanded; or
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(f) Judgments. One or more judgments or decrees shall be
entered against Borrower or any of its Subsidiaries involving, individually or
in the aggregate, a liability of $3,000,000 or more and all such judgments or
decrees shall not have been vacated, discharged or stayed pending appeal within
sixty (60) days from the entry thereof but in any event prior to the
commencement of enforcement proceedings; or
(g) Voluntary Insolvency, Etc. Borrower or any of its
Material Subsidiaries shall become insolvent, generally fail to pay, or state
in writing or publicly its inability or unwillingness to pay, its debts as they
become due or call a meeting of creditors for the purpose of adjusting its
debts; or Borrower or any of its Material Subsidiaries shall become insolvent
or shall voluntarily commence any proceeding or file any petition under any
bankruptcy, insolvency or similar law seeking dissolution or reorganization or
the appointment of a receiver, trustee, custodian or liquidator for it or a
substantial portion of its property, assets or business, or to effect a plan or
other arrangement with its creditors, or shall file any answer admitting the
jurisdiction of the court and the material allegations of an involuntary
petition filed against it in any bankruptcy, insolvency or similar proceeding,
or shall be adjudicated bankrupt, or shall make a general assignment for the
benefit of creditors, or shall consent to, or acquiesce in the appointment of,
a receiver, trustee, custodian or liquidator for a substantial portion of its
property, assets or business; or
(h) Involuntary Insolvency, Etc. Involuntary proceedings
or an involuntary petition shall be commenced or filed against Borrower or any
of its Material Subsidiaries under any bankruptcy, insolvency or similar law or
seeking the dissolution or reorganization of it or the appointment of a
receiver, trustee, custodian or liquidator for it or of a substantial part of
its property, assets or business, or any writ, judgment, warrant of attachment,
execution or similar process shall be issued or levied against a substantial
part of its property, assets or business, and such proceedings or petition
shall not be dismissed, or such writ, judgment, warrant of attachment,
execution or similar process shall not be released, vacated or fully bonded,
within sixty (60) days after commencement, filing or levy, as the case may be,
or any order for relief shall be entered in any such proceeding; or
(i) Unenforceability. This Agreement shall cease for any
reason to be in full force and effect (other than by reason of the satisfaction
of all Borrower's or any of its Subsidiaries' obligations thereunder) or
Borrower or any of its Subsidiaries or any other Person (other than the Lenders
or Agent) shall disavow its obligations under any provision hereof or thereof,
or shall deny that it has any or further obligations under any provision
thereof, or shall contest the validity or enforceability of any provision
thereof; or
(j) ERISA. (i) A Reportable Event or Reportable Events,
or a failure to make a required installment or other payment (within the
meaning of Section 412(n)(l) of the Code), shall have occurred with respect to
any Plan or Plans that would reasonably be expected to result in liability of
Borrower to the PBGC or to a Plan in an aggregate amount exceeding $3,000,000
and the Agent shall have notified Borrower in writing that (x) the Majority
Lenders have made a determination that, on the basis of such Reportable Event
or Reportable Events or such failure to
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make a required payment, there are reasonable grounds (A) for the termination
of such Plan or Plans by the PBGC, (B) for the appointment by the appropriate
United States District Court of a trustee to administer such Plan or Plans or
(C) for the imposition of a lien in favor of a Plan and (y) as a result thereof
an Event of Default exists hereunder; or a Termination Event shall have
occurred; or
(ii) The Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan and the amount of the
Withdrawal Liability specified in such notice, when aggregated with
all other Withdrawal Liabilities (determined as of the date or dates
of such notification), exceeds $3,000,000; or
(iii) Borrower or any ERISA Affiliate 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 solely as a result of such
reorganization or termination the aggregate annual contributions of
Borrower and its ERISA Affiliates to all Multiemployer Plans that are
then in reorganization or have been or are being terminated have been
or will be increased over the amounts required to be contributed to
such Multiemployer Plans for their most recently completed plan years
by an amount exceeding $3,000,000; or
(k) Change of Control. A Change of Control shall occur;
or
(l) Environmental Default. The Borrower or any of its
Subsidiaries shall be the subject of any proceeding or investigation pertaining
to the release by Borrower or any of its Subsidiaries, or any other Person of
any toxic or hazardous waste or substance into the environment, or any
violation of any Environmental Law, which, in either case, would reasonably be
expected to have a Material Adverse Effect.
THEN, and in any such event (except an Event of Default specified in paragraph
(g) or (h) of this Section) and at any time thereafter while an Event of
Default is continuing, Agent may with the consent of Majority Lenders, and at
the direction of the Majority Lenders shall, take one or more of the following
actions: (A) declare the Revolving Commitments terminated, whereupon the
Revolving Commitment(s) of each Lender hereunder shall terminate immediately
and all fees and other amounts accrued in accordance with this Agreement shall
forthwith become due and payable without any other notice of any kind; (B)
declare all sums then owing by Borrower hereunder and under the Notes to be
forthwith due and payable, whereupon all such sums shall become and be
immediately due and payable without presentment, demand, protest or notice of
any kind, all of which are hereby expressly waived by Borrower; (C) exercise on
behalf of itself and the Lenders all rights and remedies available to it and
the Lenders under the Loan Documents or applicable law and (D) terminate any
Letter of Credit which may be terminated in accordance with its terms, (iv)
direct Borrower to pay (and Borrower agrees that upon receipt of such notice,
or upon the occurrence of any Event of Default specified in Section 9.1(e) or
Section 9.1(f) with respect to Borrower it will pay) to Agent such additional
amount of cash, to be held as security by Agent, as
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is equal to the aggregate Stated Amount of all Letters of Credit issued for the
account of Borrower and its subsidiaries and then outstanding, provided,
however, that if an Event of Default specified in paragraph (g) or (h) of this
Section shall occur, the result which would occur upon the giving of notice by
Agent to Borrower, as specified in clauses (A) or (B) above, shall occur
automatically without the giving of any such notice. Promptly following the
making of any such declaration, Agent shall give notice thereof to Borrower and
each Lender, but failure to notify any Person shall not impair the effect of
such declaration.
9.2 Rescission of Acceleration. Anything in Section 9.1 to the
contrary notwithstanding, Agent shall, at the request of the Majority Lenders,
rescind and annul any acceleration of the Notes under this Agreement by written
instrument filed with Borrower; provided, however, that at the time such
acceleration is so rescinded and annulled:
(i) all past due interest and principal, if any, on the
Notes and all other sums payable under this Agreement (except any
principal and interest on any Notes which has become due and payable
solely by reason of such acceleration) shall have been duly paid, and
(ii) no other Event of Default or Unmatured Event of
Default shall have occurred and be continuing which shall not have
been waived in accordance with this Agreement.
9.3 Rights Not Exclusive. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not exclusive of
any other rights, powers, privileges or remedies provided by law or in equity,
or under any other instrument, document or agreement now existing or hereafter
arising.
ARTICLE X.
AGENT
10.1 Appointment and Authorization. Each Lender hereby irrevocably
appoints, designates and authorizes BT as Agent (and each holder of any Note by
the acceptance of such Note shall be deemed irrevocably to have authorized
Agent) to take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform such
duties as are expressly delegated to it by the terms of this Agreement or any
other Loan Document, together with such powers as are reasonably incidental
thereto (including, without limitation, to give notices and take such actions
on behalf of the Majority Lenders as are consented to in writing by the
Majority Lenders). Agent may perform any of its duties hereunder, or under the
other Loan Documents, by or through its agents or employees.
10.2 Nature of Duties. Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement. The
duties of Agent shall be mechanical and administrative in nature. EACH LENDER
HEREBY ACKNOWLEDGES AND AGREES THAT Agent SHALL
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NOT HAVE, BY REASON OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, A FIDUCIARY
RELATIONSHIP TO OR IN RESPECT OF ANY LENDER. Nothing in any of the Loan
Documents, expressed or implied, is intended to or shall be so construed as to
impose upon Agent any obligations in respect of any of the Loan Documents
except as expressly set forth herein or therein. Each Lender shall make its
own independent investigation of the financial condition and affairs of
Borrower in connection with the making and the continuance of the Loans
hereunder and shall make its own appraisal of the credit worthiness of
Borrower, and Agent shall have no duty or responsibility, either initially or
on a continuing basis, to provide any lender with any credit or other
information with respect thereto, whether coming into its possession before
making of the Loans or at any time or times thereafter. Agent will promptly
notify each Lender at any time that the Majority Lenders have instructed it to
act or refrain from acting pursuant to Article IX.
10.3 Liability of Agent. Agent, its Affiliates, or any of their
respective officers, directors, employees, agents, affiliates or
attorneys-in-fact (collectively, the "Agent-Related Persons") shall not (i) be
liable to any of the Lenders for any action taken or omitted to be taken by any
of them under or in connection with this Agreement or any other Loan Document
(except for their own gross negligence or willful misconduct), or (ii) be
responsible in any manner to any of the Lenders for any recital, statement,
representation or warranty made by Borrower or Affiliate of Borrower, or any
officer thereof, contained in this Agreement or in any other Loan Document, or
in any certificate, report, statement or other document referred to or provided
for in, or received by Agent, or the Co-Agent under or in connection with, this
Agreement or any other Loan Document, or the execution, validity,
effectiveness, genuineness, enforceability, collectibility or sufficiency of
this Agreement or any other Loan Document, or for any failure of Borrower to
perform its obligations hereunder or thereunder. No Agent-Related Person shall
be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the terms or provisions contained in, or
conditions of, this Agreement or any other Loan Document, or the financial
condition of Borrower, or the existence or possible existence of any Unmatured
Event of Default or Event of Default unless requested to do so by the Majority
Lenders, or to inspect the properties, books or records of Borrower or any of
its Subsidiaries or Affiliates.
10.4 Reliance by Agent.
(a) The Lenders agree that Agent shall be entitled to
rely, and shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, statement or other document or conversation believed by it
to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal counsel (including
counsel to Borrower), independent accountants and other experts selected by
Agent. Agent may at any time request instructions from the Lenders with
respect to actions or approvals (including the failure to act or approve) which
by the terms of any of the Loan Documents Agent is permitted or required to
take or to grant. The Lenders agree that Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first
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receive such advice or concurrence of the Majority Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
The Lenders agree that Agent shall in all cases be fully protected in acting,
or in refraining from acting, under this Agreement or any other Loan Document
in accordance with a request or consent of the Majority Lenders and such
request or consent and any action taken or failure to act pursuant thereto
shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the
conditions specified in Sections 6.1 and 6.2, each Lender that has executed
this Agreement shall be deemed to have consented to, approved or accepted or to
be satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lender, unless
an officer of Agent, responsible for the transactions contemplated by the Loan
Documents shall have received notice from the Lender prior to the initial
Borrowing specifying in reasonable detail its objection thereto and either such
objection shall not have been withdrawn by notice to Agent to that effect, or
the Lender shall not have made available to Agent the Lender's ratable portion
of such Borrowing.
10.5 Notice of Default. Agent shall not be deemed to have
knowledge or notice of the occurrence of any Event of Default or Unmatured
Event of Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to Agent for the account of the Lenders,
unless Agent shall have received written notice from a Lender or Borrower
referring to this Agreement, describing such Event or Default or Unmatured
Event of Default and stating that such notice is a "notice of default". In the
event that Agent receives such a notice, Agent shall give notice thereof to the
Lenders. Agent shall take such action with respect to such Event of Default or
Unmatured Event of Default as shall be requested by the Majority Lenders in
accordance with Article IX; provided, however, that unless and until Agent
shall have received any such request, Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Event of Default or Unmatured Event of Default as it shall deem advisable or in
the best interest of the Lenders.
10.6 Credit Decision. Each Lender expressly acknowledges that none
of the Agent-Related Persons has made any representation or warranty to it and
that no act by any Agent, hereinafter taken, including any review of the
affairs of Borrower and its Subsidiaries shall be deemed to constitute any
representation or warranty by such Agent to any Lender. Each Lender represents
to Agent that it has, independently and without reliance upon Agent and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of Borrower and
its Subsidiaries, and all applicable bank regulatory laws relating to the
transactions contemplated thereby, and made its own decision to enter into this
Agreement and extend credit to Borrower hereunder. Each Lender also represents
that it will, independently and without reliance upon Agent, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
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investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of Borrower or its Subsidiaries. Except for notices, reports
and other documents expressly herein required to be furnished to the Lenders by
Agent, Agent shall not have any duty or responsibility to provide any Lender
with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of
Borrower which may come into the possession of any of the Agent-Related
Persons.
10.7 Indemnification. The Lenders shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of Borrower
and without limiting the obligation of Borrower to do so), ratably according to
each Lender's Commitment Percentage from and against any and all liabilities,
obligations, losses, damages, claims, penalties, actions, judgments, suits,
costs, and reasonable expenses and disbursements of any kind whatsoever which
may at any time (including at any time following the repayment of the Loans) be
imposed on, incurred by or asserted against any such Person any way relating to
or arising out of this Agreement or any document contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by any such Person under or in connection with any of
the foregoing; provided, however, that no Lender shall be liable for the
payment to the Agent-Related Persons of any portion of such liabilities,
obligations, losses, damages, claims, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Person's gross negligence
or willful misconduct. Without limitation of the foregoing, each Lender shall
reimburse Agent upon demand for its ratable share of any reasonable costs or
out-of-pocket expenses (including Attorney Costs) incurred by Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any
document contemplated by or referred to herein to the extent that Agent is not
reimbursed for such expenses by or on behalf of Borrower. Without limiting the
generality of the foregoing, if the IRS or any authority of the U.S. or other
jurisdiction asserts a claim that Agent did not properly withhold tax from
amounts paid to or for the account of any Lender (because the appropriate form
was not delivered, was not properly executed, or because such Lender failed to
notify Agent of a change in circumstances which rendered the exemption from, or
reduction of, withholding tax ineffective, or for any other reason) such Lender
shall indemnify Agent fully for all amounts paid, directly or indirectly, by
Agent as tax or otherwise, including penalties and interest, and including any
taxes imposed by any jurisdiction on the amounts payable to Agent under this
Section 10.7, together with all Attorney Costs. The obligation of the Lenders
in this Section 10.7 shall survive the payment of all Obligations hereunder and
termination of the Agreement.
10.8 Agent in Individual Capacity. Agent and its Affiliates may
make loans to, issue letters of credit for the account of, accept deposits
from, acquire equity interests in and generally engage in any kind of banking,
trust, financial advisory or other business with Borrower and its Subsidiaries
and Affiliates as though Agent were not Agent hereunder and without notice to
the Lenders. With respect to its Loans, Agent shall have the same rights and
powers under this Agreement as any other Lender and may exercise the same as
though it were not Agent hereunder
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or under any other Loan Document, including, without limitation, the acceptance
of fees or other consideration for services without having to account for the
same to any of the Lenders. The terms "Lender" and "Lenders" shall include BT
in its individual capacity.
10.9 Resignation by Agent.
(a) Agent may resign from the performance of all its
functions and duties hereunder at any time by giving fifteen (15) Business
Days' prior written notice to Borrower and the Lenders. Such resignation shall
take effect upon the acceptance by a successor Agent of appointment pursuant to
clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Majority
Lenders shall appoint a successor Agent who shall (unless an Event of Default
has occurred and is continuing) be satisfactory to Borrower and shall be an
incorporated bank or trust company.
(c) If a successor Agent shall not have been so appointed
within said 15 Business Day period, Agent, with the consent of Borrower, shall
then appoint a successor Agent who shall serve as Agent until such time, if
any, as the Majority Lenders, with the consent of Borrower, appoint a successor
Agent as provided above.
(d) If no successor Agent has been appointed pursuant to
clause (b) or (c) by the 20th Business Day after the date such notice of
resignation was given by Agent, Agent's resignation shall become effective and
the Majority Lenders shall thereafter perform all the duties of Agent hereunder
until such time, if any, as the Majority Lenders, with the consent of Borrower,
appoint a successor Agent as provided above.
(e) Upon the effective date of such resignation, only
such successor Agent shall succeed to all the rights, powers and duties of the
retiring Agent and the term "Agent" shall mean such successor agent and the
retiring Agent's rights, powers and duties in such capacity shall be
terminated. After any retiring Agent resigns hereunder as Agent the provisions
of this Article X and Section 11.4 shall inure to their respective benefit as
to any actions taken or omitted to be taken by it while it was Agent under this
Agreement; except with respect to indemnification provisions under this
Agreement which shall survive as to such resigning Agent.
ARTICLE XI.
MISCELLANEOUS
11.1 No Waiver; Modifications in Writing. (a) No failure or delay
on the part of Agent or any Lender in exercising any right, power or remedy
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The remedies provided for in this Agreement are cumulative and are not exclusive
of any remedies that may be available to any Agent or any Lender at law or in
equity or otherwise.
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No amendment, modification, supplement, termination or waiver of or to any
provision of this Agreement or any Revolving Note, nor consent to any departure
by Borrower therefrom, shall be effective unless the same shall be consented to
by or on behalf of the Majority Lenders; provided, however, that the consent of
each Lender (other than a Defaulting Lender) affected thereby shall be required
to effect any amendment, modification, supplement, termination, waiver or
consent, as the case may be (any of the foregoing, a "Modification"), which has
the effect of
(i) reducing the aggregate principal amount of, or
interest rate on, any of the Revolving Notes or releasing any
Subsidiary Guarantor (other than as a result of a transaction
permitted by Section 8.4 or an Asset Disposition made in accordance
with the terms of this Agreement) or the aggregate amount of any fees
provided for in this Agreement, except that any Modification that has
the effect of reducing the aggregate amount of any fees payable to
Agent for its own account shall require only the consent of Agent;
(ii) extending the stated final maturity of any of the
Revolving Commitments or the Revolving Notes or the date of any
portion of any payment of principal of, or interest or fees in respect
of, any of the Revolving Commitments or the Revolving Notes (other
than by way of (a) Modification of any provision for, or having the
effect of requiring, any mandatory prepayment of any portion of any
Loan, or (b) Modification or waiver of any Event of Default (other
than an Event of Default described in Section 9.1(a)(i), 9.1(g) or
9.1(h)) or Unmatured Event of Default); or
(iii) changing this proviso or the first sentence of Section
11.9(a), reduce the percentage specified in the definition of the term
"Majority Lenders", or (except in connection with a permitted
assignment by any Lender under this Agreement) the definition of the
terms "Revolving Commitment" or "Commitment Percentage" (it being
understood with respect to all of the foregoing that, with the consent
of the Majority Lenders, additional extensions of credit pursuant to
this Agreement may be included in the determination of the Majority
Lenders on substantially the same basis as the extensions of Revolving
Commitments are included in such determination on the date hereof);
provided, further, that the consent of Agent shall be required to effect any
Modification that has the effect of (x) increasing the duties or obligations of
Agent, (y) increasing the standard of care or performance required on the part
of Agent, or (z) reducing or eliminating the indemnities, exculpations or
immunities to which Agent is entitled.
Any Modification of or to any provision of this Agreement
shall be effective only in the specific instance and for the specific purpose
for which made or given and only if in writing. Except where notice is
specifically required by this Agreement, no notice to or demand on Borrower or
any other Person in any case shall entitle Borrower or such other Person to any
other or further notice or demand in similar or other circumstances.
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(b) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement as
contemplated by clauses (a)(i) through (iii), inclusive, of the first proviso
to the third sentence of Section (a), the consent of the Majority Lenders is
obtained but the consent of one or more of such other Lenders whose consent is
required is not obtained, then Borrower shall have the right, so long as all
non-consenting Lenders whose individual consent is required are treated as
described in either clauses (A) or (B) below, to either (A) replace each such
non-consenting Lender or Lenders with one or more Replacement Lenders pursuant
to Section 3.7 so long as at the time of such replacement, each such
Replacement Lender consents to the proposed amendment, modification,
supplement, waiver, discharge, termination or other change or (B) terminate
such non-consenting Lender's Revolving Commitment and repay all outstanding
Loans of such Lender which gave rise to the need to obtain such Lender's
consent, in accordance with Section 4.4(b) and/or 4.2(c); provided that, unless
the Revolving Commitment terminated and Loans repaid pursuant to the preceding
clause (B) are immediately replaced in full at such time through the addition
of new Lenders or the increase of the Commitments and/or outstanding Loans of
existing Lenders (who in each case must specifically consent thereto), then in
the case of any action pursuant to preceding clause (B) the Majority Lenders
(determined before giving effect to the proposed action) shall specifically
consent thereto, provided, further, that in any event Borrower shall not have
the right to replace a Lender, terminate its Revolving Commitment or repay its
Loans solely as a result of the exercise of such Lender's rights (and the
withholding of any required consent by such Lender) contemplated by the first
proviso to this Section 11.1(b).
11.2 Further Assurances. Borrower agrees to do, and to cause each
Subsidiary to do, such further acts and things and to execute, acknowledge and
deliver to the Lenders and/or Agent such assignments, agreements, documents,
powers, instruments and opinions of counsel as any such Person may reasonably
require or deem advisable to carry into effect the purposes of this Agreement
or any of the Loan Documents or to better assure and confirm unto Agent and/or
the Lenders, as applicable, their respective rights, powers and remedies under
this Agreement.
11.3 Notices, Etc. Except where telephonic instructions or notices
are authorized herein to be given, all notices, demands, instructions and other
communications required or permitted to be given to or made upon any party
hereto or any other Person shall be in writing and shall be personally
delivered or sent by registered or certified mail, postage prepaid, return
receipt requested, or by a reputable courier delivery service, or by prepaid
telex, TWX or telegram (with messenger delivery specified in the case of a
telegram), or by telecopier, and shall be deemed to be given for purposes of
this Agreement on the third day after deposit in registered or certified mail,
postage prepaid, and otherwise on the day that such writing is delivered or
sent to the intended recipient thereof, or in the case of notice delivered by
telecopy, upon completion of transmission with a copy of such notice also being
delivered under any of the methods provided above, all in accordance with the
provisions of this Section provided that any notice, request or demand to or
upon any Agent or the Lenders pursuant to Sections 2.1, 2.2, 3.4 or 4.1 shall
not be effective until received. Unless otherwise specified in a notice sent
or delivered in accordance with the foregoing provisions of this Section,
notices, demands, instructions and other communications in writing shall be
given to or made upon the respective parties hereto at their
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respective addresses (or to their respective telex, TWX or telecopier numbers)
indicated on its signature page hereto or in any applicable Assignment and
Assumption Agreement and, in the case of telephonic instructions or notices, by
calling the telephone number or numbers indicated for such party on its
signature page hereto or in any applicable Assignment and Assumption Agreement.
11.4 Costs, Expenses and Taxes; Indemnity.
(a) Generally. Borrower agrees (without duplication) to
pay promptly upon request by Agent all reasonable costs and expenses in
connection with the negotiation, preparation, printing, typing, reproduction,
execution and delivery of this Agreement and the other Loan Documents and the
documents and instruments referred to herein and therein and any amendment,
waiver, consent relating hereto or thereto or other modifications of (or
supplements to) any of the foregoing and any and all other documents and
instruments furnished pursuant hereto or thereto or in connection herewith or
therewith, including without limitation, the reasonable fees and out-of-pocket
expenses of Winston & Xxxxxx, special counsel to Agent, and any local counsel
retained by Agent relative thereto, other Attorney Costs, independent public
accountants and other outside experts retained by Agent in connection with the
administration of this Agreement and the other Loan Documents, and all search
fees, appraisal fees and expenses, title insurance policy fees, costs and
expenses and filing and recording fees and all costs and expenses (including,
without limitation, Attorney Costs), if any, paid by Agent or Lender in
connection with the enforcement of this Agreement, any of the Loan Documents or
any other agreement furnished pursuant hereto or thereto or in connection
herewith or therewith. In addition, Borrower shall pay any and all present and
future stamp, transfer excise and other similar taxes payable or determined to
be payable in connection with the execution and delivery of this Agreement, any
Loan Document, or the making of any Loan, and each agrees to save and hold
Agent and each Lender harmless from and against any and all liabilities with
respect to or resulting from any delay by Borrower in paying, or omission by
Borrower to pay, such taxes. Any portion of the foregoing fees, costs and
expenses which remains unpaid more than thirty (30) days following Agent's or
any Lender's statement and request for payment thereof shall bear interest from
the date of such statement and request to the date of payment at the Default
Rate.
(b) Indemnification. Borrower will indemnify and hold
harmless Agent and each Lender and each director, officer, employee, agent and
Affiliate of each Agent and each Lender (collectively, the "Indemnified
Persons") from and against all losses, claims, damages, penalties, causes of
action, obligations, costs, expenses or liabilities (including, without
limitation, Attorney Costs and reasonable expenses, consultant fees and
investigation fees) (collectively, "Expenses") to which such Indemnified Person
shall become subject, insofar as such Expenses (or actions, suits or
proceedings, including, without limitation, any inquiry or investigation or
claim in respect thereof, whether or not any Indemnified Person is named as a
party) arise out of, in any way relate to, or result from the transactions
contemplated by this Agreement and to reimburse each Indemnified Person upon
its demand, for any legal or other expenses incurred in connection with
investigating, preparing to defend or defending any such loss, claim, damage,
liability, action or claim; provided, however, that Borrower shall have no
obligation to an Indemnified Person hereunder with respect to indemnified
liabilities arising from the gross negligence or willful
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misconduct of any such Indemnified Person or for any loss, claim, damage,
liability, action or claim incurred by any Lender hereunder resulting solely
from the gross negligence or willful misconduct of another Lender; and
provided, further, however, that no Indemnified Person may settle any such
action, suit or proceeding without the consent of Borrower which consent shall
not be unreasonably withheld or delayed. If an action, suit or proceeding
arising from any of the foregoing is brought against any Indemnified Person,
Borrower shall, if requested by such Indemnified Person, resist and defend at
its own expense such action, suit or proceeding or cause the same to be
resisted and defended by counsel reasonably satisfactory to such Indemnified
Person. Each Indemnified Person shall have the right to employ its own counsel
to investigate and control the defense of any matter covered by such indemnity
and the reasonable fees and expenses of such counsel shall be at the expense of
the indemnifying party, provided, however, that in any one action or separate
but similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, Borrower shall not be liable for fees and
expenses of more than one counsel (in addition to any local counsel), which
counsel shall be designated by the Agent provided, further, however, each
Indemnified Person shall have the right to employ separate counsel in any such
inquiry, action, claim or proceeding and to control the defense thereof, and
the reasonable fees and expenses of such counsel shall be at the expense of the
Borrower if (i) Borrower shall have agreed in writing to pay such fees and
expenses or (ii) such Indemnified Person shall have notified Borrower that it
has been advised by counsel that there may be one or more legal defenses
available to such Indemnified Person that are different from or additional to
those available to the other Indemnified Persons and that such common
representation would adversely impact the adequacy of the proposed
representation. If Borrower shall fail to do, or cause to be done, any act or
thing which it has covenanted to do or cause to be done under this Agreement or
any representation or warranty on the part of Borrower contained in any Loan
Document shall be breached, Agent may (but shall not be obligated to) do the
same or cause it to be done or remedy any such breach, and may expend its own
funds for such purpose, and will use its best efforts to give prompt written
notice to Borrower that it proposes to take such action; provided, however,
that any failure by Agent to do any such act or thing or give any such notice
shall not relieve Borrower of any such obligations and shall not impose or
result in the imposition of any liability on Agent or any Lender. Any and all
amounts so expended by Agent shall be due and payable by Borrower promptly upon
Agent's demand therefor, together with interest thereon at a rate per annum
equal to the Default Rate during the period from and including the date so
demanded by Agent to the date of repayment. To the extent that the undertaking
to indemnify, pay or hold harmless Agent or Lender as set forth in this Section
11.4 may be unenforceable because it is violative of any law or public policy,
Borrower shall make the maximum contribution to the payment and satisfaction of
each of the indemnified liabilities which is permissible under applicable law.
(c) If any sum due from Borrower under this Agreement or
any order or judgment given or made in relation hereto has to be converted from
the currency (the "first currency") in which the same is payable hereunder or
under such order or judgment into another currency (the "second currency") for
the purpose of (i) making or filing a claim or proof against Borrower with any
Governmental Authority or in any court or tribunal, or (ii) enforcing any order
or judgment given or made in relation hereto, Borrower shall indemnify and hold
harmless each of the Persons to whom
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such sum is due from and against any loss actually suffered as a result of any
discrepancy between (a) the rate of exchange used to convert the amount in
question from the first currency into the second currency, and (b) the rate or
rates of exchange at which such Person, acting in good faith in a commercially
reasonable manner, purchased the first currency with the second currency after
receipt of a sum paid to it in the second currency in satisfaction, in whole or
in part, of any such order, judgment, claim or proof. The foregoing indemnity
shall constitute a separate obligation of Borrower distinct from its other
obligations hereunder and shall survive the giving or making of any judgment or
order in relation to all or any of such other obligations.
(d) The obligations of Borrower under this Section and
the other indemnification obligations of the Borrower under this Agreement
shall be effective and binding on Borrower irrespective of whether any Loans
are made and shall survive (i) the termination of this Agreement and the
discharge of Borrower's other obligations hereunder and under the Notes and
(ii) the assignment by any Lender of any of its interests herein pursuant to
Section 11.9(c) with respect to any acts, omissions and/or events occurring or
arising prior to the Effective Date of such assignment.
(e) Nothing contained in this Section shall be deemed to
limit or reduce any indemnity in favor of any Agent or any Lender contained in
any other Loan Document or agreement.
11.5 Confirmations. Each of Borrower and each holder of a Note
agrees, from time to time, upon written request received by it from the other,
to confirm to the other in writing (with a copy of each such confirmation to
Agent) the aggregate unpaid principal amount of the Loans then outstanding
under such Note.
11.6 Transfer of Notes. In the event that the holder of any
Revolving Note (including any Lender) shall transfer such Note, it shall
immediately advise Agent and Borrower of such transfer, and Agent and Borrower
shall be entitled conclusively to assume that no transfer of any Note has been
made by any holder (including any Lender) unless and until Agent and Borrower
shall have received written notice to the contrary. Each transferee of any
Note shall take such Note subject to the provisions of this Agreement and to
any Modification or other action taken under this Agreement prior to the
receipt by Agent and Borrower of written notice of such transfer by each
previous holder of such Note and, except as expressly otherwise provided in
such notice, Agent and Borrower shall be entitled conclusively to assume that
the transferee named in such notice shall thereafter be vested with all rights
and powers under this Agreement with respect to the Loans of the Lender named
as the payee of the Note which is the subject of such transfer.
11.7 Adjustments; Setoff.
(a) If, other than as expressly set forth elsewhere
herein, any Lender shall obtain on account of the Committed Loans made by it
any payment (whether voluntary, involuntary, through the exercise of any right
of setoff, or otherwise) in excess of its Commitment Percentage of payments on
account of the Committed Loans obtained by all the Lenders, such
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Lender shall forthwith (x) notify Agent of such fact, and (y) purchase from the
other Lenders such participations in the Committed Loans made by them as shall
be necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that if all or any portion of
such excess payment is thereafter recovered from the purchasing Lender, such
purchase shall to that extent be rescinded and each other Lender shall repay to
the purchasing Lender the purchase price paid thereto together with an amount
equal to such paying Lender's Commitment Percentage (according to the
proportion of (i) the amount of such paying Lender's required repayment to (ii)
the total amount so recovered from the purchasing Lender, of any interest or
other amount paid or payable by the purchasing Lender in respect of the total
amount so recovered. Agent will keep records (which shall be conclusive and
binding in the absence of manifest error), of participations purchased pursuant
to this Section 11.7 and will in each case promptly notify the Lenders and
Borrower following any such purchases. Any payments received after the Lenders
have taken action pursuant to this Section 11.7 shall be allocated ratably
among the Revolving Loans and the Swing Line Loans of all the Lenders.
(b) Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 11.7 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of setoff, but subject to Section 11.7(d)) with respect to such
participation as fully as if such Lender were the direct creditor of Borrower
in the amount of such participation.
(c) Nothing herein shall require any Lender to exercise
any right of setoff or similar rights or shall affect the right of any Lender
to exercise, and retain the benefits of exercising, any such right with respect
to any other Indebtedness or obligation of Borrower.
(d) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to
Borrower or any other Person, any such notice being expressly waived by
Borrower, upon the occurrence of an Event of Default to setoff and apply
against any Obligations any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, whether matured or unmatured, of Borrower to
such Lender, any amount owing from such Lender or any branch or agency thereof
to or for the credit or account of Borrower, at or at any time after, the
happening of any of the above-mentioned events, and the aforesaid right of
setoff may be exercised by such Lender against Borrower or against any trustee
in bankruptcy, debtor in possession, assignee for the benefit of creditors,
receivers, or execution, judgment or attachment creditor of Borrower, or
against anyone else claiming through or against, Borrower or such trustee in
bankruptcy, debtor in possession, assignee for the benefit of creditors,
receivers, or execution, judgment or attachment creditor, notwithstanding the
fact that such right of setoff shall not have been exercised by such Lender
prior to the making, filing or issuance, or service upon such Lender of, or of
notice of, any such petition, assignment for the benefit of creditors,
appointment or application for the appointment of a receiver, or issuance of
execution, subpoena, order or warrant. Each Lender agrees promptly to notify
Borrower and Agent after any such setoff and application made by such Lender;
provided,
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however, that the failure to give such notice shall not affect the validity of
such setoff and application.
(e) Borrower expressly agrees that to the extent Borrower
makes a payment or payments and such payment or payments, or any part thereof,
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or are required to be repaid to a trustee, receiver, or any other party
under any bankruptcy act, state or federal law, common law or equitable cause,
then to the extent of such payment or repayment, the Indebtedness to the
Lenders or part thereof intended to be satisfied shall be revived and continued
in full force and effect as if said payment or payments had not been made.
11.8 Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by the different parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original and all of which counterparts, taken together,
shall constitute but one and the same Agreement and it shall not be necessary
in making proof of this Agreement to produce more than one such counterpart or
counterparts bearing the signatures of all of the parties thereto.
11.9 Binding Effect; Assignment; Addition and Substitution of
Lenders.
(a) This Agreement shall be binding upon, and inure to
the benefit of, Borrower, Agent, the Lenders, all future holders of the Notes
and their respective successors and assigns; provided, however, that Borrower
may not assign its rights or obligations hereunder or in connection herewith or
any interest herein (voluntarily, by operation of law or otherwise) without the
prior written consent of Agent and all of the Lenders.
(b) Each Lender may at any time sell to one or more banks
or other entities ("Participants") participating interests in all or any
portion of its Revolving Commitment and Loans or participation in Letters of
Credit or any other interest of such Lender hereunder (in respect of any
Lender, its "Credit Exposure"). In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's obligations under this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, and Borrower and Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights
and obligations under this Agreement. Borrower agrees that if amounts
outstanding under this Agreement or any of the Loan Documents are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall be deemed to have
the right of setoff in respect of its participating interest in amounts owing
under this Agreement and the Loan Documents to the same extent as if the amount
of its participating interest were owing directly to it as a Lender under this
Agreement or any other Loan Document, provided, however, that such right of
setoff shall be subject to the obligation of such Participant to share with the
Lenders, and the Lenders agree to share with such Participant, as provided in
Section 12.6. Borrower also agrees that each Participant shall be entitled to
the benefits of Section 3.6 and 4.7 with respect to its participation in the
Loans outstanding from time to time. Each Lender agrees that any agreement
between such Lender and any such Participant in respect of such participating
interest shall not restrict such Lender's right to approve or agree to any
amendment, restatement, supplement
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or other modification to, waiver of, or consent under, this Agreement or any of
the Loan Documents except to the extent that any of the forgoing would (i)
extend the final scheduled maturity of any Loan or Note in which such
participant is participating beyond the Termination Date, or reduce the rate or
extend the time of payment of interest or fees on any such Loan or Note (except
in connection with a waiver of applicability of any post-default increase in
interest rates) or reduce the principal amount thereof, or increase the amount
of the participant's participation over the amount thereof then in effect (it
being understood that waivers or modifications of conditions precedent,
covenants, Events of Default or Unmatured Events of Default or of a mandatory
reduction in Commitments shall not constitute a change in the terms of such
participation, and that an increase in any Revolving Commitment or Loan shall
be permitted without the consent of any participant if the participant's
participation is not increased as a result thereof) or (ii) consent to the
assignment or transfer by Borrower of any of its rights and obligations under
this Agreement.
(c) Any Lender may at any time assign to one or more
Eligible Assignees, including an Affiliate thereof (each an "Assignee"), all or
any part of its Credit Exposure pursuant to an Assignment and Assumption
Agreement, provided that (i) it assigns its Credit Exposure in an amount not
less than $5,000,000 (or if less the entire amount of Lender's Credit Exposure)
and (ii) any assignment of all or any portion of any Lender's Credit Exposure
to an Assignee other than another Lender shall require the prior written
consent of Agent and Borrower (the consent of Borrower not to be unreasonably
withheld or delayed), and provided further, that notwithstanding the foregoing
limitations, any Lender may at any time assign all or any part of its Credit
Exposure to any Affiliate of such Lender or to any other Lender. Upon
execution of an Assignment and Assumption Agreement and the payment of a
nonrefundable assignment fee of $3,500 in immediately available funds to Agent
at its Payment Office in connection with each such assignment, written notice
thereof by such transferor Lender to Agent and the recording by Agent of such
assignment and the resulting effect upon the Loans and Revolving Commitment of
the assigning Lender and the Assignee, the Assignee shall have, to the extent
of such assignment, the same rights and benefits as it would have if it were a
Lender hereunder and the holder of the Obligations (provided that Borrower and
Agent shall be entitled to continue to deal solely and directly with the
assignor Lender in connection with the interests so assigned to the Assignee
until written notice of such assignment, together with payment instructions,
addresses and related information with respect to the Assignee, shall have been
given to Borrower and Agent by the assignor Lender and the Assignee) and, if
the Assignee has expressly assumed, for the benefit of Borrower, some or all of
the transferor Lender's obligations hereunder, such transferor Lender shall be
relieved of its obligations hereunder to the extent of such assignment and
assumption, and except as described above, no further consent or action by
Borrower, the Lenders or Agent shall be required. At the time of each
assignment pursuant to this Section 12.8(c) to a Person which is not already a
Lender hereunder and which is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) United States Federal income tax
purposes, the respective Assignee shall provide to Borrower and Agent the
appropriate IRS Forms (and, if applicable a Section 4.7(d)(ii) Certificate)
described in Section 4.7(d). Each Assignee shall take such Credit Exposure
subject to the provisions of this Agreement and to any request made, waiver or
consent given or other action taken hereunder, prior to the receipt by Agent
and Borrower of written notice of such transfer, by each previous holder of
such Credit Exposure. Such Assignment and Assumption Agreement shall be deemed
to amend this Agreement and Schedule 1.1(a) hereto, to the extent, and only to
the extent, necessary to reflect the
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addition of such Assignee as a Lender and the resulting adjustment of all or a
portion of the rights and obligations of such transferor Lender under this
Agreement, the Revolving Commitment, the determination of its Commitment
Percentage (rounded to twelve decimal places), the Loans and any new Notes to
be issued, at Borrower's expense, to such Assignee, and no further consent or
action by Borrower or the Lenders shall be required to effect such amendments.
(d) Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
any and all financial information in such Lender's possession concerning
Borrower and any Subsidiary of Borrower which has been delivered to such Lender
by Borrower pursuant to this Agreement or which has been delivered to such
Lender by Borrower in connection with such Lender's credit evaluation of
Borrower prior to entering into this Agreement; provided that such Transferee
or prospective Transferee agrees to treat any such information which is not
public as confidential.
(e) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time pledge or assign all or any portion of
its rights under this Agreement and the other Loan Documents (including,
without limitation, the Notes held by it) to any Federal Reserve Bank in
accordance with Regulation A of the Federal Reserve Board without notice to, or
the consent of, Borrower. No such pledge or assignment shall release the
transferor Lender from its obligations hereunder.
11.10 CONSENT TO JURISDICTION; MUTUAL WAIVER OR JURY TRIAL.
(A) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF
THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW
YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, BORROWER HEREBY
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH CREDIT PARTY
HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CT CORPORATION SYSTEM WITH
OFFICES ON THE DATE HEREOF AT 0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000 AS ITS
DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON ITS
BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS,
SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR
PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE
TO BE AVAILABLE TO ACT AS SUCH, BORROWER AGREES TO DESIGNATE A NEW DESIGNEE,
APPOINTEE AND AGENT IN NEW YORK CITY ON THE TERMS AND FOR THE PURPOSES OF THIS
PROVISION SATISFACTORY TO AGENT UNDER THIS AGREEMENT. BORROWER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH BORROWER, AT ITS ADDRESS
SET FORTH OPPOSITE ITS
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SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH
MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF AGENT UNDER THIS AGREEMENT,
ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
BORROWER IN ANY OTHER JURISDICTION.
(B) BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE
AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (A) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD
OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(C) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY COURT OR
JURISDICTION, INCLUDING WITHOUT LIMITATION THOSE REFERRED TO IN CLAUSE (A)
ABOVE, IN RESPECT TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
11.11 Governing Law. THIS AGREEMENT AND EACH NOTE SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER THE INTERNAL LAWS OF THE STATE OF NEW YORK, AND FOR
ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH
SUCH LAWS OF SAID STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
11.12 Registry. Borrower hereby designates Agent to serve as
Borrower's agent, solely for purposes of this Section 11.12 to maintain a
register (the "Register") on which it will record the Commitment from time to
time of each of the Lenders, the Loans made by each of the Lenders and each
repayment in respect of the principal amount of the Loans of each Lender.
Failure to make any such recordation, or any error in such recordation shall
not affect Borrower's obligations in respect of such Loans. With respect to
any Lender, the transfer of the Commitments of such Lender and the rights to
the principal of, and interest on, any Loan made pursuant to such Commitment
shall not be effective until such transfer is recorded on the Register
maintained by Agent with respect to ownership of such Commitment and Loans and
prior to such recordation all amounts owing to the transferor with respect to
such Commitments and Loans shall remain owing to the transferor. The
registration of assignment or transfer of all or part of any Commitment and
Loans shall be recorded by Agent on the Register only upon the acceptance by
Agent of a properly executed and delivered Assignment and Assumption Agreement
pursuant to Section 11.9. Coincident with the delivery of such an Assignment
and Assumption Agreement to Agent for acceptance and registration of assignment
or transfer of all or part of a Loan, or as soon thereafter as practicable, the
assigning or transferor Lender shall surrender the Note evidencing such Loan,
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and thereupon one or more new Notes in the same aggregate principal amount then
owing to such assignor or transferor Lender shall be issued to the assigning or
transferor Lender and/or the new Lender. Borrower agrees to indemnify Agent
from and against any and all losses, claims, damages and liabilities of
whatsoever nature which may be imposed on, asserted against or incurred by
Agent in performing its duties under this Section 11.12 except for those
resulting solely from Agent's willful misconduct and/or gross negligence in the
performance of such duties.
11.13 Severability of Provisions. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
11.14 Headings. The Table of Contents and Article, Section and
Section headings used in this Agreement are for convenience of reference only
and shall not affect the construction of this Agreement.
11.15 Independent Nature of Lenders' Rights. The amounts payable at
any time under this Agreement to each Agent and each Lender shall be separate
and independent debts; each Lender shall be entitled to protect and enforce its
rights arising out of this Agreement; and it shall not be necessary for any
Agent or any other Lender to be joined as an additional party in any proceeding
for such purpose.
11.16 Survival of Representations. Unless a longer period is
provided herein, all covenants, agreements and representations in this
Agreement shall survive the making by the Lenders of the Loans and the
execution and delivery to Agent for the account of the Lenders of the Notes
evidencing the Loans, regardless of any investigation made by any Agent or the
Lenders and of the Agent's and the Lenders' access to any information, and
shall continue in full force and effect until the final and indefeasible
payment in full of the Notes and all of Borrower's obligations under this
Agreement and the termination of the Revolving Commitments in their entirety.
11.17 Confidentiality. Each of the Lenders severally agrees to keep
confidential all non-public information pertaining to Borrower and its
Subsidiaries which is provided to it by any such parties in accordance with
such Lender's customary procedures for handling confidential information of
this nature and in a prudent fashion, and shall not disclose such information
to any Person except (i) to the extent such information is public when received
by such Lender or becomes public thereafter due to the act or omission of any
party other than a Lender, (ii) to the extent such information is independently
obtained from a source other than Borrower or its Subsidiaries and such
information from such source is not, to such Lender's knowledge, subject to an
obligation of confidentiality or, if such information is subject to an
obligation of confidentiality, that disclosure of such information is
permitted, (iii) to an Affiliate of such Lender, counsel, auditors, examiners
of any regulatory authority having jurisdiction over such Lender, accountants
and other consultants retained by Agent or any Lender, (iv) in connection with
any litigation or the enforcement of the rights of any Lender or Agent under
this Agreement or any other Loan Document, (v) to the extent required by any
applicable statute, rule or regulation or court order (including, without
limitation,
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by way of subpoena) or pursuant to the request of any Governmental Authority
having jurisdiction over any Lender or Agent; provided, however, that in such
event, if the Lender(s) are able to do so, the Lender shall provide Borrower
with prompt notice of such requested disclosure so that Borrower may seek a
protective order or other appropriate remedy, and, in any event, the Lenders
will endeavor in good faith to provide only that portion of such information
which, in the reasonable judgment of the Lender(s), is relevant and legally
required to be provided, or (vi) to the extent disclosure to other entities is
appropriate in connection with any proposed or actual assignment or grant of a
participation by any of the Lenders of interests in this Agreement and/or any
of the other Loan Documents to such other financial institutions (who will in
turn be required to maintain confidentiality as if they were Lenders parties to
this Agreement). In no event shall Agent or any Lender be obligated or
required to return any such information or other materials furnished by
Borrower.
11.18 Effectiveness. This Agreement shall become effective on the
date (the "Effective Date") on which Borrower and each of the Lenders shall
have signed a counterpart of this Agreement (whether the same or different
counterparts) and shall have delivered the same to the Agent at the Notice
Office (or to Agent's counsel as directed by such counsel) or, in the case of
the Lenders, shall have given to Agent or telephonic (confirmed in writing),
written, telex or facsimile notice (actually received) at such office or the
office of Agent's counsel that the same has been signed and mailed to it.
Agent will give Borrower and each Lender prompt written notice of the
occurrence of the Effective Date.
11.19 Waiver of Immunities. Subject to Section 11.10 of this
Agreement, each Lender waives, in relation to any action or proceeding arising
out of or relating to this Agreement or any Note, any sovereign immunity or
other immunity to suit or to execution or attachment to which such Lender or
any of its property may be or become entitled.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
COMPX INTERNATIONAL INC.
By: /s/ XXXXX X. X'XXXXX
--------------------------------
Name: Xxxxx X. X'Xxxxx
------------------------------
Title: Vice President and Treasurer
-----------------------------
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BANKERS TRUST COMPANY,
individually as a Lender and as
Agent
By: /s/ XXXXXX X. XXXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------
Title: Assistant Vice President
----------------------------
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FIRST UNION NATIONAL BANK,
as a Lender
By: /s/ XXXXX XXXX
-------------------------------
Name: Xxxxx Xxxx
-----------------------------
Title: Senior Vice President
----------------------------
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NATIONSBANK, N.A.
as a Lender
By: /s/ XXXXX X. XXXXXXXX
-------------------------------
Name: Xxxxx X. Xxxxxxxx
-----------------------------
Title: Vice President
----------------------------
X-0
000
XXXXXXXX BANK, N.A.
as a Lender
By: /s/ XXXXXX X. XXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------
Title: Vice President
----------------------------
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