Exhibit 10.26
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
JUNE 15, 2001
by and among
XXXXXX XXXXXXXXXX LTD.,
the LENDERS Party Hereto
and
MANUFACTURERS AND TRADERS TRUST COMPANY
as Administrative Agent
$100,000,000
TABLE OF CONTENTS
ARTICLE I DEFINITIONS 1
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1.01 DEFINED TERMS. 1
1.02 TERMS GENERALLY. 17
1.03 ACCOUNTING TERMS; GAAP. 17
ARTICLE II THE CREDIT FACILITIES 19
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2.01 TERM LOAN FACILITIES. 19
2.02 REVOLVING CREDIT FACILITIES. 20
2.03 REQUESTS FOR CREDIT LINE LOANS. 21
2.04 REQUESTS FOR SWINGLINE LOANS. 22
2.05 LETTERS OF CREDIT. 24
2.06 FUNDING OF BORROWINGS. 28
2.07 INTEREST ELECTIONS. 29
2.08 TERMINATION AND REDUCTION OF THE COMMITMENTS. 30
2.09 REPAYMENT AND PREPAYMENT OF LOANS; EVIDENCE OF DEBT. 31
2.10 FEES. 34
2.11 INTEREST. 36
2.12 ALTERNATE RATE OF INTEREST. 36
2.13 INCREASED COSTS. 37
2.14 BREAK FUNDING PAYMENTS. 38
2.15 TAXES. 38
2.16 PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SET-OFFS. 39
2.17 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS. 41
ARTICLE III REPRESENTATIONS AND WARRANTIES 42
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3.01 ORGANIZATION; POWERS. 42
3.02 AUTHORIZATION; ENFORCEABILITY. 42
3.03 GOVERNMENTAL APPROVALS; NO CONFLICTS. 42
3.04 FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE. 43
3.05 PROPERTIES. 43
3.06 LITIGATION AND ENVIRONMENTAL MATTERS. 43
3.07 COMPLIANCE WITH LAWS AND AGREEMENTS. 44
3.08 INVESTMENT AND HOLDING COMPANY STATUS. 44
3.09 TAXES. 44
3.10 ERISA. 44
3.11 DISCLOSURE. 44
3.12 USE OF CREDIT. 45
ARTICLE IV CONDITIONS 45
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4.01 EFFECTIVE DATE. 45
4.02 EACH CREDIT EVENT. 47
ARTICLE V AFFIRMATIVE COVENANTS 48
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5.01 FINANCIAL STATEMENTS AND OTHER INFORMATION. 48
5.02 NOTICES OF MATERIAL EVENTS. 49
5.03 EXISTENCE: CONDUCT OF BUSINESS. 50
5.04 FUTURE SUBSIDIARIES; SUBSIDIARY GUARANTORS. 50
5.05 FUTURE PARENT ENTITIES; PARENT GUARANTORS. 50
5.06 PAYMENT OF OBLIGATIONS. 50
5.07 MAINTENANCE OF PROPERTIES; INSURANCE. 50
5.08 BOOKS AND RECORDS; INSPECTION RIGHTS. 51
5.09 COMPLIANCE WITH LAWS. 51
5.10 USE OF PROCEEDS. 51
ARTICLE VI NEGATIVE COVENANTS 51
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6.01 INDEBTEDNESS. 51
6.02 LIENS. 54
6.03 FUNDAMENTAL CHANGES. 54
6.04 LINES OF BUSINESS. 56
6.05 RESTRICTIVE AGREEMENTS. 56
6.06 INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND ACQUISITIONS; HEDGING AGREEMENTS. 57
6.07 RESTRICTED PAYMENTS. 57
6.08 TRANSACTIONS WITH AFFILIATES. 58
6.09 SALE AND LEASE-BACK TRANSACTIONS. 58
6.10 CERTAIN FINANCIAL COVENANTS. 58
ARTICLE VII EVENTS OF DEFAULT 59
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ARTICLE VIII THE ADMINISTRATIVE AGENT 61
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ARTICLE IX MISCELLANEOUS 63
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9.01 NOTICES. 63
9.02 WAIVERS; AMENDMENTS. 65
9.03 EXPENSES; INDEMNITY; DAMAGE WAIVER. 66
9.04 SUCCESSORS AND ASSIGNS. 68
9.05 SURVIVAL. 70
9.06 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. 71
9.07 SEVERABILITY. 71
9.08 RIGHT OF SETOFF. 71
9.09 GOVERNING LAW; JURISDICTION: ETC. 71
9.10 WAIVER OF JURY TRIAL. 72
9.11 HEADINGS. 72
9.12 TREATMENT OF CERTAIN INFORMATION: CONFIDENTIALITY. 72
SCHEDULE I - Commitments
SCHEDULE II - Existing Indebtedness, Liens and Investments
SCHEDULE III - Litigation
SCHEDULE IV - Environmental Matters
SCHEDULE V - Existing Letters of Credit
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B - Form of Opinion of Counsel to the Borrower
EXHIBIT C - Form of Term Note
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EXHIBIT D - Form of Revolving Credit Note
EXHIBIT E - Form of Revolving Credit Borrowing Request
EXHIBIT F1 - Form of Interest Election Request for Term Loan Borrowing
EXHIBIT F2 - Form of Interest Election Request for Revolving Credit Borrowing
EXHIBIT G - Form of Borrower Compliance Certificate
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AMENDED AND RESTATED CREDIT AGREEMENT dated as of June 15, 2001, by and
among XXXXXX XXXXXXXXXX LTD., a New York corporation, the LENDERS party hereto,
and MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking corporation, as
Administrative Agent.
Pursuant to a Credit Agreement dated as of January 12, 2001 (the "ORIGINAL
CREDIT AGREEMENT") the Lenders (as hereinafter defined) extended credit to the
Borrowers (as hereinafter defined) in an aggregate principle or face amount not
exceeding Sixty Million Dollars ($60,000,000) at any one time outstanding (the
"ORIGINAL CREDIT FACILITIES").
The Borrower has requested that the Lenders extend and replace the
Original Credit Facilities and increase the amount of the Original Credit
Facilities by extending credit to it in an aggregate principal or face amount
not exceeding One Hundred Million Dollars ($100,000,000), make available
Swingline Loans (as hereinafter defined), and make such other changes to the
Original Credit Facilities as further described herein. The Lenders are prepared
to extend such additional credit, and make such further changes to the Original
Credit Facilities, upon the terms and conditions hereof, and, accordingly, the
Original Credit Agreement shall be amended and restated in its entirety to read
as follows:
ARTICLE I DEFINITIONS
1.01 DEFINED TERMS. As used in this Agreement, the following terms have the
meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, indicates that
such Loan, or the Loans constituting such Borrowing, are bearing interest at a
rate determined by reference to the Adjusted Base Rate.
"ADJUSTED LIBOR" means, with respect to any ALR Loan for the related
Interest Period, the rate PER ANNUM that is equal to the sum of (a) the
Applicable Margin, PLUS (b) the rate PER ANNUM obtained by multiplying (i) the
LIBOR, by (ii) the Eurocurrency Reserve Rate, all as conclusively determined by
the Administrative Agent, such sum to be rounded up, if necessary, to the
nearest whole multiple of one hundredth (1/100th) of one percent (1%).
"ADJUSTED BASE RATE" means, for any day, a rate PER ANNUM equal to the
greater of (a) the sum of the Prime Rate in effect on such day PLUS the
Applicable Margin in effect for such day, and (b) the sum of the Federal Funds
Effective Rate in effect on such day, PLUS one-half of one percent (0.500%),
PLUS the Applicable Margin in effect for such day.
"ADMINISTRATIVE AGENT" means M&T, in its capacity as administrative agent
for the Lenders hereunder.
"ADMINISTRATIVE AGENT'S ACCOUNT" means an account designated by the
Administrative Agent in a notice to the Borrower and the Lenders.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"ALR", when used in reference to any Loan or Borrowing, indicates that
such Loan, or the Loans constituting such Borrowing, are bearing interest at a
rate determined by reference to the Adjusted LIBOR.
"APPLICABLE MARGIN" means, for any day, (a) with respect to any ABR Loan
the applicable rate PER ANNUM set forth below under the caption "ABR Spread",
(b) with respect to any ALR Loan, the applicable rate PER ANNUM set forth below
under the caption "LIBOR Spread", or (c) with respect to the revolving credit
fees payable hereunder, the applicable rate PER ANNUM set forth below under the
caption "Revolving Credit Fee Rate", respectively, based upon the Leverage Ratio
as at the end of the most recent fiscal quarter; PROVIDED, HOWEVER, that during
the period commencing on the Effective Date and ending on December 28, 2001, the
Applicable Margin shall be the applicable rate PER ANNUM set forth below in
Category 2; and PROVIDED, FURTHER, that, notwithstanding the foregoing, during
the period commencing on the Effective Date and ending on December 28, 2001, if
the Leverage Ratio equals or exceeds 2.500 to 1, the Applicable Margin shall be
the applicable rate PER ANNUM set forth below in Category 1, which Category 1
shall remain effective until the earlier of (i) the date on which the Applicable
Margin is less than 2.500 to 1, and (ii) December 28, 2001; PROVIDED, FURTHER,
during the period commencing on and including December 29, 2001, and at all
times thereafter, the Applicable Margin shall be the applicable rate PER ANNUM
set forth below opposite the Leverage Ratio as at the end of the most recent
fiscal quarter.
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LEVERAGE RATIO (= "X") ABR SPREAD LIBOR SPREAD REVOLVING
CREDIT FEE RATE
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CATEGORY 1: X greater than and equal to 2.500 : 1 0.250 2.500 0.500
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CATEGORY 2: 2.000 : 1 less than and equal to X less than 2.500: 1 0.000 2.125 0.375
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CATEGORY 3: 1.500 : 1 less than and equal to X less than 2.000 : 1 -0.250 1.750 0.250
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CATEGORY 4: 1.000 : 1 less than and equal to X less than 1.500 : 1 -0.500 1.500 0.125
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CATEGORY 5: X less than 1.000 : 1 -0.750 1.250 0.125
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For purposes of the foregoing, each change in the Applicable Margin resulting
from a change in the Leverage Ratio shall be effective as to any Loans then
outstanding or thereafter made during the period commencing on and including the
date three (3) Business Days after delivery to the Administrative Agent of the
Consolidated financial statements pursuant to Section 5.01(a) or 5.01(b), as
applicable, indicating such change and ending on the date immediately preceding
the
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effective date of the next such change; PROVIDED that the Applicable Margin
shall be deemed to be in Category 1: (i) at any time that an Event of Default
has occurred and is continuing; and (ii) if the Borrower fails to deliver the
Consolidated financial statements required to be delivered by it pursuant to
Section 5.01(a) or 5.01(b), during the period commencing on the expiration date
of the time for delivery thereof and ending on the date three (3) Business Days
after such Consolidated financial statements are delivered.
"APPLICABLE PERCENTAGE" means, with respect to any Lender, the percentage
of the total Commitments represented by such Lender's Commitment as set forth
opposite such Lender's name on SCHEDULE I or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Commitment, as applicable.
If the Commitments have terminated or expired, each Lender's Applicable
Percentage shall be determined based upon the Commitments most recently in
effect, after giving effect to any assignments of any Commitments by or among
the Lenders.
"ASSET PURCHASE AGREEMENT" shall have the meaning ascribed to such term in
Section 4.01(k).
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of EXHIBIT A or any other form approved by the Administrative Agent.
"AVAILABILITY PERIOD" means, with respect to the Revolving Credit
Commitments, the period from and including the Effective Date to but excluding
the earlier of the Revolving Credit Commitment Termination Date and the date of
termination of the Revolving Credit Commitments.
"BOARD" means the Board of Governors of the Federal Reserve System of the
United States of America.
"BORROWER" means Xxxxxx Xxxxxxxxxx Ltd., a New York corporation.
"BORROWER PLEDGE AGREEMENT" shall have the meaning ascribed to such term
in Section 4.01(h), as such agreement may be modified, amended or supplemented
from time to time.
"BORROWING" means (a) all ABR Loans made, converted or continued on the
same date, or (b) all ALR Loans (or portions thereof) that have the same
Interest Period.
"BORROWING REQUEST" means a request by the Borrower for a Borrowing of
Revolving Credit Loans in accordance with Section 2.03 or 2.04, as applicable.
"BUSINESS DAY" means any day (a) that is not a Saturday, Sunday or other
day on which commercial banks in Buffalo, New York are authorized or required by
law to remain closed, and (b) if such day relates to a borrowing of, a payment
or prepayment of principal of or interest on, a continuation or conversion of or
into, or the Interest Period for, an ALR Borrowing, or to a notice by the
Borrower with respect to any such Borrowing, payment, prepayment, continuation,
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conversion, or Interest Period, a day that is also a day on which dealings in
deposits for United States Dollars are carried out in the London interbank
market.
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"CASH INTEREST EXPENSE" of any Person means, for any period, the sum
(without duplication and in accordance with GAAP) of the following: (a) all
interest in respect of Indebtedness (including the interest component of any
payments in respect of Capital Lease Obligations) accrued or capitalized during
such period (whether or not actually paid during such period), PLUS (b) the net
amount payable (or MINUS the net amount receivable) under interest rate Hedging
Agreements during such period (whether or not actually paid or received during
such period), MINUS (c) the sum of (i) interest income during such period, PLUS
(ii) all amounts attributable to non-cash items of interest expense, all as
determined in accordance with GAAP.
"CHANGE IN CONTROL" means any time at which (a) Xxxxxx Xxxxxxxxxx
Technologies, Inc. shall cease to beneficially own in the aggregate one hundred
percent (100%) of the total combined voting power of all classes of voting stock
of Xxxxxx Xxxxxxxxxx Intermediate Holdings, Inc., free and clear of all Liens
(including, without limitation, pursuant to any voting trust or other agreement
to which such shareholder becomes a party or bound by, that in any way limits
the right or ability of such shareholder to exercise one hundred percent (100%)
of such total combined voting powers); or (b) Xxxxxx Xxxxxxxxxx Intermediate
Holdings, Inc. shall cease to beneficially own in the aggregate one hundred
percent (100%) of the total combined voting power of all classes of voting stock
of the Borrower, free and clear of all Liens (including, without limitation,
pursuant to any voting trust or other agreement to which such shareholder
becomes a party or bound by, that in any way limits the right or ability of such
shareholder to exercise one hundred percent (100%) of such total combined voting
powers).
"CHANGE IN LAW" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement, or (c) compliance by any Lender or the Issuing
Lender (or, for purposes of Section 2.13(b), by any lending office of such
Lender or by such Lender's or the Issuing Lender's holding company, if any) with
any request, guideline or directive (whether or not having the force of law) of
any Governmental Authority made or issued after the date of this Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COLLATERAL AGENCY AGREEMENT" shall have the meaning ascribed to such term
in Section 6.01(a)(iv), as such agreement may be modified, amended or
supplemented from time to time.
"COMMITMENT" means, with respect to a Lender, the commitment of such
Lender to make Loans and to acquire participations in Letters of Credit
hereunder, expressed as an amount representing the maximum aggregate amount of
such Lender's Revolving Credit Commitment
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and Term Loan Commitment hereunder. The initial amount of each Lender's
Commitment is set forth on SCHEDULE I, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Commitment, as applicable.
The "COMMITMENTS" shall mean the aggregate amounts of all Lenders' commitments
to make Loans and to acquire participations in Letters of Credit hereunder; the
initial amount of the Commitments is One Hundred Million Dollars ($100,000,000).
"COMPLIANCE CERTIFICATE" means a certificate of a Financial Officer as
described in Section 5.01(c).
"CONSOLIDATED", "CONSOLIDATING" or "CONSOLIDATED BASIS" means, except as
otherwise specifically provided for in this Agreement, the consolidation of the
accounts of the Borrower and the Guarantors in accordance with GAAP, including
principles of consolidation.
"CONSOLIDATED EBITDA" means, for any period, the sum of the following on a
Consolidated basis: (a) Net Income for such period, PLUS (b) without duplication
and to the extent deducted in computing such Net Income for such period, the sum
of (i) Consolidated Cash Interest Expense, PLUS (ii) income tax expense, PLUS
(iii) depreciation and amortization expense, PLUS (iv) amortization or write-off
of debt discount and debt issuance costs and commissions, discounts and other
fees and charges associated with Indebtedness (including the Loans), PLUS (v)
amortization of intangibles (including, but not limited to, goodwill) and
organization costs, PLUS (vi) any extraordinary, unusual or non-recurring
expenses or losses (including, whether or not otherwise includable as a separate
item in such Net Income for such period, losses on sales of assets outside of
the ordinary course of business), PLUS (vii) any other non-cash charges, and
MINUS (c) to the extent included in computing such Net Income for such period,
the sum of (i) any extraordinary, unusual or nonrecurring income or gains
(including, whether or not otherwise includable as a separate item in such Net
Income for such period, gains on the sales of assets outside of the ordinary
course of business) , PLUS (ii) any other non-cash income. Solely in connection
with the determination of Consolidated EBITDA for any period ending on March 30,
2001, the premium ("premium") payable to the holders of Borrower's 13% Senior
Subordinated Notes due 2007 in the original principal amount of Twenty Five
Million Dollars ($25,000,000) in connection with the repayment of such notes
prior to their stated maturity shall be added back to Net Income pursuant to
clause (b) of this definition; provided, in no event shall the aggregate amount
of the premium to be added back to Net Income in determining Consolidated EBITDA
pursuant to this sentence exceed an amount equal to One Million Seven Hundred
Thirty Four Thousand Dollars ($1,734,000).
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum of the
following on a Consolidated basis: (a) capital expenditures, PLUS (b) Cash
Interest Expense, PLUS (c) all regularly scheduled repayments of principal of
Indebtedness (including principal repayments of the Term Loan and principal
repayments of any Capital Lease Obligations), MINUS, (d) for such period, the
sum of (i) the cost of financing any capital expenditures described in clause
(a) of this definition, PLUS (ii) interest income during such period.
"CONSOLIDATED FUNDED DEBT" means, at any time, the sum of the following
(without duplication and in accordance with GAAP) on a Consolidated basis: (a)
all interest-bearing Indebtedness; PLUS (b) Capital Lease Obligations; PLUS (c)
synthetic lease obligations.
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"CONTROL" and "CONTROLLING" means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "CONTROLLED" has the correlative meaning to such terms.
"CREDIT EXPOSURE" means, with respect to a Lender, at any time, the sum of
(a) such Lender's Revolving Credit Exposure at such time, PLUS (b) the
outstanding principal amount of such Lender's Term Loan at such time.
"CREDIT LINE LOAN" and "CREDIT LINE LOANS" means, individually and
collectively, each Loan made by the Lenders under the Revolving Credit Facility
as requested by the Borrower pursuant to Section 2.03.
"DEFAULT" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"DISCLOSED MATTERS" means the actions, suits and proceedings disclosed in
SCHEDULE III and the environmental matters disclosed in SCHEDULE IV.
"DOLLARS" or "$" refers to lawful money of the United States of America.
"EFFECTIVE DATE" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"ENVIRONMENTAL LAWS" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment, or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
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"ERISA EVENT" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived), (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived, (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan, (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan,
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC of any
notice relating to an intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan, (f) the incurrence by the Borrower or any of its
ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Multiemployer Plan, or (g) the receipt by the Borrower or
any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from
the Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"EVENT OF DEFAULT" has the meaning assigned to such term in ARTICLE VII.
"EUROCURRENCY RESERVE RATE" means, for any Interest Period, a fraction
(expressed as a decimal) the numerator of which is the number one (1) and the
denominator of which is the number one (1) MINUS the arithmetic mean, taken over
each day in such Interest Period, of the aggregate of the maximum reserve
percentages established by the Board (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal to which the Administrative
Agent is subject for "Eurocurrency Liabilities" (as that term is used in
Regulation D of the Board). ALR Loans shall be deemed to constitute
"Eurocurrency Liabilities" and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any
comparable regulation. The Eurocurrency Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage for "Eurocurrency Liabilities".
"EXCESS CASH FLOW" means, for any period, on a Consolidated basis, the
excess of: (i) Consolidated EBITDA during such period OVER (ii) the sum of (a)
the amount any voluntary prepayments of the Loans made pursuant to the
provisions of Sections 2.09(b)(i) or 2.09(b)(iii), as applicable, (b) the amount
of any cash used in connection with a transaction permitted pursuant to the
provisions of Section 6.03(c)(iii), (c) interest paid, (d) taxes paid, (e)
distributions, (f) dividends, (g) scheduled debt repayments or mandatory
prepayments of the Term Loans made pursuant to the provisions of Section
2.09(b)(ii)[B], (h) funded capital expenditures, (i) Capital Lease Obligations,
and (j) increases, if any, in working capital.
"EXCLUDED TAXES" means, with respect to the Administrative Agent, any
Lender, the Issuing Lender or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.17(b)), any withholding tax that is imposed on amounts
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payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement or is attributable to such Foreign Lender's failure or
inability (other than as a result of a Change in Law) to deliver documentation
prescribed by applicable law that permits payments made to such Foreign Lender
to be made without holding taxes, except to the extent that such Foreign
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.15(a).
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted average
(rounded upwards, if necessary, to the next one hundredth (1/100th) of one
percent (1%)) of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next one hundredth (1/100th) of one
percent (1%)) of the quotations for such day for such transactions received by
the Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"FINANCIAL OFFICER" means the chief financial officer, treasurer or vice
president-finance of the Borrower.
"FIXED CHARGES COVERAGE RATIO" means the ratio of Consolidated EBITDA to
Consolidated Fixed Charges as at the end of each fiscal quarter and measured for
the four (4) consecutive fiscal quarters ending on the last day of such fiscal
quarter; PROVIDED, (i) the items contained in clauses (a) and (d) of the
definition of Consolidated Fixed Charges as at the end of any fiscal quarter
shall be measured for the four (4) consecutive fiscal quarters ending on the
last day of such fiscal quarter, and (ii) the items contained in clauses (b) and
(c) of the definition of Consolidated Fixed Charges (collectively, the "DEBT
FIXED CHARGES") (A) as at the end of the second (2nd) fiscal quarter ending in
2001 shall equal the product of two (2) multiplied by the debt fixed charges as
measured for the two (2) consecutive fiscal quarters ending on the last day of
such fiscal quarter, and (B) as at the end of the third (3rd) fiscal quarter
ending in 2001 shall equal the product of one and one-third (1.33) multiplied by
the debt fixed charges as measured for the three (3) consecutive fiscal quarters
ending on the last day of such fiscal quarter. The determination of the Fixed
Charges Coverage Ratio shall be based upon the Consolidated financial statements
delivered pursuant to Section 5.01(a) or 5.01(b), as applicable.
"FOREIGN LENDER" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in the United States
of America.
"GBAC" means GB Acquisition Co., Inc., a Delaware corporation and indirect
wholly-owned Subsidiary of the Borrower.
"GOVERNMENTAL AUTHORITY" means the government of the United States of
America, or of any other nation, or any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising
8
executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
"GUARANTEE" of or by any Person (the "GUARANTOR") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "PRIMARY OBLIGOR") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation; or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; PROVIDED that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"GUARANTOR" and "GUARANTORS" means, individually and collectively, each
Parent Guarantor and each Subsidiary Guarantor.
"GUARANTY AGREEMENT" and "GUARANTY AGREEMENTS", individually and
collectively, shall have the meaning ascribed to such terms in Section 4.01(f),
as any such agreement may be modified, amended or supplemented from time to
time.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyl's, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"HEDGING AGREEMENT" means any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.
"Hittman Pledge Agreement" shall have the meaning ascribed to such term in
Section 4.01(i), as such agreement may be modified, amended or supplemented from
time to time.
"HOLDINGS" means WGL Intermediate Holdings, Inc., a Delaware corporation
and the owner of all of the issued and outstanding capital stock of the
Borrower.
"INDEBTEDNESS" of any Person means, without duplication (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such
9
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person
of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty, and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INTELLECTUAL PROPERTY SECURITY AGREEMENTS" shall have the meaning
ascribed to such term in Section 4.01(g), as the same may be modified, amended
or supplemented from time to time.
"INTEREST COVERAGE RATIO" means the ratio of Consolidated EBITDA to
Consolidated Cash Interest Expense as at the end of each fiscal quarter and
measured for the four (4) consecutive fiscal quarters ending on the last day of
such fiscal quarter; PROVIDED, Consolidated Cash Interest Expense (a) as at the
end of the second (2nd) fiscal quarter ending in 2001 shall equal the product of
two (2) multiplied by the Consolidated Cash Interest Expense as measured for the
two (2) consecutive fiscal quarters ending on the last day of such fiscal
quarter, and (b) as at the end of the third (3rd) fiscal quarter ending in 2001
shall equal the product of one and one-third (1.33) multiplied by the
Consolidated Cash Interest Expense as measured for the three (3) consecutive
fiscal quarters ending on the last day of such fiscal quarter. The determination
of the Interest Coverage Ratio shall be based upon the Consolidated financial
statements delivered pursuant to Section 5.01(a) or 5.01(b), as applicable.
"INTEREST ELECTION REQUEST" means a request by the Borrower to convert a
Borrowing to, or continue a Borrowing as an ABR Borrowing or ALR Borrowing in
accordance with Section 2.07.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan, the first
day of each calendar month, and (b) with respect to any ALR Loan, the next
Business Day immediately following the last day of each Interest Period
therefor.
"INTEREST PERIOD" means, (a) for any ALR Loan or ALR Borrowing, the period
commencing on the date of such Loan, or with respect to such Borrowing, the date
specified in the applicable Interest Election Request as the commencement date
of the Interest Period for such Borrowing, and ending on the numerically
corresponding day in the calendar month that is one (1), two (2), three (3) or
six (6) months thereafter, or (b) with respect to any portion of any ALR Loan or
Borrowing that is scheduled to be repaid on the Maturity Date or the Commitment
Termination Date, a period of less than one (1) month's duration commencing on
the date of such Loan, or with respect to such Borrowing, the date specified in
the applicable Interest Election Request as the commencement date of the
Interest Period for such Borrowing, and ending on the Maturity Date or
Commitment Termination Date, as applicable; PROVIDED that (i) if any Interest
Period would end on a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the
10
next calendar month, in which case such Interest Period shall end on the
immediately preceding Business Day, and (ii) any Interest Period (other than an
Interest Period pertaining to an ALR Borrowing that ends on the Maturity Date or
Commitment Termination Date, as applicable, that is permitted to be of less than
one (1) month's duration as provided in this definition) that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Revolving Credit Loan
initially shall be the date on which such Loan is made and thereafter shall be
the effective date of the most recent conversion or continuation of such Loan as
an ALR Loan, and the date of a Borrowing comprising a Revolving Credit Loan,
multiple Revolving Credit Loans, or any portion of a Revolving Credit Loan or
Revolving Credit Loans, that has or have, respectively, been converted or
continued shall be the effective date of the most recent conversion or
continuation of such Loan, Loans or portion thereof. The date of the Term Loans
shall be the date on which such Loans are made.
"ISSUING LENDER" means M&T, in its capacity as the issuer of Letters of
Credit hereunder, and its successors in such capacity as provided in Section
2.05(j).
"LC DISBURSEMENT" means a payment made by the Issuing Lender pursuant to a
Letter of Credit.
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate undrawn
amounts of all outstanding Letters of Credit at such time, PLUS (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"LENDERS" means the Persons listed on SCHEDULE I and any other Person that
shall have become a party hereto pursuant to an Assignment and Acceptance, other
than any such Person that ceases to be a party hereto pursuant to an Assignment
and Acceptance.
"LETTER OF CREDIT" means any standby letter of credit issued pursuant to
this Agreement.
"LETTER OF CREDIT DOCUMENTS" means, with respect to any Letter of Credit,
collectively, any application therefor and any other agreements, instruments,
guarantees or other documents (whether general in application or applicable only
to such Letter of Credit) governing or providing for (a) the rights and
obligations of the parties concerned or at risk with respect to such Letter of
Credit, or (b) any collateral security for any of such obligations, each as the
same may be modified and supplemented and in effect from time to time.
"LEVERAGE RATIO" means the ratio of (a) Consolidated Funded Debt, MINUS
cash, MINUS cash equivalent investments, as at the end of each fiscal quarter,
to (b) Consolidated EBITDA as at the end of each fiscal quarter, and measured
for the four (4) consecutive fiscal quarters ending on the last day of such
fiscal quarter. The determination of the Leverage Ratio shall be based upon the
Consolidated financial statements delivered pursuant to Section 5.01(a) or
5.01(b), as applicable.
11
"LIBOR" means for any Interest Period, the PER ANNUM rate, as determined
by the Administrative Agent from any broker, quoting service or commonly
available source utilized by the Administrative Agent, at which United States
Dollar deposits in immediately available funds are offered to leading banks in
the London interbank deposit market at 11:00 a.m. Greenwich Mean Time (or as
soon thereafter as practicable) on the Quotation Date for delivery on the first
day of such Interest Period and for a period equal to such Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset, and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Notes, the
Letter of Credit Documents, the Guaranty Agreements, the Security Agreements,
the Borrower Pledge Agreement, the Intellectual Property Security Agreements,
the Reaffirmation Agreement and all other agreements, documents, certificates
and instruments executed and delivered by the Borrower, any Subsidiary
Guarantor, Technologies, Holdings, and any other Person pursuant to the terms
hereof to the Administrative Agent and/or the Lenders in connection with the
Transactions, as each of such Loan Documents may be modified, amended or
supplemented from time to time.
"LOANS" means the Revolving Credit Loans and/or the Term Loans made by the
Lenders to the Borrower pursuant to this Agreement.
"LOCAL TIME" means the local time in Buffalo, New York.
"M&T" means Manufacturers and Traders Trust Company.
"MARGIN STOCK" means "margin stock" within the meaning of Regulations T, U
and X of the Board.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, assets, operations or condition, financial or otherwise, of the
Borrower and its Subsidiaries taken as a whole, (b) the ability of the Borrower
to perform any of its obligations under this Agreement or any of the other Loan
Documents, or (c) the ability of the Lenders to enforce or assert any right or
interest granted to the Lenders under this Agreement or any of the other Loan
Documents.
"MATURITY DATE" means, with respect to the Term Loans and the Term Note,
July 1, 2006.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"NET INCOME" of any Person, means, with respect to any period, all amounts
which, in conformity with GAAP, would be included under net income on an income
statement of such Person for such period.
12
"NOTE" and "NOTES" means, individually and collectively, the Revolving
Credit Note and the Term Note.
"OTHER TAXES" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document.
"PARENT GUARANTOR" and "PARENT GUARANTORS" means, individually and
collectively, Technologies, Holdings and each Person in relation to which the
Borrower or any Subsidiary of the Borrower becomes a Subsidiary and that has
executed and delivered to the Administrative Agent a Guaranty Agreement as
provided in Section 4.01 or Section 5.05.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"PERMITTED INVESTMENTS" means: (a) direct obligations of, or obligations
the principal of and interest on which are unconditionally guaranteed by, the
United States of America (or by any agency thereof to the extent such
obligations are backed by the full faith and credit of the United States of
America), in each case maturing within one year from the date of acquisition
thereof; (b) investments in commercial paper maturing within two hundred seventy
(270) days from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from Standard & Poor's Ratings
Services or Xxxxx'x Investors Services, Inc; (c) investments in certificates of
deposit, banker's acceptances and time deposits maturing within one year from
the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any domestic office of any
commercial bank organized under the laws of the United States of America or any
State thereof which has a combined capital and surplus and undivided profits of
not less than Two Hundred Fifty Million Dollars ($250,000,000); and (d) fully
collateralized repurchase agreements with a term of not more than thirty (30)
days for securities described in clause (a) of this definition and entered into
with a financial institution satisfying the criteria described in clause (c) of
this definition.
"PERSON" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"PLAN" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"PRIME RATE" means the rate of interest per annum publicly announced from
time to time by M&T as its prime rate in effect at its principal office in
Buffalo, New York; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.
"QUALIFYING ACQUISITION" shall have the meaning ascribed to such term in
Section2.09(b)(ii)[B].
13
"QUALIFYING SALE" shall have the meaning ascribed such term in Section
2.09(b)(ii)[B].
"QUALIFYING SALE PROCEEDS" shall have the meaning ascribed to such term in
Section2.09(b)(ii)[B].
"QUARTERLY DATES" means the last Business Day of March, June, September
and December in each year, the first of which shall be the first such day after
the date hereof.
"QUOTATION DATE" means, for any Interest Period, the date that is two (2)
Business Days prior to the first day of such Interest Period.
"REAFFIRMATION AGREEMENT" has the meaning set forth in Section 4.01(e).
"REGISTER" has the meaning set forth in Section 9.04.
"RELATED PARTIES" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"REQUIRED LENDERS" means, at any time, Lenders having Credit Exposures and
unused Revolving Credit Commitments representing greater than fifty one percent
(51%) of the sum of the total Credit Exposures and unused Revolving Credit
Commitments at such time.
"RESTRICTED PAYMENT" for any Person means (a) any dividend or other
distribution (whether in cash, securities or other property) with respect to any
shares of any class of capital stock of such Person, or (b) any payment (whether
in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such shares of capital stock of such Person
or any option, warrant or other right to acquire any such shares of capital
stock of such Person, or (c) any dividend, distribution or other payment by such
Person or any Subsidiary of such Person to any shareholder of such Person or
such Subsidiary (other than such Person), or to any Affiliate of such Person,
any of its Subsidiaries, or to such shareholder, whether in cash, securities or
other property.
"REVOLVING CREDIT COMMITMENT" means, with respect to a Lender, the
commitment of such Lender to make Revolving Credit Loans and to acquire
participations in Letters of Credit hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender's Revolving Credit
Exposure hereunder and its Applicable Percentage of the unused principal amount
of the Revolving Credit Note, as such commitment may be (a) reduced from time to
time pursuant to Section 2.08, and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of each Lender's Revolving Credit Commitment is set forth on
SCHEDULE I, or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Commitment, as applicable. The "REVOLVING CREDIT
COMMITMENTS" shall mean the aggregate amounts of all Lenders' commitments to
make Revolving Credit Loans and to acquire participations in Letters of Credit
hereunder; the initial amount of the Revolving Credit Commitments is Twenty
Million Dollars ($20,000,000).
14
"REVOLVING CREDIT COMMITMENT TERMINATION DATE" means, with respect to the
Revolving Credit Loans, Revolving Credit Note and the Letters of Credit, July 1,
2006.
"REVOLVING CREDIT EXPOSURE" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Credit
Loans and its LC Exposure at such time.
"REVOLVING CREDIT FACILITY" means the credit extended to the Borrower as
described in Section 2.02.
"REVOLVING CREDIT LOAN" and "REVOLVING CREDIT LOANS" means, individually
and collectively, each Credit Line Loan and each Swingline Loan made by the
Lenders pursuant to Section 2.02.
"REVOLVING CREDIT NOTE" means the Note executed and delivered by the
Borrower to the Administrative Agent pursuant to Section 2.02 and in the form of
EXHIBIT E hereto, and all substitutions and replacements thereof.
"SECURITY AGREEMENT" shall have the meaning ascribed to such term in
Section 4.01(g), as any such agreement may be modified, amended or supplemented
from time to time.
"SENIOR EXECUTIVE OFFICER" with respect to any Person, means the Chief
Executive Officer, President or Executive Vice President of such Person.
"SIERRA ACQUISITION" shall have the meaning ascribed to such term in
Section 4.01(k).
"SUBORDINATED INDEBTEDNESS" means, with respect to the Borrower and its
Subsidiaries, all unsecured Indebtedness that is subordinated in right of
payment to the payment of the Loans and is otherwise junior to the rights of the
Lenders with respect to the Loans in all respects.
"SUBSIDIARY" means, with respect to any Person (the "PARENT") at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than
fifty percent (50%) of the equity or more than fifty percent (50%) of the
ordinary voting power or, in the case of a partnership, more than fifty percent
(50%) of the general partnership interests are, as of such date, owned,
controlled or held, or (b) that is, as of such date, otherwise Controlled, by
the parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent. Unless otherwise specified, "Subsidiary" means
a Subsidiary of the Borrower.
"SUBSIDIARY GUARANTOR" and "SUBSIDIARY GUARANTORS" means, individually and
collectively, each Subsidiary of the Borrower or of any Subsidiary of the
Borrower that has executed and delivered to the Administrative Agent the Loan
Documents as provided in Section 4.01 or Section 5.04, and for the purposes
hereof shall specifically include GBAC.
15
"SWINGLINE LENDER" means M&T, in its capacity as the issuer of Swingline
Loans hereunder, and its successors in such capacity as provided in Section
2.04(g).
"SWINGLINE LOAN" and "SWINGLINE LOANS" means, individually and
collectively, each Loan made by the Swingline Lender and the other Lenders under
the Revolving Credit Facility pursuant to Section 2.04.
"TECHNOLOGIES" means Xxxxxx Xxxxxxxxxx Technologies, Inc., a Delaware
corporation and the owner of all of the issued and outstanding capital stock of
Holdings.
"TAXES" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TERM LOAN" and "TERM LOANS" means, individually and collectively, each
Term Loan made by a Lender pursuant to Section 2.01.
"TERM LOAN COMMITMENT" means, with respect to a Lender, the commitment of
such Lender to make a Term Loan hereunder on the Effective Date, expressed as an
amount representing the maximum aggregate amount of such Lender's Applicable
Percentage of the Term Note as such commitment may be reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
9.04. The amount of each Lender's Term Loan Commitment is set forth on SCHEDULE
I, or in the Assignment and Acceptance pursuant to which such Lender shall have
assumed its Commitment, as applicable. The "TERM LOAN COMMITMENTS" shall mean
the aggregate amounts of all Lenders' commitments to make Term Loans hereunder
on the Effective Date; the aggregate amount of the Term Loan Commitments is
Eighty Million Dollars ($80,000,000).
"TERM LOAN FACILITY" means the credit extended to the Borrower as
described in Section 2.01.
"TERM NOTE" means the Note executed and delivered by the Borrower to the
Administrative Agent pursuant to Section 2.01 and in the form of EXHIBIT D
hereto, and all substitutions and replacements thereof.
"TRANSACTIONS" means the execution, delivery and performance by the
Borrower of this Agreement and the other Loan Documents, the borrowing of Loans,
the use of the proceeds thereof and the issuance of Letters of Credit hereunder.
"TYPE", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans constituting such Borrowing,
is determined by reference to the Adjusted LIBOR or the Adjusted Base Rate, and,
accordingly, whether such Loan or Borrowing is an ALR Loan or Borrowing or ABR
Loan or Borrowing, respectively.
"WITHDRAWAL LIABILITY" means 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.
16
1.02 TERMS GENERALLY. The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". The word "will" shall be
construed to have the same meaning and effect as the word "shall". Unless the
context requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof' and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
1.03 ACCOUNTING TERMS; GAAP.
(a) GAAP: CHANGES IN ACCOUNTING TERMS TREATMENT. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature
shall be construed in accordance with GAAP, as in effect from time to
time; PROVIDED that, if the Borrower notifies the Administrative Agent
that the Borrower requests an amendment to any provision hereof to
eliminate the effect of any change occurring after the date hereof in GAAP
or in the application thereof on the operation of such provision (or if
the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless
of whether any such notice is given before or after such change in GAAP or
in the application thereof, then such provision shall be interpreted on
the basis of GAAP as in effect and applied immediately before such change
shall have become effective until such notice shall have been withdrawn or
such provision amended in accordance herewith.
(b) CHANGES IN FISCAL PERIODS. To enable the ready and consistent
determination of compliance with the covenants set forth in Section
ARTICLE VI, the Borrower will not change the last day of its fiscal year
from the Friday nearest to December 31 of each year (whether or not such
last day occurs in the same calendar year or the next following calendar
year), or the last days of the first three fiscal quarters in each of
their fiscal years from the Friday closest to March 31, June 30 or
September 30 of each year, respectively. By way of illustration of the
foregoing, fiscal year 2001 will end on December 28, 2001.
(c) PRO FORMA TREATMENT OF ACQUISITIONS. For the purposes of
computing Consolidated EBITDA, Consolidated Fixed Charges, Cash Interest
Expense, Consolidated Funded Debt, the Fixed Charges Coverage Ratio, the
Interest Coverage Ratio and the Leverage Ratio (and any financial
calculations required to be made or included within such amounts or
ratios) as of the end of any measurement period, in the event any Person
(an "ACQUIRED PERSON") is acquired by the Borrower or any of its
Subsidiaries after the beginning of and prior to the end of such
measurement period, all components of such amounts or ratios (other than
capital expenditures as determined in accordance with GAAP) shall be
computed on a PRO FORMA basis as if such
17
acquisition has occurred on the first day of such measurement period, and
shall, without duplication, and to the extent applicable:
(i) include, for purposes of calculating Consolidated EBITDA,
the actual items of income and expense of the acquired Person as
measured for the four (4) consecutive fiscal quarters of such
acquired Person ending on the date of its acquisition by the
Borrower or such Subsidiary;
(ii) include, for purposes of calculating Consolidated Fixed
Charges, the actual items of fixed charges of the acquired Person as
measured for the four (4) consecutive fiscal quarters of such
acquired Person ending on the date of its acquisition by the
Borrower or such Subsidiary;
(iii) include, for purposes of determining Cash Interest
Expense, the actual items of cash interest expense of the acquired
Person as measured for the four (4) consecutive fiscal quarters of
such acquired Person ending on the date of its acquisition by the
Borrower or such Subsidiary;
(iv) include, for the purposes of determining Consolidated
Funded Debt, the actual amount of all interest-bearing Indebtedness,
Capital Lease Obligations and synthetic lease obligations of the
acquired entity as at the date of its acquisition by the Borrower or
such Subsidiary;
(v) exclude any Indebtedness of the acquired Person that has
been retired or discharged on or prior to the date the Borrower or
such Subsidiary acquired such acquired Person (the "ACQUISITION
DATE");
(vi) calculate interest payable during such measurement period
with respect to any Indebtedness of such acquired Person at a rate
of interest equal to the actual weighted average interest rate in
effect for the Loans hereunder on the date of such acquisition; and
(vii) include all cost savings to be realized by the Borrower
or such Subsidiary in connection with such acquisition during the
twelve (12) month period ending on the first (1st) anniversary of
the acquisition date, as determined in good faith by the Borrower or
such Subsidiary and set forth in the relevant Compliance Certificate
delivered by the Financial Officer of the Borrower for such
measurement period (collectively, the "PROJECTED COST SAVINGS");
PROVIDED, HOWEVER, in computing each such amount or ratio (A) no
cost savings which would accrue or occur after the first (1st) year
anniversary of the acquisition date shall be considered, and (B) the
actual cost savings realized by the Borrower or such Subsidiary (if
any) during each measurement period commencing after the end of the
measurement period containing the acquisition date, rather than the
projected cost savings expected to be realized during such
measurement period, shall (to the extent applicable) be used in
computing each such amount or ratio as of the end of such
measurement period.
18
ARTICLE II THE CREDIT FACILITIES
2.01 TERM LOAN FACILITIES.
(a) TERM LOAN COMMITMENTS. Subject to the terms and conditions set
forth herein, each Lender severally agrees to lend to the Borrower on the
Effective Date an amount equal to such Lender's Term Loan Commitment set
forth opposite such Lender's name on SCHEDULE I or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its
Commitment, as applicable.
(b) OBLIGATIONS OF LENDERS FOR TERM LOANS. Each Term Loan shall be
made on the Effective Date by the Lenders ratably in accordance with their
respective Applicable Percentages of the Term Loan Commitments. The
failure of any Lender to make any Term Loan required to be made by it
shall not relieve any other Lender of its obligations hereunder; PROVIDED
that the Term Loan Commitments of the Lenders are several and no Lender
shall be responsible for any other Lender's failure to make its Term Loan
as required hereunder. The Term Loans shall be repaid and shall bear
interest as described herein and as described in the Term Note.
(c) TYPE OF BORROWING. Each Borrowing of the Term Loans shall be
constituted entirely of ABR Loans or of ALR Loans as the Borrower may
request in accordance herewith. Subject to the provisions of Section 2.12,
the Borrower may elect to change the Type of any Borrowing of the Term
Loans after the Effective Date in accordance with the provisions of
Section 2.07
(d) TERM NOTE. The Term Loans, and the Borrower's obligation to
repay the Term Loans and interest thereon, shall be evidenced by the Term
Note executed and delivered to the Administrative Agent on the Effective
Date, and shall be in the form of EXHIBIT D hereto. Interest on the
outstanding and unpaid principal amount of the Term Loans will be payable
from the date of the Term Loans as hereinafter provided. The principal
amounts of the Term Loans shall be repaid in nineteen (19) consecutive
quarterly installments on the first day of each calendar quarter
commencing October 1, 2001 with subsequent installments being due on the
first day of each calendar quarter thereafter, and in one final
installment due and payable on the Maturity Date in the amount necessary
to repay in full the unpaid principal amount of the Term Note. The amount
of each quarterly installment repayment of principal of the Term Loans
(before giving effect to any prepayments of principal of the Term Loans
pursuant to Section 2.09(b)) shall be as follows:
----------------------------------------------------------------------------------------------------------
PAYMENT 2001 2002 2003 2004 2005 2006
DATE
----------------------------------------------------------------------------------------------------------
JANUARY 1 N/A $3,000,000 $3,500,000 $4,000,000 $4,500,000 $5,000,000
----------------------------------------------------------------------------------------------------------
APRIL 1 N/A $3,000,000 $3,500,000 $4,000,000 $4,500,000 $5,000,000
----------------------------------------------------------------------------------------------------------
JULY 1 N/A $3,000,000 $3,500,000 $4,000,000 $4,500,000 $5,000,000
----------------------------------------------------------------------------------------------------------
OCTOBER 1 $3,000,000 $3,500,000 $4,000,000 $4,500,000 $5,000,000 N/A
----------------------------------------------------------------------------------------------------------
19
PROVIDED, the final principal repayment installment must be in an amount
necessary to repay the outstanding and unpaid principal amount of the Term Note
in full on the Maturity Date (whether greater or less than the amount of the
applicable scheduled payment).
(e) RECORDS OF THE ADMINISTRATIVE AGENT. The Administrative Agent
shall set forth on a schedule attached to and made a part of the Term Note
or on any separate similar schedule or on any continuation of any such
schedule (including, but not limited to, any similar schedule maintained
in computerized records) annotations evidencing (i) the date and principal
amount of each Term Loan, (ii) the aggregate of all principal amounts of
all Term Loans, (iii) the amounts of any repayments of principal of the
Term Loans, (iv) the outstanding principal amount of the Term Note, (v)
the applicable Interest Period for the Term Loans to the extent that the
Borrower has elected to convert or continue the Term Loans as ALR Loans,
(vi) the Applicable Margin and resulting interest rate for the Term Loans,
(vii) the aggregate amounts of all payments under or repayments of
principal of the Term Note, and (viii) and such other information relating
to the Term Note, the Term Loans, principal amounts thereof, interest paid
or payable thereon, or otherwise as the Administrative Agent shall deem
appropriate in the Administrative Agent's sole discretion. Each such
annotation shall, in the absence of manifest error, be conclusive and
binding upon the Borrower. No failure of the Administrative Agent to make
and no error by the Administrative Agent in making any annotation on such
attached schedule or any such similar schedule shall affect the
obligations of the Borrower to repay the principal amount of each Term
Loan and the outstanding principal amount of the Term Note, the obligation
of the Borrower to pay interest on the outstanding principal amount of
each Term Loan and on the outstanding principal amount of the Term Note,
or any other obligation of the Borrower to the Administrative Agent or any
Lender pursuant to this Agreement.
2.02 REVOLVING CREDIT FACILITIES.
(a) REVOLVING CREDIT COMMITMENTS. Each Lender severally agrees to
make Revolving Credit Loans to the Borrower from time to time during the
Availability Period in an aggregate principal amount that will not result
in (i) such Lender's Revolving Credit Exposure exceeding such Lender's
Revolving Credit Commitment, or (ii) the total Revolving Credit Exposures
exceeding the total Revolving Credit Commitments. Each Lender's Revolving
Credit Commitment is set forth opposite such Lender's name on SCHEDULE I
or in the Assignment and Acceptance pursuant to which such Lender shall
have assumed its Commitment, as applicable. Within the foregoing limits
and subject to the terms and conditions set forth herein, the Borrower may
borrow, prepay and reborrow Revolving Credit Loans.
(b) OBLIGATIONS OF LENDERS FOR REVOLVING CREDIT LOANS. Each
Revolving Credit Loan shall be made on the date of such Borrowing by the
Lenders ratably in accordance with their respective Applicable
Percentages. The failure of any Lender to make any Revolving Credit Loan
required to be made by it shall not relieve any other Lender of its
obligations hereunder; PROVIDED that the Revolving Credit Commitments of
the Lenders are several and no Lender shall be responsible for any other
Lender's failure to make Revolving Credit Loans as required hereunder.
20
(c) TYPE OF REVOLVING CREDIT LOANS. Each Borrowing of Revolving
Credit Loans shall be constituted entirely of ABR Loans or of ALR Loans as
the Borrower may request in accordance herewith. Subject to the provisions
of Section 2.12, the Borrower may elect to change the Type of any
Borrowing of Revolving Credit Loans after the Effective Date in accordance
with the provisions of Section 2.07.
(d) REVOLVING CREDIT NOTE. The Revolving Credit Loans, and the
Borrower's obligation to repay the Revolving Credit Loans and interest
thereon, shall be evidenced by the Revolving Credit Note executed and
delivered to the Administrative Agent on the Effective Date, and shall be
in the form of EXHIBIT E hereto. Interest on the outstanding and unpaid
principal amount of the Revolving Credit Note will be payable from the
date of the Revolving Credit Note as hereinafter provided, and the entire
unpaid principal amount of the Revolving Credit Note shall be repaid on
the Revolving Credit Commitment Termination Date.
(e) RECORDS OF THE ADMINISTRATIVE AGENT. The Administrative Agent
shall set forth on a schedule attached to and made a part of the Revolving
Credit Note or on any separate similar schedule or on any continuation of
any such schedule (including, but not limited to, any similar schedule
maintained in computerized records) annotations evidencing (i) the date
and principal amount of each Revolving Credit Loan, (ii) the aggregate of
all principal amounts of all Revolving Credit Loans, (iii) the amounts of
any repayments of principal of the Revolving Credit Loans, (iv) the
outstanding principal amount of the Revolving Credit Note, (v) the
applicable Interest Period for each Borrowing that is an ALR Borrowing
(vi) the Applicable Margin and resulting interest rate for each Borrowing
of Revolving Credit Loans, (vii) the aggregate amounts of all payments
under or repayments of principal of the Revolving Credit Note, and (viii)
and such other information relating to the Revolving Credit Note, the
Revolving Credit Loans, principal amounts thereof, interest paid or
payable thereon, or otherwise as the Administrative Agent shall deem
appropriate in the Administrative Agent's sole discretion. Each such
annotation shall, in the absence of manifest error, be conclusive and
binding upon the Borrower. No failure of the Administrative Agent to make
and no error by the Administrative Agent in making any annotation on such
attached schedule or any such similar schedule shall affect the
obligations of the Borrower to repay the principal amount of each
Revolving Credit Loan and the outstanding principal amount of the
Revolving Credit Note, the obligation of the Borrower to pay interest on
the outstanding principal amount of each Revolving Credit Loan and on the
outstanding principal amount of the Revolving Credit Note, or any other
obligation of the Borrower to the Administrative Agent or any Lender
pursuant to this Agreement.
2.03 REQUESTS FOR CREDIT LINE LOANS.
(a) NOTICE BY THE BORROWER. To request a Revolving Credit Borrowing,
the Borrower shall notify the Administrative Agent of such request by
telephone (i) in the case of an ALR Borrowing, not later than 11:00 a.m.,
Local Time, three (3) Business Days before the date of the proposed
Borrowing, or (ii) in the case of an ABR Borrowing (including an ABR
Borrowing to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.05(f)), not later than 11:00 a.m., Local Time,
on the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing
Request in the
21
form of EXHIBIT E hereto and signed by the Borrower on or prior to the
date of such Borrowing as required pursuant to the foregoing.
(b) CONTENT OF BORROWING REQUESTS. Each telephonic and written
Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or an
ALR Borrowing; and
(iv) in the case of an ALR Borrowing, the Interest Period
therefor, which shall be a period contemplated by the definition of
the term "Interest Period" and permitted under Section 2.07(g).
(c) MINIMUM AMOUNTS OF CREDIT LINE LOAN BORROWINGS. Each ALR
Borrowing under the Revolving Credit Facility shall be in an aggregate
amount equal to Five Hundred Thousand Dollars ($500,000) or a larger
multiple of Two Hundred Fifty Thousand Dollars ($250,000). Each ABR
Borrowing under the Revolving Credit Facility shall be in an aggregate
amount equal to Five Hundred Thousand Dollars ($500,000) or a larger
multiple of Two Hundred Fifty Thousand Dollars ($250,000); PROVIDED that
an ABR Borrowing under the Revolving Credit Facility may be in an
aggregate amount that is equal to the entire unused balance of the total
Revolving Credit Commitments or that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.05(f).
(d) NOTICE BY THE ADMINISTRATIVE AGENT TO THE LENDERS. Promptly
following receipt of a Borrowing Request in accordance with this Section,
the Administrative Agent shall advise each Lender of the details thereof
and of the amount of such Lender's Revolving Credit Loan to be made as
part of the requested Borrowing.
(e) FAILURE TO ELECT. If the Borrower fails to elect the Type of a
requested Revolving Credit Borrowing, then the requested Borrowing shall
be an ABR Borrowing. If no Interest Period is specified with respect to
any requested ALR Revolving Credit Borrowing, the requested Borrowing
shall be made instead as an ABR Borrowing.
2.04 REQUESTS FOR SWINGLINE LOANS.
(a) NOTICE BY THE BORROWER. Notwithstanding the provisions of
Section 2.03, above, the Borrower may from time to time request the
Swingline Lender to consider making a Swingline Loan to the Borrower. In
order to request a Swingline Loan the Borrower shall notify the
Administrative Agent of such request by telephone not later than 3:00
p.m., Local Time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent and
Swingline Lender of a written Borrowing Request in the form of EXHIBIT E
hereto and signed by the Borrower on the date of such Borrowing. Each
telephonic and written Borrowing Request shall specify the following
information in compliance with
22
Section2.03: (i) the principal amount of such Swingline Loan, and (ii) the
aggregate amount of Swingline Loans outstanding, both before and after
giving effect to such Swingline Loan, and (iii) the date of such Swingline
Loan, which shall be a Business Day.
(b) DETERMINATION BY SWINGLINE LENDER. Any decision to make a
Swingline Loan to the Borrower shall be in the sole and absolute
discretion of the Swingline Lender, and the Swingline Lender shall review
each request for a Swingline Loan on a case-by-case basis. The Swingline
Lender shall not make a Swingline Loan if it has actual notice, or has
received notice from the Administrative Agent, any lender or the Borrower,
that an Event of Default has occurred and is continuing. Other than
instances in which the Swingline Lender has actual notice, or has received
notice from the Administrative Agent, any Lender or the Borrower, that an
Event of Default has occurred and is continuing, in the event the
Swingline Lender does not approve Borrower's request for a Swingline Loan,
the Borrowing Request delivered to the Administrative Agent and Swingline
Lender requesting a Swingline Loan shall be treated as a Borrowing Request
for an ABR Loan pursuant to the provisions of Section 2.03, above, and
such requested Loan's borrowing date shall be deemed to be the earliest
date for borrowing an ABR Credit Line Loan following delivery of such
Borrowing Request to the Administrative Agent pursuant to such Section.
This Agreement does not constitute a commitment, and the Swingline Lender
shall not have any obligation, to make any Swingline Loan.
(c) LIMITATIONS ON AMOUNTS. Each Swingline Loan shall be in an
amount of not less than Fifty Thousand Dollars ($50,000) and, if in an
amount greater than Fifty Thousand Dollars ($50,000), shall be in whole
multiples of Ten Thousand Dollars ($10,000). No Swingline Loan shall (i)
individually be in an amount greater than Five Hundred Thousand Dollars
($500,000), or (ii) either individually or when aggregated with all other
Swingline Loans, exceed the lesser of (A) the amount of the Swingline
Lender's Revolving Credit Commitment, and (B) Two Million Five Hundred
Thousand Dollars ($2,500,000).
(d) NOTIFICATION BY SWINGLINE LENDER. If, after receiving a
Borrowing Request with respect to a Swingline Loan, and upon the
Borrower's fulfillment of all applicable conditions set forth herein, the
Swingline Lender elects to make a Swingline Loan available to the
Borrower, the Swingline Lender shall (i) notify the Borrower by 4:00 p.m.,
Local Time, on the date of receipt of such Borrowing Request , (ii) pay or
deliver all funds so requested by the Borrower in the Borrowing Request by
the end of business on such date, and (iii) promptly notify the
Administrative Agent of such Swingline Loan.
(e) NOTIFICATION BY ADMINISTRATIVE AGENT. After receiving notice of
a Swingline Loan from the Swingline Lender, the Administrative Agent shall
promptly notify each Bank by telephone of such Swingline Loan and of such
Lender's Applicable Percentage of the principal amount of such Swingline
Loan. Each Lender (other than the Swingline Lender) shall, before 11:00
a.m. (Eastern Standard Time or Eastern Daylight Savings Time, as the case
may be) on the Business Day immediately following the date of a Swingline
Loan, deposit with the Administrative Agent the amount of such Lender's
Applicable Percentage of the principal amount of such Swingline Loan in
immediately available funds. After receipt by the Administrative Agent of
such funds, the Administrative Agent shall pay or deliver all funds so
received to the order of the Swingline Lender to the account designated by
the Swingline Lender for the receipt of such funds, and each amount paid
by a Lender to the Administrative Agent for the account of the Swingline
Lender shall constitute such Lender 's Revolving Credit
23
Commitment with respect to such Swingline Loan for purposes of this
Agreement and the Revolving Credit Note.
(f) DISCONTINUANCE OF SWINGLINE LOANS. Upon one (1) Business Day's
written notice to the Administrative Agent and the other Lenders, any
Lender (including the Swingline Lender) may elect to discontinue to honor
any Borrowing Request with respect to its Applicable Percentage of a
Swingline Loan delivered to the Swingline Lender and the Administrative
Agent after such notice. In such event, the Administrative Agent and other
Banks shall elect to either (i) terminate the availability of Swingline
Loans to the Borrower after the date of such notice, or (ii) negotiate
with the Borrower an alternate method of making Swingline Loans (or an
equivalent form of credit) available to the Borrower upon terms and
conditions satisfactory to the Lenders.
(g) REPLACEMENT OF THE SWINGLINE LENDER. The Swingline Lender may be
replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Swingline Lender and the successor
Swingline Lender. The Administrative Agent shall promptly notify the
Lenders of any such replacement of the Swingline Lender. From and after
the effective date of any such replacement, (i) the successor Swingline
Lender shall have all the rights and obligations of the replaced Swingline
Lender under this Agreement with respect to Swingline Loans to be issued
thereafter, and (ii) references herein to the term " Swingline Lender"
shall be deemed to refer to such successor or to any previous Swingline
Lender, or to such successor and all previous Swingline Lenders, as the
context shall require. After the replacement of an Swingline Lender
hereunder, the replaced Swingline Lender shall cease to be a party hereto
and shall not have any right, duty or obligation hereunder to issue
additional Swingline Loans.
2.05 LETTERS OF CREDIT.
(a) GENERAL. Subject to the terms and conditions set forth herein,
in addition to the Revolving Credit Loans provided for in Section 2.02,
the Borrower may request the Issuing Lender to issue, at any time and from
time to time during the Availability Period, Letters of Credit for its own
account in such form as is acceptable to the Issuing Lender in its
reasonable determination. Letters of Credit issued hereunder shall
constitute utilization of the Revolving Credit Commitments.
(b) NOTICE OF ISSUANCE; AMENDMENT; RENEWAL OR EXTENSION. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension
of an outstanding Letter of Credit), the Borrower shall hand deliver or
telecopy (or transmit by electronic communication, if arrangements for
doing so have been approved by the Issuing Lender) to the Issuing Lender
and the Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a notice requesting the
issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date
on which such Letter of Credit is to expire (in compliance with paragraph
(d) of this Section), the amount of such Letter of Credit, the name and
address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. The
Borrower also shall submit a letter of credit application on the Issuing
Lender's standard form in connection with any request for a Letter of
Credit. In the event of any inconsistency between the terms and
24
conditions of this Agreement and the terms and conditions of any form of
letter of credit application or other agreement submitted by the Borrower
to, or entered into by the Borrower with, the Issuing Lender relating to
any Letter of Credit, the terms and conditions of this Agreement shall
control.
(c) LIMITATIONS ON AMOUNTS. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the Borrower shall be deemed
to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the aggregate LC Exposure of the
Issuing Lender (determined for these purposes without giving effect to the
participations therein of the Lenders pursuant to paragraph (e) of this
Section) shall not exceed Ten Million Dollars ($10,000,000), and (ii) the
total Revolving Credit Exposures shall not exceed the total Revolving
Credit Commitments.
(d) EXPIRATION DATE. Each Letter of Credit shall expire at or prior
to the close of business on the earlier of (i) the date which is twelve
(12) months after the date of the issuance of such Letter of Credit (or,
in the case of any renewal or extension thereof, twelve (12) months after
the then current expiration date of such Letter of Credit, so long as such
renewal or extension occurs within one (1) month of such then-current
expiration date), and (ii) the date that is five (5) Business Days prior
to the Revolving Credit Commitment Termination Date.
(e) PARTICIPATIONS. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) by the
Issuing Lender, and without any further action on the part of the Issuing
Lender or the Lenders, the Issuing Lender hereby grants to each Lender,
and each Lender hereby acquires from the Issuing Lender, a participation
in such Letter of Credit equal to such Lender's Applicable Percentage of
the aggregate amount available to be drawn under such Letter of Credit.
Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit
is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Commitments. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for account of
the Issuing Lender, such Lender's Applicable Percentage of each LC
Disbursement made by the Issuing Lender promptly upon the request of the
Issuing Lender at any time from the time of such LC Disbursement until
such LC Disbursement is reimbursed by the Borrower or at any time after
any reimbursement payment is required to be refunded to the Borrower for
any reason. Such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each such payment shall be made in
the same manner as provided in Section 2.06 with respect to Loans made by
such Lender (and Section 2.06 shall apply, MUTATIS MUTANDIS, to the
payment obligations of the Lenders), and the Administrative Agent shall
promptly pay to the Issuing Lender the amounts so received by it from the
Lenders. Promptly following receipt by the Administrative Agent of any
payment from the Borrower pursuant to the next following paragraph, the
Administrative Agent shall distribute such payment to the Issuing Lender
or, to the extent that the Lenders have made payments pursuant to this
paragraph to reimburse the Issuing Lender, then to such Lenders and the
Issuing Lender as their interests may appear. Any payment made by a Lender
pursuant to this paragraph to reimburse the Issuing Lender for any LC
Disbursement shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.
25
(f) REIMBURSEMENT. If the Issuing Lender shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall
reimburse the Issuing Lender in respect of such LC Disbursement by paying
to the Administrative Agent an amount equal to such LC Disbursement not
later than 12:00 noon, Local Time, on (i) the Business Day that the
Borrower receives notice of such LC Disbursement, if such notice is
received prior to 10:00 a.m., Local Time, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if
such notice is not received prior to such time, PROVIDED that the Borrower
may, subject to the conditions to borrowing set forth herein, request in
accordance with Section 2.03 that such payment be financed with an ABR
Borrowing in an equivalent amount and, to the extent so financed, the
Borrower's obligation to make such payment shall be discharged and
replaced by the resulting ABR Borrowing. If the Borrower fails to make
such payment when due, the Administrative Agent shall notify each Lender
of the applicable LC Disbursement, the payment then due from the Borrower
in respect thereof and such Lender's Applicable Percentage thereof.
(g) OBLIGATIONS ABSOLUTE. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (f) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly
in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit, or any term or provision therein,
(ii) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment
by the Issuing Lender under a Letter of Credit against presentation of a
draft or other document that does not comply strictly with the terms of
such Letter of Credit, and (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might,
but for the provisions of this Section, constitute a legal or equitable
discharge of the Borrower's obligations hereunder. Neither the
Administrative Agent, the Lenders nor the Issuing Lender, nor any of their
Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit by
the Issuing Lender or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay
in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required
to make a drawing thereunder), any error in interpretation of technical
terms or any consequence arising from causes beyond the control of the
Issuing Lender; PROVIDED that the foregoing shall not be construed to
excuse the Issuing Lender from liability to the Borrower to the extent of
any direct damages (as opposed to consequential damages, claims in respect
of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by the Issuing
Lender's gross negligence or willful misconduct when determining whether
drafts and other documents presented under a Letter of Credit comply with
the terms thereof. The parties hereto expressly agree that:
(i) the Issuing Lender may accept documents that appear on
their face to be in substantial compliance with the terms of a
Letter of Credit without responsibility for further investigation,
regardless of any notice or information to the contrary, and may
make payment upon presentation of documents that appear on their
face to be in substantial compliance with the terms of such Letter
of Credit;
26
(ii) the Issuing Lender shall have the right, in its sole
discretion, to decline to accept such documents and to make such
payment if such documents are not in strict compliance with the
terms of such Letter of Credit; and
(iii) this sentence shall establish the standard of care to be
exercised by the Issuing Lender when determining whether drafts and
other documents presented under a Letter of Credit comply with the
terms thereof (and the parties hereto hereby waive, to the extent
permitted by applicable law, any standard of care inconsistent with
the foregoing).
(h) DISBURSEMENT PROCEDURES. The Issuing Lender shall, within a
reasonable time following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of Credit. The
Issuing Lender shall promptly after such examination notify the
Administrative Agent and the Borrower by telephone (confirmed by telecopy)
of such demand for payment and whether the Issuing Lender has made or will
make an LC Disbursement thereunder; PROVIDED that any failure to give or
delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Lender and the Lenders with respect to
any such LC Disbursement.
(i) INTERIM INTEREST. If the Issuing Lender shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including the
date such LC Disbursement is made to but excluding the date that the
Borrower reimburses such LC Disbursement, at the rate PER ANNUM then
applicable to ABR Loans; PROVIDED that, if the Borrower fails to reimburse
such LC Disbursement when due pursuant to paragraph (f) of this Section,
then Section 2.11(c) shall apply. Interest accrued pursuant to this
paragraph shall be for account of the Issuing Lender, except that interest
accrued on and after the date of payment by any Lender pursuant to
paragraph (f) of this Section to reimburse the Issuing Lender shall be for
account of such Lender to the extent of such payment.
(j) REPLACEMENT OF THE ISSUING LENDER. The Issuing Lender may be
replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Lender and the successor
Issuing Lender. The Administrative Agent shall notify the Lenders of any
such replacement of the Issuing Lender. At the time any such replacement
shall become effective, the Borrower shall pay all unpaid fees accrued for
account of the replaced Issuing Lender pursuant to Section 2.10(b). From
and after the effective date of any such replacement, (i) the successor
Issuing Lender shall have all the rights and obligations of the replaced
Issuing Lender under this Agreement with respect to Letters of Credit to
be issued thereafter, and (ii) references herein to the term "Issuing
Lender" shall be deemed to refer to such successor or to any previous
Issuing Lender, or to such successor and all previous Issuing Lenders, as
the context shall require. After the replacement of an Issuing Lender
hereunder, the replaced Issuing Lender shall remain a party hereto and
shall continue to have all the rights and obligations of an Issuing Lender
under this Agreement with respect to Letters of Credit issued by it prior
to such replacement, but shall not be required to issue additional Letters
of Credit.
(k) CASH COLLATERALIZATION. If either (i) an Event of Default shall
occur and be continuing and the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the
Loans has been accelerated, Lenders with LC Exposure representing
27
greater than fifty one percent (51%) of the total LC Exposure) demanding
the deposit of cash collateral pursuant to this paragraph, or (ii) the
Borrower shall be required to provide cover for LC Exposure pursuant to
Section 2.09, the Borrower shall immediately deposit into an account
established and maintained on the books and records of the Administrative
Agent, which account may be a "securities account" (within the meaning of
Section 8-501 of the Uniform Commercial Code as in effect in the State of
New York), in the name of the Administrative Agent and for the benefit of
the Lenders, an amount in cash equal to, in the case of an Event of
Default, the LC Exposure as of such date PLUS any accrued and unpaid
interest thereon and, in the case of cover pursuant to Section 2.09, the
amount required under Section 2.09; PROVIDED that the obligation to
deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (i) or (j) of ARTICLE VII.
Such deposit shall be held by the Administrative Agent as collateral for
the LC Exposure under this Agreement, and for this purpose the Borrower
hereby grants a security interest to the Administrative Agent for the
benefit of the Lenders in such collateral account and in any financial
assets (as defined in the Uniform Commercial Code as in effect in the
State of New York) or other property held therein.
2.06 FUNDING OF BORROWINGS.
(a) FUNDING BY LENDERS. Each Lender shall make each Term Loan
required to be made by it hereunder on the Effective Date by wire transfer
of immediately available funds by 12:00 noon, Local Time, to the account
of the Administrative Agent most recently designated by it for such
purpose by notice to the Lender. Each Lender shall make (i) each Credit
Line Loan to be made by it hereunder on the proposed Borrowing Date
thereof, and (ii) each Swingline Loan to be made by it hereunder pursuant
to the provisions of Section 2.04 on the day immediately following such
Loan's Borrowing Date, by wire transfer of immediately available funds by
12:00 noon, Local Time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders. The
Administrative Agent will make such Revolving Credit Loans available to
the Borrower by promptly crediting the amounts so received, in like funds,
to an account of the Borrower designated by the Borrower in the applicable
Borrowing Request; PROVIDED that ABR Borrowings made to finance the
reimbursement of an LC Disbursement as provided in Section 2.05(f) shall
be remitted by the Administrative Agent to the Issuing Lender.
(b) PRESUMPTION BY THE ADMINISTRATIVE AGENT. Unless the
Administrative Agent shall have received notice from a Lender (i) at least
one (1) Business Day prior to the proposed Borrowing Date of any Borrowing
of a Credit Line Loan, or (ii) within one (1) hour of the Swingline
Lender's notification of such Lender of its receipt of a Borrowing Request
for a Swingline Loan, that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender (A) in the case of a
Credit Line Loan, has made such share available on such Borrowing Date,
and (B) in the case of a Swingline Loan, will make such share available on
the day immediately following the Borrowing Date of such Loan, in
accordance with paragraph (a) of this Section and may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. In
such event, if a Lender has not so notified the Administrative Agent and
has not in fact made its share of the applicable Borrowing available to
the Administrative Agent, then the applicable Lender and the Borrower
severally agree to pay to the Administrative Agent
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forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent,
at (y) in the case of such Lender, the Federal Funds Effective Rate, or
(z) in the case of the Borrower, the interest rate then applicable to ABR
Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender's Loan included in such
Borrowing.
2.07 INTEREST ELECTIONS.
(a) ELECTIONS BY THE BORROWER FOR BORROWINGS. The Loans constituting
each Borrowing initially shall be of the Type specified by the Borrower
(i) to the Administrative Agent prior to the Effective Date with respect
to the Term Loans, and (ii) with respect to any Revolving Credit
Borrowing, as specified by the Borrower in the applicable Borrowing
Request, and (iii) in the case of any portion of the Terms Loans that is
an ALR Borrowing, shall have the Interest Period specified by the Borrower
to the Administrative Agent at least three (3) Business Days prior to the
Effective Date, and in the case of any portion of the Revolving Credit
Loans that is an ALR Borrowing shall have the Interest Period specified by
the Borrower in such Borrowing Request, respectively. Thereafter, the
Borrower may elect to convert such Borrowing to a Borrowing of a different
Type or to continue such Borrowing as a Borrowing of the same Type and, in
the case of a ALR Borrowing, may elect the Interest Period therefor, all
as provided in this Section, and in form attached hereto as EXHIBIT F1
with respect to the Term Loans, (an "INTEREST ELECTION REQUEST FOR TERM
LOAN BORROWING"), and in form attached hereto as EXHIBIT F2 with respect
to a Revolving Credit Borrowing (an "INTEREST ELECTION REQUEST FOR
REVOLVING CREDIT BORROWING"), respectively (each such request to be
referred to as an "INTEREST ELECTION REQUEST"). The Borrower may elect
different options with respect to different portions of any Borrowing, in
which case each such portion shall be allocated ratably among the Lenders
holding the Loans constituting such Borrowing, and the Loans constituting
each such portion shall be considered a separate Borrowing.
Notwithstanding anything to the contrary herein, at no point in time shall
more than six (6) ALR Borrowings be outstanding, and any election by the
Borrower pursuant to Section 2.07 to continue or convert any Borrowing as
or to, as the case may be, an ALR Borrowing in excess of this limit shall
be treated by the Administrative Agent as an election by the Borrower to
continue or convert such Borrowing as or to, as the case may be, an ABR
Borrowing.
(b) INTEREST ON SWINGLINE LOANS. Notwithstanding anything to the
contrary contained herein, each Swingline Loan shall at all times bear
interest at the Adjusted Base Rate.
(c) NOTICE OF ELECTIONS. To make an election pursuant to this
Section, the Borrower shall notify the Administrative Agent of such
election by telephone by the time that a Borrowing Request would be
required under Section 2.03 if the Borrower were requesting a Revolving
Credit Borrowing of the Type resulting from such election to be made on
the effective date of such election (regardless of whether the Borrowing
to which such election applies is a Term Loan Borrowing or Revolving
Credit Borrowing). Each such telephonic interest election request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy
to the Administrative Agent of a written Interest Election Request in the
form of EXHIBIT F1 or EXHIBIT F2, as applicable, and signed by the
Borrower.
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(d) CONTENT OF INTEREST ELECTION REQUESTS. Each telephonic and
written Interest Election Request shall specify the following information
in compliance with Section 2.01 or Section 2.02 (as applicable):
(i) the Borrowing to which such Interest Election Request
applies and, with respect to any Borrowing if different options are
being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in
which case the information to be specified pursuant to clauses (iii)
and (iv) of this paragraph shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the Borrowing is to be an ABR Borrowing or an
ALR Borrowing; and
(iv) if the Borrowing is an ALR Borrowing, the Interest Period
therefor after giving effect to such election, which shall be a
period contemplated by the definition of the term "Interest Period"
and permitted under paragraph (g) of this Section.
(e) NOTICE BY THE ADMINISTRATIVE AGENT TO THE LENDERS. Promptly
following receipt of an Interest Election Request, the Administrative
Agent shall advise each Lender of the details thereof and of such Lender's
portion of each resulting Borrowing.
(f) FAILURE TO ELECT: EVENTS OF DEFAULT. If the Borrower fails to
deliver a timely and complete Interest Election Request with respect to an
ALR Borrowing prior to the end of the Interest Period therefor, then,
unless such Borrowing is repaid as provided herein, at the end of such
Interest Period such Borrowing shall be converted to an ABR Borrowing.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Borrower, then, so long as an Event
of Default is continuing (A) no outstanding Borrowing may be converted to
an ALR Borrowing, and (B) unless repaid, each ALR Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period therefor.
(g) LIMITATIONS ON INTEREST PERIODS. Notwithstanding any other
provision of this Agreement, the Borrower shall not be entitled to (i)
request (or to elect to convert to or continue as an ALR Borrowing) any
Revolving Credit Borrowing if the Interest Period requested therefor would
end after the Revolving Credit Commitment Termination Date, or (ii) elect
to convert to or continue as an ALR Borrowing any Term Loan Borrowing if
the Interest Period requested therefor would end after the Maturity Date.
2.08 TERMINATION AND REDUCTION OF THE COMMITMENTS.
(a) SCHEDULED TERMINATION. Unless previously terminated, the Term
Loan Commitments shall terminate on the Effective Date and the obligation
of each Lender to make a Term Loan shall terminate on such date; PROVIDED,
that notwithstanding such termination of the Term Loan Commitments,
following the Effective Date each Lender's "Term Loan Commitment" shall
refer to each Lender's respective rights with respect to the Term Loans
and the Term
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Note as specifically provided herein (E.G., for the purposes of
determining the allocation of payments among the Lenders pursuant to
Section 2.16(c)). Unless previously terminated, the Revolving Credit
Commitments shall terminate on the Revolving Credit Commitment Termination
Date, and the obligations of the Lenders to make Revolving Credit Loans
shall terminate on such date.
(b) VOLUNTARY TERMINATION OR REDUCTION. The Borrower may at any time
terminate, or from time to time reduce, the Revolving Credit Commitments;
PROVIDEd that (i) each reduction of the Revolving Credit Commitments shall
be in an amount that is One Million Dollars ($1,000,000) or a larger
multiple of Five Hundred Thousand Dollars ($500,000), and (ii) the
Borrower shall not terminate or reduce the Revolving Credit Commitments
if, after giving effect to any concurrent prepayment of the Revolving
Credit Loans in accordance with Section 2.09, the total Revolving Credit
Exposures would exceed the total Revolving Credit Commitments.
(c) NOTICE OF VOLUNTARY TERMINATION OR REDUCTION. The Borrower shall
notify the Administrative Agent of any election to terminate or reduce the
Revolving Credit Commitments under paragraph (b) of this Section at least
three (3) Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof.
Promptly following receipt of any notice, the Administrative Agent shall
advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; PROVIDED that a
notice of termination of the Revolving Credit Commitments delivered by the
Borrower may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be revoked by
the Borrower (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied.
(d) EFFECT OF TERMINATION OR REDUCTION. Any termination or reduction
of the Revolving Credit Commitments shall be permanent. Each reduction of
the Revolving Credit Commitments shall be made ratably among the Lenders
in accordance with their respective Revolving Credit Commitments.
2.09 REPAYMENT AND PREPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) REPAYMENT. The Borrower hereby unconditionally promises to pay
the Loans as follows:
(i) to the Administrative Agent for account of the Lenders the
outstanding principal amounts of the Term Loans as provided for in
Section 2.01(d), and the outstanding principal amounts of the
Revolving Credit Loans on the Revolving Credit Commitment
Termination Date, and
(ii) in addition to the amounts described immediately above,
the Borrower unconditionally promises to pay to the Administrative
Agent for the account of the Lenders, and for the account of the
Issuing Lender, as applicable, (A) on the Maturity Date all accrued
and unpaid interest, all fees, costs and expenses, and all other
amounts payable on or in connection with the Term Loans, and (B)
on the Revolving Credit Commitment Date all accrued and unpaid
interest, all fees, costs and expenses, and all
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other amounts payable on or in connection with the Revolving
Credit Loans and Letters of Credit.
(b) PREPAYMENTS.
(i) VOLUNTARY PREPAYMENT OF THE TERM LOANS. The Borrower shall
have the right at any time and from time to time prior to the
Maturity Date to prepay outstanding principal amounts of the Term
Loans, in whole or in part, subject to the requirements of this
Section. Any prepayment of less than the entire outstanding
principal amounts of the Term Loans shall be in a minimum aggregate
principal amount of One Million Dollars ($1,000,000) or in a larger
multiple of Five Hundred Thousand Dollars ($500,000), and shall be
applied to the installments of principal repayments of the Term
Loans (as described in Section 2.01) in their stated order of
maturity. Prepayments of the Term Loans made at any time at which
the Borrowing being repaid (in whole or in part) is (A) an ABR
Borrowing shall be without premium or penalty, and (B) an ALR
Borrowing shall be subject to the provisions of Section 2.14.
(ii) MANDATORY PREPAYMENTS OF THE TERM LOANS.
[A] MANDATORY PRINCIPAL PREPAYMENT FROM EXCESS CASH
FLOW. Notwithstanding anything to the contrary contained in
this Agreement or in any other Loan Document, in addition to
any scheduled payments of principal to be made by the
Borrower, the Borrower shall apply twenty five percent (25%)
of the amount of any Excess Cash Flow with respect to any
fiscal year to repay the outstanding and unpaid principal
balance of the Term Loans. Excess Cash Flow shall be
determined at the end of each fiscal year based on the audited
consolidating financial statements to be supplied to the Agent
pursuant to Section5.01(a), and the amount of any Excess Cash
Flow to be applied as a prepayment of the Term Loans pursuant
to this Section shall be paid by the Borrower to the Agent
within one hundred twenty (120) days of the end of such fiscal
year. All amounts of Excess Cash Flow applied by the Borrower
to the outstanding and unpaid principal balance of the Term
Loans pursuant to this Section shall be applied to the
installments of principal repayments of the Term Loans (as
described in Section2.01) in their stated order of maturity.
Prepayments of the Term Loans made at any time at which the
Borrowing being repaid (in whole or in part) is (A) an ABR
Borrowing shall be without premium or penalty, and (B) an ALR
Borrowing shall be subject to the provisions of Section 2.14.
[B] MANDATORY PRINCIPAL PREPAYMENT OF THE TERM LOANS
FROM QUALIFYING SALE PROCEEDS. The Borrower hereby covenants
and agrees that the Borrower shall, and shall cause each
Subsidiary to, deposit with the Administrative Agent all net
cash proceeds (net of selling expenses and taxes, but only to
the extent such expenses and taxes are paid or payable and
adequate reserves have been established therefor) received by
the Borrower or any Subsidiary (such cash proceeds to be
referred to as
32
"QUALIFYING SALE PROCEEDS") from each sale, assignment or
other disposition (in one or in a series of related
transactions) of any asset or assets of the Borrower or of any
Subsidiary of the Borrower if the aggregate book value of the
asset or assets sold, assigned or disposed of equals or
exceeds ten percent (10%) of the aggregate book value of the
Consolidated assets of the Borrower and the Guarantors at the
time of such sale, assignment or disposition (each, a
"QUALIFYING SALE"). All Qualifying Sale Proceeds shall by
deposited with the Administrative Agent within ninety (90)
calendar days from the closing of the Qualifying Sale and
shall be held by the Administrative Agent in an interest
bearing account. At any time prior to the period ending three
hundred sixty (360) days from the closing date of the
Qualifying Sale the Borrower may upon five (5) Business Days'
notice request the Administrative Agent to return the
applicable amount of Qualifying Sale Proceeds held by the
Administrative Agent to the Borrower for application by the
Borrower or a Subsidiary of the Borrower to the acquisition of
an asset or assets that is or are, as the case may be, similar
to the asset or assets disposed of in the respective
Qualifying Sale, or to any acquisition permitted pursuant to
the provisions of Section 6.03(c)(iii) (any such acquisition
to be referred to as a "QUALIFYING ACQUISITION"); PROVIDED,
HOWEVER, that the Borrower may elect at any time during such
three hundred sixty (360) day period to apply all or any part
of such Qualifying Sale Proceeds to prepay any portion of the
outstanding principal of the Term Loans in accordance with
Section 2.09(b)(i). In the event any Qualifying Acquisition
described in the notice of the Borrower described above is not
closed by the Borrower or a Subsidiary of the Borrower within
sixty (60) calendar days from the date of delivery by the
Administrative Agent to the Borrower of the requested
Qualifying Sale Proceeds, the Borrower shall promptly return
all such Qualifying Sale Proceeds (net of any voluntary
prepayments of the principal of the Term Loans made by the
Borrower in accordance with Section 2.09(b)(i) during such
sixty (60) day period)to the Administrative Agent All
Qualifying Sale Proceeds that remain in the possession of the
Administrative Agent pursuant to the provisions of this clause
[B] (including all Qualifying Sale Proceeds returned to the
Agent pursuant to the above) more than three hundred sixty
(360) calendar days after the closing of the Qualifying Sale
to which such Qualifying Sale Proceeds relate shall be applied
by the Borrower to the outstanding and unpaid principal
balance of the Term Loans pursuant to this Section shall be
applied to the installments of principal repayments of the
Term Loans (as described in Section2.01) in their stated order
of maturity. Prepayments of the Term Loans made at any time
the Borrowing being repaid (in whole or in part) is (A) an ABR
Borrowing shall be without premium or penalty, and (B) an ALR
Borrowing shall be subject to the provisions of Section 2.14.
(iii) REVOLVING CREDIT LOANS. The Borrower shall have the
right at any time and from time to time prior to the Revolving
Credit Commitment Termination Date to prepay the Revolving Credit
Note, in whole or in part, subject to the requirements of this
Section. Any prepayment of less than the outstanding principal
amount of the
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Revolving Credit Loans shall be in a minimum aggregate principal
amount of Five Hundred Thousand Dollars ($500,000) or in a larger
multiple of Two Hundred Fifty Thousand Dollars ($250,000).
Prepayments of the Revolving Credit Loans made at any time the
Borrowing being repaid (in whole or in part) is (A) an ABR Borrowing
shall be without premium or penalty, and (B) an ALR Borrowing shall
be subject to the provisions of Section 2.14.
(iv) MANNER OF PREPAYMENT; NOTICES; ETC. The Borrower shall
notify the Administrative Agent by telephone (confirmed by telecopy)
of any prepayment hereunder (A) in the case of a prepayment of an
ALR Borrowing, not later than 11:00 a.m., Local Time, three (3)
Business Days before the date of prepayment, and (B) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., Local
Time, on the date of the proposed prepayment. Each such notice shall
be irrevocable and shall specify the Loans to be prepaid (whether
Term Loans or Revolving Credit Loans), the prepayment date, and the
principal amount of [I] in the case of the Term Loans, the principal
amount to be prepaid, and [II] in the case of Revolving Credit
Loans, the principal amount of each Borrowing (or portion thereof)
to be prepaid; PROVIDED that, if a notice of prepayment is given in
connection with a conditional notice of termination of the Revolving
Credit Commitments as contemplated by Section 2.08, then such notice
of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.08. Promptly following receipt
of any such notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each prepayment of the Borrowing
constituting the Term Loans shall be applied ratably to each
Lender's Term Loan Commitment pursuant to Section 2.16, and each
prepayment of a Borrowing (or portion thereof) constituting
Revolving Credit Loans (or a portion thereof, respectively) shall be
applied ratably to each Lender's Revolving Credit Commitment
pursuant to Section 2.16. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.11 and shall be
made in the manner specified in Section 2.16.
(c) MAINTENANCE OF RECORDS BY LENDERS. Each Lender shall maintain in
accordance with its usual practice records evidencing the indebtedness of
the Borrower to such Lender resulting from each Loan made by such Lender,
including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder.
(d) EFFECT OF ENTRIES. The entries made in the records maintained
pursuant to paragraph (c) of this Section and Section 2.01(e) or Section
2.02(e), as applicable, shall be PRIMA FACIE evidence of the existence and
amounts of the obligations recorded therein; PROVIDED that the failure of
any Lender or the Administrative Agent to maintain such records or any
error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this
Agreement.
2.10 FEES.
(a) REVOLVING CREDIT FEES. The Borrower agrees to pay to the
Administrative Agent for account of each Lender revolving credit fees
which shall accrue at the Applicable Margin on the average daily unused
amount of the Revolving Credit Commitment of such Lender during the period
from and including the date hereof to but excluding the earlier to occur
of (i) the
34
date such Revolving Credit Commitment terminates, and (ii) the Revolving
Credit Termination Date. Accrued revolving credit fees shall be payable in
arrears on the third (3rd) Business Day following each Quarterly Date, and
on the earlier to occur of (A) the date the Revolving Credit Commitments
terminate, and (B) the Revolving Credit Termination Date, commencing on
the first such date to occur after the date hereof. All revolving credit
fees shall be computed on the basis of a year of three hundred sixty (360)
days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). For purposes of computing
revolving credit fees, the Revolving Credit Commitment of a Lender shall
be deemed to be used to the extent of the outstanding Revolving Credit
Loans and LC Exposure of such Lender.
(b) LETTER OF CREDIT FEES. The Borrower agrees to pay (i) to the
Administrative Agent for account of each Lender a participation fee with
respect to its participations in Letters of Credit, which shall accrue at
a rate PER ANNUM equal to seventy-five one hundredths (75/100ths) of one
percent (1%) on the average daily amount of such Lender's LC Exposure
(excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to
but excluding the later of the date on which such Lender's Revolving
Credit Commitment terminates and the date on which such Lender ceases to
have any LC Exposure, and (ii) to the Issuing Lender a fronting fee, which
shall accrue at the rate of twenty-five one hundredths (25/100ths) of one
percent (1%) PER ANNUM on the average daily amount of the LC Exposure
(excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to
but excluding the later of the date of termination of the Revolving Credit
Commitments and the date on which there ceases to be any LC Exposure, as
well as the Issuing Lender's standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder. Participation fees and fronting fees accrued through
and including each Quarterly Date shall be payable on the third (3rd)
Business Day following such Quarterly Date, commencing on the first such
date to occur after the Effective Date; PROVIDED that all such fees shall
be payable on the date on which the Revolving Credit Commitments terminate
and any such fees accruing after the date on which the Revolving Credit
Commitments terminate shall be payable on demand. Any other fees payable
to the Issuing Lender pursuant to this paragraph shall be payable within
ten (10) days after demand. All participation fees and fronting fees shall
be computed on the basis of a year of three hundred sixty (360) days and
shall be payable for the actual number of days elapsed (including the
first day but excluding the last day).
(c) COMMITMENT FEES AND ADMINISTRATIVE AGENT FEES. The Borrower
agrees to pay to the Administrative Agent, the fees payable in the amounts
and at the times separately agreed upon in a "FEE LETTER" between the
Borrower and the Administrative Agent.
(d) PAYMENT OF FEES. All fees payable hereunder shall be paid on the
dates due in immediately available funds to the Administrative Agent (or
to the Issuing Lender, in the case of fees payable to it) for
distribution, in the case of revolving credit fees and Letters of Credit
participation fees, to the Lenders entitled thereto. Fees paid shall not
be refundable under any circumstances.
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2.11 INTEREST.
(a) ABR LOANS. The Loans constituting each ABR Borrowing shall bear
interest at a rate PER ANNUM equal to the Adjusted Base Rate.
(b) ALR LOANS. The Loans constituting each ALR Borrowing shall bear
interest at a rate PER ANNUM equal to the Adjusted LIBOR for the Interest
Period for such Borrowing.
(c) DEFAULT INTEREST. Notwithstanding the foregoing, if any
principal of or interest on any Loan or any fee or other amount payable by
the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration, or otherwise, such overdue amount shall bear interest,
after as well as before judgment, at a rate PER ANNUM equal to (i) in the
case of overdue principal of any Loan, two percent (2%) above the rate
otherwise applicable to such Loan as provided above or (ii) in the case of
any other amount, two percent (2%) above the Adjusted Base Rate.
(d) PAYMENT OF INTEREST. Accrued interest on each Loan shall be
payable in arrears on each Interest Payment Date for such Loan and, (i) in
the case of a Term Loan, on the Maturity Date, and (ii) in the case of a
Revolving Credit Loan, on the Revolving Credit Commitment Termination
Date; PROVIDED that (A) interest accrued pursuant to paragraph (c) of this
Section shall be payable on demand, (B) in the event of any prepayment of
any ALR Loan, accrued interest on the principal amount prepaid shall be
payable on the date of such prepayment, (C) in the event of prepayment of
any ABR Loan, accrued interest on the principal amount prepaid shall be
payable on the next scheduled Interest Payment Date, and (C) in the event
of any conversion of an ALR Borrowing prior to the end of the Interest
Period therefor, accrued interest on such Borrowing shall be payable on
the effective date of such conversion.
(e) COMPUTATION. Interest on ABR Loans shall be computed on the
basis of a year of three hundred sixty five (365) days (or three hundred
sixty six (366) as applicable), and shall be payable for the actual number
of days elapsed. Interest on ALR Loans and all fees payable hereunder
shall be computed on the basis of a year of three hundred sixty (360) days
and shall be payable for the actual number of days elapsed. The applicable
Adjusted Base Rate and/or Adjusted LIBOR shall be determined by the
Administrative Agent, and such determination shall be conclusive absent
manifest error.
2.12 ALTERNATE RATE OF INTEREST. If prior to the commencement of the Interest
Period for any ALR Borrowing:
(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the LIBOR for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the LIBOR for such Interest Period will not adequately and fairly reflect
the cost to such Lenders of making or maintaining their respective Loans
included in such Borrowing for such Interest Period; then the
Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter
and, until the Administrative Agent
36
notifies the Borrower and the Lenders that the circumstances giving rise
to such notice no longer exist, (i) any Interest Election Request that
requests the conversion of any Borrowing to, or the continuation of any
Borrowing as, an ALR Borrowing shall be ineffective and such Borrowing
(unless prepaid) shall be continued as, or converted to, an ABR Borrowing,
and (ii) if any Borrowing Request requests an ALR Borrowing, such
Borrowing shall be made as an ABR Borrowing.
2.13 INCREASED COSTS.
(a) INCREASED COSTS GENERALLY. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of,
deposits with or for account of, or credit extended by, any
Lender (except any such reserve requirement reflected in the
LIBOR) or the Issuing Lender; or
(ii) impose on any Lender or the Issuing Lender or the
London interbank market any other condition affecting this
Agreement or ALR Loans made by such Lender or any Letter of
Credit or participation therein; and
(iii) the result of any of the foregoing shall be to
increase the cost to such Lenders of making or maintaining any
ALR Loan (or of maintaining its obligation to make any such
Loan) or to increase the cost to such Lender or the Issuing
Lender of participating in, issuing or maintaining any Letter
of Credit or to reduce the amount of any sum received or
receivable by such Lender or the Issuing Lender hereunder
(whether of principal, interest or otherwise); then
the Borrower will pay to such Lender or the Issuing Lender, as the case
may be, such additional amount or amounts as will compensate such Lender
or the Issuing Lender, as the case may be, for such additional costs
incurred or reduction suffered.
(b) CAPITAL REQUIREMENTS. If any Lender or the Issuing Lender
reasonably determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return
on such Lender's or the Issuing Lender's capital or on the capital of such
Lender's or the Issuing Lender's holding company, if any, as a consequence
of this Agreement or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by the
Issuing Lender, to a level below that which such Lender or the Issuing
Lender or such Lender's or the Issuing Lender's holding company could have
achieved but for such Change in Law (taking into consideration such
Lender's or the Issuing Lender's policies and the policies of such
Lender's or the Issuing Lender's holding company with respect to capital
adequacy), then from time to time the Borrower will pay to such Lender or
the Issuing Lender, as the case may be, such additional amount or amounts
as will compensate such Lender or the Issuing Lender or such Lender's or
the Issuing Lender's holding company for any such reduction suffered.
(c) CERTIFICATES FROM LENDERS. A certificate of a Lender or the
Issuing Lender setting forth the amount or amounts, necessary to
compensate such Lender or the Issuing Lender or its holding company, as
the case may be, as specified in paragraph (a) or (b) of this Section
shall
37
be delivered to the Borrower and shall be conclusive absent manifest
error. The Borrower shall pay such Lender or the Issuing Lender, as the
case may be, the amount shown as due on any such certificate within ten
(10) Business Days after receipt thereof.
(d) DELAY IN REQUESTS. Failure or delay on the part of any Lender or
the Issuing Lender to demand compensation pursuant to this Section shall
not constitute a waiver of such Lender's or the Issuing Lender's right to
demand such compensation; PROVIDED that the Borrower shall not be required
to compensate a Lender or the Issuing Lender pursuant to this Section for
any increased costs or reductions incurred more than six (6) months prior
to the date that such Lender or the Issuing Lender, as the case may be,
notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's or the Issuing Lender's intention
to claim compensation therefor; PROVIDED FURTHER that, if the Change in
Law giving rise to such increased costs or reductions is retroactive, then
the six (6) month period referred to above shall be extended to include
the period of retroactive effect thereof.
2.14 BREAK FUNDING PAYMENTS. In the event of (a) the payment of any principal of
any ALR Loan other than on the applicable Interest Payment Date therefor
(including as a result of an Event of Default), (b) the conversion of any ALR
Loan other than on the last day of an Interest Period therefor, (c) the failure
to borrow, convert, continue or prepay any Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice is permitted
to be revocable under Section 2.08 and is revoked in accordance herewith), or
(d) the assignment as a result of a request by the Borrower pursuant to Section
2.17(b) of any ALR Loan other than on the last day of an Interest Period
therefor, then, in any such event, the Borrower shall pay to each Lender an
amount as will (in the reasonable determination of such Lender) compensate such
Lender for losses, costs and expenses attributable to such event. A certificate
of any Lender setting forth any amount or amounts that such Lender is entitled
to receive pursuant to this Section shall be delivered to the Borrower and shall
be conclusive absent manifest error. The Borrower shall pay such Lender the
amount shown as due on any such certificate within ten (10) Business Days after
receipt thereof.
2.15 TAXES.
(a) PAYMENTS FREE OF TAXES. Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be
made free and clear of and without deduction for any Indemnified Taxes or Other
Taxes; PROVIDED that if the Borrower shall be required to deduct any Indemnified
Taxes or Other Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required deductions, (including
deductions applicable to additional sums payable under this Section) the
Administrative Agent, any Lender or the Issuing Lender (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) PAYMENT OF OTHER TAXES BY THE BORROWER. In addition, the Borrower
shall pay any Other Taxes to the relevant Governmental Authority in accordance
with applicable law.
(c) INDEMNIFICATION BY THE BORROWER. The Borrower shall indemnify the
Administrative Agent, each Lender and the Issuing Lender, within ten (10)
Business Days after written
38
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the Issuing Lender, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender or
the Issuing Lender, or by the Administrative Agent on its own behalf or on
behalf of a Lender or the Issuing Lender, shall be conclusive absent manifest
error.
(d) EVIDENCE OF PAYMENTS. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
2.16 PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SET-OFFS.
(a) PAYMENTS BY THE BORROWER. The Borrower shall make each payment
required to be made by it hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements, or under Section 2.13, 2.14 or 2.15, or
otherwise) or under any other Loan Document (except to the extent otherwise
provided therein) prior to 12:00 noon, Local Time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at the Administrative Agent's Account,
except as otherwise expressly provided in the relevant Loan Document and except
payments to be made directly to the Issuing Lender as expressly provided herein
and payments pursuant to Sections 2.13, 2.14, 2.15 and 9.03, which shall be made
directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for account of any other Person to
the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All amounts owing under this Agreement (including revolving
credit fees, and for payments required under Section 2.14) or under any other
Loan Document (except to the extent otherwise provided therein) are payable in
Dollars.
(b) APPLICATION OF INSUFFICIENT PAYMENTS. If at any time insufficient
funds are received by and available to the Administrative Agent to pay fully all
amounts of principal, unreimbursed LC Disbursements, interest and fees then due
hereunder, such funds shall be applied (i) first, to pay interest and fees then
due hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, to pay
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
39
(c) PRO RATA TREATMENT. Except to the extent otherwise provided herein:
(i)(A) the Borrowing constituting the Term Loans shall be made from the Lenders
PRO RATA according to the amounts of their respective Term Loan Commitments; (B)
each Revolving Credit Borrowing shall be made from the Lenders PRO RATA
according to the amounts of their respective Revolving Credit Commitments, (C)
each payment of revolving credit fees under Section 2.10 shall be made for
account of the Lenders PRO RATA according to the amounts of their respective
Revolving Credit Commitments, and (D) each termination or reduction of the
amount of the Revolving Credit Commitments under Section 2.08 shall be applied
to the Revolving Credit Commitments of the Lenders PRO RATA according to the
amounts of their respective Revolving Credit Commitments; (ii) the Borrowing
constituting the Term Loans and each Revolving Credit Borrowing shall be
allocated PRO RATA among the Lenders (in the case of the making of Loans)
according to the amounts of their respective Term Loan Commitments or Revolving
Credit Commitments, as applicable, or their respective Loans that are to be
included in such Borrowing (in the case of conversions and continuations of
Borrowings); (iii) each payment or prepayment of principal of the Term Loans or
Revolving Credit Loans by the Borrower shall be made for account of the Lenders
PRO RATA in accordance with the respective unpaid principal amounts of the Term
Loans or Revolving Credit Loans, respectively, held by them; and (iv) each
payment of interest on the Term Loans or Revolving Credit Loans by the Borrower
shall be made for account of the Lenders PRO RATA in accordance with the amounts
of interest on the Term Loans or Revolving Credit Loans then due and payable to
the respective Lenders.
(d) SHARING OF PAYMENTS BY LENDERS. If any Lender shall, by exercising any
right of set-off or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Loans or participations in LC
Disbursements resulting in such Lender receiving payment of a greater proportion
of the aggregate amount of its Loans and participations in LC Disbursements and
accrued interest thereon then due than the proportion received by any other
Lender, then the Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the Loans and participations in LC
Disbursements of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans
and participations in LC Disbursements; PROVIDED that (i) if any such
participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than
to the Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of the Borrower in the amount of such participation.
40
(e) PRESUMPTIONS OF PAYMENT. Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which any payment is due
to the Administrative Agent for account of the Lenders or the Issuing Lender
hereunder that the Borrower will not make such payment, the Administrative Agent
may assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or
the Issuing Lender, as the case may be, the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders or the
Issuing Lender, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or the Issuing Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the Federal Funds Effective Rate.
(f) CERTAIN DEDUCTIONS BY THE ADMINISTRATIVE AGENT. If any Lender shall
fail to make any payment required to be made by it pursuant to Section 2.05(e),
2.06(b) or 2.16(e), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for account of such Lender to satisfy such
Lender's obligations under such Sections until all such unsatisfied obligations
are fully paid.
2.17 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) DESIGNATION OF A DIFFERENT LENDING OFFICE. If any Lender requests
compensation under Section 2.13, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for account of any
Lender pursuant to Section 2.15, then such Lender shall use reasonable efforts
to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.13 or 2.15, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) REPLACEMENT OF LENDERS. If any Lender requests compensation under
Section 2.13, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for account of any Lender pursuant to
Section 2.15, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); PROVIDED that (i) the
Borrower shall have received the prior written consent of the Administrative
Agent (and, if a Commitment is being assigned, the Issuing Lender), which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements accrued interest thereon, accrued fees and
all other amounts payable to it
41
hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts),
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.13 or payments required to be made pursuant to
Section 2.15, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
ARTICLE III REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that (a) on the Effective
Date, and (b) if any representation or warranty below is expressly stated to
have been made as of a specific date, as of such specific date:
3.01 ORGANIZATION; POWERS. Each of the Borrower, its Subsidiaries, Technologies
and Holdings is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted, and is qualified to do
business in and is in good standing in every jurisdiction where such
qualification is required, except where the failure to be so qualified,
individually or in the aggregate, could not result in a Material Adverse Effect.
Holdings is the owner of one hundred percent (100%) of the issued and
outstanding capital stock of the Borrower, and Technologies is the owner of one
hundred percent (100%) of the issued and outstanding capital stock of Holdings.
Xxxxxxxxxx-Xxxxxxx, Inc. is the owner of one hundred percent (100%) of the
issued and outstanding capital stock of GBAC.
3.02 AUTHORIZATION; ENFORCEABILITY. The Transactions are within the Borrower's
and its Subsidiaries' corporate powers and have been duly authorized by all
necessary corporate and, if required, by all necessary shareholder action. This
Agreement has been duly executed and delivered by the Borrower and constitutes,
and each of the other Loan Documents when executed and delivered will
constitute, a legal, valid and binding obligation of the Borrower or its
Subsidiaries, as the case may be, enforceable in accordance with its terms,
except as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability affecting
the enforcement of creditors' rights, and (b) the application of general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
3.03 GOVERNMENTAL APPROVALS; NO CONFLICTS. The Transactions (a) do not require
any consent or approval of, registration or filing with, or any other action by,
any Governmental Authority, except such as have been obtained or made and are in
full force and effect, (b) will not violate any applicable law or regulation or
the charter, by-laws or other organizational documents of the Borrower or any of
its Subsidiaries or any order of any Governmental Authority, (c) will not
violate or result in a default under any indenture, agreement or other
instrument binding upon the Borrower or any of its Subsidiaries or assets, or
give rise to a right thereunder to require any payment to be made by any such
Person, and (d) will not result in the creation or imposition of any Lien on any
asset of the Borrower or any of its Subsidiaries other than Liens in favor of
the Administrative Agent and the Lenders in connection with the Transactions.
42
3.04 FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(a) FINANCIAL CONDITION. The Borrower has heretofore furnished to
the Lenders (i) a Consolidated balance sheet and statements of income,
stockholders' equity and cash flows of Technologies and its Subsidiaries
(including the Borrower and its Subsidiaries) as of and for each of the
fiscal years ended January 1, 1999, December 31, 1999, and December 29,
2000, reported on by Deloitte & Touche, LLP, independent public
accountants, (ii) a Consolidated unaudited balance sheet and statements of
income, stockholders' equity and cash flows of Technologies and its
Subsidiaries (including the Borrower and its Subsidiaries) as of and for
the fiscal quarter ended March 30, 2001, and (iii) projections, including
the assumptions therefor, of Technologies and its Subsidiaries (including
the Borrower, its Subsidiaries and GBAC (after giving effect to Sierra
Acquisition)) for the fiscal years 2001 through 2006. The financial
statements referred to in clause (i) above present fairly, in all material
respects, the financial position and results of operations and cash flows
of Technologies and its Subsidiaries as of such dates and for such periods
in accordance with GAAP. Subject to normal year-end adjustments and
disclosures as would be made in the financial statements referred to in
clause (ii) above if audited, the financial statements referred to in
clause (ii) above present fairly, in all material respects, the financial
position and results of operations and cash flows of Technologies and its
Subsidiaries as of such date and for such period in accordance with GAAP.
The projections referred to in clause (iii) above reflect the best
estimate the management of Borrower and the management of Technologies of
the future performance of Technologies and its Subsidiaries (including the
Borrower and its Subsidiaries), based upon historical financial
information and reasonable assumptions of each such management group.
(b) NO MATERIAL ADVERSE CHANGE. Since March 30, 2001, there has been
no material adverse change in the business, assets, operations or
condition, financial or otherwise, of (i) Technologies and its
Subsidiaries, taken as a whole, or (ii) the Borrower and its Subsidiaries,
taken as a whole.
3.05 PROPERTIES.
(a) PROPERTY GENERALLY. Each of the Borrower and its Subsidiaries
has good title to, or valid leasehold interests in, all its real and
personal property material to its business, subject only to Liens
permitted by Section 6.02 and except for minor defects in title that do
not interfere with its ability to conduct its business as currently
conducted or to utilize such properties for their intended purposes.
(b) INTELLECTUAL PROPERTY. Each of the Borrower and its Subsidiaries
owns all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Borrower and its Subsidiaries does not materially infringe upon the rights
of any other Person. All patents, trademarks and tradenames owned by the
Borrower or any of its Subsidiaries on the Effective Date are listed on
Part D of SCHEDULE II hereto.
3.06 LITIGATION AND ENVIRONMENTAL MATTERS.
(a) ACTIONS. SUITS AND PROCEEDINGS. Except for the Disclosed
Matters, there are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority now pending against, or to the
knowledge of the Borrower threatened against, or affecting the Borrower or
43
any of its Subsidiaries (i) that, if adversely determined, could,
individually or in the aggregate, result in a Material Adverse Effect, or
(ii) in connection with this Agreement or the Transactions.
(b) ENVIRONMENTAL MATTERS. Except for the Disclosed Matters, neither
the Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental Law, which
noncompliance or failure could, individually or in the aggregate, result
in a Material Adverse Effect, (ii) has become subject to any material
Environmental Liability, (iii) has received notice of any claim with
respect to any Environmental Liability, or (iv) knows of any basis for any
Environmental Liability.
(c) DISCLOSED MATTERS. Since the date of this Agreement, there has
been no change in the status of the Disclosed Matters that, individually
or in the aggregate, has resulted in, or could result in, a Material
Adverse Effect.
3.07 COMPLIANCE WITH LAWS AND AGREEMENTS. Each of the Borrower and its
Subsidiaries is in material compliance with all laws, regulations and orders of
any Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property. No Default has
occurred and is continuing.
3.08 INVESTMENT AND HOLDING COMPANY STATUS. Neither the Borrower nor any of its
Subsidiaries is (a) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940, or (b) a "holding company"
as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935.
3.09 TAXES. Each of Technologies, Holdings, the Borrower and its Subsidiaries
has timely filed or caused to be filed all tax returns and reports required to
have been filed and has paid or caused to be paid all Taxes required to have
been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which such Person has set aside on its books
adequate reserves and (b) for such failures to timely file Tax returns or
reports or nonpayment of Taxes which could not, individually or in the
aggregate, result in a Material Adverse Effect.
3.10 ERISA. No ERISA Event has occurred or is reasonably expected to occur that
has resulted in or that could result in a Material Adverse Effect. No Plan is
subject to Title IV of ERISA.
3.11 DISCLOSURE. None of the reports, financial statements, certificates or
other information furnished by or on behalf of the Borrower or its Subsidiaries
to the Lenders in connection with the negotiation of this Agreement and the
other Loan Documents or delivered hereunder or thereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; PROVIDED that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
44
3.12 USE OF CREDIT. Neither the Borrower nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose, whether immediate, incidental or ultimate, of buying or
carrying Margin Stock, and no part of the proceeds of any extension of credit
hereunder will be used to buy or carry any Margin Stock.
ARTICLE IV CONDITIONS
4.01 EFFECTIVE DATE. The obligations of the Lenders to make Loans and of the
Issuing Lender to issue Letters of Credit hereunder shall not become effective
until the date on which the Administrative Agent shall have received each of the
following documents, each of which shall be satisfactory to the Administrative
Agent (and to the extent specified below, to each Lender) in form and substance
(or such condition shall have been waived in accordance with Section 9.02):
(a) EXECUTED COUNTERPARTS. From each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party, or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page to this
Agreement) that such party has signed a counterpart of this Agreement.
(b) OPINION OF COUNSEL. A favorable written opinion (addressed to
the Administrative Agent and the Lenders and dated the Effective Date) of
Weil, Gotshal & Xxxxxx, LLP, counsel to the Borrower, its Subsidiaries,
Technologies and Holdings, substantially in the form of EXHIBIT B, and
covering such other matters relating to the Borrower, this Agreement or
the Transactions as the Required Lenders shall reasonably request (and the
Borrower hereby instructs such counsel to deliver such opinion to the
Lenders and the Administrative Agent).
(c) CORPORATE DOCUMENTS. Such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of the Borrower, its
Subsidiaries, Technologies and Holdings, the authorization of the
Transactions and any other legal matters relating to the Borrower, this
Agreement or the Transactions, all in form and substance satisfactory to
the Administrative Agent and its counsel.
(d) OFFICER'S CERTIFICATE. A certificate, dated the Effective Date
and signed by a Senior Executive Officer or a Financial Officer of the
Borrower, confirming compliance with the conditions set forth in the
lettered clauses of the first sentence of Section 4.02.
(e) REAFFIRMATION AGREEMENT. Each of the Borrower, each Parent
Guarantor and Subsidiary Guarantor (other than GBAC) shall have executed
and delivered to the Administrative Agent a Reaffirmation Agreement (the
"REAFFIRMATION AGREEMENT") in form and content acceptable to the
Administrative Agent (on behalf of the Lenders), acknowledging and
confirming the continuing effectiveness and enforceability of each of the
other Loan Documents to which such Person is a party.
(f) GUARANTY AGREEMENTS. Technologies, Holdings and each domestic
Subsidiary of the Borrower (including GBAC) shall have executed and
delivered to the Administrative Agent a Guaranty Agreement (each such
agreement, a "GUARANTY AGREEMENT") in form and content acceptable to the
Administrative Agent (on behalf of the Lenders), providing for the
guarantee
45
of payment by such Person of the Borrower's obligations to the
Administrative Agent, the Lenders, the Swingline Lender and the Issuing
Lender under the Loan Documents.
(g) SECURITY AGREEMENTS. The Borrower and each domestic Subsidiary
of the Borrower (including GBAC) shall have executed and delivered to the
Administrative Agent a Security Agreement (each such agreement, a
"SECURITY AGREEMENT") in form and content acceptable to the Administrative
Agent, granting to the Administrative Agent (on behalf of the Lenders) a
Lien in all of such Person's equipment, inventory, fixtures, accounts,
chattel paper, general intangibles, documents, investment property,
instruments, deposit accounts, letter-of-credit rights (whether or not the
letter of credit is evidenced by a writing), commercial tort claims, and
general intangibles including, without limitation, payment intangibles,
whether now owned or hereafter acquired, wherever located, and any and all
products and proceeds thereof, and shall secure the payment of any and all
Indebtedness and liabilities, whether now existing or hereafter incurred,
of the Borrower or such Subsidiary to the Administrative Agent, the
Lenders, the Swingline Lender and the Issuing Lender under the Loan
Documents; and the Administrative Agent shall have received appropriate
financing statements to perfect each such Lien, which Lien shall be
superior in priority to all other Liens, other than Liens arising after
the date of this Agreement having priority over the Liens of the
Administrative Agent by operation of applicable law or Liens permitted
pursuant to the provisions of Section 6.02. The Borrower and each domestic
Subsidiary of the Borrower (including GBAC) shall have executed and
delivered to the Administrative Agent a Patent Security Agreement, a
Trademark Security Agreement and a Copyright Security Agreement, each in
form and substance acceptable to the Administrative Agent (collectively,
the "INTELLECTUAL PROPERTY SECURITY AGREEMENTS").
(h) BORROWER PLEDGE AGREEMENT. The Borrower shall have executed and
delivered to the Administrative Agent a Pledge Agreement (the "BORROWER
PLEDGE AGREEMENT") in form and content acceptable to the Administrative
Agent pursuant to which the Borrower has pledged to the Administrative
Agent (on behalf of the Lenders) all issued and outstanding securities of
each domestic Subsidiary of the Borrower, which shall secure the payment
of any and all Indebtedness and liabilities, whether now existing or
hereafter incurred, of the Borrower to the Administrative Agent, the
Lenders, the Swingline Lender and the Issuing Lender under the Loan
Documents, and in connection therewith shall have delivered to the
Administrative Agent certificates representing such issued and outstanding
securities with related stock powers duly endorsed in blank.
(i) HITTMAN PLEDGE AGREEMENT. Xxxxxxxxxx-Xxxxxxx, Inc. shall have
executed and delivered to the Administrative Agent a Pledge Agreement (the
"HITTMAN PLEDGE AGREEMENT") in form and content acceptable to the
Administrative Agent pursuant to which Xxxxxxxxxx-Xxxxxxx, Inc. has
pledged to the Administrative Agent (on behalf of the Lenders) all issued
and outstanding securities of GBAC, which shall secure the payment of any
and all Indebtedness and liabilities, whether now existing or hereafter
incurred, of the Borrower or of Xxxxxxxxxx-Xxxxxxx, Inc. to the
Administrative Agent, the Lenders, the Swingline Lender and the Issuing
Lender under the Loan Documents, and in connection therewith shall have
delivered to the Administrative Agent certificates representing such
issued and outstanding securities with related stock powers duly endorsed
in blank.
46
(j) CERTIFICATES OF INSURANCE. The Administrative Agent shall have
received certificates of insurance and insurance policies, in form and
content acceptable to the Administrative Agent, evidencing the insurance
required to be carried by the Borrower pursuant to Section 5.07 hereof
with endorsements, satisfactory to the Agent, designating the Agent as an
additional insured and a loss payee and further designating that each such
insurance policy contains a notice of cancellation provision satisfactory
to the Agent.
(k) CLOSING OF THE SIERRA ACQUISITION. Subject only to the delivery
by the Borrower to Xxxxxxx Electronic Components Group, Inc. of the
proceeds of any Loans to be used by the Borrower in connection with the
acquisition by GBAC of the substantially all of the assets of the
Sierra-KD Components Division of Xxxxxxx Electronic Components Group,
Inc., on or before the Effective Date GBAC shall have acquired
substantially all of the assets of the Sierra-KD Components Division of
Xxxxxxx Electronic Components Group, Inc. as described in an asset
purchase agreement between GBAC and Xxxxxxx Electronics Components Group,
Inc. (the "ASSET PURCHASE AGREEMENT") and such other agreements, documents
and instruments executed and delivered in connection therewith
(collectively, the "SIERRA ACQUISITION DOCUMENTS"), free and clear of all
Liens (other than Liens permitted pursuant to the provisions of Section
6.02) (such transaction to be referred to as the "SIERRA ACQUISITION").
(l) PAYMENT OF FEES. On or before Effective Date the Administrative
Agent the Administrative Agent shall have received all fees payable to the
Administrative Agent for itself as Administrative Agent pursuant to one or
more agreements with the Borrower relating to such fees.
(m) GENERAL ASSURANCES. All other documents and legal matters in
connection with the transactions contemplated by this Agreement and the
other Loan Documents shall be satisfactory in form and substance to the
Administrative Agent. The Borrower shall have delivered such further
documents to the Administrative Agent and taken such further action
respecting this Agreement and the other Loan Documents as the
Administrative Agent or any Lender or counsel to M&T may reasonably
request.
The obligation of any Lender to make its initial extension of credit
hereunder is also subject to the payment by the Borrower of such fees as the
Borrower shall have agreed to pay to any Lender or the Administrative Agent in
connection herewith, including, without limitation, the reasonable fees and
expenses of Lippes, Xxxxxxxxxxx, Xxxxxxx & Xxxxxx LLP, counsel to the
Administrative Agent, in connection with the negotiation, preparation, execution
and delivery of this Agreement and the other Loan Documents and the extensions
of credit hereunder (to the extent that statements for such fees and expenses
have been delivered to the Borrower).
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
4.02 EACH CREDIT EVENT. The obligation of each Lender to make any Loan, and of
the Issuing Lender to issue, amend, renew or extend any Letter of Credit, is
additionally subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in
this Agreement shall be true and correct on and as of the date of such
Loan or the issuance, amendment, renewal or
47
extension of such Letter or Credit (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as
of such specific date); and
(b) at the time of and immediately after giving effect to such Loan
or the issuance, amendment, renewal or extension of such Letter of Credit,
as applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in the preceding
sentence.
ARTICLE V AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal of
and interest on each Note and all fees and expenses payable under the Loan
Documents shall have been paid in full and all Letters of Credit shall have
expired or terminated and all LC Disbursements shall have been reimbursed, the
Borrower covenants and agrees with the Administrative Agent, the Swingline
Lender, the Issuing Lender and the Lenders that:
5.01 FINANCIAL STATEMENTS AND OTHER INFORMATION. The Borrower will furnish, or
cause to be furnished, to the Administrative Agent and each Lender:
(a) within ninety (90) days after the end of each fiscal year of the
Borrower, the Consolidated and Consolidating balance sheet and related
statements of operations, stockholders' equity and cash flows as of the
end of and for such year, setting forth in each case in comparative form
the figures for the previous fiscal year, in form substantially similar to
the statements described in Section 3.04(a), and all based on the results
of operations and calculations reported on by Deloitte & Touche, LLP or
other independent public accountants of recognized national standing as
contained in the financial statements described in Section 5.01(e), below,
such Consolidated and Consolidating financial statements to present fairly
in all material respects the financial condition and results of operations
on a Consolidated basis in accordance with GAAP consistently applied,
subject to the absence of footnotes;
(b) within forty five (45) days after the end of each of the first
three (3) fiscal quarters of each fiscal year of the Borrower, the
Consolidated and Consolidating balance sheet and related statements of
operations, stockholders' equity and cash flows as of the end of and for
such fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for (or, in the
case of the balance sheet, as of the end of the corresponding period or
periods of the previous fiscal year, all certified by a Financial Officer
of the Borrower as presenting fairly in all material respects the
financial condition and results of operations on a Consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) of this Section, a certificate of a Financial Officer of
the Borrower in the form of EXHIBIT G (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the
details thereof and any action taken or proposed to be taken with respect
thereto, (ii) setting forth reasonably detailed calculations demonstrating
compliance with Sections 6.01, 6.07 and
48
6.10, and (iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of the audited financial statements
referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements
accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (e) of this Section, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the extent
required by accounting rules or guidelines);
(e) within ninety (90) days after the end of each fiscal year of
Technologies, the audited consolidated and consolidating balance sheet and
related statements of operations, stockholders' equity and cash flows of
Technologies and its Subsidiaries as of the end of and for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by Deloitte & Touche, LLP or other
independent public accountants of recognized national standing (without a
"going concern" or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect
that such consolidated financial statements present fairly in all material
respects the financial condition and results of operations of Technologies
and its Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;
(f) promptly following submission to the United States Securities
and Exchange Commission, a copy of Form 10-Q (with all attachments), Form
10-K and all other forms, documents or certificates filed by Technologies
or any of its Subsidiaries with such Commission; and
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any of its Subsidiaries, or compliance with the terms of this
Agreement and the other Loan Documents, as the Administrative Agent or any
Lender may reasonably request.
5.02 NOTICES OF MATERIAL EVENTS. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting
the Borrower or any of its Affiliates that, if adversely determined, could
result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event;
(d) the assertion of any material environmental matter by any Person
against, or with respect to the activities of, the Borrower or any of its
Subsidiaries and any alleged material violation of or non-compliance with
any Environmental Laws or any permits, licenses or authorizations; and
49
(e) any other development that results in, or could result in, a
Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
5.03 EXISTENCE: CONDUCT OF BUSINESS. The Borrower will, and will cause each of
its Subsidiaries to, do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its legal existence and the rights,
licenses, permits, privileges and franchises material to the conduct of its
business; PROVIDED that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.03.
5.04 FUTURE SUBSIDIARIES; SUBSIDIARY GUARANTORS. The Borrower shall cause each
domestic Subsidiary of the Borrower on the Effective Date, and each Person that
becomes a domestic Subsidiary of the Borrower or of any Subsidiary of the
Borrower after the Effective Date, to execute and deliver to the Administrative
Agent a Guaranty Agreement, a Security Agreement, Intellectual Property Security
Agreements, and such other agreements, documents and instruments reasonably
requested by the Administrative Agent. All Subsidiaries of the Borrower on the
Effective Date are listed on Part E of SCHEDULE II. Upon the request of the
Required Lenders, the Borrower shall execute and deliver to the Administrative
Agent (on behalf of the Lenders) a Borrower Pledge Agreement with respect to the
capital stock or other securities of any Subsidiary of the Borrower that is
domiciled outside of the United States, or of any Person that is domiciled
outside of the United States that becomes a Subsidiary of the Borrower or of any
Subsidiary of the Borrower after the Effective Date, pursuant to which the
Borrower shall pledge to the Administrative Agent (on behalf of the Lenders) up
to a maximum of sixty six and two thirds percent (66 2/3 %) of the issued and
outstanding securities of such foreign Subsidiary, and shall secure the payment
of any and all Indebtedness and liabilities, whether now existing or hereafter
incurred, of the Borrower to the Administrative Agent, the Lenders and the
Issuing Lender, and in connection therewith shall have delivered to the
Administrative Agent certificates representing such issued and outstanding
securities with related stock powers duly endorsed in blank
5.05 FUTURE PARENT ENTITIES; PARENT GUARANTORS. If the Borrower or any
Subsidiary of the Borrower becomes a Subsidiary of any Person other than
Technologies or Holdings after the Effective Date, the Borrower shall cause each
such Person to execute and deliver to the Administrative Agent a Guaranty
Agreement (each such Person to be referred to as a "PARENT GUARANTOR").
5.06 PAYMENT OF OBLIGATIONS. The Borrower will, and will cause each of its
Subsidiaries to, pay its obligations, including tax liabilities before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest would not result in a Material Adverse Effect.
5.07 MAINTENANCE OF PROPERTIES; INSURANCE. The Borrower will, and will cause
each of its Subsidiaries to, (a) keep and maintain all property material to the
conduct of its business in good
50
working order and condition, ordinary wear and tear excepted, and (b) maintain,
with financially sound and reputable insurance companies, insurance in such
amounts and against such risks as are customarily maintained by companies
engaged in the same or similar businesses operating in the same or similar
locations. Part F of SCHEDULE II lists and generally describes each policy of
insurance covering the business of, or any material asset of, the Borrower or
any of its Subsidiaries on the Effective Date.
5.08 BOOKS AND RECORDS; INSPECTION RIGHTS. The Borrower will, and will cause
each of its Subsidiaries to, keep proper books of record and account in which
full, true and correct entries are made of all dealings and transactions in
relation to its business and activities. The Borrower will, and will cause each
of its Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice and during
normal business hours, to visit and inspect its properties, to examine and make
extracts from its books and records, and to discuss its affairs, finances and
condition with its officers and independent accountants, all at such reasonable
times and as often as reasonably requested.
5.09 COMPLIANCE WITH LAWS. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and orders of any
Governmental Authority applicable to it or its property in all material
respects.
5.10 USE OF PROCEEDS. The proceeds of the Revolving Credit Loans will only be
used, and Letters of Credit will be issued only to support obligations incurred
by the Borrower and its Subsidiaries, to extend and replace the Original Credit
Facilities, to finance acquisitions permitted pursuant to the terms hereof
(specifically including the Sierra Acquisition) and capital expenditures
relating to existing and acquired properties, and for the general corporate
purposes of the Borrower and its Subsidiaries in the ordinary course of
business. The proceeds of the Term Loans will only be used by the Borrower and
its Subsidiaries to extend and replace the Original Credit Facilities, and to
finance acquisitions permitted pursuant to the terms hereof (specifically
including the Sierra Acquisition) and capital expenditures relating to existing
and acquired properties. No part of the proceeds of any Loan will be used
whether directly or indirectly, for any purpose that entails violation of any of
the Regulations of the Board, including Regulations U and X. in the ordinary
course of business.
ARTICLE VI NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of and
interest on each Note and all fees and expenses payable under the Loan Documents
have been paid in full and all Letters of Credit have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Administrative Agent, the Issuing Lender, the Swingline Lender
and the Lenders that:
6.01 INDEBTEDNESS.
(a) The Borrower will not, nor will it permit any of its Guarantors
to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created hereunder;
51
(ii) Indebtedness existing on the date hereof and set forth in
Part A of SCHEDULE II and extensions, renewals and replacements of
any such Indebtedness that do not increase the outstanding principal
amount thereof;
(iii) Indebtedness of the Borrower to any Subsidiary Guarantor
and of any Subsidiary Guarantor to the Borrower or any other
Subsidiary Guarantor;
(iv) secured Indebtedness (including, without limitation,
Indebtedness incurred in connection with Capital Lease Obligations,
and Hedging Agreements) of the Borrower or such Guarantor in excess
of Indebtedness permitted by Sections 6.01(a)(i) and (ii), above,
PROVIDED that (i) the incurrence and/or repayment of such
Indebtedness would not cause a violation of Section 6.10(c), (ii)
the ratio of Consolidated Funded Debt (including the Indebtedness to
be incurred) to Consolidated EBITDA (as at the end of the last
fiscal quarter for which financial statements are available but
giving PRO FORMA effect to such additional Indebtedness as set forth
in Section1.03) is less than the then-applicable Leverage Ratio as
set forth in Section 6.10(a), (iii) in the case of Indebtedness
incurred in connection with Capital Lease Obligations, the
obligations incurred do not exceed the fair market value of such
property or assets (as determined in good faith by the Board of
Directors of the Borrower or of the Guarantor incurring such
Indebtedness), (iv) the creditors in respect of such additional
Indebtedness (other than creditors with respect to Indebtedness
secured by Liens permitted pursuant to Section 6.02) shall become
parties to an intercreditor agreement by and among the Lenders (the
"COLLATERAL AGENCY AGREEMENT") whereby the Administrative Agent
shall agree to act as collateral agent for itself, the Lenders and
such additional creditors as provided for herein, and the Collateral
Agency Agreement shall be amended if necessary to reflect such
additional Indebtedness and otherwise be in form and substance
satisfactory to the Lenders, (v) if subordinated in right of payment
to the Indebtedness to the Lenders hereunder, such Indebtedness is
created under an agreement pursuant to which such Indebtedness is
subordinated in right of payment to the Indebtedness to the Lenders
hereunder pursuant to a subordination agreement in form and content
acceptable to the Lenders, and (vi) no Default or Event of Default
shall occur or be continuing after incurring such Indebtedness;
(v) unsecured Indebtedness of the Borrower or such Guarantor
in excess of Indebtedness permitted by Sections 6.01(a)(i) and (ii),
above, PROVIDED that (i) the incurrence and/or repayment of such
Indebtedness would not cause a violation of Section 6.10(c), (ii)
the ratio of Consolidated Funded Debt to Consolidated EBITDA (as at
the end of the last fiscal quarter for which financial statements
are available but giving PRO FORMA effect to such additional
Indebtedness as set forth in Section1.03) is less than the
then-applicable Leverage Ratio, (iii) in the case of Indebtedness
incurred in connection with Capital Lease Obligations, the
obligations incurred do not exceed the fair market value of such
property or assets (as determined in good faith by the Board of
Directors of the Borrower or of the Guarantor incurring such
Indebtedness), (iv) such Indebtedness is Subordinated Indebtedness,
and (v) no Default or Event of Default shall occur or be continuing
after incurring such Indebtedness;
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(vi) if no Default or Event of Default shall have occurred and
be continuing, the provisions of this Section 6.01(a) will not
prevent the Borrower or any Guarantor from becoming liable for
secured Indebtedness PARI PASSU to the Indebtedness to the Lenders
hereunder, or for Subordinated Indebtedness, in each case incurred
for the purpose of extending, renewing, replacing or refinancing the
same type of debt, PROVIDED that (i) the principal amount of such
Indebtedness shall not exceed the principal amount of the debt being
extended, renewed, replaced or refinanced, together with any accrued
interest and premium with respect thereto and any costs and expenses
related to such extension, renewal, replacement or refinancing, and
(ii) such Indebtedness (A) shall not mature prior to the stated
maturity of the PARI PASSU Indebtedness or Subordinated Indebtedness
so extended, renewed, replaced or refinanced, (B) shall have an
average life equal to or greater than the remaining average life of
the Indebtedness so extended, renewed, replaced or refinanced, and
(C) if Indebtedness other than Subordinated Indebtedness is being
extended, renewed, replaced or refinanced, such Indebtedness shall
continue to be subject to the Collateral Agency Agreement, and if
Subordinated Indebtedness is being extended, renewed, replaced or
refinanced, such Subordinated Indebtedness (as extended, renewed,
replaced or refinanced) shall be created under an agreement pursuant
to which such Indebtedness is subordinated in right of payment to
the Indebtedness to the Lenders hereunder pursuant to a
subordination agreement in form and content acceptable to the
Lenders;
(b) The Borrower will not, nor will it permit any of its Subsidiary
Guarantors to, create, incur, assume or permit to exist any Indebtedness,
except:
(i) Indebtedness assumed by the Borrower and/or by any of its
Subsidiary Guarantors in any acquisition permitted pursuant to
Section 6.03(c)(iii) to the extent, and solely to the extent, the
aggregate principal amount of all such Indebtedness at any time
outstanding does not exceed Seven Million Five Hundred Thousand
Dollars ($7,500,000), and refinancings and replacements thereof (A)
in a principal amount not exceeding in the aggregate the principal
amount of the Indebtedness so refinanced or replaced plus any
prepayment penalties, fees and expenses incurred in connection with
such refinancings or replacements, (B) with an all-in cost which is
less than the Indebtedness so refinanced or replaced, and (C) with
an average life to maturity of not less than the then average life
to maturity of the Indebtedness so refinanced or replaced; and
(ii) Indebtedness of the Borrower or any Subsidiary Guarantor
incurred to finance the acquisition, construction or improvement of
any fixed or capital assets, including Capital Lease Obligations and
any Indebtedness assumed in connection with the acquisition of any
such assets or secured by a Lien on any such assets prior to the
acquisition thereof, and extensions, renewals and replacements of
any such Indebtedness that do not increase the outstanding principal
amount thereof; PROVIDED that (A) such Indebtedness is incurred
prior to or within thirty (30) days after such acquisition or the
completion of such construction or improvement and (B) the aggregate
principal amount of Indebtedness permitted by this clause (ii) shall
not exceed Five Million Dollars ($5,000,000) at any time
outstanding.
53
6.02 LIENS. The Borrower will not, nor will it permit any of its Subsidiaries
to, create, incur, assume or permit to exist any Lien on any property or asset
now owned or hereafter acquired by it, or assign or sell any income or revenues
(including accounts receivable) or rights in respect of any thereof, except:
(a) any Lien on any property or asset of the Borrower or any of its
Subsidiaries existing on the date hereof and set forth in Part B of
SCHEDULE II;
(b) Liens for taxes, assessments, governmental charges or levies,
statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics and materialmen incurred in the ordinary course of business for
sums not yet due or which are being actively contested in good faith by
appropriate proceedings;
(c) Liens (other than Liens imposed on the Borrower or any of its
Subsidiaries under ERISA) incurred or deposits made in the ordinary course
of business (a) in connection with workers' compensation, unemployment
insurance and other types of social security or (b) to secure (or to
obtain letters of credit that secure) performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, performance bonds,
sales contracts and other similar obligations; PROVIDED that, in each
case, such Liens do not materially detract from the value of the property
or assets of the Borrower or its Subsidiaries or materially impair the use
thereof in the operation of the business of the Borrower or its
Subsidiaries;
(d) Liens (i) securing Capital Lease Obligations, or (ii) placed on
property acquired by the Borrower or any of its Subsidiaries (other than
property consisting of securities or constituting the assets of a business
acquired in whole or in part from any Person or Persons) and existing at
the time of the acquisition of such property, or (iii) placed on property
being acquired or constructed by the Borrower or any of its Subsidiaries
to secure the purchase price or cost thereof, or (iv) securing
Indebtedness incurred to finance any acquisition or construction described
in clauses (i) through (iii) immediately above and permitted under Section
6.01, PROVIDED that the Lien is confined to the property so acquired or
constructed; and
(e) Liens extending, renewing or replacing any Lien permitted by
clauses (a) and (d) above, PROVIDED that (i) such Lien shall not apply to
any other property or assets of the Borrower or any Subsidiary, (ii) such
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof and (iii) that, at the time of and
immediately after giving effect to such extension, renewal or replacement
is in effect, no Default shall have occurred and be continuing.
6.03 FUNDAMENTAL CHANGES.
(a) The Borrower will not, nor will it permit any of its
Subsidiaries to, enter into any transaction of merger or consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), except:
(i) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower or another Subsidiary,
PROVIDED (A) that if any such transaction shall be between a
Subsidiary and the Borrower, the Borrower shall be the continuing or
surviving corporation, and (B) if any such transaction shall be
between a Subsidiary
54
and another Subsidiary, the surviving or continuing Subsidiary shall
be a Subsidiary Guarantor; and
(ii) any merger or consolidation permitted under clause (iii)
of paragraph (c) of this Section.
(b) The Borrower will not, nor will it permit any of its
Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in
one transaction or a series of transactions, all or a substantial part of
its business or property, whether now owned or hereafter acquired, except:
(i) any Subsidiary Guarantor of the Borrower may sell, lease,
transfer or otherwise dispose of any or all of its property (upon
voluntary liquidation or otherwise) to the Borrower or another
Subsidiary Guarantor of the Borrower; and
(ii) the capital stock of any Subsidiary of the Borrower may
be sold, transferred or otherwise disposed of to the Borrower or
another Subsidiary Guarantor of the Borrower.
(c) The Borrower will not, nor will it permit any of its
Subsidiaries to, acquire any business or property from, or capital stock
of, or be a party to any acquisition of, any Person (whether by way of
purchase of such assets or stock, by merger or consolidation or
otherwise), except:
(i) for any merger or consolidation permitted under clause (i)
of paragraph (a) of this Section;
(ii) for purchases of inventory and other property to be sold
or used in the ordinary course of business and Investments permitted
under Section 6.06(a); and
(iii) the Borrower or any Subsidiary Guarantor of the Borrower
may acquire any business, and the related assets, of any other
Person (whether by way of purchase of assets or stock, by merger or
consolidation or otherwise), so long as:
[A] if such acquisition shall be effected by merger or
consolidation involving the Borrower, the Borrower shall be
the continuing or surviving entity;
[B] such acquisition (if by purchase of stock) shall be
effected in such manner so that the acquired entity becomes a
Subsidiary Guarantor of the Borrower;
[C] after giving effect to such acquisition (and the
provisions of Section1.03) the Borrower and its Subsidiaries
shall be in compliance with Section 6.10 ;
[D] the Borrower shall have delivered to the
Administrative Agent a certificate of a Financial Officer in
the form of EXHIBIT G showing
55
calculations in reasonable detail to demonstrate compliance
with clause (iii)[C] immediately above;
[E] the Borrower shall have obtained the prior written
consent of the Required Lenders in the event that:
[I] with respect to any acquisition consummated
during the period commencing on the Effective Date and
ending on the last day of Borrower's fiscal year ending
nearest to December 31, 2001 (other than the Sierra
Acquisition) (a) the aggregate amount of cash
expenditures in respect of such acquisition would exceed
Ten Million Dollars ($10,000,000), or (b) such
acquisition would constitute the third (3rd) or greater
acquisition to be consummated by the Borrower and/or any
of its Subsidiaries (whether individually or
collectively) during such period; and
[II] with respect to any acquisition consummated
during Borrower's fiscal year ending nearest to December
31, 2002 and ending on the last day of such fiscal year
(a) the aggregate amount of cash expenditures in respect
of such acquisition would exceed Fifteen Million Dollars
($15,000,000), or (b) such acquisition would constitute
the third (3rd) or greater acquisition to be consummated
by the Borrower and/or any of its Subsidiaries (whether
individually or collectively) during such fiscal year;
and
[III] with respect to any acquisition consummated
after the end of Borrower's fiscal year ending nearest
to December 31, 2002, such acquisition would require any
payment in cash by the Borrower or any of its
Subsidiaries; and
[F] immediately prior to such acquisition and after
giving effect thereto, no Default shall have occurred and be
continuing.
6.04 LINES OF BUSINESS. The Borrower will not, nor will it permit any of its
Subsidiaries to, engage to any material extent in any business other than the
business of manufacturing, distributing and selling components and assemblies
for medical devices, batteries, capacitors and precision components and
assemblies for select industrial and medical market segments.
6.05 RESTRICTIVE AGREEMENTS. The Borrower will not, and will not permit any of
its Subsidiaries to, enter into any agreement prohibiting:
(a) (i) the creation or assumption of any Lien in favor of the
Administrative Agent and/or the Lenders upon its properties, revenues or
assets, whether now owned or hereafter acquired; PROVIDED, the Borrower
may, and may permit any of its Subsidiaries to, enter into any agreement
restricting the right of Administrative Agent's and/or the Lenders' to
make subject to a Lien any property to the extent (A) such property is
subject to a security interest in favor of another Person, (B) the
Indebtedness incurred by the Borrower or such Subsidiary is otherwise
permitted pursuant to Section 6.01, and (C) the Lien in favor of such
third Person is
56
otherwise permitted pursuant to Section 6.02, or (ii) the ability of the
Borrower or any Guarantor Subsidiary to amend or otherwise modify this
Agreement or any other Loan Document; and
(b) any Subsidiary from making any payments, directly or indirectly,
to the Borrower by way of dividends, advances, repayments of loans or
advances, reimbursements of management and other intercompany charges,
expenses and accruals or other returns on investments, or any other
agreement or arrangement which restricts the ability of any such
Subsidiary to make any payment, directly or indirectly, to the Borrower.
6.06 INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND ACQUISITIONS; HEDGING
AGREEMENTS.
(a) INVESTMENTS, ETC. The Borrower will not, nor will it permit any
of its Subsidiaries to, purchase, hold or acquire (including pursuant to
any merger with any Person that was not a wholly owned Subsidiary prior to
such merger) any capital stock, evidences of indebtedness or other
securities (including any option, warrant or other right to acquire any of
the foregoing) of, make or permit to exist any loans or advances to,
Guarantee any obligations of, or make or permit to exist any investment or
any other interest in, any other Person, or purchase or otherwise acquire
(in one transaction or a series of transactions) any assets of any other
Person constituting a business unit, except:
(i) investments existing on the date hereof and set forth in
Part C of SCHEDULE II;
(ii) Permitted Investments;
(iii) investments by the Borrower in the capital stock of its
Subsidiaries;
(iv) loans or advances made by the Borrower to any Subsidiary
Guarantor and made by any Subsidiary Guarantor to the Borrower or
another Subsidiary Guarantor;
(v) Guarantees constituting Indebtedness permitted by Section
6.01; and
(vi) any transaction permitted under Section 6.03.
(b) HEDGING AGREEMENTS. The Borrower will not, nor will it permit
any of its Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to
hedge or mitigate risks to which the Borrower or any Subsidiary is exposed
in the conduct of its business or the management of its liabilities.
6.07 RESTRICTED PAYMENTS. The Borrower will not, nor will it permit any of its
Subsidiaries to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment; PROVIDED (a) the Borrower may declare and
pay dividends with respect to its capital stock payable (i) in additional shares
of its common stock, (ii) in cash only if, and solely to the extent, the
aggregate amount of cash dividends declared and paid by the Borrower for any
period does not exceed the difference between: (A) fifty percent (50%) of the
Net Income of the Borrower and its Subsidiaries for such period, MINUS (B) the
aggregate amount of cash paid (as dividends
57
or otherwise) by the Borrower during such period pursuant to clause (b)
immediately below, and (iii) in any combination of the foregoing, (b) in any
fiscal year the Borrower may declare and pay cash dividends with respect to its
capital stock, and/or may make payments of cash to any parent corporation or to
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation (or its successor), in an
aggregate amount not to exceed the amount of advisory fees and retainer payable
in such fiscal year by Technologies to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation (or its successor) pursuant to an agreement by and between
Technologies and such party dated July 10, 1997 and as in effect on the
Effective Date; PROVIDED, in no event shall the aggregate amount of cash
dividends and cash payments made pursuant to this clause (b) exceed One Hundred
Thousand Dollars ($100,000) in any fiscal year of the Borrower, (c) the Borrower
may make payments to its Affiliates only if, and solely to the extent, the
transaction or transactions giving rise to such payments satisfy the
requirements of Section 6.08, and (d) the Borrower may make payments to former
participants of the Borrower's existing employee stock ownership plan qualified
under ERISA (the "ESOP") in connection with the redemption of the securities of
the Borrower held in such former participant's ESOP account, as permitted
pursuant to the terms of the ESOP or as otherwise required by ERISA. Nothing
herein shall be deemed to prohibit the payment of dividends by any Subsidiary of
the Borrower to the Borrower or to any other Subsidiary Guarantor of the
Borrower.
6.08 TRANSACTIONS WITH AFFILIATES. The Borrower will not, nor will it permit any
of its Subsidiaries to, sell, lease or otherwise transfer any property or assets
to, or purchase, lease or otherwise acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates, except
(a) transactions in the ordinary course of business at prices and on terms and
conditions not less favorable to the Borrower or such Subsidiary than could be
obtained on an arm's-length basis from unrelated third parties, (b) transactions
between or among the Borrower and its Subsidiaries not involving any other
Affiliate and (c) any Restricted Payment permitted by Section 6.07.
6.09 SALE AND LEASE-BACK TRANSACTIONS. The Borrower will not, nor will it permit
any of its Subsidiaries to, enter into any arrangement, directly or indirectly,
with any Person whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property which it
intends to use for substantially the same purpose or purposes as the property
being sold or transferred.
6.10 CERTAIN FINANCIAL COVENANTS.
(a) LEVERAGE RATIO. The Borrower will not permit the Leverage Ratio
as at:
(i) the last day of Borrower's fiscal year ending on December
28, 2001, to exceed 3.00 to 1.00;
(ii) the last day of the Borrower's fiscal year ending on
December 27, 2002, to exceed 2.75 to 1.00; and
(iii) the last day of the Borrower's fiscal year ending on
December 26, 2003, and as at each fiscal quarter thereafter, to
exceed 2.50 to 1.00.
58
(b) FIXED CHARGES COVERAGE RATIO. The Borrower will not permit the
Fixed Charges Coverage Ratio to be less than 1.25 to 1.00 as at the last
day of any fiscal quarter ending after the Effective Date.
(c) INTEREST COVERAGE RATIO. The Borrower will not permit the
Interest Coverage Ratio to be less than 3.00 to 1.00 as at the last day of
any fiscal quarter ending after the Effective Date.
ARTICLE VII EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or Note
or any reimbursement obligation in respect of any LC Disbursement when and
as the same shall become due and payable, whether at the due date thereof
or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or Note
or any fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement or under any other Loan
Document, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of five (5) or more
Business Days;
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any of its Subsidiaries in or in connection with
this Agreement or any other Loan Document or any amendment or modification
hereof or thereof, or in any report, certificate, financial statement or
other document furnished pursuant to or in connection with this Agreement
or any other Loan Document or any amendment or modification hereof or
thereof, shall prove to have been incorrect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02(a) or 5.03 (with respect
to the Borrower's existence) or in ARTICLE VI;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clauses (a), (b) or (d) of this Article) or any other Loan
Document and such failure shall continue unremedied for a period of ten
(10) or more Business Days after notice thereof from the Administrative
Agent (given at the request of any Lender) to the Borrower;
(f) any Subsidiary Guarantor or Parent Guarantor shall fail to
observe or perform any covenant, condition or agreements contained in any
Loan Document to which it is a party, and such failure shall continue
unremedied for a period of ten (10) or more Business Days after notice
thereof from the Administrative Agent (given at the request of any Lender)
to such Subsidiary Guarantor or Parent Guarantor;
(g) the Borrower or any of its Subsidiaries shall fail to make any
payment (whether of principal or interest and regardless of amount) in
respect of any Indebtedness, the outstanding and unpaid principal amount
of which at the time equals or exceeds One Million Dollars ($1,000,000),
when and as the same shall become due and payable;
59
(h) any event or condition occurs that results in any Indebtedness,
the outstanding and unpaid principal amount of which at the time equals or
exceeds One Million Dollars ($1,000,000), becoming due prior to its
scheduled maturity or that enables or permits (with or without the giving
of notice, the lapse of time or both) the holder or holders of such
Indebtedness or any trustee or agent on its or their behalf to cause such
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
(i) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Borrower or any of its Subsidiaries or its debts,
or of a substantial part of its assets, under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower
or any of its Subsidiaries or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed
for a period of sixty (60) or more days or an order or decree approving or
ordering any of the foregoing shall be entered;
(j) the Borrower or any of its Subsidiaries shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or petition described in clause (i)
of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any of its Subsidiaries or for a substantial
part of its assets, (iv) file an answer admitting the material allegations
of a petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(k) the Borrower or any of its Subsidiaries shall become unable,
admit in writing its inability or fail generally to pay its debts as they
become due;
(l) one or more judgments for the payment of money in an aggregate
amount in excess of applicable insurance coverage of One Million Dollars
($1,000,000) or more shall be rendered against the Borrower or any of its
Subsidiaries or any combination thereof and the same shall remain
undischarged for a period of thirty (30) consecutive days during which
execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to attach or levy upon any assets of the
Borrower or any of its Subsidiaries to enforce any such judgment;
(m) an ERISA Event shall have occurred that is reasonably likely to
result in a liability or loss to the Borrower or any of its Subsidiaries
in an amount in excess of One Million Dollars ($1,000,000);
(n) a Change in Control shall occur; or
(o) any Loan Document or Lien granted thereunder shall terminate or
cease to be effective (other than pursuant to its terms) or cease to be
legally valid, binding and enforceable
60
obligation of the Borrower, a Subsidiary Guarantor or a Parent Guarantor
party thereto (other than as a result of any termination in accordance
with the terms thereof); the Borrower, any Subsidiary Guarantor or Parent
Guarantor party to any Loan Documents shall, directly or indirectly,
contest in any manner the effectiveness of any such Loan Document or Lien
granted thereunder or the validity, binding nature, or enforceability
thereof; or any Lien shall cease to have the priority purported to be
given under the applicable Loan Document;
then, and in every such event (other than an event with respect to the Borrower
described in clause (i) or (j) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (i) or (j) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE VIII THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Lender hereby irrevocably appoints the
Administrative Agent as its agent hereunder and under the other Loan Documents
and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the
terms hereof or thereof, together with such actions and powers as are reasonably
incidental thereto.
The Person serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such
Person and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or
by the other Loan Documents that the Administrative Agent is required to
exercise in writing by the Required Lenders, and (c) except as expressly set
forth herein and in the other Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrower or any of its Subsidiaries that is
61
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders or in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have knowledge of
any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein,
(iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in ARTICLE IV or
elsewhere herein or therein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
The Administrative Agent may resign at any time by notifying the Lenders,
the Issuing Lender and the Borrower. Upon any such resignation, the Required
Lenders shall have the right, with the prior written consent of the Borrower
(which consent shall not be unreasonably withheld), to appoint a successor. If
no successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within thirty (30) days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent's resignation shall nonetheless become effective and (1)
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and (2) the Required Lenders shall perform the duties of
the Administrative Agent (and all payments and communications provided to be
made by, to or through the Administrative Agent shall instead be made by or to
each Lender directly) until such time as the Required Lenders appoint a
successor agent as provided for above in this paragraph. Upon the acceptance of
its appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers,
62
privileges and duties of the retiring (or retired) Administrative Agent and the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder (if not already discharged therefrom as provided above in
this paragraph). The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrower and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 9.03 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document or any
related agreement or any document furnished hereunder or thereunder.
Except as otherwise provided in Section 9.02(b) with respect to this
Agreement, the Administrative Agent may, with the prior consent of the Required
Lenders (but not otherwise), consent to any modification, supplement or waiver
under any of the Loan Documents.
ARTICLE IX MISCELLANEOUS
9.01 NOTICES. Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
(a) if to the Borrower:
Xxxxxx Xxxxxxxxxx Ltd.
00000 Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Tel: 000 000 0000
Fax: 000 000 0000
Attn: Xxxxxx X. Xxxxxxx
Senior Vice President - Finance
with a copy to:
Xxxxxx Xxxxx, Esq.
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: 000 000 0000
Fax: 000 000 0000
63
(b) if to the Administrative Agent:
Manufacturers and Traders Trust Company
Xxx Xxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Tel: 000 000 0000
Fax: 000 000 0000
Attn: Xxxxxxx Xxxxx
Administrative Vice President
with a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Lippes, Xxxxxxxxxxx, Xxxxxxx & Xxxxxx LLP
700 Guaranty Building
00 Xxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Tel: 000 000 0000
Fax: 000 000 0000
(c) if to the Issuing Lender:
Manufacturers and Traders Trust Company
Xxx Xxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Tel: 000 000 0000
Fax: 000 000 0000
Attn: Xxxxxxx Xxxxx
Administrative Vice President
with a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Lippes, Xxxxxxxxxxx, Xxxxxxx & Xxxxxx LLP
700 Guaranty Building
00 Xxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Tel: 000 000 0000
Fax: 000 000 0000
64
(d) if to the Swingline Lender:
Manufacturers and Traders Trust Company
Xxx Xxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Tel: 000 000 0000
Fax: 000 000 0000
Attn: Xxxxxxx Xxxxx
Administrative Vice President
with a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Lippes, Xxxxxxxxxxx, Xxxxxxx & Xxxxxx LLP
700 Guaranty Building
00 Xxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Tel: 000 000 0000
Fax: 000 000 0000
(e) if to a Lender, to it at its address (or telecopy number)
set forth in SCHEDULE I.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto (or, in the case
of any such change by a Lender, by notice to the Borrower and the Administrative
Agent). All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt. Unless otherwise specified herein, each notice or
other communication required or permitted to be given hereunder by the Borrower
shall be given or made only by a Senior Executive Officer or Financial Officer
of the Borrower.
9.02 WAIVERS; AMENDMENTS.
(a) NO DEEMED WAIVERS: REMEDIES CUMULATIVE. No failure or delay by
the Administrative Agent, the Issuing Lender or any Lender in exercising
any right or power hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Administrative Agent,
the Issuing Lender and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure by
the Borrower therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) of this Section, and then such waiver
or consent shall be effective only in the specific instance
65
and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan or issuance of a Letter of Credit
shall not be construed as a waiver of any Default, regardless of whether
the Administrative Agent, any Lender or the Issuing Lender may have had
notice or knowledge of such Default at the time.
(b) AMENDMENTS. Neither this Agreement nor any provision hereof may
be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Borrower and the Required
Lenders or by the Borrower and the Administrative Agent with the consent
of the Required Lenders; PROVIDED that no such agreement shall:
(i) increase the Commitment of any Lender without the written
consent of such Lender,
(ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any
fees payable hereunder, without the written consent of each Lender
affected thereby,
(iii) postpone the scheduled date of payment of the principal
amount of any Loan or LC Disbursement, or any interest thereon, or
any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of
any Commitment, without the written consent of each Lender affected
thereby,
(iv) change Section 2.16(d) without the consent of each Lender
affected thereby, or
(v) change any of the provisions of this Section or the
percentage in the definition of the term "Required Lenders" or any
other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or
make any determination or grant any consent hereunder,
without the written consent of each Lender, and PROVIDED FURTHER that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent or the Issuing Lender hereunder without the prior written
consent of the Administrative Agent the Issuing Lender, as the case may be.
(c) Notwithstanding the foregoing, the Borrower acknowledges and
agrees that the Administrative Agent reserves the right, at any time,
after consulting with the Borrower, to modify pricing, tenor or terms of
the Revolving Credit Facility and/or the Term Loan Facility, but not the
principal amount of either of such facilities, if the Administrative Agent
determines, on a commercially reasonable basis, that such modifications
are advisable to ensure successful syndication of the Revolving Credit
Facility and/or the Term Loan Facility.
9.03 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) COSTS AND EXPENSES. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates, including the reasonable fees, charges and disbursements of
counsel for the Administrative Agent, in connection with the syndication
66
of the credit facilities provided for herein, the preparation and
administration of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the
Issuing Lender in connection with the issuance, amendment, renewal or
extension of any Letter of Credit or any demand for payment thereunder,
and (iii) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, the Issuing Lender or any Lender, including the
reasonable fees, charges and disbursements of any counsel for the
Administrative Agent, the Issuing Lender or any Lender, in connection with
the enforcement or protection of its rights in connection with this
Agreement and the other Loan Documents, including its rights under this
Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including in connection with any workout, restructuring or
negotiations in respect thereof.
(b) INDEMNIFICATION BY THE BORROWER. The Borrower shall indemnify
the Administrative Agent, the Issuing Lender and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being
called an "INDEMNITEE") against, and to hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related
expenses, including the reasonable fees, charges and disbursements of any
counsel for any Indemnitee, incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement, any of the other Loan Documents or any
agreement or instrument contemplated hereby or thereby, the performance by
the parties hereto of their respective obligations hereunder or the
consummation of the Transactions or any other transactions contemplated
hereby, (ii) any Loan or Letter of Credit or the use of the proceeds
therefrom (including any refusal by the Issuing Lender to honor a demand
for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability
related in any way to the Borrower or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any
other theory and regardless of whether any Indemnitee is a party thereto;
PROVIDED that such indemnity shall not, as to any Indemnitee, be available
to the extent that such losses, claims, damages, liabilities or related
expenses are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee.
(c) REIMBURSEMENT BY LENDERS. To the extent that the Borrower fails
to pay any amount required to be paid by it to the Administrative Agent or
the Issuing Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent or the Issuing Lender,
as the case may be, such Lender's Applicable Percentage (determined as of
the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; PROVIDED that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent or
the Issuing Lender in its capacity as such.
(d) WAIVER OF CONSEQUENTIAL DAMAGES; ETC. To the extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any
claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or
67
actual damages) arising out of, in connection with, or as a result of,
this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds
thereof.
(e) PAYMENTS. All amounts due under this Section shall be payable
promptly after written demand therefor.
9.04 SUCCESSORS AND ASSIGNS.
(a) ASSIGNMENTS GENERALLY. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer by the Borrower without such
consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Related Parties of
each of the Administrative Agent, the Issuing Lender and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) ASSIGNMENTS BY LENDERS. Any Lender may assign to one or more
assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it); PROVIDED that
(i) except in the case of an assignment to a Lender or an
Affiliate of a Lender, each of the Borrower and the Administrative
Agent (and, in the case of an assignment of all or a portion of a
Commitment or any Lender's obligations in respect of its LC
Exposure, the Issuing Lender) must give their prior written consent
to such assignment (which consent shall not be unreasonably
withheld),
(ii) except in the case of an assignment to a Lender or an
Affiliate of a Lender, or an assignment of the entire remaining
amount of the assigning Lender's Commitment, unless each of the
Borrower and the Administrative Agent otherwise consent, which
consent may be given or withheld in sole discretion of each such
party, the amount of the Commitment of the assigning Lender subject
to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than Ten Million Dollars
($10,000,000),
(iii) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's Term Loan
Commitment and Revolving Credit Commitment and of a proportionate
part of the assigning Lender's rights and obligations under this
Agreement,
(iv) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together
with a processing and recordation fee of Three Thousand Five Hundred
Dollars ($3,500) payable by either or both of the assigning Lender
and assignee as agreed to by such parties (which
68
processing and recordation shall not be chargeable to, assessable
against, or otherwise imposed upon, the Borrower), and
(v) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire;
PROVIDED FURTHER, that any consent of the Borrower otherwise required under this
paragraph shall not be required if an Event of Default under clause (a), (b),
(i) or (j) of ARTICLE VII has occurred and is continuing. Upon acceptance and
recording pursuant to paragraph (d) of this Section, from and after the
effective date specified in each Assignment and Acceptance, the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.13, 2.14, 2.15 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
(c) MAINTENANCE OF REGISTER BY THE ADMINISTRATIVE AGENT. The
Administrative Agent, acting for this purpose as an agent of the Borrower,
shall maintain at one of its offices in Buffalo, New York a copy of each
Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans and LC Disbursements owing to, each
Lender pursuant to the terms hereof from time to time (the "REGISTER").
The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, the Issuing Lender, and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by
the Borrower, the Issuing Lender and any Lender, at any reasonable time
and from time to time upon reasonable prior notice. Each change in the
Register due to the assignment by or assumption by such Lender of any
Commitment as evidenced by a duly executed Assignment and Acceptance
delivered to the Administrative Agent, or due to the admission of a new
Lender pursuant such new Lender's assumption of a Commitment from a
present Lender as evidenced by a duly executed Assignment and Acceptance
delivered to the Administrative Agent, shall be reflected in SCHEDULE I.
(d) EFFECTIVENESS OF ASSIGNMENTS. Upon its receipt of a duly
completed Assignment and Acceptance executed by an assigning Lender and an
assignee, the assignee's completed Administrative Questionnaire (unless
the assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and any
written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register.
No assignment shall be effective for purposes of this Agreement unless it
has been recorded in the Register as provided in this paragraph.
69
(e) PARTICIPATIONS. Any Lender may sell participations to one or
more banks or other entities (a "PARTICIPANT") in all or a portion of such
Lender's rights and obligations under this Agreement and the other Loan
Documents (including all or a portion of its Commitment and the Loans
owing to it); PROVIDED that (i) except in the case of the sale of a
participation to a Lender or an Affiliate of a Lender, the Borrower must
give its prior written consent to such sale (which consent shall not be
unreasonably withheld), (ii) such Lender's obligations under this
Agreement and the other Loan Documents shall remain unchanged, (iii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, and (iv) the Borrower, the Administrative
Agent, the Issuing Lender and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and the other Loan Documents.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right
to enforce this Agreement and the other Loan Documents and to approve any
amendment, modification or waiver of any provision of this Agreement or
any other Loan Document; PROVIDED that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in the first
PROVISO to Section 9.02(b) that affects such Participant. Subject to
paragraph (f) of this Section, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 2.13, 2.14 and 2.15 to the
same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.
(f) LIMITATIONS ON RIGHTS OF PARTICIPANTS. A Participant shall not
be entitled to receive any greater payment under Section 2.13 or 2.15 than
the applicable Lender would have been entitled to receive with respect to
the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower's prior
written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.15.
(g) CERTAIN PLEDGES. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
to secure obligations of such Lender, including any such pledge or
assignment to a Federal Reserve Bank, and this Section shall not apply to
any such pledge or assignment of a security interest; PROVIDED that no
such pledge or assignment of a security interest shall release a Lender
from any of its obligations hereunder or substitute any such assignee for
such Lender as a party hereto.
(h) NO ASSIGNMENTS TO THE BORROWER OR AFFILIATES. Anything in this
Section to the contrary notwithstanding, no Lender may assign or
participate any interest in any Loan or LC Exposure held by it hereunder
to the Borrower or any of its Affiliates or Subsidiaries without the prior
consent of each Lender.
9.05 SURVIVAL. All covenants, agreements, representations and warranties made by
the Borrower herein and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of this Agreement and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, the Issuing
Lender or any Lender may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full
70
force and effect as long as the principal of or any accrued interest on any Loan
or any fee or any other amount payable under this Agreement is outstanding and
unpaid or any Letter of Credit is outstanding and so long as the Commitments
have not expired or terminated. The provisions of Sections 2.13, 2.14, 2.15 and
9.03 and Article VIII shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Letters of Credit
and the Commitments or the termination of this Agreement or any provision
hereof.
9.06 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement and any separate letter
agreements with respect to fees payable to the Administrative Agent constitute
the entire contract between and among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section
4.01, this Agreement shall become effective when it shall have been executed by
the Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.
9.07 SEVERABILITY. Any provision of this Agreement held to be invalid, illegal
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
9.08 RIGHT OF SETOFF. If an Event of Default shall have occurred and be
continuing, subject to the provisions of Section 2.16 each Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of the Borrower
against any of and all the obligations of the Borrower now or hereafter existing
under this Agreement held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of each Lender under this Section are
in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
9.09 GOVERNING LAW; JURISDICTION: ETC.
(a) GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the law of the State of New York, without regard to
its principles of conflicts of laws.
(b) SUBMISSION TO JURISDICTION. The Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in Erie
County and of the United States District Court of the Western District of
New York, and any appellate court from any thereof, in any action or
71
proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect
of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law. Nothing in
this Agreement shall affect any right that the Administrative Agent, the
Issuing Lender or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower or its
properties in the courts of any jurisdiction.
(c) WAIVER OF VENUE. The Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement in any court referred to in paragraph (b) of
this Section. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
(d) SERVICE OF PROCESS. Each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in
Section 9.01. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
9.11 HEADINGS. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and
shall not affect the construction of, or be taken into consideration in
interpreting, this Agreement.
9.12 TREATMENT OF CERTAIN INFORMATION: CONFIDENTIALITY.
(a) TREATMENT OF CERTAIN INFORMATION. The Borrower acknowledges that
from time to time financial advisory, investment banking and other
services may be offered or provided to the Borrower or one or more of its
Subsidiaries (in connection with this Agreement or otherwise) by any
Lender or by one or more subsidiaries or affiliates of such Lender and the
Borrower hereby authorizes each Lender to share any information delivered
to such Lender by the Borrower and its Subsidiaries pursuant to this
Agreement, or in connection with the decision
72
of such Lender to enter into this Agreement, to any such subsidiary or
affiliate, it being understood that any such subsidiary or affiliate
receiving such information shall be bound by the provisions of paragraph
(b) of this Section as if it were a Lender hereunder. Such authorization
shall survive the repayment of the Loans, the expiration or termination of
the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.
(b) CONFIDENTIALITY. Each of the Administrative Agent, the Issuing
Lender and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed
(i) to its and its Affiliates' directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to
keep such Information confidential), (ii) to the extent requested by any
regulatory authority, (iii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (iv) to any other
party to this Agreement, (v) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (vi) subject to an
agreement containing provisions substantially the same as those of this
paragraph, to any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement, (vii) with the consent of the Borrower or (viii) to the extent
such Information (A) becomes publicly available other than as a result of
a breach of this paragraph or (B) becomes available to the Administrative
Agent, the Issuing Lender or any Lender on a nonconfidential basis from a
source other than the Borrower. For the purposes of this paragraph,
"INFORMATION" means all information received from the Borrower relating to
theBorrower or its business, other than any such information that is
available to the Administrative Agent, the Issuing Lender or any Lender on
a nonconfidential basis prior to disclosure by the Borrower; PROVIDED
that, in the case of information received from the Borrower after the date
hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as
such Person would accord to its own confidential information.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
[SIGNATURE PAGES FOLLOW]
73
XXXXXX XXXXXXXXXX LTD.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President, Finance and Treasurer
LENDERS
MANUFACTURERS AND TRADERS TRUST COMPANY, as Administrative Agent
By: /s/ Xxxxxxx Xxxxx
---------------------------
Name: Xxxxxxx Xxxxx
Title: Administrative Vice President
MANUFACTURERS AND TRADERS TRUST COMPANY, for itself and as Swingline Lender and
as Issuing Lender
By: /s/ Xxxxxxx Xxxxx
---------------------------
Name: Xxxxxxx Xxxxx
Title: Administrative Vice President
74
SCHEDULE I
COMMITMENTS
[See definitions of "Commitment" and "Lenders" in Section 1.01 ]
-----------------------------------------------------------------------------------------------------
LENDER REVOLVING CREDIT TERM LOAN COMMITMENT APPLICABLE
COMMITMENT COMMITMENT PERCENTAGE
-----------------------------------------------------------------------------------------------------
M&T $20,000,000.00 $80,000,000.00 $100,000,000.00 100%
Xxx Xxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxx Xxxx
00000
-----------------------------------------------------------------------------------------------------
I
SCHEDULE II
EXISTING INDEBTEDNESS, LIENS AND INVESTMENTS
[See Section 4.01, Section 5.04, Section 5.07, Section 6.01(a)(ii),
Section 6.02(a) and Section 6.06(a)(i)]
Part A - INDEBTEDNESS
Part B - LIENS
Part C - INVESTMENTS
Part D - PATENTS, TRADEMARKS AND TRADENAMES
Part E - SUBSIDIARIES
Part F - INSURANCE
II
SCHEDULE III
LITIGATION
[See definition of "Disclosed Matters" in Section 1.01 and Section 3.06]
III
SCHEDULE IV
ENVIRONMENTAL MATTERS
[See definition of "Disclosed Matters" in Section 1.01 and Section 3.06]
IV
SCHEDULE V
EXISTING LETTERS OF CREDIT
LETTER OF CREDIT NO. ISSUER FACE AMOUNT EXPIRE DATE
V
EXHIBIT A
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Credit Agreement dated as of
June ___, 2001 (as amended and in effect on the date hereof, the "CREDIT
AGREEMENT"), by and among XXXXXX XXXXXXXXXX LTD., the Lenders named therein and
MANUFACTURERS AND TRADERS TRUST COMPANY, as Administrative Agent for the
Lenders. Terms defined in the Credit Agreement are used herein with the same
meanings.
The Assignor named below hereby sells and assigns, without recourse, to
the Assignee named below, and the Assignee hereby purchases and assumes, without
recourse, from the Assignor, effective as of the Assignment Date set forth
below, the interests set forth below (the "ASSIGNED INTEREST") in the Assignor's
rights and obligations under the Credit Agreement, including the interests set
forth below in the Commitment of the Assignor on the Assignment Date and Loans
owing to the Assignor which are outstanding on the Assignment Date, together
with unpaid interest accrued on the assigned Loans to the Assignment Date, the
participations in Letters of Credit and LC Disbursements held by the Assignor on
the Assignment Date, and the amount, if any, set forth below of the fees accrued
to the Assignment Date for account of the Assignor. The Assignee hereby
acknowledges receipt of a copy of the Credit Agreement. From and after the
Assignment Date (i) the Assignee shall be a party to and be bound by the
provisions of the Credit Agreement and, to the extent of the interests assigned
by this Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent of the interests assigned
by this Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any documentation
required by applicable law to be delivered by the Assignee in order to permit
all payments received by such Foreign Lender hereunder to be made without
withholding, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The [Assignee/Assignor] shall pay the fee payable to the
Administrative Agent pursuant to Section 9.04(b)(iv) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment ("ASSIGNMENT DATE")1:
Principal Amount
FACILITY ASSIGNED
Commitment Assigned: $
Syndicated Loans:
Fees Assigned (if any):
The terms set forth above and below are hereby agreed to:
[NAME OF ASSIGNOR] , as Assignor [NAME OF ASSIGNEE] , as Assignee
By: By:
-------------------------- ----------------------------
Name: Name:
Title: Title:
The undersigned hereby consent to the within assignment2:
XXXXXX XXXXXXXXXX LTD.
By:
---------------------------
Name:
Title:
MANUFACTURERS AND TRADERS TRUST COMPANY, as Administrative Agent
By:
---------------------------
Name:
Title:
--------------------
1 Must be at least five (5) Business Days after execution by Assignor
and Assignee.
2 Consents to be included to the extent required by Section 9.04(b) of
the Credit Agreement.
2
EXHIBIT B
June 18, 2001
To Manufacturers and Traders Trust Company,
as Administrative Agent, and each of
the Lenders party to the Credit Agreement
referred to below
Re: XXXXXX XXXXXXXXXX LTD.
Ladies and Gentlemen:
We have acted as counsel to Xxxxxx Xxxxxxxxxx Ltd. (the "BORROWER"),
Xxxxxxxxxx-Xxxxxxx, Inc. ("HITTMAN"), GB Acquisition Co., Inc. ("GBAC"), Xxxxxx
Xxxxxxxxxx Technologies, Inc. (the "PARENT") and WGL Intermediate Holdings, Inc.
("HOLDINGS" and together with the Borrower, Hittman, GBAC and the Parent,
collectively, the "COMPANIES") and Battery Engineering, Inc. ("BATTERY" and
together with the Companies, the "LOAN PARTIES") in connection with the
preparation, execution and delivery of, and the consummation of the transactions
contemplated by, the Amended and Restated Credit Agreement dated as of June 18,
2001 (the "CREDIT AGREEMENT"), by and among the Borrower, the Lenders party
thereto and Manufacturers and Traders Trust Company, as agent for the Lenders
(the "ADMINISTRATIVE AGENT").
This opinion is rendered to you pursuant to SECTION 4.01(B) of the
Credit Agreement. Capitalized terms defined in the Credit Agreement, used
herein, and not otherwise defined herein, shall have the meanings given them in
the Credit Agreement.
In so acting, we have examined originals or copies (certified or
otherwise identified to our satisfaction) of the following documents:
(a) the Credit Agreement;
(b) the Term Loan Note and the Revolving Credit Note issued by the
Borrower on the date hereof;
(c) the Security Agreement and Intellectual Property Security
Agreements executed by each of the Borrower, Hittman and
Battery (the "EXISTING SECURITY AGREEMENTS");
(d) the Security Agreement and the Intellectual Property Security
Agreements executed by GBAC (the "GBAC SECURITY AGREEMENTS",
and together with the Existing Security Agreements, the
"SECURITY Documents");
(e) the Pledge Agreement executed by each of the Borrower and
Hittman (the "PLEDGE AGREEMENT");
(f) the Guaranty Agreement executed by GBAC (the "GUARANTY");
(g) the Reaffirmation Agreement executed by each Loan Party other
than GBAC; and
(h) the financing statements on Form UCC-1, each naming a Loan
Party as debtor and the Administrative Agent as secured party
(the "FINANCING STATEMENTS") to be filed in the Uniform
Commercial Code Filing Offices in the jurisdictions listed on
SCHEDULE I hereto (each a "RELEVANT JURISDICTION").
The agreements specified in clauses (a) through (g) above are collectively
referred to as the "AGREEMENTS".
In addition, we have examined such corporate records, agreements,
documents and other instruments, and such certificates or comparable documents
of public officials and of officers and representatives of the Loan Parties, and
have made such inquiries of such officers and representatives, as we have deemed
relevant and necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. As to all questions
of fact material to these opinions that have not been independently established,
we have relied upon certificates or comparable documents of officers and
representatives of the Loan Parties and upon the representations and warranties
of the Loan Parties contained in the Agreements. We have also assumed (i) the
valid existence of Battery, (ii) that Battery has the requisite corporate power
and authority to enter into and perform the Agreements to which it is a party
and (iii) the due authorization, execution and delivery of such Agreements by
Battery. As used herein "to our knowledge" and "of which we are aware" mean the
conscious awareness of facts or other information by any lawyer in our firm
actively involved in the transactions contemplated by the Agreements.
Based on the foregoing, and subject to the qualifications stated
herein, we are of the opinion that:
1. The Borrower is a corporation validly existing and in good
standing under the law of the State of New York and has all requisite corporate
power and authority to own, lease and operate its properties and to carry on its
business as now being conducted.
2. Each of the Companies (other than the Borrower and Battery) is a
corporation validly existing and in good standing under the law of the State of
Delaware and has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as now being conducted.
3. Each Company has all requisite corporate power and authority to
execute and deliver the Agreements to which it is a party and to perform its
respective obligations thereunder. The execution, delivery and performance by
each of the Companies of the Agreements to which it is a party have been duly
authorized by all necessary corporate action on the part of such Company. Each
Company has duly executed and delivered the Agreements to which it is a party
and (assuming the due
2
authorization, execution and delivery thereof by the other parties thereto) such
Agreements constitute the legal, valid and binding obligations of each Loan
Party party thereto, enforceable against such Loan Party in accordance with
their respective terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity), and except that (a) rights to indemnification
and contribution thereunder may be limited by federal or state securities laws
or public policy relating thereto, (b) no opinion is expressed with respect to
rights of set-off by participants under the Credit Agreement and (c) certain
remedial provisions of each of the Security Documents and the Pledge Agreement
are or may be unenforceable in whole or in part under the laws of the State of
New York, but the inclusion of such provisions does not affect the validity of
the Security Documents or the Pledge Agreement, and each of the Security
Documents and the Pledge Agreement contains adequate provisions for the
practical realization of the rights and benefits afforded thereby. No opinion is
expressed in this paragraph as to the attachment, perfection or priority of any
liens granted pursuant to the Security Documents or the Pledge Agreement.
4. The execution and delivery by each Loan Party of the Agreements
to which it is a party and the performance by such Loan Party of its respective
obligations thereunder will not conflict with, constitute a default under or
violate (i) any of the terms, conditions or provisions of the Certificate of
Incorporation or by-laws of such Loan Party, (ii) any of the terms, conditions
or provisions of any material document, agreement or other instrument to which
such Loan Party is a party or by which it is bound of which we are aware, (iii)
New York or federal law or regulation, including, without limitation,
Regulations U and X of the Board of Governors of the Federal Reserve System
(other than federal and state securities or blue sky laws, as to which we
express no opinion in this paragraph), or (iv) any judgment, writ, injunction,
decree, order or ruling of any court or governmental authority binding on such
Loan Party of which we are aware.
5. To our knowledge, there is no litigation, proceeding or
governmental investigation pending or overtly threatened against any Loan Party
that relates to any of the transactions contemplated by the Agreements or which,
if adversely determined, would have a material adverse effect on the business,
assets or financial condition of the Loan Parties taken as a whole.
6. No consent, approval, waiver, license or authorization or other
action by or filing with any New York or federal governmental authority is
required in connection with the execution and delivery by each Loan Party of the
Agreements to which it is a party, the consummation by the Loan Parties of the
transactions contemplated thereby or the performance by each Loan Party of its
obligations thereunder, except for the filings in connection with perfecting
security interests and federal and state securities or blue sky laws, as to
which we express no opinion in this paragraph.
7. (a) Assuming the filing of the applicable Financing Statements
on Form UCC-1 in the filing offices in the Relevant Jurisdictions, the execution
and delivery of each Security Document creates in favor of the Administrative
Agent, a valid and duly perfected security interest in the "Collateral" (as
defined in each such Security Document) to the extent perfection of a security
interest in the Collateral may be perfected by the filing of a financing
statement under the Uniform Commercial Code in effect in the State of New York
(the "UCC"), as security for the "Obligations" (as defined in each such Security
Agreement).
(b) Assuming (i) delivery and continued possession in New York by
the Administrative Agent (the "PLEDGEE") of all certificates that represent the
"Pledged Stock" (as defined in the Pledge Agreement), together with stock powers
properly executed in blank with respect thereto, and
3
(ii) that the Pledgee was without notice of any adverse claim (as such phrase is
defined in Section 8-102 of the UCC) with respect to the Pledged Stock, the
execution and delivery of the Pledge Agreement creates a valid and duly
perfected lien on and security interest in the Pledged Stock, as security for
the Obligations (as defined in the Pledge Agreement), which is free of any
adverse claim.
The opinion in subparagraph (a) and, with respect to subclause A
below, subparagraph (b), are subject to the following exceptions:
A. that with respect to the rights in or title to the
Collateral of any Grantor (as such term is defined in the Security Documents and
the Pledge Agreement), we express no opinion, and have assumed that such Grantor
has title to the Collateral;
B. to the extent that perfection of a lien or security
interest in any Collateral is governed by the law of any jurisdiction other than
the State of New York, we express no opinion;
C. that with respect to any Collateral which is or may become
fixtures (within the meaning of Section 9-313 of the UCC) we express no opinion;
and
D. that with respect to transactions excluded from Article 9
of the UCC by Section 9-104 thereof, we express no opinion.
The opinion set forth in subparagraph (b) is subject to the
following exceptions and assumption:
A. that with respect to (i) federal tax liens accorded
priority under law and (ii) liens created under Title IV of the Employee
Retirement Income Security Act of 1974, as amended, which are properly filed
after the earlier of the date hereof and the date of such Pledge Agreement, we
express no opinion as to the relative priority of such liens and the security
interests created by the Pledge Agreement in the Pledged Stock or as to whether
such liens may be adverse claims; and
B. that with respect to any claim (including for taxes) in
favor of any state or any of its respective agencies, authorities,
municipalities or political subdivisions which claim is given lien status and/or
priority under any law of such state, we express no opinion as to the relative
priority of such liens and the security interests created by the Pledge
Agreement in the Pledged Stock or as to whether such liens maybe adverse claims;
and
In addition, the opinions in subparagraphs (a) and (b) are subject
to (i) the limitations on perfection of security interests in proceeds resulting
from the operation of Section 9-306 of the UCC; (ii) the limitations with
respect to buyers in the ordinary course of business imposed by Sections 9-307
and 9-308 of the UCC; (iii) the limitations with respect to documents,
instruments and securities imposed by Sections 8-302, 9-304 and 9-309 of the
UCC; (iv) the provisions of Section 9-203 of the UCC relating to the time of
attachment; and (v) Section 552 of Title 11 of the United States Code (the
"BANKRUPTCY CODE") with respect to any Collateral acquired by any Loan Party
subsequent to the commencement of a case against or by such Loan Party under the
Bankruptcy Code.
We further assume (a) that all filings will be timely made and duly
filed as necessary (i) in the event of a change in the name, identity or
corporate structure of any Loan Party, (ii) in the event of a change in location
of the Collateral, or the location of the principal office of any Loan Party or
the place where any Loan Party keeps its books and records, and (iii) to
continue to maintain the effectiveness of the original filings, and (b) that any
money, instruments, documents or securities which may constitute part of the
Collateral are and will remain in the Pledgee's possession.
4
The opinions expressed herein are limited to the laws of the State
of New York, the corporate laws of the State of Delaware and federal laws of the
United States, and we express no opinion as to the effect on the matters covered
by this letter of the laws of any other jurisdiction.
The opinions expressed herein are rendered solely for your benefit
in connection with the transactions described herein. This opinion may not be
used or relied upon by any other person, nor may this letter or any copies
hereof be furnished to a third party, filed with a governmental agency, quoted,
cited or otherwise referred to without our prior written consent, other than an
assignee permitted under SECTION 9.04 of the Credit Agreement.
Very truly yours,
SCHEDULE I
UCC FILING JURISDICTIONS
New York Secretary of State
EXHIBIT C
FORM OF REPLACEMENT TERM NOTE
$80,000,000.00 June __, 2001
Buffalo, New York
FOR VALUE RECEIVED, the undersigned, XXXXXX XXXXXXXXXX LTD., a New York
corporation (the "Borrower"), promises to pay to the order of MANUFACTURERS AND
TRADERS TRUST COMPANY, a New York banking corporation, as Administrative Agent
(the "ADMINISTRATIVE AGENT"), the principal sum of EIGHTY MILLION DOLLARS
($80,000,000.00) representing Term Loans made pursuant to that certain Amended
and Restated Credit Agreement, dated as of June __, 2001, by and among the
Borrower, the Lenders party thereto and the Administrative Agent (as amended,
supplemented, amended and restated or otherwise modified from time to time, the
"AMENDED AND RESTATED CREDIT AGREEMENT"), such principal payment to be made in
accordance with the terms of the Amended and Restated Credit Agreement. All
capitalized terms used in this Replacement Term Note, unless otherwise
specifically defined herein, shall have the meaning ascribed to them in the
Amended and Restated Credit Agreement.
The Borrower also further agrees to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Amended and Restated Credit
Agreement.
All payments of principal of and interest on this Replacement Term Note
shall be made at the Principal Office of the Administrative Agent in lawful
money of the United States and in immediately available funds, or at such other
place as the Administrative Agent shall designate in writing to the Borrower.
This Replacement Term Note is a Term Note referred to in, and evidences
indebtedness incurred under, the Amended and Restated Credit Agreement, to which
reference is made for a description of the security for this Replacement Term
Note and for a statement of the terms and conditions on which the Borrower is
permitted to make prepayments and repayments of principal of the indebtedness
evidenced by this Note and on which such indebtedness may be declared to be
immediately due and payable. Unless otherwise defined, terms used herein have
the meanings provided in the Amended and Restated Credit Agreement.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive diligence, presentment for payment, demand, protest and notice of dishonor
and non-payment of this Note.
This Replacement Term Note shall be construed under, and governed by the
laws of the State of New York, without regard to its conflict of laws rules
which would make the laws of another jurisdiction applicable.
This Replacement Term Note is given in replacement of and substitution
for, but not in payment of, the Term Note, dated January 19, 2001 in the
original principal amount of $40,000,000.00 issued by the Borrower to the
Administrative Agent.
XXXXXX XXXXXXXXXX LTD.
By _____________________________
Name: __________________________
Title: _________________________
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Basis of
Interest Amount of Aggregate
Rate Libor Principal Unpaid Notation
Date Loan Amount of (Prime Rate Period Paid or Principal Made By
Made Loan Made or Libor Dates Prepaid Balance And Date
Rate)
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EXHIBIT D
FORM OF
REPLACEMENT REVOLVING CREDIT NOTE
$20,000,000.00 June __, 2001
Buffalo, New York
FOR VALUE RECEIVED, the undersigned, XXXXXX XXXXXXXXXX LTD., a New York
corporation (the "Borrower"), hereby promises to pay to the order of
MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking corporation, as
Administrative Agent for the Lenders, (the "Administrative Agent"), on or
before, July 1, 2006, the principal amount of TWENTY MILLION DOLLARS
($20,000,000.00) or, if less, the aggregate unpaid principal amount of all
Revolving Credit Loans made by the Lenders to the Borrower pursuant to the
Amended and Restated Credit Agreement dated as of June ___, 2001, by and among
the Borrower, the Lenders party thereto and the Administrative Agent (as
amended, supplemented, amended and restated or otherwise modified from time to
time, the "AMENDED AND RESTATED CREDIT AGREEMENT"). All capitalized terms used
in this Replacement Revolving Credit Note, unless otherwise specifically defined
herein, shall have the meaning ascribed to them in the Amended and Restated
Credit Agreement.
The Borrower further agrees to pay interest on the unpaid principal amount
of the Revolving Credit Loans outstanding from time to time under this
Replacement Revolving Credit Note at the times and at the rates per annum as
provided in the Amended and Restated Credit Agreement.
All payments of principal of and interest on this Replacement Revolving
Credit Note shall be made at the Principal Office of the Administrative Agent in
lawful money of the United States and in immediately available funds, or at such
other place as the Administrative Agent shall designate in writing to the
Borrower.
The Borrower hereby waives diligence, presentment, protest and demand, and
also notice of protest, demand, dishonor and nonpayment of this Replacement
Revolving Credit Note.
This Replacement Revolving Credit Note shall be construed under, and
governed by the laws of the State of New York, without regard to its conflict of
laws rules which would make the laws of another jurisdiction applicable.
This Replacement Revolving Credit Note is a Replacement Revolving Credit
Note referred to in, and is entitled to the benefits of, the Amended and
Restated Credit Agreement. The Amended and Restated Credit Agreement, among
other things, contains provisions for acceleration of the maturity of this
Replacement Revolving Credit Note upon the happening of
certain stated events and also for prepayments on account of the principal of
this Replacement Revolving Credit Note prior to maturity upon the terms and
conditions therein specified.
This Replacement Revolving Credit Note is given in replacement of and
substitution for, but not in payment of, the Revolving Credit Note, dated
January 12, 2001 in the maximum principal amount of $20,000,000.00 issued by the
Borrower to the Administrative Agent.
XXXXXX XXXXXXXXXX LTD.
By:__________________________
Name:________________________
Title:_______________________
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Basis of
Interest Amount of Aggregate
Rate Libor Principal Unpaid Notation
Date Loan Amount of (Prime Rate Period Paid or Principal Made By
Made Loan Made or Libor Dates Prepaid Balance And Date
Rate)
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3
EXHIBIT E
FORM OF REQUEST FOR CREDIT LINE LOAN
Date: ___________, ____
To: Manufacturers and Traders Trust Company, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of June __, 2001 (as from time to time amended, extended, restated,
modified or supplemented, the "CREDIT AGREEMENT") among Xxxxxx Xxxxxxxxxx Ltd.,
a Delaware corporation (the "BORROWER"), the Lenders as a Party thereto, and
Manufacturers and Traders Trust Company, as Administrative Agent (the
"ADMINISTRATIVE AGENT"). Unless otherwise defined herein, capitalized terms used
herein have the respective meanings assigned to them in the Credit Agreement.
The undersigned hereby requests a Borrowing of Credit Line Loans on
___________, in the aggregate amount of $__________ consisting of the following:
/ / ALR Borrowing in the amount of $______ with an Interest Period of
____ months.
/ / ABR Borrowing in the amount of $________.
The foregoing request complies with the requirements of SECTION 2.03 of
the Credit Agreement. The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the above date,
before and after giving effect and to the application of the proceeds of the
Credit Line Loans requested hereunder:
(a) The representations and warranties made by Borrower in the
Agreement, or which are contained in any certificate, document or
financial or other statement furnished at any time under or in connection
therewith, are and will be correct on and as of the date of this Revolving
Credit Borrowing, except to the extent that such representations and
warranties specifically refer to any earlier date; and
(b) no Default or Event of Default has occurred and is continuing on
the date hereof or after giving effect to this Revolving Credit Borrowing.
XXXXXX XXXXXXXXXX LTD.
By: _______________________________
Name: _____________________________
Title: ____________________________
4
FORM OF REQUEST FOR SWINGLINE LOAN
Date: ___________, ____
To: Manufacturers and Traders Trust Company, as Swingline Lender and as
Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of June __, 2001 (as from time to time amended, extended, restated,
modified or supplemented, the "CREDIT AGREEMENT") among Xxxxxx Xxxxxxxxxx Ltd.,
a Delaware corporation (the "BORROWER"), the Lenders as a Party thereto, and
Manufacturers and Traders Trust Company, as Administrative Agent (the
"ADMINISTRATIVE AGENT"). Unless otherwise defined herein, capitalized terms used
herein have the respective meanings assigned to them in the Credit Agreement.
/ / The undersigned hereby requests a Borrowing of Swingline Loan on
___________, in the aggregate amount of $__________. Such Borrowing
shall consist of one (1) ABR Borrowing.
The foregoing request complies with the requirements of SECTION 2.04 of
the Credit Agreement. The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the above date,
before and after giving effect and to the application of the proceeds of the
Swingline Loan requested hereunder:
(a) The representations and warranties made by Borrower in the
Agreement, or which are contained in any certificate, document or
financial or other statement furnished at any time under or in connection
therewith, are and will be correct on and as of the date of this Revolving
Credit Borrowing, except to the extent that such representations and
warranties specifically refer to any earlier date; and
(b) no Default or Event of Default has occurred and is continuing on
the date hereof or after giving effect to this Revolving Credit Borrowing.
XXXXXX XXXXXXXXXX LTD.
By: _______________________________
Name: _____________________________
Title: ____________________________
5
EXHIBIT F1
FORM OF INTEREST ELECTION REQUEST
FOR TERM LOAN BORROWING
Date: ___________, ____
To: Manufacturers and Traders Trust Company, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of June __, 2001 (as from time to time amended, extended, restated,
modified or supplemented, the "CREDIT AGREEMENT") among Xxxxxx Xxxxxxxxxx Ltd.,
a Delaware corporation (the "BORROWER"), the Lenders as a Party thereto, and
Manufacturers and Traders Trust Company, as Administrative Agent (the
"ADMINISTRATIVE AGENT"). Unless otherwise defined herein, capitalized terms used
herein have the respective meanings assigned to them in the Credit Agreement.
1. The undersigned hereby requests a [continuation] [conversion] of
a Borrowing of Term Loans on ___________, 200_, (the "Effective Date") in
the aggregate amount of $__________.
2. The Borrowing of Term Loans is to be [converted into]
[continued as]:
/ / ALR Borrowing with an Interest Period of ____ months.
/ / ABR Borrowing.
The foregoing request complies with the requirements of SECTION 2.07 of
the Credit Agreement. The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the above date,
before and after giving effect and to the continuation or conversion of the
Borrowing of Term Loans requested hereunder:
(a) The representations and warranties made by Borrower in the
Agreement, or which are contained in any certificate, document or
financial or other statement furnished at any time under or in connection
therewith, are and will be correct on and as of the Effective Date, except
to the extent that such representations and warranties specifically refer
to any earlier date; and
(b) no Default or Event of Default has occurred and is continuing on
the date hereof or after giving effect to this Interest Election Request.
XXXXXX XXXXXXXXXX LTD.
By: _______________________________
Name: _____________________________
Title: ____________________________
6
EXHIBIT F2
FORM OF INTEREST ELECTION REQUEST
FOR REVOLVING CREDIT BORROWING
Date: ___________, ____
To: Manufacturers and Traders Trust Company, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of June __, 2001 (as from time to time amended, extended, restated,
modified or supplemented, the "CREDIT AGREEMENT") among Xxxxxx Xxxxxxxxxx Ltd.,
a Delaware corporation (the "BORROWER"), the Lenders as a Party thereto, and
Manufacturers and Traders Trust Company, as Administrative Agent (the
"ADMINISTRATIVE AGENT"). Unless otherwise defined herein, capitalized terms used
herein have the respective meanings assigned to them in the Credit Agreement.
1. The undersigned hereby requests a [continuation] [conversion] of
a Borrowing of Revolving Credit Loans on ___________, 200_, (the "Effective
Date") in the aggregate amount of $__________.
2. The Borrowing of Revolving Credit Loans is to be [converted into]
[continued as]:
/ / ALR Borrowing with an Interest Period of ____ months.
/ / ABR Borrowing.
The foregoing request complies with the requirements of SECTION 2.07 of
the Credit Agreement. The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the above date,
before and after giving effect and to the continuation or conversion of a
Borrowing of Revolving Credit Loans requested hereunder:
(a) The representations and warranties made by Borrower in the
Agreement, or which are contained in any certificate, document or
financial or other statement furnished at any time under or in connection
therewith, are and will be correct on and as of the Effective Date, except
to the extent that such representations and warranties specifically refer
to any earlier date; and
(b) no Default or Event of Default has occurred and is continuing on
the date hereof or after giving effect to this Interest Election Request.
XXXXXX XXXXXXXXXX LTD.
By: _______________________________
Name: _____________________________
Title: ____________________________
7
EXHIBIT G
XXXXXX XXXXXXXXXX LTD.
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COMPLIANCE CERTIFICATE
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From: XXXXXX XXXXXXXXXX LTD. (the "Borrower")
To: MANUFACTURERS AND TRADERS TRUST COMPANY, as Administrative Agent (the
"Administrative Agent")
Date: __________, 200___
The undersigned certifies that he is the _________ of the Borrower
and that as ________ of the Borrower, the undersigned is authorized to execute
and deliver this Certificate in the name and on behalf of the Borrowers. All
terms not otherwise defined herein shall have the meaning ascribed to such term
in the Credit Agreement (as defined below). The undersigned further certifies
that:
1. This Certificate is being delivered on the date first written above in
connection with Section 5.01(c) of the Amended and Restated Credit Agreement,
dated as of June ___, 2001 (as amended, supplemented, amended and restated or
otherwise modified from time to time, the "Credit Agreement") among the
Borrower, the Lenders party thereto (the "Lenders") and the Administrative
Agent. All capitalized terms used but not otherwise defined herein shall have
the meaning ascribed to them in the Credit Agreement.
2. Attached hereto is a true, correct and complete copy of the
Consolidated financial statements of the Borrower and its Subsidiaries for the
fiscal [quarter] [year] ended _______, ______ required to be delivered to the
Administrative Agent pursuant to Section 5.01 of the Credit Agreement setting
forth in each case in comparative form, the figures for the previous fiscal
[quarter] [year]. Such Consolidated and Consolidating financial statements
present fairly in all material respects the financial condition and results of
operations on a Consolidated basis in accordance with GAAP consistently applied,
subject, in the case of the quarterly financial statements, to normal year-end
audit adjustments and the absence of footnotes.
3. During the fiscal [quarter] [year] ended ________, _______ (the
"Measurement Period") the Borrower has observed or performed all of its
covenants and other agreements and satisfied every condition contained in the
Credit Agreement, the Term Note, the Revolving Credit Note and all other Loan
Documents to be observed, performed or satisfied by it.
4. For the Measurement Period, the Borrower and its Guarantors have
complied with each of the financial covenants in Section 6.10 of the Credit
Agreement. Attached to this Certificate in Schedule A are detailed calculations
demonstrating the Borrower's compliance with each of said financial covenants.
5. As of the date of this Certificate no Default or Event of Default has
occurred and is continuing. If an Event of Default has occurred and is
continuing, attached hereto is a description specifying the details thereof and
any action taken or proposed to be taken with respect thereto.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Certificate in the name and on behalf of the Borrower on and as of the date
first written above.
XXXXXX XXXXXXXXXX, INC.
By: _____________________________
Title:
2
SCHEDULE A
FINANCIAL CALCULATIONS
3
