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CREDIT AGREEMENT
dated as of May __, 2002
among
XXXXXXX-XXXXXX CORPORATION
and
THE SUBSIDIARY BORROWERS PARTIES HERETO FROM TIME TO TIME,
as Borrowers,
THE LENDERS PARTIES HERETO FROM TIME TO TIME,
THE ISSUING BANKS REFERRED TO HEREIN,
and
THE BANK OF NOVA SCOTIA,
as Agent
FLEET NATIONAL BANK,
as Syndication Agent
SUN TRUST BANK,
as Documentation Agent
and
THE BANK OF NOVA SCOTIA,
as Lead Arranger.
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Table of Contents
Page
ARTICLE I DEFINITIONS; CONSTRUCTION........................................1
1.01. Certain Definitions..............................................1
1.02. Construction....................................................14
1.03. Accounting Principles...........................................15
ARTICLE II THE CREDITS.....................................................15
2.01. Revolving Credit Loans and Swing Line Loans.....................15
2.02. Facility Fee; Reduction of the Commitments......................17
2.03. Making of Loans.................................................18
2.04. Interest Rates..................................................20
2.05. Conversion or Renewal of Interest Rate Options..................24
2.06. Prepayments Generally...........................................25
2.07. Optional Prepayments............................................25
2.08. Interest Payment Dates..........................................25
2.09. Pro Rata Treatment; Payments Generally..........................25
2.10. Additional Compensation in Certain Circumstances................27
2.11. HLT Classification..............................................29
2.12. Taxes...........................................................29
2.13. Funding by Branch, Subsidiary or Affiliate......................31
2.14. Multicurrency Payments..........................................31
ARTICLE III LETTERS OF CREDIT...............................................32
3.01. Letters of Credit...............................................32
3.02. Letter of Credit Fees...........................................33
3.03. Procedure for Issuance and Amendment of Letters of Credit.......34
3.04. Participating Interests.........................................35
3.05. Drawings and Reimbursements.....................................36
3.06. Obligations Absolute............................................37
3.07. Increased Costs.................................................37
3.08. Further Assurances..............................................37
3.09. Letter of Credit Application....................................37
3.10. Cash Collateral for Letters of Credit...........................37
3.11. Certain Provisions Relating To the Issuing Banks................39
ARTICLE IV REPRESENTATIONS AND WARRANTIES..................................40
4.01. Due Incorporation, etc..........................................40
4.02. Due Authorization, etc..........................................40
4.03. Approvals.......................................................41
4.04. Execution; Binding Effect.......................................41
4.05. Financial Statements............................................41
4.06. Litigation......................................................41
4.07. Title to Property...............................................41
4.08. ERISA...........................................................42
4.09. Environmental Laws..............................................42
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Table of Contents
(continued)
Page
4.10. Absence of Undisclosed Liabilities..............................43
4.11. Accurate and Complete Disclosure................................43
4.12. Margin Regulations..............................................43
4.13. Subsidiaries....................................................43
4.14. Partnerships, etc...............................................44
4.15. Absence of Events of Default....................................44
4.16. Insurance.......................................................44
4.17. Intellectual Property...........................................44
4.18. Taxes...........................................................44
ARTICLE V CONDITIONS OF LENDING...........................................45
5.01. Conditions to Making of Initial Loans and Issuance of Initial
Letter of Credit................................................45
5.02. Conditions to All Loans.........................................46
ARTICLE VI AFFIRMATIVE COVENANTS...........................................47
6.01. Basic Reporting Requirements....................................47
6.02. Inspection......................................................49
6.03. Payment of Taxes, etc...........................................49
6.04. Preservation of Corporate Existence, etc........................49
6.05. Compliance with Laws, etc.......................................50
6.06. Maintenance of Insurance........................................50
6.07. Notice of Environmental Claims..................................50
6.08. Governmental Approvals and Filings..............................50
6.09. Maintenance of Properties.......................................50
6.10. Avoidance of Other Conflicts....................................51
6.11. Financial Accounting Practices..................................51
6.12. Use of Proceeds.................................................51
6.13. Continuation of or Change in Business...........................51
6.14. Consolidated Tax Return.........................................51
6.15. Fiscal Year.....................................................51
6.16. ERISA Compliance................................................52
6.17. Additional Subsidiary Guarantors................................52
ARTICLE VII NEGATIVE COVENANTS..............................................52
7.01. Financial Covenants.............................................52
7.02. Liens...........................................................53
7.03. Indebtedness....................................................54
7.04. Restriction on Liens and Additional Indebtedness................54
7.05. Amendment of Certain Documents..................................54
7.06. Mergers; Acquisitions...........................................54
7.07. Limitation on Other Restrictions on Dividends by Subsidiaries,
etc.............................................................54
7.08. Sale of Assets..................................................55
7.09. Guaranties, Indemnities, etc....................................55
7.10. Sale-Leasebacks.................................................56
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Table of Contents
(continued)
Page
7.11. Leases..........................................................56
7.12. Affiliates......................................................56
ARTICLE VIII EVENTS OF DEFAULT...............................................57
8.01. Events of Default...............................................57
8.02. Consequences of an Event of Default.............................59
8.03. Judgment Currency...............................................60
ARTICLE IX THE AGENT.......................................................60
9.01. Appointment.....................................................60
9.02. General Nature of Agent's Duties................................60
9.03. Exercise of Powers..............................................61
9.04. General Exculpatory Provisions..................................61
9.05. Administration by the Agent and the Issuing Banks...............62
9.06. Lender Not Relying on Agent or Other Lenders....................63
9.07. Indemnification.................................................63
9.08. Agent in its Individual Capacity................................64
9.09. Holders of Notes................................................64
9.10. Successor Agent.................................................64
9.11. Additional Agents...............................................64
9.12. Calculations....................................................65
9.13. Agent's Fee.....................................................65
9.14. Funding by Agent................................................65
9.15. Syndication Agent and Documentation Agent.......................65
ARTICLE X MISCELLANEOUS...................................................65
10.01. Holidays........................................................65
10.02. Records.........................................................66
10.03. Amendments and Waivers..........................................66
10.04. No Implied Waiver; Cumulative Remedies..........................67
10.05. Notices.........................................................67
10.06. Expenses; Taxes; Indemnity......................................68
10.07. Severability....................................................69
10.08. Prior Understandings............................................69
10.09. Duration; Survival..............................................69
10.10. Counterparts....................................................69
10.11. Limitation on Payments..........................................69
10.12. Set-Off.........................................................70
10.13. Sharing of Collections..........................................70
10.14. Successors and Assigns; Participations; Assignments.............71
10.15. Governing Law; Submission to Jurisdiction; Limitation of
Liability.......................................................73
10.16. Confidentiality.................................................74
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Exhibits
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Exhibit A-1 Form of Revolving Credit Note
Exhibit A-2 Form of Swing Line Note
Exhibit B Form of Opinion of Counsel
Exhibit C Form of Quarterly Compliance Certificate
Exhibit D Form of Transfer Supplement
Exhibit E Form of Xxxxxxx-Xxxxxx Guaranty
Exhibit F Form of Subsidiary Guaranty
Schedules
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Schedule I Other Currencies
Schedule 3.01(a) Outstanding Letters of Credit
Schedule 4.01 Due Incorporation, etc.
Schedule 4.06 Litigation
Schedule 4.07 Title to Property
Schedule 4.08 ERISA
Schedule 4.09 Hazardous Waste
Schedule 4.10 Indebtedness
Schedule 4.13 Significant Subsidiaries
Schedule 4.14 Partnerships, etc.
Schedule 7.02 Liens
Schedule 7.03 Indebtedness
Schedule 7.09 Guaranty Equivalents
Schedule 7.11 Leases
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Agreement"), dated as of May 13, 2002, by and
among XXXXXXX-XXXXXX CORPORATION, a Delaware corporation ("Xxxxxxx-Xxxxxx"), the
Subsidiary Borrowers (as defined below) party hereto from time to time
(collectively with Xxxxxxx-Xxxxxx, the "Borrowers", and each individually a
"Borrower"), the lenders party hereto from time to time (the "Lenders", as
defined further below), FLEET NATIONAL BANK, as syndication agent for the
Lenders (in such capacity, the "Syndication Agent"), SUN TRUST COMPANY, as
documentation agent for the Lenders (in such capacity, the "Documentation
Agent"), the Issuing Banks referred to herein (the "Issuing Banks") and THE BANK
OF NOVA SCOTIA, as agent for the Lenders and the Issuing Banks hereunder (in
such capacity, together with its successors in such capacity, the "Agent").
WHEREAS, the Borrowers have requested the Agent, the Lenders and the
Issuing Banks to enter into this Agreement and extend credit as herein provided;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
1.01. Certain Definitions. In addition to other words and terms defined
elsewhere in this Agreement, as used herein the following words and terms shall
have the following meanings, respectively, unless the context hereof otherwise
clearly requires:
"Account Party" or "Account Parties" shall have the meaning set forth in
Section 3.01(b) hereof.
"Additional Indebtedness" is defined in Section 7.03(e) hereof.
"Affected Lender" shall have the meaning set forth in Section 2.04(e)
hereof.
"Affiliate" of Xxxxxxx-Xxxxxx or any of its Subsidiaries shall mean any
Person which directly or indirectly controls or is controlled by or is under
common control with Xxxxxxx-Xxxxxx or such Subsidiary, as the case may be. For
purposes of this definition "control" (including, with correlative meanings, the
terms "controlled by" and "under common control with") means the possession,
directly or indirectly, of the power to direct or cause the direction of
management policies, whether through ownership of voting securities or by
contract or otherwise.
"Anniversary Date" shall mean each May 12 during the term of this
Agreement.
"Applicable Funding Rate" shall have the meaning set forth in Section
2.10(b) hereof.
"Applicable Location" shall mean (i) except as provided in clause (ii), the
Federal Reserve Bank of New York, ABA# 000000000 for further credit to The Bank
of Nova Scotia, New York Agency, Account #2835-17, Attention: Xxxxx Xxxxxxx,
Reference: Xxxxxxx-Xxxxxx, and (ii) in the case of payments denominated in an
Other Currency, the appropriate account and location set
forth on Schedule I hereto, or in either case, such other location or account
designated from time to time by notice from the Agent to the Borrowers and the
Lenders.
"Applicable Margin" shall have the meaning set forth in Section 2.04(b)
hereof.
"Assured Obligation" shall have the meaning set forth in the definition of
"Guaranty Equivalent" in this Section 1.01.
"Available" means, in respect of any Other Currency and any Lender, that
such Other Currency is, at the relevant time, (a) readily available to such
Lender as deposits in the London or other applicable interbank market in the
relevant amount and for the relevant term, (b) is freely convertible into
Dollars and (c) is freely transferable for the purposes of this Agreement, but
if, notwithstanding that each of the foregoing tests is satisfied:
(a) such Other Currency is, under the then current legislation or
regulations of the country issuing such Other Currency (or under the policy
of the central bank of such country) or of the Bank of England or the
F.R.S. Board, not permitted to be used for the purposes of this Agreement;
or
(b) there is no, or only insignificant, investor demand for the making
of advances having an interest period equivalent to that for the LIBO Rate
Portion denominated in an Other Currency which a Borrower has requested be
made; or
(c) there are policy or other reasons which make it undesirable or
impractical for a Lender to make a Revolving Credit Loan denominated in
such Other Currency available as determined by such Lender in its
reasonable discretion;
then such Other Currency may be treated by any Lender as not being Available.
"Base Rate" shall have the meaning set forth in Section 2.04(a)(i) hereof.
"Base Rate Option" shall have the meaning set forth in Section 2.04(a)
hereof.
"Base Rate Portion" of any Loan or Loans shall mean at any time the
portion, including the whole, of such Loan or Loans bearing interest at such
time (i) under the Base Rate Option or (ii) in accordance with Section
2.09(c)(ii) hereof. If no Loan or Loans is specified, "Base Rate Portion" shall
refer to the Base Rate Portion of all Loans outstanding at such time.
"Borrower" or "Borrowers" shall have the meaning set forth in the preamble.
"Business Day" shall mean any day other than a Saturday, Sunday, public
holiday under the laws of the State of New York or other day on which banking
institutions are authorized or obligated to close in the city in which the
Agent's Office is located.
"Capital Securities" means, with respect to any Person, all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital, whether now outstanding or
issued after the date on which all conditions set forth in Article V have been
satisfied.
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"Change of Control" shall mean that any Person or group of Persons (as used
in Sections 13 and 14 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations thereunder) shall have become the
beneficial owner, directly or indirectly (as defined in Rules 13d-3 and 13d-5
promulgated by the Securities and Exchange Commission (the "SEC") under the
Exchange Act), of either (i) 50% or more of the combined voting power of all the
outstanding voting securities of Xxxxxxx-Xxxxxx or (ii) the voting power to
elect a majority of the board of directors of Xxxxxxx-Xxxxxx.
"Closing Date" shall mean the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute of similar import, and regulations thereunder, in each case as
in effect from time to time. References to sections of the Code shall be
construed also to refer to any successor sections.
"Commitment" of a Lender shall mean, as the context may require, the
Revolving Credit Commitment or the Swing Line Commitment of such Lender.
"Commitment Percentage" of a Lender at any time shall mean the Commitment
Percentage for such Lender set forth below its name on the signature page
hereof, as such percentage may be adjusted pursuant to Section 2.01(g) and (h)
hereof, and subject to transfer to another Lender as provided in Section 10.14
hereof.
"Consolidated EBIT" shall mean, with respect to Xxxxxxx-Xxxxxx and its
consolidated Subsidiaries, calculated for each fiscal quarter then ending, and
the immediately preceding three fiscal quarters (determined on a consolidated
basis and in accordance with GAAP), the sum of (a) Consolidated Net Income, plus
(b) Consolidated Interest Expense, plus (c) consolidated foreign, federal and
state income tax expenses for such period, plus (d) extraordinary losses for
such period, minus (e) extraordinary gains for such period.
"Consolidated EBITDA" shall mean, with respect to Xxxxxxx-Xxxxxx and its
consolidated Subsidiaries, calculated for each fiscal quarter then ending, and
the immediately preceding three fiscal quarters (determined on a consolidated
basis and in accordance with GAAP), the sum of (a) Consolidated EBIT, plus (b)
depreciation and amortization of assets for such period (if subtracted from
earnings in calculating the same).
"Consolidated Interest Expense" shall mean, with respect to Xxxxxxx-Xxxxxx
and its consolidated Subsidiaries calculated for each fiscal quarter then
ending, and the immediately preceding three fiscal quarters, interest expense
(whether cash or non-cash) determined in accordance with GAAP for the relevant
period ended on such date, including, in any event, interest expense with
respect to Indebtedness of Xxxxxxx-Xxxxxx and its consolidated Subsidiaries,
interest expense for the relevant period that has been capitalized on the
balance sheet and interest expense with respect to any Deemed Debt.
"Consolidated Net Income" shall mean, for any period, the consolidated net
income (or deficit) of Xxxxxxx-Xxxxxx and its consolidated Subsidiaries for such
period, determined in accordance with GAAP.
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"Consolidated Net Worth" of Xxxxxxx-Xxxxxx and its consolidated
Subsidiaries, shall mean total shareholder's equity which would appear as such
on the consolidated balance sheet of Xxxxxxx-Xxxxxx, determined in accordance
with GAAP.
"Controlled Group" means all members of a group of corporations and all
trades or businesses (whether or not incorporated) under common control which,
together with Xxxxxxx-Xxxxxx or any of its Subsidiaries, are treated as a single
employer under Section 414 of the Code.
"Corresponding Source of Funds" shall mean, in the case of any Funding
Segment of the LIBO Rate Portion, the proceeds of hypothetical receipts by a
Notional LIBO Rate Funding Office or by a Lender through a Notional LIBO Rate
Funding Office of one or more Dollar deposits in the interbank eurodollar market
at the beginning of the LIBO Rate Funding Period corresponding to such Funding
Segment having maturities approximately equal to such LIBO Rate Funding Period
and in an aggregate amount approximately equal to such Lender's Pro Rata share
of such Funding Segment.
"Xxxxxxx-Xxxxxx Guaranty" shall have the meaning set forth in Section
5.01(n) hereof.
"Debt Instrument" shall have the meaning set forth in Section 8.01(e)
hereof.
"Deemed Debt" shall mean the amount of indebtedness incurred by
Xxxxxxx-Xxxxxx and its consolidated Subsidiaries and any special purpose
corporation or trust which is an Affiliate of Xxxxxxx-Xxxxxx or any of its
Subsidiaries in connection with any accounts receivable or inventory financing
facility, whether or not shown on the balance sheet of Xxxxxxx-Xxxxxx or such
Subsidiary in accordance with GAAP to the extent not included in the definition
of Indebtedness. For purposes of determining the amount of Deemed Debt incurred
by any Person in connection with any off-balance sheet financing transaction,
the amount of all contingent obligations of such Person shall be included as
well as non-recourse indebtedness incurred in connection with such transaction.
Deemed Debt shall not include operating leases.
"Deemed Guarantor" shall have the meaning set forth in the definition of
"Guaranty Equivalent" in this Section 1.01.
"Deemed Obligor" shall have the meaning set forth in the definition of
"Guaranty Equivalent" in this Section 1.01.
"Documentation Agent" shall have the meaning set forth in the preamble.
"Dollar," "Dollars" and the symbol "$" shall mean lawful money of the
United States of America.
"Dollar Equivalent Amount" of any Revolving Credit Loan shall mean (a) with
respect to a Revolving Credit Loan denominated in an Other Currency, an amount
equal to the amount of Dollars that the amount of such Other Currency (equal to
the principal amount of such Revolving Credit Loan) could purchase at 12:00
p.m., noon, New York time, on the date of determination, based upon the quoted
spot rates of the Agent, at which its applicable branch or office offers to
exchange Dollars for such currency in the foreign exchange market and (b) with
respect to a
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Loan denominated in US Currency, an amount in Dollars equal to the principal
amount of such Loan.
"Environmental Claim" shall have the meaning set forth in Section 4.09
hereof.
"Environmental Laws" shall have the meaning set forth in Section 4.09
hereof.
"Environmental Permits" shall have the meaning set forth in Section 4.09
hereof.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, and regulations
thereunder, in each case as in effect from time to time. References to sections
of ERISA shall be construed also to refer to any successor sections.
"Euro" and "Euros" shall mean the lawful currency of the participating
member states of the European Union that adopt a single currency in accordance
with the Treaty establishing the European Communities, as amended by the Treaty
on European Union.
"Event of Default" shall mean any of the Events of Default described in
Section 8.01 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Existing Lenders" shall have the meaning set forth in the definition of
the Original Credit Agreements.
"Extension Request" shall have the meaning set forth in Section 2.01(g)
hereof.
"Facility Fee" shall have the meaning set forth in Section 2.02(a) hereof.
"Fairfield Property" shall mean the real property located at 000 Xxxxxxxxx
Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000.
"Federal Funds Effective Rate" for any day shall mean the rate per annum
(rounded upward to the nearest 1/100 of 1%) determined by the Agent (which
determination shall be conclusive absent manifest error) to be the rate per
annum announced by the Federal Reserve Bank of New York (or any successor) on
such day as being the weighted average of the rates on overnight Federal funds
transactions arranged by Federal funds brokers on the previous trading day, as
computed and announced by such Federal Reserve Bank (or any successor) in
substantially the same manner as such Federal Reserve Bank computes and
announces the weighted average it refers to as the "Federal Funds Effective
Rate" as of the date of this Agreement; provided, that if such Federal Reserve
Bank (or its successor) does not announce such rate on any day, the "Federal
Funds Effective Rate" for such day shall be the Federal Funds Effective Rate for
the last day on which such rate was announced.
"F.R.S. Board" means the Board of Governors of the Federal Reserve System
or any successor thereto.
"Funding Breakage Date" shall have the meaning set forth in Section 2.10(b)
hereof.
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"Funding Breakage Indemnity" shall have the meaning set forth in Section
2.10(b) hereof.
"Funding Periods" shall have the meaning set forth in Section 2.04(c)
hereof.
"Funding Segment" of the LIBO Rate Portion of the Revolving Credit Loans at
any time shall mean the entire principal amount of such Portion to which at the
time in question there is applicable a particular Funding Period beginning on a
particular day and ending on a particular day. (By definition, each such Portion
is at all times composed of an integral number of discrete Funding Segments and
the sum of the principal amounts of all Funding Segments of any such Portion at
any time equals the principal amount of such Portion at such time.)
"GAAP" shall have the meaning set forth in Section 1.03 hereof.
"Governmental Action" shall mean any approval, order, consent,
authorization, certificate, license, permit or validation of, or exemption or
other action by, or filing, recording or registration with, or notice to, any
Governmental Authority.
"Governmental Authority" shall mean any government or political subdivision
or any agency, authority, bureau, central bank, commission, department or
instrumentality of either, or any court, tribunal, grand jury or arbitrator, in
each case whether foreign or domestic.
"Guaranty Equivalent": A Person (the "Deemed Guarantor") shall be deemed to
be subject to a Guaranty Equivalent in respect of any indebtedness, obligation
or liability (the "Assured Obligation") of another Person (the "Deemed Obligor")
if the Deemed Guarantor directly or indirectly guarantees, becomes surety for,
endorses, assumes, agrees to indemnify the Deemed Obligor against, or otherwise
agrees, becomes or remains liable (contingently or otherwise) for, such Assured
Obligation. Without limitation, a Guaranty Equivalent shall be deemed to exist
if a Deemed Guarantor agrees, becomes or remains liable (contingently or
otherwise), directly or indirectly: (a) to purchase or assume, or to supply
funds for the payment, purchase or satisfaction of, an Assured Obligation, (b)
to make any loan, advance, capital contribution or other investment in, or to
purchase or lease any property or services from, a Deemed Obligor (i) to
maintain the solvency of the Deemed Obligor, (ii) to enable the Deemed Obligor
to meet any other financial condition, (iii) to enable the Deemed Obligor to
satisfy any Assured Obligation or to make any Stock Payment or any other
payment, or (iv) to assure the holder of such Assured Obligation against loss,
(c) to purchase or lease property or services from the Deemed Obligor regardless
of the nondelivery of or failure to furnish of such property or services, or (d)
in respect of any other transaction the effect of which is to assure the payment
or performance (or payment of damages or other remedy in the event of nonpayment
or nonperformance) of any Assured Obligation.
"Hazardous Materials" shall have the meaning set forth in Section 4.09
hereof.
"HLT Classification" shall have the meaning set forth in Section 2.11
hereof.
"Indebtedness" of a Person, at a particular date, shall mean, without
duplication, the following: (a) all indebtedness of such Person for borrowed
money or for the deferred purchase price of property; (b) the face amount of all
letters of credit (other than standby letters of credit issued for the account
of such Person in connection with bids on proposed contracts by such
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Person) issued for the account of such Person and, without duplication, all
drafts drawn under all letters of credit (including standby letters of credit);
(c) all liabilities secured by any Lien (other than Permitted Liens permitted
under clause (h) of the definition thereof) on any property owned by such
Person, to the extent attributable to such Person's interest in such property,
even though it has not assumed or become liable for the payment thereof; (d) all
Assured Obligations of others as to which such Person is the Deemed Guarantor
under a Guaranty Equivalent; and (e) lease obligations of such Person which have
been, or which in accordance with GAAP should be, capitalized.
"Indemnified Parties" shall mean the Agent, the Lenders, their respective
affiliates, and the directors, officers, employees, attorneys and agents of each
of the foregoing.
"Interest Coverage Ratio" shall mean, with respect to Xxxxxxx-Xxxxxx and
its consolidated Subsidiaries for any period, the ratio of (a) Consolidated EBIT
to (b) Consolidated Interest Expense for the immediately preceding four quarter
period ending on the date of determination.
"Investment" means, relative to any Person, (a) any loan, advance or
extension of credit made by such Person to any other Person, including the
purchase by such Person of any bonds, notes, debentures or other debt securities
of any other Person; (b) contingent liabilities in favor of any other Person;
and (c) any Capital Securities held by such Person in any other Person. The
amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property at the time of such Investment.
"Issuing Bank" or "Issuing Banks" shall have the meaning set forth in
Section 3.01(b) hereof.
"Judgment Amount" shall have the meaning set forth in Section 8.03 hereof.
"Law" shall mean any law (including common law), constitution, statute,
treaty, convention, regulation, rule, ordinance, order, injunction, writ, decree
or award of any Governmental Authority.
"Lender" shall mean any of the Lenders listed on the signature pages
hereof, subject to the provisions of Section 10.14 hereof pertaining to Persons
becoming or ceasing to be Lenders.
"Letter of Credit" shall have the meaning set forth in Section 3.01(b)
hereof.
"Letter of Credit Application" shall have the meaning set forth in Section
3.03(a)(ii) hereof.
"Letter of Credit Collateral Account" shall have the meaning set forth in
Section 3.10(b) hereof.
"Letter of Credit Exposure" shall mean the aggregate Letter of Credit
Undrawn Availability for all outstanding Letters of Credit.
"Letter of Credit Facing Fee" shall have the meaning assigned to that term
in Section 3.02(b) hereof.
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"Letter of Credit Fee" shall have the meaning set forth in Section 3.02(a)
hereof.
"Letter of Credit Obligations" shall mean at any particular time all
liabilities of the Borrowers with respect to Letters of Credit, whether or not
such liability is contingent, including (without duplication) the sum of (a) the
aggregate Letter of Credit Undrawn Availability of all Letters of Credit then
outstanding plus (b) the aggregate amount of all unpaid Letter of Credit
Reimbursement Obligations.
"Letter of Credit Participating Interest" shall have the meaning set forth
in Section 3.04(a) hereof.
"Letter of Credit Reimbursement Obligations" shall mean, collectively, (a)
the obligations of the Borrowers to reimburse the Issuing Banks in accordance
with the terms of this Agreement and the related Letter of Credit Applications
for any payments made by the Issuing Banks under any Letters of Credit, and (b)
all fees and expenses payable to the Agent for the account of the Lenders in
respect of any Letters of Credit.
"Letter of Credit Undrawn Availability" shall mean for each Letter of
Credit, the undrawn face amount of such Letter of Credit.
"Leverage Ratio" shall mean, with respect to Xxxxxxx-Xxxxxx and its
consolidated Subsidiaries for any fiscal period, the ratio of (a) Indebtedness
of Xxxxxxx-Xxxxxx and its consolidated Subsidiaries plus any Deemed Debt plus
any Synthetic Lease Obligations equal to the aggregate amount of Notes and
equity outstanding as of the date of determination, to (b) Consolidated EBITDA
plus, in the event of any acquisition by Xxxxxxx-Xxxxxx, with respect to the
acquired company and without duplication, the sum of (i) the net earnings (or
loss), plus (ii) interest expense for such period, plus (iii) consolidated
federal and state income tax expenses for such period, plus (iv) depreciation
and amortization of assets for such period (if subtracted from earnings in
calculating the same), plus (v) extraordinary losses for such period, minus (vi)
extraordinary gains for such period, with all of the foregoing amounts to be
calculated for the fiscal period then ending, and the immediately preceding
three fiscal quarters (determined on a consolidated basis in accordance with
GAAP).
"LIBO Rate" shall have the meaning set forth in Section 2.04(a)(iii)
hereof.
"LIBO Rate Option" shall have the meaning set forth in Section 2.04(a)(ii)
hereof.
"LIBO Rate Portion" of any Revolving Credit Loan or Revolving Credit Loans
shall mean at any time the portion, including the whole, of such Revolving
Credit Loan or Revolving Credit Loans bearing interest at any time under the
LIBO Rate Option or at a rate calculated by reference to the LIBO Rate under
Section 2.09(c)(i) hereof. If no Revolving Credit Loan or Revolving Credit Loans
is specified, "LIBO Rate Portion" shall refer to the LIBO Rate Portion of all
Revolving Credit Loans outstanding at such time.
"LIBO Rate Reserve Percentage" shall have the meaning set forth in Section
2.04(a)(iii) hereof.
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"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any agreement to give any of the
foregoing, any additional sale or other title retention agreement, any lease in
the nature thereof, and the filing of or agreement to give any financing
statement under the Uniform Commercial Code of any jurisdiction).
"Loan" shall mean, as the context requires, a Revolving Credit Loan or a
Swing Line Loan, and "Loans" shall mean all Loans made by the Lenders under this
Agreement.
"Loan Documents" shall mean this Agreement, the Notes, the Xxxxxxx-Xxxxxx
Guaranty, the Subsidiary Guarantees, the Transfer Supplements and the Rate
Protection Agreements, and all other agreements and instruments extending,
renewing, refinancing or refunding any indebtedness, obligation or liability
arising under any of the foregoing, in each case as the same may be amended,
modified or supplemented from time to time hereafter.
"London Business Day" shall mean any day in which dealing in deposits in
Dollars is carried on by and among banks in the London interbank market and
which is a Business Day.
"Loss" shall have the meaning set forth in Section 8.03 hereof.
"Material Adverse Effect" shall mean (a) a material adverse effect on the
business, assets, operations, condition (financial or otherwise) or prospects of
Xxxxxxx-Xxxxxx and its Subsidiaries taken as a whole or (b) a material adverse
effect on the ability of Xxxxxxx-Xxxxxx and its Subsidiaries to perform or
comply with any of the terms and conditions of any Loan Document.
"Maturity Date" shall mean, initially, May __, 2007, as such date may be
extended by the Lenders pursuant to Section 2.01(g) hereof.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement which is subject to Title IV of ERISA to which
Xxxxxxx-Xxxxxx or any member of the Controlled Group is a party to which more
than one employer is obligated to make contributions.
"National Currency Unit" shall have the meaning set forth in Section
2.14(h) hereof.
"Nonextending Lender" shall have the meaning set forth in Section 2.01(g)
hereof.
"Non-Participant State" shall have the meaning set forth in Section 2.14(h)
hereof.
"Note" or "Notes" shall mean, as the context may require, the Revolving
Credit Notes or the Swing Line Notes of the Borrowers executed and delivered
under this Agreement, together with all modifications, amendments, extensions,
renewals, refinancings or refundings of any thereof in whole or part.
"Notional LIBO Rate Funding Office" shall have the meaning set forth in
Section 2.13(a) hereof.
"Obligations" shall mean all indebtedness, obligations and liabilities of
any Borrower to any Lender, any Issuing Bank or the Agent from time to time
arising under or in connection with or related to or evidenced by this Agreement
or any other Loan Document, and all extensions,
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renewals or refinancings thereof, whether such indebtedness, obligations or
liabilities are direct or indirect, otherwise secured or unsecured, joint or
several, absolute or contingent, due or to become due, whether for payment or
performance, now existing or hereafter arising. Without limitation of the
foregoing, such indebtedness, obligations and liabilities include the principal
amount of Loans, accrued but unpaid interest, Letter of Credit Obligations,
unpaid fees, indemnities or expenses under or in connection with this Agreement
or any other Loan Document, and all extensions, renewals and refinancings
thereof, whether or not such Loans were made in compliance with the terms and
conditions of this Agreement or in excess of the obligation of the Lenders to
lend. The Obligations shall remain Obligations notwithstanding any assignment or
transfer or any subsequent assignment or transfer of any of the Obligations or
any interest therein.
"Office," when used in connection with the Agent, shall mean its office
located at Xxx Xxxxxxx Xxxxx, Xxx Xxxx, XX 00000, or at such other office or
offices of the Agent or any branch, subsidiary or affiliate thereof as may be
designated in writing from time to time by the Agent to the Borrowers.
"Option" shall mean the Base Rate Option or the LIBO Rate Option, as the
case may be.
"Original Credit Agreements" shall mean (i) that certain Credit Agreement,
dated as of December 20, 1999, among Xxxxxxx-Xxxxxx, each of the financial
institutions party thereto as lenders (the "Existing Lenders"), Mellon Bank,
N.A., as agent, The Bank of Nova Scotia, as syndication agent, and PNC Bank,
N.A., as documentation agent (collectively, the "Existing Agents") (as amended,
supplemented, amended and restated and otherwise modified from time to time) and
(ii) that certain Short Term Credit Agreement, dated as of December 20, 1999,
among Xxxxxxx-Xxxxxx, the Existing Lenders and the Existing Agents (as amended
by Amendment No. 1 thereto dated as of December 19, 2000, Amendment No. 2
thereto dated as of December 14, 2001, and as amended, supplemented, amended and
restated and otherwise modified from time to time.
"Original Due Date" shall have the meaning set forth in Section 8.03
hereof.
"Other Currency" shall mean Canadian Dollars, British Pounds, Swiss Francs,
Danish Krone, Swedish Krona, Euros and any freely available currency that is
freely transferable and freely convertible into Dollars and requested by any
Borrower and acceptable to all of the Lenders and to the Agent.
"Outstanding Letters of Credit" shall have the meaning set forth in Section
3.01(a) hereof.
"Participants" shall have the meaning set forth in Section 10.14(b) hereof.
"PBGC" means the Pension Benefit Guaranty Corporation established under
Title IV of ERISA or any other governmental agency, department or
instrumentality succeeding to the functions of said corporation.
"Permitted Liens" shall mean (a) Liens arising from taxes, assessments,
charges, levies or claims that are not yet due or that remain payable without
penalty, for which adequate reserves in accordance with GAAP shall have been set
aside on its books, (b) deposits or pledges of cash to
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secure workmen's compensation, unemployment insurance, old age benefits or other
social security obligations, or in connection with or to secure the performance
of bids, tenders, trade contracts or leases, or to secure statutory obligations,
or stay, surety or appeal bonds, or other pledges or deposits of cash of like
nature and all in the ordinary course of business, (c) Liens permitted by
Section 7.02(b) hereof, (d) Liens in favor of each of the Agent and the Lenders,
(e) Liens to secure Indebtedness existing on the date hereof, (f) with respect
to the Fairfield Property, impediments to marketability arising by reason of the
New Jersey Industrial Site Recovery Act, (g) easements, rights of way and other
exceptions to title which do not materially affect any Borrower's right of
enjoyment of its properties, (h) Liens in favor of customers for amounts paid to
any Borrower or any Subsidiary of any Borrower as progress payments, (i) Liens
to secure non-recourse Indebtedness, (j) Liens to secure Deemed Debt, and (k)
Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred
in the ordinary course of business by Xxxxxxx-Xxxxxx for sums not overdue or
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside on its
books.
"Person" shall mean an individual, corporation, limited liability company,
partnership, trust, unincorporated association, joint venture, joint-stock
company, Governmental Authority or any other entity.
"Plan" means an employee pension benefit plan as defined in Section 3(2) of
ERISA, as to which Xxxxxxx-Xxxxxx or any member of the Controlled Group may have
any liability.
"Portion" shall mean the Base Rate Portion or the LIBO Rate Portion, as the
case may be.
"Potential Default" shall mean any event or condition which with notice or
passage of time, or both, would constitute an Event of Default.
"Prime Rate" as used herein, shall mean the interest rate per annum
established from time to time by Scotia Capital as its "base rate" for Dollars
loaned in the United States, which rate may be greater or less than other
interest rates charged by Scotia Capital to other borrowers and is not solely
based or dependent upon the interest rate which Scotia Capital may charge any
particular borrower or class of borrowers.
"Pro Rata" shall mean from or to each Lender in proportion to its
Commitment Percentage.
"Purchase Money Security Interest" shall have the meaning set forth in
Section 7.02(b) hereof.
"Purchasing Lender" shall have the meaning set forth in Section 10.14(c)
hereof.
"Rate Protection Agreement" means, collectively, any interest rate swap,
cap, collar or similar agreement entered into by any Borrower or any of their
respective Subsidiaries under which the counterparty of such agreement is (or at
the time such agreement was entered into, was) a Lender or an affiliate of a
Lender.
"Refunded Swing Line Loans" shall have the meaning set forth in Section
2.03(b).
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"Register" shall have the meaning set forth in Section 10.14(d) hereof.
"Regular Payment Date" shall mean the last day of each June, September,
December and March after the date hereof.
"Regulation T" means Regulation T of the Board of Governors of the Federal
Reserve System as from time to time in effect and shall include any successor or
other regulation or official interpretation of such Board of Governors relating
to the extension of credit by securities brokers and dealers for the purpose of
purchasing or carrying margin stocks applicable to such Persons.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and shall include any successor or
other regulation or official interpretation of such Board of Governors relating
to the extension of credit by banks for the purpose of purchasing or carrying
margin stocks applicable to such Persons.
"Regulation X" means Regulation X of the Board of Governors of the Federal
Reserve System as from time to time in effect and shall include any successor or
other regulation or official interpretation of such Board of Governors relating
to the extension of credit by banks for the purpose of purchasing or carrying
margin stocks applicable to such Persons.
"Replacement Lender" shall have the meaning set forth in Section 2.01(g)
hereof.
"Reportable Event" means a reportable event as defined in Section 4043(c)
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation
unconditionally or conditionally waived the requirement of Section 4043(a) of
ERISA that it be notified within 30 days of the occurrence of such event;
provided, that a failure to meet the minimum funding standard of Section 412 of
the Code and of Section 302 of ERISA shall be a Reportable Event regardless of
the issuance of any such waiver of the notice requirement in accordance with
either Section 4043(a) of ERISA or Section 412(d) of the Code.
"Required Lenders" shall mean, as of any date, Lenders which have Revolving
Credit Commitments constituting, in the aggregate, at least 51% of the total
Revolving Credit Commitments of all the Lenders.
"Responsible Officer" shall mean the Chairman, President, any Vice
President, the Controller or the Treasurer of any Borrower.
"Revolving Credit Commitment" shall have the meaning set forth in Section
2.01(a) hereof.
"Revolving Credit Committed Amount" shall mean, with respect to any Lender,
an amount equal to the amount set forth as such Lender's "Initial Revolving
Credit Committed Amount" below its name on the signature pages hereof, as either
such amount may have been reduced under Section 2.02 hereof at such time,
increased under Section 2.01(h), and subject to transfer to another Lender as
provided in Section 10.14 hereof.
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"Revolving Credit Extensions of Credit" shall mean, at any particular time,
the sum of (i) the aggregate unpaid principal amount of Revolving Credit Loans
then outstanding and (ii) the aggregate Letter of Credit Obligations then
outstanding.
"Revolving Credit Loans" shall have the meaning set forth in Section
2.01(a) hereof.
"Revolving Credit Notes" shall mean the promissory notes of the Borrowers
executed and delivered under Section 2.01(e) hereof and any promissory note
issued in substitution therefor pursuant to Sections 10.14(c) and 2.01(h) or any
other provisions hereof, together with all amendments, modifications,
extensions, renewals, refinancings or refundings thereof in whole or part.
"Scotia Capital" means The Bank of Nova Scotia in its individual capacity.
"SEC" means the Securities and Exchange Commission.
"Short Term Commitments" shall mean the aggregate "Revolving Credit
Commitments" of the "Lenders" (each as defined in the Short Term Credit
Agreement) under the Short Term Credit Agreement.
"Short Term Credit Agreement" shall mean that certain Short Term Credit
Agreement dated the date hereof, by and among the Borrowers, the Lenders named
therein and Scotia Capital, as the Agent, as amended.
"Significant Subsidiary" shall mean (a) the following Subsidiaries of
Xxxxxxx-Xxxxxx: Xxxxxxx-Xxxxxx Flight Systems, Inc., Xxxxxxx-Xxxxxx Flow Control
Corporation, Metal Improvement Company, Inc., and (b) any other Subsidiary of
Xxxxxxx-Xxxxxx (i) which, together with its Subsidiaries (determined on a
consolidated basis), has assets with a book value greater than or equal to 20%
of the total assets of Xxxxxxx-Xxxxxx and its Subsidiaries (determined on a
consolidated basis) as of the end of the most recently completed fiscal quarter
for which financial information is available, (ii) which, together with its
Subsidiaries (determined on a consolidated basis), has greater than 20% of the
net revenues of Xxxxxxx-Xxxxxx and its Subsidiaries (determined on a
consolidated basis) for the most recent four fiscal quarters for which financial
information is available, all determined in accordance with GAAP or (iii)
designated as a Significant Subsidiary pursuant to Section 7.13.
"Single Employer Plan" means a Plan subject to Title IV of ERISA maintained
by any member of the Controlled Group for employees of any member of the
Controlled Group, other than a Multiemployer Plan.
"Standard Notice" shall mean an irrevocable notice provided to the Agent on
a Business Day which is
(a) provided at least one Business Day in advance in the case of
selection of, conversion to or renewal of the Base Rate Option or
prepayment of any Base Rate Portion; and
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(b) provided at least three London Business Days in advance in the
case of selection of, conversion to or renewal of the LIBO Rate Option or
prepayment of any LIBO Rate Portion.
Standard Notice must be provided no later than 10:00 a.m., New York time,
on the last day permitted for such notice.
"Stock Payments" shall mean any dividend, distribution or payment of any
nature (whether in cash, securities, or other property) on account of or in
respect of any shares of the capital stock or other equity interests (or
warrants, options or rights therefor) of such Person, including but not limited
to any payment on account of the purchase, redemption, retirement, defeasance or
acquisition of any shares of the capital stock or other equity interests (or
warrants, options or rights therefor) of such Person, in each case regardless of
whether required by the terms of such capital stock or other equity interest (or
warrants, options or rights) or any other agreement or instrument.
"Subsidiary" of a Person means (a) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or (b) any
partnership, limited liability company, limited liability partnership,
association, joint venture or similar business organization more than 50% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
"Subsidiary Borrower" shall mean any of the following Subsidiaries of
Xxxxxxx-Xxxxxx that (a) is a party to this Agreement, or (b) has executed and
delivered to the Agent (i) a Revolving Credit Note, and (ii) a joinder to this
Agreement, in form and substance satisfactory to the Agent: Xxxxxxx-Xxxxxx
Flight Systems, Inc., a Delaware corporation; Metal Improvement Company, Inc., a
Delaware corporation; Xxxxxxx-Xxxxxx Flow Control Corporation, a New York
corporation; Xxxxxxx-Xxxxxx Flow Control Service Corporation, a Delaware
corporation; Xxxxxxx-Xxxxxx Flight Systems Europe A/S, a Danish coporation and
Xxxxxxx-Xxxxxx Antriebstechnik GmbH, a Swiss corporation.
"Subsidiary Guarantees" shall have the meaning set forth in Section 5.01(n)
hereof.
"Subsidiary Guarantors" shall mean the Subsidiary Borrowers and Significant
Subsidiaries.
"Substantial Portion" means, with respect to the properties of
Xxxxxxx-Xxxxxx and its consolidated Subsidiaries, property which (a) represents
more than 20% of the consolidated assets of Xxxxxxx-Xxxxxx and its Subsidiaries,
as would be shown in the consolidated financial statements of Xxxxxxx-Xxxxxx and
its Subsidiaries as at the end of the fiscal quarter next preceding the date on
which such determination is made, or (b) is responsible for more than 10% of the
consolidated net revenues or of the Consolidated Net Income of Xxxxxxx-Xxxxxx
and its Subsidiaries for the 12-month period ending as of the end of the fiscal
quarter next preceding the date of determination. For purposes of the
calculation of Consolidated Net Income for purposes of the definition of
Substantial Portion only, there shall be excluded therefrom any extraordinary
gains during such period and there shall be included therein any extraordinary
losses during such period.
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"Swing Line Commitment" shall have the meaning set forth in Section 2.01(b)
hereof.
"Swing Line Committed Amount" shall mean $15,000,000, as such amount may be
reduced from time to time pursuant to Section 2.02.
"Swing Line Extensions of Credit" shall mean, at any particular time, the
aggregate unpaid principal amount of the Swing Line Loans then outstanding.
"Swing Line Lender" means Scotia Capital.
"Swing Line Loans" shall have the meaning set forth in Section 2.01(a)
hereof.
"Swing Line Notes" shall mean the promissory notes of the Borrowers
executed and delivered under Section 2.01(e) hereof and any promissory note
issued in substitution therefor pursuant to Section 10.14(c) or any other
provisions hereof, together with all extensions, renewals, refinancings or
refundings thereof in whole or part.
"Syndication Agent" shall have the meaning set forth in the preamble.
"Synthetic Lease Obligations" shall mean with respect to any Person that is
a lessee under a lease of the type referred to as a "synthetic lease" that is
characterized as an operating lease in accordance with GAAP.
"Taxes" shall have the meaning set forth in Section 2.12(a) hereof.
"Termination Event" means, with respect to a Plan which is subject to Title
IV of ERISA, (a) a Reportable Event, (b) the withdrawal of any member of the
Controlled Group from such Plan which is subject to Section 4063 of ERISA during
a plan year in which such member of the Controlled Group was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA or was deemed such under
Section 4068(f) of ERISA, (c) the termination of such Plan, the filing of a
notice of intent to terminate such Plan or the treatment of an amendment of such
Plan as a termination under Section 4041 or 4041A of ERISA, (d) the institution
by the PBGC of proceedings to terminate such Plan (e) the complete or partial
withdrawal of any member of the Controlled Group from a Multiemployer Plan, (f)
any event or condition which could reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of or appointment of a trustee
to administer, such Plan, or (g) the imposition of any liability under Title IV
of ERISA, other than PBGC premiums due (but less than 60 days overdue) under
Section 4007 of ERISA, upon any modification of the Controlled Group.
"Transfer Effective Date" shall have the meaning set forth in the
applicable Transfer Supplement.
"Transfer Lender Notes" shall have the meaning set forth in Section
10.14(c) hereof.
"Transfer Supplement" shall have the meaning set forth in Section 10.14(c)
hereof.
"Unfunded Liabilities" means the amount (if any) by which the present value
of all vested and unvested accrued benefits under all Single Employer Plans
exceeds the fair market value of
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all such Plan assets allocable to such benefits, all determined as of the then
most recent valuation date for such Plans using PBGC actuarial assumptions for
single employer plan terminations.
"US Currency" shall mean Dollars.
1.02. Construction. Unless the context of this Agreement otherwise clearly
requires, references to the plural include the singular, the singular the plural
and the part the whole; "or" has the inclusive meaning represented by the phrase
"and/or"; and "property" includes all properties and assets of any kind or
nature, tangible or intangible, real, personal or mixed. References in this
Agreement to "determination" (and similar terms) by the Agent or by any Lender
include good faith estimates by the Agent or by any Lender (in the case of
quantitative determinations) and good faith beliefs by the Agent or by any
Lender (in the case of qualitative determinations). The words "hereof,"
"herein," "hereunder" and similar terms in this Agreement refer to this
Agreement as a whole and not to any particular provision of this Agreement. The
section and other headings contained in this Agreement and the Table of Contents
preceding this Agreement are for reference purposes only and shall not control
or affect the construction of this Agreement or the interpretation thereof in
any respect. Section, subsection and exhibit references are to this Agreement
unless otherwise specified.
1.03. Accounting Principles.
(a) As used herein, "GAAP" shall mean generally accepted accounting
principles in the United States, applied on a basis consistent with the
principles used in preparing Xxxxxxx-Xxxxxx'x consolidated financial statements
as of December 31, 2001 and for the fiscal year then ended, as referred to in
Section 4.05 hereof, together with such changes in GAAP as may be adopted from
time to time which, in the good faith judgment of the Agent, do not have a
material adverse effect on Xxxxxxx-Xxxxxx'x compliance with the covenants
contained in this Agreement.
(b) Except as otherwise provided in this Agreement, all computations and
determinations as to accounting or financial matters shall be made, and all
financial statements to be delivered pursuant to this Agreement shall be
prepared, in accordance with GAAP (including principles of consolidation where
appropriate), and all accounting or financial terms shall have the meanings
ascribed to such terms by GAAP.
(c) If and to the extent that the financial statements generally prepared
by Xxxxxxx-Xxxxxx apply accounting principles other than GAAP, all financial
statements referred to in this Agreement or any other Loan Document shall be
delivered in duplicate, one set based on the accounting principles then
generally applied by Xxxxxxx-Xxxxxx and one set based on GAAP. To the extent
this Agreement or such other Loan Document requires financial statements to be
accompanied by an opinion of independent accountants, each set of financial
statements shall be accompanied by such an opinion.
ARTICLE II
THE CREDITS
2.01. Revolving Credit Loans and Swing Line Loans.
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(a) Revolving Credit Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender,
severally and not jointly, agrees (such agreement being herein called such
Lender's "Revolving Credit Commitment") to make loans in either US Currency or
in an Other Currency (the "Revolving Credit Loans") to one or more Borrowers at
any time or from time to time on or after the date hereof and to but not
including the Maturity Date.
(b) Swing Line Commitment. Subject to the terms and conditions and relying
upon the representations and warranties herein set forth, the Swing Line Lender
agrees (such agreement being herein called such Lender's "Swing Line
Commitment") to make loans in US Currency (the "Swing Line Loans") to one or
more Borrowers at any time or from time to time on or after the date hereof and
to but not including the Maturity Date.
(c) Lenders Not Permitted or Required to Make Loans. A Lender shall not be
permitted or required to make
(i) any Revolving Credit Loan to the extent that the sum of the
aggregate principal amount of such Lender's Pro Rata share of the total
Revolving Credit Extensions of Credit and, if applicable, Swing Line
Extensions of Credit at any time outstanding would exceed such Lender's
Revolving Credit Committed Amount at such time; or
(ii) Swing Line Loans if, after giving effect thereto, (x) the
aggregate outstanding principal amount of all Swing Line Loans would exceed
the then existing Swing Line Committed Amount or (y) unless otherwise
agreed to by the Swing Line Lender, in its sole discretion, the sum of all
Swing Line Loans and Revolving Credit Loans made by the Swing Line Lender
plus the Swing Line Lender's Commitment Percentage of the aggregate amount
of Letter of Credit Obligations would exceed the Swing Line Lender's
Revolving Credit Committed Amount at such time.
(d) Nature of Credit. Within the limits of time and amount set forth in
this Section 2.01, and subject to the provisions of this Agreement, the
Borrowers may borrow, repay and reborrow the Loans hereunder.
(e) Notes. The obligations of each Borrower to repay the unpaid principal
amount of the Loans made to them by each Lender and to pay interest thereon
shall be evidenced in part by promissory notes of each such Borrower, one to
each Lender, dated the Closing Date in substantially the form attached hereto as
Exhibit A-1 with respect to Revolving Credit Loans (the "Revolving Credit
Notes") and Exhibit A-2 with respect to Swing Line Loans (the "Swing Line
Notes"), in each case with the blanks appropriately filled, payable to the order
of such Lender in a face amount equal to such Lender's "Initial Revolving Credit
Committed Amount" (as set forth below its name on the signature pages hereof) or
the Swing Line Committed Amount, as the case may be.
(f) Maturity. To the extent not due and payable earlier, the Loans shall be
due and payable on the Maturity Date.
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(g) Extension of Maturity Date. The Maturity Date may be extended for
successive one year periods at the request of Xxxxxxx-Xxxxxx with the express
consent of each Lender. Not later than the date 90 days prior to each
Anniversary Date, Xxxxxxx-Xxxxxx shall, at its option, in a written notice to
the Agent request (an "Extension Request") that the Maturity Date be extended
for a period of one year. The Agent shall promptly inform the Lenders of such
Extension Request. Each Lender may consent to such Extension Request by
delivering to the Agent its express written consent thereto no later than 60
days prior to such Anniversary Date. Each Borrower acknowledges that each
Lender's decision to consent to or reject an Extension Request shall be a new
credit determination by each such Lender and as such each Lender may withhold
its consent, or condition its consent upon additional or different terms, in
each case in its sole and absolute discretion. If (i) any Lender notifies the
Agent in writing on or before the 60th day prior to such Anniversary Date that
it will not consent to such Extension Request or (ii) all of the Lenders have
not in writing expressly consented to any such Extension Request on or before
the 60th day prior to such Anniversary Date, then the Agent shall immediately
notify Xxxxxxx-Xxxxxx and Xxxxxxx-Xxxxxx, at its option, may (x) withdraw such
Extension Request at any time prior to the date 10 days prior to such
Anniversary Date, or (y) replace each Lender which has not agreed to such
Extension Request (a "Nonextending Lender") with another commercial lending
institution reasonably satisfactory to the Agent (a "Replacement Lender") by
giving notice (not later than the date 20 days prior to such Anniversary Date)
of the name of such Replacement Lender to the Agent; provided, that unless the
Required Lenders (including Replacement Lenders) have agreed to such Extension
Request on or before the 20th day prior to such Anniversary Date, such Extension
Request shall be automatically withdrawn. Unless the Agent shall object to the
identity of such proposed Replacement Lender prior to the date 10 days prior to
such Anniversary Date, upon notice from the Agent, each Nonextending Lender
shall promptly (but in no event later than such Anniversary Date) assign all of
its interests hereunder to such Replacement Lender in consideration for an
amount equal to such Nonextending Lender's Pro Rata share of the outstanding
principal amount of the Loans and Letter of Credit Reimbursement Obligations,
plus accrued but unpaid interest thereon, plus accrued but unpaid fees and all
other amounts owing to such Nonextending Lender under the Loan Documents, all in
accordance with the provisions of Section 10.14(c) hereof. If the Required
Lenders agree to such Extension Request in accordance with this Section 2.01(g),
the Maturity Date shall be extended in accordance with such Extension Request;
provided, however, that with respect to each Nonextending Lender that has not
been replaced by Xxxxxxx-Xxxxxx in accordance with the terms of this Section
2.01(g), the Commitment of each such Nonextending Lender shall terminate on the
original Maturity Date (as such date may have been previously extended), and the
Borrowers shall pay to the Agent for the account of each such Nonextending
Lender such Nonextending Lender's Pro Rata share of the principal of and
interest on all outstanding Loans and Letter of Credit Reimbursement
Obligations, plus accrued but unpaid fees and all other amounts owing to such
Nonextending Lender under the Loan Documents, and the sum of the aggregate
Revolving Credit Committed Amounts shall be irrevocably reduced by an amount
equal to the sum of the aggregate Revolving Credit Committed Amounts of all
Nonextending Lenders. If all Lenders consent to any such Extension Request (or
if all Nonextending Lenders are replaced in accordance with this Section
2.01(g)), then as of 5:00 p.m. New York time on the Maturity Date, the Maturity
Date shall be deemed to have been extended for, and shall be the date, one year
after the then effective Maturity Date (as such date may have been previously
extended pursuant to this Section 2.01(g)).
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(h) Increase in Revolving Credit Commitments. Upon the written request of
Xxxxxxx-Xxxxxx, if approved in writing by the Required Lenders (which must
include the Agent), the Revolving Credit Commitments may be increased by an
aggregate amount of $15,000,000 less the amount, if any, by which the Short Term
Commitments may have been increased pursuant to Section 2.01(e) of the Short
Term Credit Agreement; provided, that no Lender's Revolving Credit Committed
Amount shall be increased without such Lender's approval. The Lenders' Revolving
Credit Committed Amounts shall be increased on a Pro Rata basis among the
Lenders approving the increase in Revolving Credit Commitments. The increase in
Revolving Credit Commitments shall be subject to the Agent's receipt, for each
Lender, of substitute Revolving Credit Notes, duly executed by each Borrower,
reflecting the amount of such Lender's Revolving Credit Committed Amount after
such increase in the Revolving Credit Commitments.
2.02. Facility Fee; Reduction of the Commitments.
(a) Facility Fee. Xxxxxxx-Xxxxxx shall pay to the Agent for the account of
each Lender a non-refundable facility fee (the "Facility Fee") for each day from
and including the date hereof to but not including the Maturity Date, whether or
not all or any portion of the aggregate Revolving Credit Committed Amounts is
then available, in an amount equal to the product of (i) the amount (not less
than zero) of such Lender's Revolving Credit Committed Amount on such day,
multiplied by (ii) the facility fee percentage determined from the chart set
forth below based on the Leverage Ratio, as determined quarterly based upon the
financial statements delivered by Xxxxxxx-Xxxxxx pursuant to Sections 5.01(f)
and 6.01, with such Facility Fee to be effective, with respect to calculations
based upon the quarterly unaudited financial statements delivered pursuant to
Section 6.01(b) hereof (or if no such quarterly unaudited financial statements
are timely delivered in accordance with Section 6.01(b), the Facility Fee
percentage shall be 0.35% until the delivery of such financial statements in
form satisfactory to the Agent), as of the first day of the quarter immediately
following the quarter for which such financial statements are delivered:
Leverage Ratio Facility Fee Percentage
-------------- -----------------------
>2.5 0.35%
>1.5 and <-2.5 0.30%
<-1.5 0.20%
Such Facility Fee shall be due and payable for the preceding period for which
such fee has not been paid (x) on each Regular Payment Date, (y) on the date of
each reduction of the Revolving Credit Committed Amounts (whether optional or
mandatory) on the amount so reduced and (z) on the Maturity Date.
(b) Reduction of the Revolving Credit Commitments. Xxxxxxx-Xxxxxx may at
any time or from time to time reduce Pro Rata the Revolving Credit Committed
Amounts of the Lenders to an aggregate amount (which may be zero) not less than
the Dollar Equivalent Amount of the unpaid principal amount of the Loans then
outstanding plus the principal amount of all Loans not yet made as to which
notice has been given by any Borrower under Section 2.03 hereof. Any reduction
of the Revolving Credit Committed Amounts shall be in an aggregate amount which
is a minimum amount of $5,000,000 and integral multiples of $500,000 thereof.
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Reduction of the Revolving Credit Committed Amounts shall be made by providing
not less than 30 days' notice (which notice shall be irrevocable) to such effect
to the Agent. After the date specified in such notice the Facility Fee shall be
calculated based upon the Revolving Credit Committed Amounts as so reduced. Any
optional or mandatory reduction of the Revolving Credit Committed Amounts
pursuant to the terms of this Agreement which reduces the Revolving Credit
Committed Amounts below the sum of (i) the Swing Line Committed Amount and (ii)
the then aggregate Letter of Credit Obligations shall result in an automatic and
corresponding reduction of the Swing Line Committed Amount and/or permitted
aggregate amount of Letter of Credit Obligations (as directed by the Borrower in
a notice to the Administrative Agent delivered together with the notice of such
voluntary reduction in the Revolving Credit Committed Amounts) to an aggregate
amount not in excess of the Revolving Credit Committed Amounts, as so reduced,
without any further action on the part of the Swing Line Lender or any Issuing
Bank. Upon reduction of the Revolving Credit Committed Amounts to zero, payment
in full of all Obligations and expiration or termination of all outstanding
Letters of Credit, this Agreement shall be terminated.
2.03. Making of Loans. (a) Revolving Credit Loans. Whenever a Borrower
desires that the Lenders make Revolving Credit Loans, such Borrower shall
provide Standard Notice to the Agent setting forth the following information:
(i) The currency, which shall be either US Currency or an Other
Currency, in which such Revolving Credit Loans are to be made;
(ii) The party making the borrowing thereunder;
(iii) The date, which shall be a Business Day (in the case of a Base
Rate Portion) or London Business Day (in the case of a LIBO Rate Portion),
on which such proposed Revolving Credit Loans are to be made;
(iv) The aggregate principal amount of such proposed Revolving Credit
Loans, which shall be the sum of the principal amounts selected pursuant to
clause (a)(v) of this Section 2.03;
(v) The interest rate Option or Options selected in accordance with
Section 2.04(a) hereof and the principal amounts selected in accordance
with Section 2.04(d) hereof of the Base Rate Portion and each Funding
Segment of the LIBO Rate Portion, as the case may be, of such proposed
Revolving Credit Loans; and
(vi) With respect to each such Funding Segment of such proposed
Revolving Credit Loans, the Funding Period to apply to such Funding
Segment, selected in accordance with Section 2.04(c) hereof.
Standard Notice having been so provided, the Agent shall promptly notify each
Lender of the information contained therein and of the amount of such Lender's
Revolving Credit Loan. Unless any applicable condition specified in Article V
hereof has not been satisfied, on the date specified in such Standard Notice
each Lender shall make the proceeds of its Revolving Credit Loan available to
the Agent (A) with respect to a Revolving Credit Loan denominated in US
Currency, at the Applicable Location no later than 12:00 noon, New York time, in
funds
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immediately available at the Applicable Location, and (B) with respect to a
Revolving Credit Loan denominated in an Other Currency, at the Applicable
Location, no later than 12:00 noon, London time, in funds immediately available
at the Applicable Location. The Agent will make the funds so received available
to the applicable Borrower in funds immediately available at the Applicable
Location.
(b) Swing Line Loans. By telephonic notice to the Swing Line Lender on or
before 12:00 noon, New York time, on a Business Day (followed (within one
Business Day) by the delivery of written confirmation of such request, which
request shall be in a form satisfactory to the Agent and shall include (i) the
party making the borrowing thereunder, including necessary account information,
and (ii) the aggregate principal amount of such proposed Swing Line Loan), any
Borrower may from time to time irrevocably request that Swing Line Loans be made
by the Swing Line Lender in an aggregate minimum principal amount of $500,000
and an integral multiple of $500,000. All Swing Line Loans shall be made in U.S.
Currency pursuant to the Base Rate Option and shall not be entitled to be
converted into Loans under the LIBO Rate Option. The proceeds of each Swing Line
Loan shall be made available by the Swing Line Lender to such Borrower by wire
transfer to the account such Borrower shall have specified in its notice
therefor by the close of business on the Business Day telephonic notice is
received by the Swing Line Lender, if such notice is received by the Swing Line
Lender on or before 12:00 noon, New York time on such date.
If (i) any Swing Line Loan shall be outstanding for more than four Business
Days, (ii) any Swing Line Loan is or will be outstanding on a date when the
applicable Borrower requests that a Revolving Credit Loan be made, or (iii) any
Potential Default shall occur and be continuing, then each Lender (other than
the Swing Line Lender) irrevocably agrees that it will make a Revolving Credit
Loan (which shall initially be funded under the Base Rate Option) in an amount
equal to such Lender's percentage of the aggregate principal amount of all such
Swing Line Loans then outstanding (such outstanding Swing Line Loans hereinafter
referred to as the "Refunded Swing Line Loans"). On or before 11:00 a.m. on the
first Business Day following receipt by each Lender of a request to make
Revolving Credit Loans as provided in the preceding sentence, each Lender shall
deposit in an account specified by the Swing Line Lender the amount so requested
in same day funds and such funds shall be applied by the Swing Line Lender to
repay the Refunded Swing Line Loans. At the time the Lenders make the above
referenced Revolving Credit Loans the Swing Line Lender shall be deemed to have
made, in consideration of the making of the Refunded Swing Line Loans, Revolving
Credit Loans in an amount equal to the Swing Line Lender's percentage of the
aggregate principal amount of the Refunded Swing Line Loans. Upon the making (or
deemed making, in the case of the Swing Line Lender) of any Revolving Credit
Loans pursuant to this clause, the amount so funded shall become outstanding
under such Lender's Revolving Credit Note and shall no longer be owed under the
Swing Line Note. All interest payable with respect to any Revolving Credit Loans
made (or deemed made, in the case of the Swing Line Lender) pursuant to this
clause shall be appropriately adjusted to reflect the period of time during
which the Swing Line Lender had outstanding Swing Line Loans in respect of which
such Revolving Credit Loans were made. Each Lender's obligation to make the
Revolving Credit Loans referred to in this clause shall be absolute and
unconditional and shall not be affected by any circumstance, including (i) any
set-off, counterclaim, recoupment, defense or other right which such Lender may
have against the Swing Line Lender, Xxxxxxx-Xxxxxx, any of its Subsidiaries, or
any other Person for any reason whatsoever; (ii) the
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occurrence or continuance of any Potential Default or Event of Default; (iii)
any adverse change in the condition (financial or otherwise) of any Borrower or
any Subsidiary of Xxxxxxx-Xxxxxx; (iv) the acceleration or maturity of any
Obligations or the termination of any Commitment after the making of any Swing
Line Loan; (v) any breach of any Loan Document by any Person; or (vi) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
2.04. Interest Rates.
(a) Optional Bases of Borrowing. The unpaid principal amount of the Loans
shall bear interest for each day until due on one or more bases selected by the
applicable Borrower from among the interest rate Options set forth below (except
in the case of Swing Line Loans, which shall bear interest only at the Base Rate
Option, as set forth in Section 2.03(b)). Subject to the provisions of this
Agreement the Borrowers may select different options to apply simultaneously to
different Portions of the Revolving Credit Loans and may select different
Funding Segments to apply simultaneously to different parts of the LIBO Rate
Portion of the Revolving Credit Loans. The aggregate number of Funding Segments
applicable to the LIBO Rate Portion of the Revolving Credit Loans at any time
shall not exceed ten without the approval of the Agent.
(i) Base Rate Option: The Base Rate Option shall be a rate per annum
(computed on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed) for each day equal to the Base Rate for such day.
The "Base Rate" for any day shall mean the greater of (A) the Prime Rate
for such day or (B) 0.50% plus the Federal Funds Effective Rate for such
day, such interest rate to change automatically from time to time effective
as of the effective date of each change in the Prime Rate or the Federal
Funds Effective Rate.
(ii) LIBO Rate Option: The LIBO Rate Option shall be a rate per annum
(based on a year of 360 days and actual days elapsed) for each day equal to
the LIBO Rate for such day plus the Applicable Margin for such day. "LIBO
Rate" for any day, as used herein, shall mean for each Funding Segment of
the LIBO Rate Portion corresponding to a proposed or existing LIBO Rate
Funding Period the rate per annum determined by the Agent by dividing (the
resulting quotient to be rounded upward to the nearest 1/100 of 1%) (A) the
rate of interest (which shall be the same for each day in such LIBO Rate
Funding Period) that is the applicable British Bankers' Association
"Interest Settlement Rate" for deposits in Dollars as it appears on the Dow
Xxxxx Market Service (formerly known as the Dow Xxxxx Telerate Service)
page 3750 (or such other page as may replace page 3750 on that service or
such other service as may be nominated by the British Bankers' Association
for the purpose of displaying the applicable London interbank offered rate)
at approximately 11:00 a.m., London time, two London Business Days prior to
the first day of such LIBO Rate Funding Period for delivery on the first
day of such LIBO Rate Funding Period in amounts comparable to such Funding
Segment and having maturities comparable to such LIBO Rate Funding Period
by (B) a number equal to 1.00 minus the LIBO Rate Reserve Percentage.
(iii) "LIBO Rate Reserve Percentage" for any day shall mean the
percentage (expressed as a decimal, rounded upward to the nearest 1/100 of
1%), as determined in
-22-
good faith by the Agent (which determination shall be conclusive absent
manifest error), which is in effect on such day as prescribed by the Board
of Governors of the Federal Reserve System (or any successor) representing
the maximum reserve requirement (including, without limitation,
supplemental, marginal and emergency reserve requirements) with respect to
eurocurrency funding (currently referred to as "Eurocurrency liabilities")
of a member bank in such system. The LIBO Rate shall be adjusted
automatically as of the effective date of each change in the LIBO Rate
Reserve Percentage. The LIBO Rate Option shall be calculated in accordance
with the foregoing whether or not any Lender is actually required to hold
reserves in connection with its eurocurrency funding or, if required to
hold such reserves, is required to hold reserves at the "LIBO Rate Reserve
Percentage" as herein defined.
The Agent shall give prompt notice to the applicable Borrower and to the
Lenders of the LIBO Rate determined or adjusted in accordance with the
definition of the LIBO Rate, which determination or adjustment shall be
conclusive absent manifest error.
(b) Applicable Margin. The "Applicable Margin" for the LIBO Rate Option for
any day shall be determined by reference to the Leverage Ratio as determined on
such day and shall mean the applicable percentage set forth below:
--------------------------------------------------------------------------------
Leverage Ratio Applicable Margin
-------------- -----------------
--------------------------------------------------------------------------------
> 2.5 1.45%
--------------------------------------------------------------------------------
> 2.0 and [ ] 2.5 1.20%
--------------------------------------------------------------------------------
> 1.5 and [ ] 2.0 0.95%
--------------------------------------------------------------------------------
[ ] 1.5 0.80%
--------------------------------------------------------------------------------
The Leverage Ratio used to compute the Applicable Margin shall be the Leverage
Ratio set forth in the quarterly compliance certificate most recently delivered
by Xxxxxxx-Xxxxxx to the Agent. Changes in the Applicable Margin resulting from
a change in the Leverage Ratio shall become effective upon delivery by
Xxxxxxx-Xxxxxx to the Agent of a new quarterly compliance certificate pursuant
to Section 6.01(c). If Xxxxxxx-Xxxxxx shall fail to deliver a quarterly
compliance certificate within 60 days after the end of any of its fiscal
quarters (or within 90 days, in the case of the last fiscal quarter of its
fiscal year), the Applicable Margin from and including the 61st (or 91st, as the
case may be) day after the end of such fiscal quarter to but not including the
date Xxxxxxx-Xxxxxx delivers to the Agent a quarterly compliance certificate
shall conclusively equal the highest Applicable Margin set forth above.
(c) Funding Periods. At any time when a Borrower shall select, convert to
or renew the LIBO Rate Option to apply to any part of the Revolving Credit
Loans, the applicable Borrower shall specify one of the following periods (the
"Funding Periods") during which the LIBO Rate Option shall apply: One, two,
three, six months or twelve months if offered by all of the Lenders in their
sole discretion; provided, that:
(i) Each Funding Period shall begin on a London Business Day, and the
term "month", when used in connection with a Funding Period, shall be
construed in accordance with prevailing practices in the interbank
eurodollar market at the
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commencement of such Funding Period, as determined in good faith by the
Agent (which determination shall be conclusive);
(ii) A Borrower may not select a Funding Period that would end after
the Maturity Date; and
(iii) A Borrower shall, in selecting any Funding Period, allow for
scheduled mandatory payments and foreseeable mandatory prepayments of the
Revolving Credit Loans.
(d) Transactional Amounts. Every selection of, conversion from, conversion
to or renewal of an interest rate Option and every payment or prepayment of any
Loans shall be in a principal amount such that after giving effect thereto the
aggregate principal amount of the Base Rate Portion of the Loans, or the
aggregate principal amount of each Funding Segment of the LIBO Rate Portion of
the Revolving Credit Loans, shall be as set forth below:
-----------------------------------------------------------------------------------------------------------------
Portion or Funding Segment Allowable Aggregate Principal Amounts
-------------------------- -------------------------------------
-----------------------------------------------------------------------------------------------------------------
Base Rate Portion an integral multiple of 500,000 of US Currency
(or, in the case of a prepayment and if less, the then
outstanding principal amount of Revolving Credit Loans)
-----------------------------------------------------------------------------------------------------------------
Each Funding Segment of the LIBO Rate Portion an integral multiple of 1,000,000 of US Currency or the
Dollar Equivalent Amount of Other Currency denominated by the
applicable Borrower (or, in the case of a prepayment and if
less, the then outstanding principal amount of Revolving
Credit Loans)
-----------------------------------------------------------------------------------------------------------------
(e) LIBO Rate Unascertainable; Impracticability. If
(i) on any date on which a LIBO Rate would otherwise be set the Agent
(in the case of clauses (A) or (B) below) or any Lender (in the case of
clause (C) below) shall have determined in good faith (which determination
shall be conclusive absent manifest error) that:
(A) adequate and reasonable means do not exist for ascertaining
such LIBO Rate,
(B) a contingency has occurred which materially and adversely
affects the secondary market for the interbank eurodollar market, or
(C) the effective cost to such Lender of funding a proposed
Funding Segment of the LIBO Rate Portion from a Corresponding Source
of Funds shall exceed the LIBO Rate applicable to such Funding
Segment, or
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(ii) at any time any Lender shall have determined in good faith (which
determination shall be conclusive absent manifest error) that the making,
maintenance or funding of any part of the LIBO Rate Portion has been made
impracticable or unlawful by compliance by such Lender or a Notional LIBO
Rate Funding Office in good faith with any Law or guideline or
interpretation or administration thereof by any Governmental Authority
charged with the interpretation or administration thereof or with any
request or directive of any such Governmental Authority (whether or not
having the force of law);
then, and in any such event, the Agent or such Lender, as the case may be, may
notify the Borrowers of such determination (and any Lender giving such notice
shall notify the Agent). Upon such date as shall be specified in such notice
(which shall not be earlier than the date such notice is given), the obligation
of each of the Lenders to allow the Borrowers to select, convert to or renew the
LIBO Rate Option, shall be suspended until the Agent or such Lender, as the case
may be, shall have later notified the Borrowers (and any Lender giving such
notice shall notify the Agent) of the Agent's or such Lender's determination in
good faith (which determination shall be conclusive absent manifest error) that
the circumstance giving rise to such previous determination no longer exist.
If any Lender notifies Xxxxxxx-Xxxxxx (either in its capacity as Borrower
or as recipient of notice on behalf of any Subsidiary Borrower pursuant to
Section 10.05) of a determination under subsection (ii) of this Section 2.04(e),
the LIBO Rate Portion of the Revolving Credit Loans of such Lender (the
"Affected Lender") shall automatically be converted to the Base Rate Option as
of the date specified in such notice (and accrued interest thereon shall be due
and payable on such date).
If at the time the Agent or any Lender makes a determination under
subsection (i) or (ii) of this Section 2.04(e) any Borrower previously has
notified the Agent that it wishes to select, convert to or renew the LIBO Rate
Option, with respect to any proposed Revolving Credit Loans but such Revolving
Credit Loans have not yet been made, such notification shall be deemed to
provide for selection of, conversion to or renewal of the Base Rate Option
instead of the LIBO Rate Option with respect to such Revolving Credit Loans or,
in the case of a determination by any Lender, such Revolving Credit Loans of
such Lender.
(f) Availability of Funds. If at any time any Lender cannot access funds
through traditional sources, as determined by such Lender in good faith (which
determination shall be conclusive absent manifest error), then the interest rate
applicable to such Lender's Pro Rata share of the Loans shall be equal to (i)
the Federal Funds Effective Rate then in effect, plus (ii) 1.50%, plus (iii) in
the case of a LIBO Rate Portion, the Applicable Margin determined by reference
to the Leverage Ratio on such date.
2.05. Conversion or Renewal of Interest Rate Options.
(a) Conversion or Renewal. Subject to the provisions of Sections 2.04(e)
and 2.04(f) hereof, unless an Event of Default shall have occurred and be
continuing, any Borrower may convert any part of its Revolving Credit Loans from
any interest rate Option or Options to
-25-
one or more different interest rate Options and may renew the LIBO Rate Option
as to any Funding Segment of the LIBO Rate Portion:
(i) At any time with respect to conversion from the Base Rate Option;
or
(ii) At the expiration of any Funding Period with respect to
conversions from or renewals of the LIBO Rate Option, as to the Funding
Segment corresponding to such expiring Funding Period.
Whenever a Borrower desires to convert or renew any interest rate Option or
Options, such Borrower shall provide to the Agent Standard Notice setting forth
the following information:
(w) The date, which shall be a Business Day, on which the proposed
conversion or renewal is to be made;
(x) The principal amounts selected in accordance with Section 2.04(d)
hereof of the Base Rate Portion and each Funding Segment of the LIBO Rate
Portion to be converted from or renewed;
(y) The interest rate Option or Options selected in accordance with
Section 2.04(a) hereof and the principal amounts selected in accordance
with Section 2.04(d) hereof of the Base Rate Portion and each Funding
Segment of the LIBO Rate Portion to be converted; and
(z) With respect to each Funding Segment to be converted to or
renewed, the Funding Period selected in accordance with Section 2.04(c)
hereof to apply to such Funding Segment.
Standard Notice having been so provided, after the date specified in such
Standard Notice, interest shall be calculated upon the principal amount of the
Revolving Credit Loans as so converted or renewed. Interest on the principal
amount of any part of the Revolving Credit Loans converted or renewed
(automatically or otherwise) shall be due and payable on the conversion or
renewal date.
(b) Failure to Convert or Renew. Absent due notice from any Borrower of
conversion or renewal in the circumstances described in Section 2.05(a)(ii)
hereof, any part of the LIBO Rate Portion for which such notice is not received
shall be converted automatically to the Base Rate Option on the last day of the
expiring Funding Period; provided, however, that if any LIBO Rate Portion is in
an Other Currency, such portion shall be renewed automatically for one month on
the last day of the expiring Funding Period.
2.06. Prepayments Generally. Whenever a Borrower desires or is required to
prepay any part of its Loans, it shall provide Standard Notice to the Agent
setting forth the following information:
(a) In the case of a LIBO Rate Portion, subject to Section 2.09(b), the
currency in which such prepayment is to be made;
-26-
(b) The date, which shall be a Business Day, on which the proposed
prepayment is to be made;
(c) The total principal amount of such prepayment, which shall be the sum
of the principal amounts selected pursuant to clause (d) of this Section 2.06;
and
(d) The principal amounts selected in accordance with Section 2.04(d)
hereof of the Base Rate Portion and each part of each Funding Segment of the
LIBO Rate Portion to be prepaid.
Standard Notice having been so provided, on the date specified in such Standard
Notice, the principal amounts of the Base Rate Portion and each Funding Segment
of the LIBO Rate Portion specified in such notice, together with interest on
each such principal amount to such date, shall be due and payable.
2.07. Optional Prepayments. The Borrowers shall have the right at their
option from time to time to prepay their Loans in whole or part without premium
or penalty (subject, however, to Section 2.10(b) hereof):
(a) At any time with respect to any part of the Base Rate Portion; or
(b) At the expiration of any Funding Period with respect to prepayment of
the LIBO Rate Portion with respect to any part of the Funding Segment
corresponding to such expiring Funding Period.
Any such prepayment shall be made in accordance with Section 2.06 hereof.
2.08. Interest Payment Dates. Interest on the Base Rate Portion shall be
due and payable in arrears on the last day of each month. Interest on each
Funding Segment of the LIBO Rate Portion shall be due and payable on the last
day of the corresponding LIBO Rate Funding Period and, if such LIBO Rate Funding
Period is longer than three months, on each Regular Payment Date. After maturity
of any part of the Loans (by acceleration or otherwise), interest on such part
of the Loans shall be due and payable on demand.
2.09. Pro Rata Treatment; Payments Generally.
(a) Pro Rata Treatment. Each borrowing and conversion and renewal of
interest rate Options hereunder shall be made, and all payments made in respect
of principal, interest and Facility Fees due from the Borrowers hereunder or
under the Notes shall be applied, Pro Rata from and to each Lender, except for
payments of interest involving an Affected Lender as provided in Section 2.04(e)
hereof, payments to a Lender under Sections 2.10, 2.12 or 3.07 hereof and
payments to any Issuing Bank pursuant to Section 3.02(b) hereof. The failure of
any Lender to make a Loan shall not relieve any other Lender of its obligation
to lend hereunder, but neither the Agent nor any Lender shall be responsible for
the failure of any other Lender to make a Loan.
(b) Payments Generally. The parties agree that (i) all payments and
prepayments of principal, interest and other amounts in connection with Loans
denominated in US Currency and
-27-
all fees shall be made in US Currency and (ii) all payments of principal,
interest and other amounts (other than fees) in connection with Revolving Credit
Loans denominated in any Other Currency shall be made in such Other Currency.
All payments and prepayments to be made in respect of principal, interest, fees
or other amounts due from the Borrowers in US Currency shall be payable by 12:00
noon, New York time, on the day when due without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived, and an action
therefor shall immediately accrue. Except for payments under Sections 2.10 and
10.06, such payments shall be made to the Agent at the Applicable Location in US
Currency in funds immediately available at the Applicable Location without
setoff, counterclaim or other deduction of any nature. All payments and
prepayments to be made in respect of principal, interest, fees or other amounts
due from the Borrowers in any Other Currency shall be payable by 12:00 noon,
London time, on the day when due without presentment, demand, protest or notice
of any kind, all of which are hereby expressly waived, and an action therefor
shall immediately accrue. Except for payments under Sections 2.10 and 10.06,
such payments shall be made to the Agent at the Applicable Location in such
Other Currency in funds immediately available at the Applicable Location without
setoff, counterclaim or other deduction of any nature. Any payment or prepayment
received (i) in US Currency by the Agent or such Lender after 12:00 noon, New
York time, on any day shall be deemed to have been received on the next
succeeding Business Day and (ii) in any Other Currency by the Agent or such
Lender after 12:00 noon, London time, on any day shall be deemed to have been
received on the next succeeding London Business Day. The Agent shall distribute
to the Lenders all such payments received by it from the Borrowers as promptly
as practicable after receipt by the Agent.
(c) Default Interest. To the extent permitted by law, from and after the
date on which an Event of Default shall have occurred hereunder, and so long as
such Event of Default continues to exist, principal, interest, fees, indemnity,
expenses or any other amounts due from the Borrowers hereunder or under any
other Loan Document, shall bear interest for each day (before and after
judgment), payable on demand, at a rate per annum (in each case based on a year
of 360 days and actual days elapsed) which for each day shall be equal to the
following:
(i) In the case of any part of LIBO Rate Portion of any Revolving
Credit Loans, (A) until the end of the applicable then-current Funding
Period at a rate per annum 2% above the rate otherwise applicable to such
part, and (B) thereafter in accordance with the following clause (ii); and
(ii) In the case of any other amount due from the Borrowers hereunder
or under any Loan Document, 2% above the then-current Base Rate Option.
To the extent permitted by law, interest accrued under this Section 2.09 on any
amount shall compound on a day-by-day basis, and hence shall be added daily to
the overdue amount to which such interest relates.
2.10. Additional Compensation in Certain Circumstances.
(a) Increased Costs or Reduced Return Resulting From Taxes, Reserves,
Capital Adequacy Requirements, Expenses, etc. If any Law or guideline or
interpretation or application thereof by any Governmental Authority charged with
the interpretation or administration thereof
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or compliance with any request or directive of any Governmental Authority
(whether or not having the force of law) now existing or hereafter adopted:
(i) subjects any Lender or any Notional LIBO Rate Funding Office to
any tax or changes the basis of taxation with respect to this Agreement,
the Notes, the Loans or payments by the Borrowers of principal, interest,
commitment fees or other amounts due from the Borrowers hereunder or under
the Notes (except for taxes on the overall net income or overall gross
receipts of such Lender or such Notional LIBO Rate Funding Office imposed
by the jurisdictions (federal, state and local) in which the Lender's
principal office or Notional LIBO Rate Funding Office is located),
(ii) imposes, modifies or deems applicable any reserve, special
deposit or similar requirement against credits or commitments to extend
credit extended by, assets (funded or contingent) of, deposits with or for
the account of, other acquisitions of funds by, such Lender or any Notional
LIBO Rate Funding Office (other than requirements expressly included herein
in the determination of the LIBO Rate hereunder),
(iii) imposes, modifies or deems applicable any capital adequacy or
similar requirement (A) against assets (funded or contingent) of, or
credits or commitments to extend credit extended by, any Lender or any
Notional LIBO Rate Funding Office, or (B) otherwise applicable to the
obligations of any Lender or any Notional LIBO Rate Funding Office under
this Agreement, or
(iv) imposes upon any Lender or any Notional LIBO Rate Funding Office
any other condition or expense with respect to this Agreement, the Notes or
its making, maintenance or funding of any Loan or any security therefor,
and the result of any of the foregoing is to increase the cost to, reduce the
income receivable by, or impose any expense (including loss of margin) upon any
Lender, any Notional LIBO Rate Funding Office or, in the case of clause (iii)
hereof, any Person controlling a Lender, with respect to this Agreement, the
Notes or the making, maintenance or funding of any Loan (or, in the case of any
capital adequacy or similar requirement, to have the effect of reducing the rate
of return on such Lender's or controlling Person's capital, taking into
consideration such Lender's or controlling Person's policies with respect to
capital adequacy) by an amount which such Lender deems in good faith to be
material (such Lender being deemed for this purpose to have made, maintained or
funded each Funding Segment of the LIBO Rate Portion from a Corresponding Source
of Funds), such Lender may from time to time notify the Borrowers of the amount
determined in good faith (using any averaging and attribution methods) by such
Lender (which determination shall be conclusive) to be necessary to compensate
such Lender or such Notional LIBO Rate Funding Office for such increase,
reduction or imposition. Such amount shall be due and payable by the Borrowers
to such Lender five Business Days after such notice is given, together with an
amount equal to interest on such amount from the date two Business Days after
the date demanded until such due date at the Base Rate Option. A certificate by
such Lender as to the amount due and payable under this Section 2.10(a) from
time to time and the method of calculating such amount shall be conclusive
absent manifest error.
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(b) Funding Breakage. In addition to all other amounts payable hereunder,
if and to the extent for any reason any part of any Funding Segment of any LIBO
Rate Portion of the Revolving Credit Loans becomes due (by acceleration or
otherwise), or is paid, prepaid or converted to another interest rate Option
(whether or not such payment, prepayment or conversion is mandatory or automatic
and whether or not such payment or prepayment is then due), on a day other than
the last day of the corresponding Funding Period (the date such amount so
becomes due, or is so paid, prepaid or converted, being referred to as the
"Funding Breakage Date"), the Borrowers shall pay each Lender an amount
("Funding Breakage Indemnity") determined by such Lender as follows:
(i) first, calculate the following amount: (A) the principal amount of
such Funding Segment of the Revolving Credit Loans owing to such Lender
which so became due, or which was so paid, prepaid or converted, times (B)
the greater of (x) zero or (y) the rate of interest applicable to such
principal amount on the Funding Breakage Date minus the Applicable Funding
Rate as of the Funding Breakage Date, times (C) the number of days from and
including the Funding Breakage Date to but not including the last day of
such Funding Period, times (D) 1/360;
(ii) the Funding Breakage Indemnity to be paid by the Borrowers to
such Lender shall be the amount equal to the present value as of the
Funding Breakage Date (discounted at the Applicable Funding Rate as of such
Funding Breakage Date, and calculated on the basis of a year of 365 or 366
days, as the case may be, and actual days elapsed) of the amount described
in the preceding clause (i) (which amount described in the preceding clause
(i) is assumed for purposes of such present value calculation to be payable
on the last day of the corresponding Funding Period).
For purposes of this Section, the term "Applicable Funding Rate" shall mean
(i) in the case of any calculation of a Funding Breakage Indemnity payment with
respect to a particular Funding Segment for which the corresponding Funding
Period was originally one year or longer, the Federal Funds Effective Rate, and
(ii) in the case of any calculation of a Funding Breakage Indemnity payment with
respect to a Funding Segment for which the corresponding Funding Period was
originally less than one year, the LIBO Rate.
Such Funding Breakage Indemnity shall be due and payable on demand, and
each Lender shall, upon making such demand, notify the Agent of the amount so
demanded. In addition, the Borrowers shall, on the due date for payment of any
Funding Breakage Indemnity, pay to such Lender an additional amount equal to
interest on such Funding Breakage Indemnity from the Funding Breakage Date to
but not including such due date at the Base Rate Option applicable to the Loans
(calculated on the basis of a year of 360 days and actual days elapsed).
The amount payable to each Lender under this Section 2.10(b) shall be
determined in good faith by such Lender, and such determination shall be
conclusive absent manifest error.
2.11. HLT Classification. In the event that after the date hereof the Loans
hereunder are classified as a "highly leveraged transaction" (an "HLT
Classification") by any Governmental Authority having jurisdiction over any
Lender, such Lender may in its discretion from time to time so notify the Agent,
and upon receiving such notice the Agent shall promptly give notice of
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such event to the Borrowers, the Issuing Banks and the Lenders. In such event
the parties hereto shall commence negotiations to agree on revised Facility
Fees, interest rates and Applicable Margins hereunder. If the parties hereto
fail to agree on such matters in their respective absolute discretion within 60
days of the notice given by the Agent referred to above, then the Required
Lenders may at any time or from time to time thereafter direct the Agent to (a)
by ten Business Days' notice to the Borrowers, terminate any or all of the
Commitments, and any such Commitments shall thereupon terminate, or (b) by ten
Business Days' notice to the Borrowers, declare the Obligations, together with
(without duplication) accrued interest thereon, to be, and the Obligations shall
thereupon become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived, and an
action therefor shall immediately accrue. The Lenders acknowledge that an HLT
Classification is not an Event of Default or Potential Default hereunder.
2.12. Taxes.
(a) Payments Net of Taxes. All payments made by the Borrowers under this
Agreement or any other Loan Document shall be made free and clear of, and
without reduction or withholding, unless required by Law, for or on account of,
any present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, and all
liabilities with respect thereto, excluding
(i) in the case of the Agent and each Lender, income or franchise
taxes imposed on the Agent or such Lender by the jurisdiction under the
laws of which the Agent or such Lender is organized or any political
subdivision or taxing authority thereof or therein or as a result of a
connection between such Lender and any jurisdiction other than a connection
resulting solely from this Agreement and the transactions contemplated
hereby, and
(ii) in the case of each Lender, income or franchise taxes imposed by
any jurisdiction in which such Lender's lending offices which make or book
Loans are located or any political subdivision or taxing authority thereof
or therein
(all such non-excluded taxes, levies, imposts, deductions, charges or
withholdings being hereinafter called "Taxes"). If any Taxes are required to be
withheld or deducted from any amounts payable to the Agent or any Lender under
this Agreement or any other Loan Document, the Borrowers shall pay the relevant
amount of such Taxes and the amounts so payable to the Agent or such Lender
shall be increased to the extent necessary to yield to the Agent or such Lender
(after payment of all Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement and the
other Loan Documents. Whenever any Taxes are paid by the Borrowers with respect
to payments made in connection with this Agreement or any other Loan Document,
as promptly as possible thereafter, the Borrowers shall send to the Agent for
its own account or for the account of such Lender, as the case may be, a
certified copy of an original official receipt received by the Borrowers showing
payment thereof.
(b) Indemnity. The Borrowers hereby indemnify the Agent and each of the
Lenders for the full amount of such Taxes and any present or future claims,
liabilities or losses with
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respect to or resulting from any omission to pay or delay in paying such Taxes
(including any incremental Taxes, interest or penalties that may become payable
by the Agent or such Lender as a result of any failure to pay such Taxes but
excluding any claims, liabilities or losses with respect to or arising from
omissions to pay or delays in payment attributable to the act or omission of the
Agent or any Lender), whether or not such Taxes were correctly or legally
asserted. Such indemnification shall be made within 30 days from the date such
Lender or the Agent, as the case may be, makes written demand therefor.
(c) Withholding and Backup Withholding. Each Lender that is incorporated or
organized under the laws of any jurisdiction other than the United States or any
state thereof agrees that, on or prior to the date any payment is due to be made
to it hereunder or under any other Loan Document, it will furnish to the
Borrowers and the Agent
(i) two valid, duly completed copies of United States Internal Revenue
Service Form W-8ECI or United States Internal Revenue Form W-8BEN or
successor applicable form, as the case may be, certifying in each case that
such Lender is entitled to receive payments under this Agreement and the
other Loan Documents without deduction or withholding of any United States
federal income taxes and
(ii) a valid, duly completed Internal Revenue Service Form W-8 or
successor applicable form, as the case may be, to establish an exemption
from United States backup withholding tax.
Each Lender which so delivers to the Borrowers and the Agent a Form W-8BEN and
Form W-8, or successor applicable forms agrees to deliver to the Borrowers and
the Agent two further copies of the said Form W-8ECI or W-8BEN and Form W-8, or
successor applicable forms, or other manner of certification, as the case may
be, on or before the date that any such form expires or becomes obsolete or
otherwise is required to be resubmitted as a condition to obtaining an exemption
from withholding tax, or after the occurrence of any event requiring a change in
the most recent form previously delivered by it, and such extensions or renewals
thereof as may reasonably be requested by the Borrowers and the Agent,
certifying in the case of a Form W-8ECI or Form W-8BEN that such Lender is
entitled to receive payments under this Agreement or any other Loan Document
without deduction or withholding of any United States federal income taxes,
unless in any such cases an event (including any changes in Law) has occurred
prior to the date on which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent such Lender from duly
completing and delivering any such letter or form with respect to it and such
Lender advises the Borrowers and the Agent that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax, and in the case of a Form W-8, establishing an exemption from United States
backup withholding tax.
2.13. Funding by Branch, Subsidiary or Affiliate.
(a) Notional Funding. Each Lender of Revolving Credit Loans shall have the
right from time to time, prospectively or retrospectively, without notice to the
Borrowers, to deem any branch, subsidiary or affiliate of such Lender to have
made, maintained or funded any part of the LIBO Rate Portion at any time. Any
branch, subsidiary or affiliate so deemed shall be known as
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a "Notional LIBO Rate Funding Office". Such Lender shall deem any part of the
LIBO Rate Portion of the Revolving Credit Loans or the funding therefor to have
been transferred to a different Notional LIBO Rate Funding Office if such
transfer would avoid or cure an event or condition described in Section
2.04(e)(ii) hereof or would lessen compensation payable by the Borrowers under
Section 2.10(a) hereof, or if such Lender determines in its sole discretion that
such transfer would be practicable and would not have a Material Adverse Effect
on such part of the Revolving Credit Loans, such Lender or any Notional LIBO
Rate Funding Office (it being assumed for purposes of such determination that
each part of the LIBO Rate Portion is actually made or maintained by or funded
through the corresponding Notional LIBO Rate Funding Office). Notional LIBO Rate
Funding Offices may be selected by such Lender without regard to such Lender's
actual methods of making, maintaining or funding Revolving Credit Loans or any
sources of funding actually used by or available to such Lender.
(b) Actual Funding. Each Lender of Revolving Credit Loans shall have the
right from time to time to make or maintain any part of the LIBO Rate Portion by
arranging for a branch, subsidiary or affiliate of such Lender to make or
maintain such part of the LIBO Rate Portion. Such Lender shall have the right to
(i) hold any applicable Note payable to its order for the benefit and account of
such branch, subsidiary or affiliate or (ii) request the Borrowers to issue one
or more substitute promissory notes in the principal amount of such LIBO Rate
Portion, in substantially the form attached hereto as Exhibit A-1, with the
blanks appropriately filled, payable to such branch, subsidiary or affiliate and
with appropriate changes reflecting that the holder thereof is not obligated to
make any additional Loans to the Borrowers; provided, that if a Lender requests
the Borrowers to issue one or more substitute promissory notes in accordance
with clause (ii) above, the amount of the Note payable to such Lender shall
automatically be reduced accordingly. The Borrowers agree to comply promptly
with any request under subsection (ii) of this Section 2.13(b). If any
applicable Lender causes a branch, subsidiary or affiliate to make or maintain
any part of the LIBO Rate Portion hereunder, all terms and conditions of this
Agreement shall, except where the context clearly requires otherwise, be
applicable to such part of the LIBO Rate Portion and to any note payable to the
order of such branch, subsidiary or affiliate to the same extent as if such part
of the LIBO Rate Portion were made or maintained and such note were a Revolving
Credit Note payable to such Lender's order.
2.14. Special Provisions for Other Currency Revolving Credit Loans and
Letters of Credit.
(a) Dollar Equivalent Amounts.
(i) Calculation of Dollar Equivalent Amounts. Upon each making and
upon each payment with respect to a Revolving Credit Loan or Letter of
Credit denominated in an Other Currency, the Agent shall calculate the
Dollar Equivalent Amount of such Revolving Credit Loan or Letter of Credit,
as the case may be, and shall provide written confirmation to the Lenders.
(ii) Recalculation of Dollar Equivalent Amounts. In determining the
Dollar Equivalent Amount of the aggregate Revolving Credit Extensions of
Credit of the Lenders, the Agent may use the respective Dollar Equivalent
Amounts for the Revolving Credit Loans or Letters of Credit pursuant to
paragraph (i) of this subsection (a), unless
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such Dollar Equivalent Amount so calculated exceeds 90% of the sum of the
aggregate Revolving Credit Committed Amounts, in which case the Agent shall
recalculate the Dollar Equivalent Amount of the Revolving Credit Loans and
Letters of Credit outstanding no less frequently than once each week. The
Agent may recalculate the Dollar Equivalent Amounts of each of the
Revolving Credit Loans or Letters of Credit as frequently as it determines
to do so in its discretion; provided, that such recalculation shall be made
for all of the Revolving Credit Loans and Letters of Credit no less
frequently than once each week during any period when the aggregate Dollar
Equivalent Amount of the aggregate Credit Exposure of the Lenders exceeds
90% of the sum of the aggregate Revolving Credit Committed Amounts. The
Dollar Equivalent Amount so determined shall become effective on the first
Business Day immediately following the relevant calculation date.
(b) Unavailability.
(i) General. Subject to paragraph (ii) of this subsection (b), if, in
the reasonable judgment of the Agent, any Other Currency ceases to be
available and freely tradable in the London foreign exchange market, such
Other Currency shall cease to be an Other Currency. The Agent shall give
prompt notice to the Borrowers, the Lenders and the Issuing Banks of such
event. In the event that (A) the Agent has determined that an Other
Currency has ceased to be available and freely tradable in the London
foreign exchange market and (B) the Agent has determined in good faith that
such Other Currency is not otherwise available to the Borrowers, then, on
the date any Revolving Credit Loan or Letter of Credit denominated in such
Other Currency would become due or expire, respectively, under the terms of
this Agreement (other than as a result of an optional prepayment under
Section 2.07 or of the acceleration of such Revolving Credit Loans under
Section 8.02), the Borrowers shall repay such Revolving Credit Loans (and
cash collateralize such Letters of Credit) by paying to each Lender (and
each Issuing Bank, as applicable) an amount in Dollars equal to the amount
determined in good faith by such Lender or Issuing Bank (which
determination shall be conclusive absent manifest error) necessary to
compensate such Lender (or such Issuing Bank) for the principal of and
accrued interest on such Revolving Credit Loans (and the aggregate face
amounts of such Letters of Credit) and any additional cost, expense or loss
incurred by such Lender (or such Issuing Bank) as a result of such
Revolving Credit Loans being repaid (or Letters of Credit being cash
collateralized) in Dollars (rather than in the denominated Other Currency).
(c) Notification of Request. If any Borrower requests a Revolving Credit
Loan be made in an Other Currency, or if pursuant to any conversion or renewal
of a LIBO Rate Portion any Borrower elects to continue any LIBO Rate Portion
denominated in an Other Currency, the Agent shall in the notice given to the
Lenders pursuant to Section 2.03, give details of such request or election
including, as the case may be, the aggregate principal amount of the LIBO Rate
Portion in such Other Currency to be made by each Lender pursuant to the terms
of this Agreement or the aggregate principal amount of such LIBO Rate Loans to
be continued by each Lender pursuant to the terms of this Agreement.
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(d) Availability. Each Lender shall be treated as having confirmed that the
Other Currency requested, or elected by such Borrower to be continued, is
Available to it unless no later than 12:00 noon (New York City time) two
Business Days prior to the day such Revolving Credit Loans are proposed to be
made, or the proposed continuation, it shall have notified the Agent that such
Other Currency is not Available.
(e) Notification of Availability. In the event the Agent has received
notification from any of the Lenders that the Other Currency requested or
elected by such Borrower to be continued is not Available, then the Agent shall
notify Xxxxxxx-Xxxxxx and the Lenders thereof no later than 2:00 p.m. (New York
City time) two Business Days prior to the day such Revolving Credit Loans are
proposed to be made or of such proposed continuation.
(f) Consequences of Unavailability. If the Agent notifies Xxxxxxx Xxxxxx
pursuant to clause (e) above that any of the Lenders has notified the Agent that
the Other Currency requested or elected by a Borrower to be continued is not
Available, such notification shall (i) in the case of any request to make
Revolving Credit Loans, revoke such request and (ii) in the case of any notice
of conversion or renewal, result in the LIBO Rate Portion denominated in such
Other Currency being automatically converted into a LIBO Rate Portion
denominated in Dollars for a one month interest period on the last day of the
then-current interest period with respect to such LIBO Rate Portion denominated
in such Other Currency.
(g) Letters of Credit. If a disbursement is made by an Issuing Bank under
any Letter of Credit denominated in an Other Currency, the Dollar Equivalent
Amount of such disbursement shall be determined by the Issuing Bank on the date
of such disbursement. The Issuing Bank shall notify the Agent and Xxxxxxx-Xxxxxx
promptly of such Dollar Equivalent Amount determined by it, on the date that
such determination is required to be made. The Dollar Equivalent Amount so
determined shall become effective on the first Business Day immediately
following the relevant calculation date.
(h) Adoption of Euro. If and to the extent that, following the Closing
Date, any state that is not a participating member state of the European Union
that has adopted the Euro as its currency (a "Non-Participant State") adopts the
Euro as its currency, the following provisions shall apply in relation to such
Non-Participant State (and the currency of such Non-Participant State):
(i) All amounts denominated in the currency of such Non-Participant
State prior to its adoption of the Euro (the "National Currency Unit")
shall be redenominated into Euros in accordance with applicable legislation
and paid by the debtor either in Euros or in that National Currency Unit
and all amounts denominated in Euros shall be paid by the debtor in Euros
unless applicable legislation provides otherwise, provided, that if and to
the extent that applicable legislation provides that an amount denominated
either in the Euro or in the National Currency Unit of such Non-Participant
State and payable within such Non-Participant State by crediting an account
of the creditor can be paid by the debtor either in Euros or in that
National Currency Unit, any party to this Agreement shall be entitled to
pay or repay any such amount either in Euros or in such National Currency
Unit.
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(ii) If the basis of accrual of interest or fees expressed in this
Agreement with respect to the National Currency Unit of such
Non-Participant State shall be inconsistent with any convention or practice
in the London, England interbank market for the basis of accrual of
interest or fees in respect of the Euro, such convention or practice shall
replace such expressed basis effective as of and from the date on which
such Non-Participant State adopts the Euro as its currency.
(iii) Without prejudice to the respective liabilities of each Borrower
to the Lenders, the Issuing Banks and the Agents under or pursuant to this
Agreement, except as expressly provided in this clause (iii), each
provision of this Agreement shall be subject to such reasonable changes of
construction as the Agent in consultation with Xxxxxxx-Xxxxxx may from time
to time specify to be necessary or appropriate to reflect the introduction
of or changeover to the Euro in such Non-Participant State.
ARTICLE III
LETTERS OF CREDIT
3.01. Letters of Credit.
(a) Outstanding Letter of Credit. The Agent or one or more Issuing Banks
previously issued irrevocable letters of credit under the Original Credit
Agreements, which letters of credit remain outstanding and which are set forth
on Schedule 3.01(a) hereto (the "Outstanding Letters of Credit") pursuant to the
Original Credit Agreements. The Borrowers, the Lenders, the Agent and the
Issuing Banks hereby agree that on the Closing Date, subject to the terms and
conditions hereof, the Outstanding Letters of Credit shall be deemed to have
been issued hereunder as of the Closing Date.
(b) General. Subject to the terms and conditions of this Agreement, and
relying upon the representations and warranties herein set forth and upon the
agreements of the Lenders set forth in Sections 3.04 and 3.05 hereof, Scotia
Capital, such affiliates of Scotia Capital and such other Lenders as the Agent
may in its discretion from time to time elect to cause to issue Letters of
Credit (each an "Issuing Bank", and collectively, the "Issuing Banks"), shall
issue for the account of any Borrower (each an "Account Party" and collectively,
the "Account Parties") letters of credit (each, as amended, modified or
supplemented from time to time, a "Letter of Credit") at any time or from time
to time on or after the date hereof.
(c) Terms of Letters of Credit. No Account Party shall request any Letter
of Credit to be issued, except within the following limitations: (i) no Letter
of Credit shall be issued later than ten days before the Maturity Date, (ii) at
the time any Letter of Credit is issued, the aggregate Revolving Credit
Extensions of Credit (after giving effect to issuance of the requested Letter of
Credit) and Swing Line Extensions of Credit shall not exceed the sum of the
aggregate Revolving Credit Committed Amounts of the Lenders at such time, (iii)
each Letter of Credit shall have an expiration date no later than ten days
before the Maturity Date, (iv) no Letter of Credit shall be an evergreen Letter
of Credit, other than such Letters of Credit as requested by an Account Party
and approved by the Required Lenders and by the Issuing Bank issuing such Letter
of Credit, (v) each Letter of Credit shall be denominated in Dollars or in an
Other Currency, (vi) each Letter of Credit shall be payable only against sight
drafts (and not time
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drafts) and such other certificates and documents as may be required by such
Letter of Credit, (vii) at any time any Letter of Credit is issued, the
aggregate Letter of Credit Obligations (after giving effect to issuance of the
requested Letter of Credit) shall not exceed $50,000,000 (as such amount may be
reduced from time to time pursuant to Section 2.02(b)), and (viii) the minimum
stated amount of any Letter of Credit shall be $50,000.
(d) Purposes of Letters of Credit. Each Letter of Credit shall be
satisfactory in form, substance and beneficiary to the applicable Issuing Bank
in its discretion. Letters of Credit may be used by Account Parties for any
proper corporate purpose, including providing credit support for any
Indebtedness or other direct or indirect financing arrangements of the Borrowers
as permitted by this Agreement. The provisions of this Section 3.01(d) represent
only an obligation of any Account Party to the applicable Issuing Bank or Banks
and the Lenders; no Issuing Bank shall have any obligation to the Lenders to
ascertain the purpose of any Letter of Credit, and the rights and obligations of
the Lenders and any such Issuing Bank among themselves shall not be impaired or
affected by a breach of this Section 3.01(d).
3.02. Letter of Credit Fees.
(a) Letter of Credit Fee. Xxxxxxx-Xxxxxx shall pay to the Agent for the
account of each Lender a fee (the "Letter of Credit Fee") in an amount equal to
the Applicable Margin determined based on the Leverage Ratio, for each day from
and including the date of issuance of each standby Letter of Credit to and
including the date of expiration or termination of such Letter of Credit, on the
Letter of Credit Undrawn Availability on such day. Such Letter of Credit Fee
shall be due and payable on each Regular Payment Date.
(b) Facing Fee; Administration Fees. Xxxxxxx-Xxxxxx shall pay to the Agent,
for the sole account of the applicable Issuing Bank, for each Letter of Credit
so issued (or deemed issued), on the date of issuance of such Letter of Credit,
a fee (the "Letter of Credit Facing Fee") in an amount equal to 0.125% of the
stated amount of such Letter of Credit. In addition, Xxxxxxx-Xxxxxx shall pay to
the Agent, for the sole account of such Issuing Bank, such other administration,
maintenance, amendment, drawing, negotiation and other fees as may be
customarily charged by such Issuing Bank from time to time in connection with
letters of credit.
3.03. Procedure for Issuance and Amendment of Letters of Credit.
(a) Request for Issuance. An Account Party may from time to time request,
upon at least five Business Days' notice, Scotia Capital to issue (or cause
another Issuing Bank selected by Scotia Capital to issue) a Letter of Credit by:
(i) delivering to Scotia Capital (or such other Issuing Bank as Scotia
Capital may from time to time designate) and the Agent a written request to
such effect, specifying the date on which such Letter of Credit is to be
issued, the expiration date thereof, and the stated amount thereof, and
(ii) delivering to the applicable Issuing Bank an application, in such
form as may from time to time be approved by such Issuing Bank (the "Letter
of Credit Application"), completed to the satisfaction of such Issuing
Bank, together with such
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other certificates, documents and other papers and information as such
Issuing Bank may request.
Such Issuing Bank shall promptly notify the Agent (by telephone or otherwise),
and furnish the Agent with the proposed form of Letter of Credit to be issued.
The Agent shall determine, as of the close of business on the day before such
proposed issuance, whether such proposed Letter of Credit complies with the
limitations set forth in Sections 3.01(b) and 3.01(c) hereof. Unless such
limitations are not satisfied, the Agent shall notify such Issuing Bank (in
writing or by telephone promptly confirmed in writing) that such Issuing Bank is
authorized to issue such Letter of Credit. If such Issuing Bank issues a Letter
of Credit, it shall deliver the original of such Letter of Credit to the
beneficiary thereof or as such Account Party shall otherwise direct, and shall
promptly notify the Agent thereof and furnish a copy thereof to the Agent.
(b) Request for Extension or Increase. Any Account Party may from time to
time request the applicable Issuing Bank to extend the expiration date of an
outstanding Letter of Credit or increase the stated amount of such Letter of
Credit. Such extension or increase shall for all purposes hereunder be treated
as though such Account Party had requested issuance of a replacement Letter of
Credit (except only that such Issuing Bank may, if it elects, issue a notice of
extension or increase in lieu of issuing a new Letter of Credit in substitution
for the outstanding Letter of Credit).
(c) Issuance, Extension and Amendment Generally.
(i) Upon satisfaction by any Account Party of the conditions set forth
in Section 5.02 and this Article III with respect to the issuance of a
Letter of Credit, the Agent shall cause any Issuing Bank to issue such
Letter of Credit for such Account Party's account.
(ii) Each Issuing Bank may amend, modify or supplement its Letters of
Credit or Letter of Credit Applications, or waive compliance to any
condition of issuance or payment, without the consent of, and without
liability to, the Agent or any Lender, provided that any such amendment,
modification or supplement that extends the expiration date or increases
the stated amount of an outstanding Letter of Credit shall be subject to
Section 3.03(b) hereof.
(iii) As between the Agent, on the one hand, and the Lenders, on the
other hand, the Agent shall not authorize issuance of any Letter of Credit
if any condition precedent set forth in Section 5.02 has not been
satisfied.
3.04. Participating Interests.
(a) Generally. Concurrently with the issuance of each Letter of Credit in
accordance with the terms of this Article III, the applicable Issuing Bank
automatically shall be deemed, irrevocably and unconditionally, to have sold,
assigned, transferred and conveyed to each other Lender, and each other Lender
automatically shall be deemed, irrevocably and unconditionally, severally to
have purchased, acquired, accepted and assumed from such Issuing Bank, without
recourse to, or representation or warranty by, such Issuing Bank, an undivided
interest, in a proportion equal to such Lender's Pro Rata share, in all of such
Issuing Bank's rights and
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obligations in, to or under such Letter of Credit, the related Letter of Credit
Application and Letter of Credit Reimbursement Obligations, and all collateral,
guarantees and other rights from time to time directly or indirectly securing
the foregoing (such interest of each Lender being referred to herein as a
"Letter of Credit Participating Interest"). On the date that any Purchasing
Lender becomes a party to this Agreement in accordance with Section 10.14
hereof, Letter of Credit Participating Interests in any outstanding Letters of
Credit held by the Lender from which such Purchasing Lender acquired its
interest hereunder shall be proportionately reallotted between such Purchasing
Lender and such transferor Lender (and, to the extent such transferor Lender is
an Issuing Bank, the Purchasing Lender shall be deemed to have acquired a Letter
of Credit Participating Interest from such transferor Lender to such extent).
(b) Obligations Absolute. Notwithstanding any other provision hereof, each
Lender hereby agrees that its obligation to participate in each Letter of Credit
issued in accordance herewith, its obligation to make the payments specified in
Section 3.05 hereof, and the right of the applicable Issuing Bank to receive
such payments in the manner specified therein, are each absolute, irrevocable
and unconditional and shall not be affected by any circumstance whatever. The
failure of any Lender to make any such payment shall not relieve any other
Lender of its funding obligation hereunder on the date due, but no Lender shall
be responsible for the failure of any other Lender to meet its funding
obligations hereunder.
3.05. Drawings and Reimbursements.
(a) Account Party's Reimbursement Obligation. Each Account Party hereby
agrees to reimburse the applicable Issuing Bank, by making payment to the Agent
for the account of such Issuing Bank and the Lenders in accordance with Section
2.09(b) hereof on the date of each payment made by such Issuing Bank under any
Letter of Credit issued on behalf of such Account Party, without notice, protest
or demand, all of which are hereby waived, and an action therefor shall
immediately accrue. To the extent such payment is not timely made, such Account
Party hereby agrees to pay to the Agent, for the account of such Issuing Bank
and the Lenders, on demand, interest on any unreimbursed Letter of Credit
Reimbursement Obligations for each day from and including the date of such
payment by such Issuing Bank until paid (before and after judgment) in
accordance with Section 2.09(c) hereof, at the rate per annum set forth in
Section 2.09(c)(ii) hereof.
(b) Payment by Lenders on Account of Unreimbursed Draws. If any Issuing
Bank makes a payment under any Letter of Credit and is not reimbursed in full
therefor on such payment date in accordance with Section 3.05(a) hereof, such
Issuing Bank will promptly notify the Agent thereof (which notice may be by
telephone), and the Agent shall forthwith notify each Lender (which notice may
be by telephone promptly confirmed in writing) thereof. No later than the
Agent's close of business on the date such notice is given, each such Lender
will pay to the Agent, for the account of such Issuing Bank, in immediately
available funds, an amount equal to such Lender's ratable share of the
unreimbursed portion of such payment by such Issuing Bank. If and to the extent
that any Lender fails to make such payment to the Issuing Bank on such date,
such Lender shall pay such amount on demand, together with interest, for such
Issuing Bank's own account, for each day from and including the date of such
Issuing Bank's payment to and including the date of repayment to such Issuing
Bank (before and after judgment) at the rate per annum applicable to such Letter
of Credit Reimbursement Obligations.
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(c) Distributions to Participants. If, at any time, after such Issuing Bank
has made a Letter of Credit unreimbursed draw and has received from any Lender
such Lender's share of such Letter of Credit unreimbursed draw, and such Issuing
Bank receives any payment or makes any application of funds on account of the
Letter of Credit Reimbursement Obligation arising from such Letter of Credit
unreimbursed draw, such Issuing Bank will pay to the Agent, for the account of
such Lender, such Lender's Pro Rata share of such payment.
(d) Rescission. If any payment received by such Issuing Bank, or any
application made by such Issuing Bank on account of any Letter of Credit
Reimbursement Obligation shall be rescinded or otherwise shall be required to be
returned or paid over by such Issuing Bank for any reason at any time, whether
before or after the termination of this Agreement (or such Issuing Bank believes
in good faith that such rescission, return or payment is required, whether or
not such matter has been adjudicated), each such Lender will, promptly upon
notice from the Agent or such Issuing Bank, pay over to the Agent for the
account of such Issuing Bank its ratable share of the amount so rescinded,
returned or paid over, together with its ratable share of any interest or
penalties payable with respect thereto.
(e) Equalization. If any Lender receives any payment or makes any
application on account of its Letter of Credit Participating Interest, such
Lender shall forthwith pay over to the applicable Issuing Bank, in Dollars and
in like kind of funds received or applied by it the amount in excess of such
Lender's Pro Rata share of the amount so received or applied.
3.06. Obligations Absolute. The payment obligations of each Account Party
under Section 3.05 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
that such Account Party may have or have had against the applicable Issuing
Bank, including without limitation any defense based on the failure of any
drawings under any Letter of Credit to conform to the terms of the Letter of
Credit, other than a defense based on a misdirection of payments intended to be
made under a Letter of Credit directly caused by the negligence of such Issuing
Bank, or any other defense based on the gross negligence or willful misconduct
of such Issuing Bank.
3.07. Increased Costs. Without limitation of any provision of Section
2.10(a) hereof, each Issuing Bank and each Lender shall be entitled to the
benefit of Section 2.10(a) hereof, and each Account Party shall pay additional
compensation to the applicable Issuing Bank or Lender in accordance with such
Section 2.10(a), in respect of this Agreement, the Letters of Credit and Letter
of Credit Participating Interests, to the same extent and in the same manner as
if the word "Lender," in each place in which it occurs in such Section 2.10(a),
were replaced with "Lender or Issuing Bank," and the word "Loan," in each place
in which it occurs in such Section 2.10(a), were replaced with "Loan, Letter of
Credit or Letter of Credit Participating Interest."
3.08. Further Assurances. The Account Parties hereby agree, from time to
time, to do and perform any and all acts and to execute any and all further
instruments reasonably requested by the Issuing Banks more fully to effect the
purposes of this Agreement and the issuance of the Letters of Credit hereunder.
3.09. Letter of Credit Application. The representations, warranties and
covenants by the Account Parties under, and rights and remedies of the Issuing
Banks under, any Letter of Credit
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Application relating to any Letter of Credit are in addition to, and not in
limitation or derogation of, representations, warranties and covenants by the
Account Parties under, and rights and remedies of the Issuing Banks and the
Lenders under this Agreement, the Loan Documents, and applicable law. The
Account Parties acknowledge and agree that all rights of the Issuing Banks under
any Letter of Credit Application shall inure to the benefit of each Lender to
the extent of its Commitment Percentage as fully as if such Lender was a party
to such Letter of Credit Application. In the event of any inconsistency between
the terms of this Agreement and any Letter of Credit Application, this Agreement
shall prevail.
3.10. Cash Collateral for Letters of Credit.
(a) Cash Collateral for Letter of Credit Exposure following Repayment of
Loans. To the extent that this Agreement or any other Loan Document requires a
payment or prepayment to be made with respect to the Loans (whether at maturity,
by acceleration or otherwise), such provision shall be construed as follows: (i)
if the amount of such payment or prepayment is less than or equal to the amount
of the outstanding Loans and Letter of Credit Reimbursement Obligations at such
time, then such payment or prepayment shall be applied to the payment of
principal of and interest on the outstanding Loans and Letter of Credit
Reimbursement Obligations (whether or not such payment or prepayment would
require the applicable Account Party to pay any amount under Section 2.10(b)
hereof); and (ii) if the amount of such payment or prepayment is greater than
the amount of outstanding Loans and Letter of Credit Reimbursement Obligations
at such time, then (A) such payment or prepayment shall be applied to the
principal of and interest accrued on the outstanding Loans and Letter of Credit
Reimbursement Obligations (whether or not such payment or prepayment would
require such Account Party to pay any amount under Section 2.10(b) hereof) and
(B) such Account Party shall immediately pay to the Agent cash or cash
equivalents for deposit in the Letter of Credit Collateral Account in an amount
equal to the amount by which such payment or prepayment exceeds such outstanding
Loans and Letter of Credit Reimbursement Obligations; provided, however, that
the amount required to be paid under clause (B) shall not exceed the aggregate
Letter of Credit Exposure at such time minus the balance in the Letter of Credit
Collateral Account at such time.
(b) Letter of Credit Collateral Account. The Agent shall maintain in its
own name an interest bearing deposit account (the "Letter of Credit Collateral
Account") over which the Agent on behalf of the Lenders shall have sole dominion
and control, and the Account Parties shall have no right to withdraw or cause
the Agent to withdraw any funds deposited therein. The Agent shall deposit into
the Letter of Credit Collateral Account such cash or cash equivalents as this
Agreement or any Loan Document requires to be paid therein. As security for the
payment of all Obligations, each Account Party hereby grants, conveys, assigns,
pledges, transfers to the Agent, and creates in the Agent's favor for the
benefit of the Lenders a continuing Lien on and security interest in, the Letter
of Credit Collateral Account, all amounts from time to time on deposit therein,
all proceeds of the conversion, voluntary or involuntary, thereof into cash,
instruments, securities or other property, and all other proceeds thereof. Each
Account Party hereby represents, warrants, covenants and agrees that such Lien
shall at all times be valid, perfected and of first priority, subject to no
other Lien whatever, and each Account Party shall take or cause to be taken such
actions and execute and deliver such instruments and documents as may be
necessary or, in the Agent's judgment, desirable to perfect or protect such
Lien. No Account Party shall create or suffer to exist any Lien on any amounts
or investment held in the
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Letter of Credit Collateral Account other than the Lien in favor of the Agent
granted under this Section 3.10(b).
(c) Application of Funds. Subject to the provisions of Section 8.02(c)
hereof, the Agent shall apply funds in the Letter of Credit Collateral Account:
(i) on account of principal of and interest on the Letter of Credit
Reimbursement Obligations as and when the same become due and payable if and to
the extent that an Account Party fails directly to pay the same, and (ii) if no
Letter of Credit Reimbursement Obligations are due and payable and the balance
of the Letter of Credit Collateral Account exceeds the aggregate Letter of
Credit Exposure, the excess shall be applied on account of the other Obligations
secured hereby. If all such Obligations have been paid in full, all Commitments
terminated and all Letters of Credit have expired, promptly following demand by
the Account Parties, the Agent shall release to the Account Parties all
remaining funds in the Letter of Credit Collateral Account. If an Event of
Default shall have occurred and be continuing, interest earned on funds in the
Letter of Credit Collateral Account shall be held by the Agent as part of Letter
of Credit Collateral Account and may be applied by the Agent as set forth
herein.
3.11. Certain Provisions Relating To the Issuing Banks.
(a) General. The Issuing Banks shall have no duties or responsibilities
except those expressly set forth in this Agreement and the other Loan Documents,
and no implied duties or responsibilities on the part of the Issuing Banks shall
be read into this Agreement or any Loan Document or shall otherwise exist.
The duties and responsibilities of the Issuing Banks under this Agreement
and the other Loan Documents shall be mechanical and administrative in nature,
and the Issuing Banks shall not have a fiduciary relationship in respect of any
Lender or any other Person. The Issuing Banks shall not be liable for any action
taken or omitted to be taken by it under or in connection with this Agreement or
any other Loan Document, unless caused by its own gross negligence or willful
misconduct. The Issuing Banks shall not be under any obligation to ascertain,
inquire or give any notice relating to (i) the performance or observance of any
of the terms or conditions of this Agreement or any other Loan Document on the
part of any Account Party, (ii) the business, operations, condition (financial
or otherwise) or prospects of any Account Party or any other Person, or (iii)
the existence of any Event of Default or Potential Default. The Issuing Banks
shall not be under any obligation, either initially or on a continuing basis, to
provide the Agent or any Lender with any notices, reports or information of any
nature, whether in its possession presently or hereafter, except for such
notices, reports and other information expressly required by this Agreement to
be so furnished.
(b) Administration. The Issuing Banks may rely upon any notice or other
communication of any nature (written or oral, including but not limited to
telephone conversations, whether or not such notice or other communication is
made in a manner permitted or required by this Agreement or any Loan Document)
purportedly made by or on behalf of the proper party or parties, and the Issuing
Banks shall not have any duty to verify the identity or authority of any Person
giving such notice or other communication. The Issuing Banks may consult with
legal counsel (including, without limitation, in-house counsel for the Issuing
Banks or in-house or other counsel for any Account Party), independent public
accountants and any
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other experts selected by it from time to time, and the Issuing Banks shall not
be liable for any action taken or omitted to be taken in good faith in
accordance with the advice of such counsel, accountants or experts.
(c) Indemnification of Issuing Banks by Lenders. Each Lender hereby agrees
to reimburse and indemnify each Issuing Bank, in its capacity as such, and its
directors, officers, employees and agents (to the extent not reimbursed by the
Account Parties and without limitation of the obligations of the Account Parties
to do so), Pro Rata, from and against any and all amounts, losses, liabilities,
claims, damages, expenses, obligations, penalties, actions, judgments, suits,
costs or disbursements of any kind or nature (including, without limitation, the
fees and disbursements of counsel for such Issuing Bank or such other Person in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Issuing Bank or such other Person
shall be designated a party thereto) that may at any time be imposed on,
incurred by or asserted against such Issuing Bank, in its capacity as such, or
such other Person, as a result of, or arising out of, or in any way related to
or by reason of, this Agreement, any other Loan Document, any transaction from
time to time contemplated hereby or thereby, or any transaction financed in
whole or in part or directly or indirectly with the proceeds of any Letter of
Credit; provided, that no Lender shall be liable for any portion of such
amounts, losses, liabilities, claims, damages, expenses, obligations, penalties,
actions, judgments, suits, costs or disbursements resulting solely from the
gross negligence or willful misconduct of such Issuing Bank or such other
Person, as finally determined by a court of competent jurisdiction.
(d) Certain Standby Letters of Credit. Each Issuing Bank agrees, with
respect to Letters of Credit issued on behalf of any Account Party to a bond
trustee or other party as credit and/or liquidity support in connection with any
industrial revenue bond or similar instrument, that it will not exercise any
remedies available to it under any indenture, pledge agreement or other
agreement executed and delivered in connection with the issuance of such bonds
or other instruments, including without limitation any instruction to accelerate
the payment of principal of and interest on such bonds or other instruments,
without the prior written consent of the Agent and the Required Lenders.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrowers hereby represent and warrant to the Agent and each Lender as
follows:
4.01. Due Incorporation, etc. Each Borrower is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, is duly qualified as a foreign corporation in
good standing in each jurisdiction in which failure to so qualify would have a
Material Adverse Effect, and has all requisite power and authority, corporate or
otherwise, to conduct its business, to own its properties and to execute and
deliver, and to perform all of its obligations under, this Agreement. Schedule
4.01 hereof states as of the date hereof the jurisdiction of incorporation of
each Borrower and each of its respective Subsidiaries and the jurisdiction in
which each Borrower and each of its respective Subsidiaries is qualified to do
business as a foreign corporation.
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4.02. Due Authorization, etc. The execution, delivery and performance by
each Borrower of this Agreement have been duly authorized by each Borrower and
do not and will not (i) require any consent or approval of the stockholders of
any Borrower, (ii) violate in any material respect any provision of any Law,
rule, regulation (including, without limitation, Regulations T, U or X of the
Board of Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to any Borrower or of the charter or by-laws of any Borrower,
(iii) result in a material breach of or constitute a material default under any
indenture or loan or credit agreement or any other agreement, lease or
instrument to which any Borrower is a party or by which any of them or their
respective properties may be bound or affected, or (iv) result in, or require,
the creation or imposition of any Lien upon or with respect to any of the
material properties now owned or hereafter acquired by any Borrower; and no
Borrower is in default under any such law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award or any such indenture,
agreement, lease or instrument except any such default which is listed on
Schedules 4.06 or 4.09 hereof and which a Borrower is contesting in good faith
and by appropriate proceedings and such contest is operating to stay the
consequences thereof. No Borrower is a party to, or otherwise subject to any
provision contained in, any instrument evidencing indebtedness of any Borrower,
any agreement relating thereto or any other contract or agreement (including its
charter) which limits the amount of, or otherwise imposes restrictions on the
incurring of, obligations of any Borrower of the type set forth herein.
4.03. Approvals. No consent, approval or other action by or any notice to
or filing with any Governmental Authority is or will be necessary for the valid
execution, delivery or performance by any Borrower of this Agreement.
4.04. Execution; Binding Effect. This Agreement and each other Loan
Document to which any Borrower is a party has been, or upon its execution and
delivery will be, duly executed and delivered by such Borrower and each
constitutes a legal, valid and binding obligation of such Borrower, enforceable
against such Borrower in accordance with its terms, subject to enforceability,
bankruptcy, insolvency, moratorium or other laws and equitable principles
relating to or affecting creditors' rights generally from time to time in
effect.
4.05. Financial Statements. Xxxxxxx-Xxxxxx has furnished the Agent and each
Lender with the following financial statements, identified by a principal
financial officer of Xxxxxxx-Xxxxxx: consolidated audited balance sheets of
Xxxxxxx-Xxxxxx and its consolidated Subsidiaries as at December 31, 2001 and
December 31, 2000, and consolidated profit and loss and surplus statements of
Xxxxxxx-Xxxxxx and its consolidated Subsidiaries for the fiscal years ended on
such dates, respectively, certified by its certified public accountants. Such
financial statements (including any related schedules and/or notes) are true and
correct in all material respects and have been prepared in accordance with GAAP
and show all liabilities, direct and contingent, of Xxxxxxx-Xxxxxx and its
consolidated Subsidiaries required to be shown in accordance with such
principles. The balance sheets fairly present the condition of Xxxxxxx-Xxxxxx
and its consolidated Subsidiaries as at the dates thereof, and the profit and
loss and surplus statements fairly present the results of the operations of
Xxxxxxx-Xxxxxx and its consolidated Subsidiaries for the periods indicated.
There has been no material adverse change in the assets, business, condition
(financial or otherwise) or operations of Xxxxxxx-Xxxxxx and its consolidated
Subsidiaries considered as a whole since December 31, 2001.
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4.06. Litigation. Other than as described in Schedules 4.06 and 4.09
hereof, there are no actions, suits, arbitration proceedings or other
proceedings pending or, to the knowledge of any Borrower, threatened against or
affecting any Borrower, or any properties or rights of any Borrower which, if
determined adversely to any Borrower, would have a Material Adverse Effect.
4.07. Title to Property. Each Borrower has good and marketable title to its
material real properties (other than properties which it leases) and good title
to all of its other material properties and assets (other than properties and
assets disposed of in the ordinary course of business and other than as
contemplated by this Agreement), subject to no Liens or impediments to
marketability except Permitted Liens. Except as set forth in Schedule 4.07, with
respect to real property of Xxxxxxx-Xxxxxx and its Subsidiaries located in the
State of New Jersey, there are no impediments to marketability arising by reason
of the New Jersey Industrial Site Recovery Act.
4.08. ERISA. The Unfunded Liabilities of all Single Employer Plans
maintained by Xxxxxxx-Xxxxxx or any of its subsidiaries do not in the aggregate
exceed $1,000,000 and the Unfunded Liabilities of all Single Employer Plans
maintained by the other members of the Controlled Group do not in the aggregate
exceed an amount which could reasonably be expected to have a Material Adverse
Effect. Except as set forth in Schedule 4.08 neither Xxxxxxx-Xxxxxx nor any
other member of the Controlled Group maintains, or is obligated to contribute
to, any Multiemployer Plan. Each Plan complies in all material respects, both in
form and operation, with all applicable requirements of law and regulations, and
with its terms, no Reportable Event has occurred with respect to any Plan
maintained by Xxxxxxx-Xxxxxx or any of its Subsidiaries, and no Reportable Event
has occurred with respect to any Plan maintained by any other member of the
Controlled Group that could reasonably be expected to have a Material Adverse
Effect. Neither Xxxxxxx-Xxxxxx nor any Subsidiary has withdrawn from any
Multiemployer Plan or initiated steps to do so, except such withdrawals with
respect to which the aggregate amount of liabilities incurred by Xxxxxxx-Xxxxxx
and its Subsidiaries will not exceed $1,500,000. No other member of the
Controlled Group has withdrawn from any Multiemployer Plan resulting in any
withdrawal liability that could reasonably be expected to have a Material
Adverse Effect or initiated steps to do so, and no steps have been taken to
reorganize or terminate any Plan by any member of the Controlled Group or, to
Xxxxxxx-Xxxxxx'x knowledge, by any other Person.
4.09. Environmental Laws. As of the Closing Date, there are no claims,
investigations, litigation, administrative proceedings, notices, requests for
information (each an "Environmental Claim"), whether pending or, to any
Borrower's knowledge, threatened, or judgments or orders asserting violations of
applicable federal, state and local environmental, health and safety statutes,
regulations, ordinances, codes, rules, orders, decrees, directives and standards
("Environmental Laws") or relating to any toxic or hazardous waste, substance or
chemical or any pollutant, contaminant, chemical or other substance defined or
regulated pursuant to any Environmental Law, including, without limitation,
asbestos, petroleum, crude oil or any fraction thereof ("Hazardous Materials")
asserted against Xxxxxxx-Xxxxxx or any of its Subsidiaries which, in any case,
could reasonably be expected to have a Material Adverse Effect except as
disclosed on Schedule 4.09. Xxxxxxx-Xxxxxx and each of its Subsidiaries have
obtained and are in compliance in all material aspects with all permits,
certificates, licenses, approvals and other authorizations ("Environmental
Permits") required for the operation of their business and have
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filed all required notifications or reports relating, in each case, to chemical
substances, air emissions, effluent discharges and the storage, treatment,
transport and disposal of Hazardous Materials. As of the date hereof,
Xxxxxxx-Xxxxxx and its Subsidiaries do not have liabilities exceeding
$12,000,000 in the aggregate for all of them with respect to compliance with
applicable Environmental Laws and Environmental Permits or related to the
generation, treatment, storage, disposal, release, investigation or cleanup of
Hazardous Materials, and, to the knowledge of any Borrower, no facts or
circumstances exist which could give rise to such liabilities with respect to
compliance with applicable Environmental Laws and Environmental Permits and the
generation, treatment, storage, release, investigation or cleanup of Hazardous
Materials.
4.10. Absence of Undisclosed Liabilities. No Borrower nor any Subsidiary of
any Borrower has any liability or obligation of any nature whatever (whether
absolute, accrued, contingent or otherwise, whether or not due), forward or
long-term commitments or unrealized or anticipated losses from unfavorable
obligations, except (a) as disclosed in the financial statements referred to in
Section 4.05 hereof and the Schedules hereto, (b) matters that, individually or
in the aggregate, in a Borrower's reasonable judgment, could not have a Material
Adverse Effect, (c) liabilities, obligations, commitments and losses incurred
after December 31, 2001 in the ordinary course of business and consistent with
past practices, and (d) the Indebtedness of the Borrowers and their respective
Subsidiaries set forth on Schedule 4.10 hereto.
4.11. Accurate and Complete Disclosure. No information heretofore,
contemporaneously or hereafter provided by or on behalf of any Borrower or any
Subsidiary of any Borrower in writing to either the Agent or any Lender pursuant
to or in connection with any Loan Document or any transaction contemplated
hereby or thereby contains any untrue statement of a material fact or omits to
state any material fact necessary to make such information (taken as a whole)
not misleading at such time in light of the circumstances in which it was
provided. The Borrowers have disclosed to the Agent and each Lender in the Loan
Documents or otherwise every fact or circumstance known to any Borrower which
has, or which in the foreseeable future will in any Borrower's reasonable
judgment have, a Material Adverse Effect.
4.12. Margin Regulations. No Borrower nor any Subsidiary of any Borrower is
engaged, directly or indirectly, principally, or as one of its important
activities, in the business of extending, or arranging for the extension of
credit for the purpose of purchasing or carrying margin stock. No part of the
proceeds of any Letter of Credit or Loan will be used in a manner which would
violate, or result in a violation of Regulation T, Regulation U or Regulation X.
Neither the issuance of any Letter of Credit or the making of any Loan hereunder
nor the use of the proceeds thereof will violate or conflict with the provisions
of Regulation T, Regulation U or Regulation X. Following the issuance of any
Letter of Credit or the making of any Loan, less than 25% of the value (as
determined by any reasonable method) of the assets of such Borrower and its
Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder taken as a whole has been, and will continue to be,
represented by margin stock.
4.13. Subsidiaries. Schedule 4.13 hereof states as of the Closing Date each
Subsidiary of each Borrower and the percentage of outstanding shares owned by
each Borrower and by each Subsidiary. Each Subsidiary of each Borrower is a
corporation duly organized, validly existing
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and in good standing under the laws of its jurisdiction of incorporation, is
duly qualified as a foreign corporation in good standing in each jurisdiction in
which failure to so qualify would have a Material Adverse Effect, and has all
requisite power and authority, corporate or otherwise, to conduct its business
and own its properties. The outstanding shares of each Subsidiary of each
Borrower have been duly authorized and validly issued and are fully paid and
nonassessable. The Borrowers and each Subsidiary thereof own beneficially and of
record and have good title to all of the shares represented by the ownership
percentage shown in such Schedule 4.13, free and clear of any Lien. There are no
options, warrants, calls, subscriptions, conversion rights, exchange rights,
preemptive rights or other rights, agreements or arrangements (contingent or
otherwise) which may in any circumstances now or hereafter obligate any
Subsidiary of any Borrower to issue any shares of its capital stock or any other
securities. As of the Closing Date, no Subsidiary of any Borrower has
outstanding any class of preferred stock or any class of common stock with a
prior right to dividends.
4.14. Partnerships, etc. As of the Closing Date, no Borrower nor any
Subsidiary thereof is a partner (general or limited) of any partnership, is a
party to any joint venture or owns (beneficially or of record) any equity in any
other Person (including but not limited to any interest pursuant to which any
Borrower or such Subsidiary has or may in any circumstance have an obligation to
make capital contributions to, or be generally liable for or on account of the
liabilities, acts or omissions of such other Person), except for the interests
set forth in Schedule 4.14 hereof.
4.15. Absence of Events of Default. No event has occurred and is continuing
and no condition exists which constitutes an Event of Default or Potential
Default.
4.16. Insurance. The policies, binders or self-insurance programs for fire,
liability, product liability, workmen's compensation, vehicular and other
insurance currently held by or on behalf of the Borrowers and each Subsidiary
thereof insure their respective properties and business activities against such
losses and risks as are adequate to protect their respective properties in
accordance with customary industry practice when entered into or renewed. To the
best knowledge of the Borrowers, all such policies, binders and self-insurance
programs are in full force and effect. As of the date hereof, no Borrower nor,
to the best knowledge of any Borrower, any of their respective Subsidiaries has
received notice from any insurer or agent of such insurer that substantial
capital improvements or other expenditures will have to be made in order to
continue such insurance and, to the best knowledge of the Borrowers, no such
improvements or expenditures are required. As of the date hereof, no Borrower
nor, to the best knowledge of the Borrowers, any of their respective
Subsidiaries has received notice of cancellation of any insurance policy or
binder.
4.17. Intellectual Property. Each Borrower and each Subsidiary thereof
owns, or is licensed or otherwise has the right to use, all the material
patents, trademarks, service marks, names (trade, service, fictitious or
otherwise), copyrights, technology (including but not limited to computer
programs and software), processes, data bases and other rights, free from
restrictions not usual in such circumstances, necessary to own and operate its
properties and to carry on its business considered as a whole as presently
conducted and presently planned to be conducted without material conflict with
the rights of others.
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4.18. Taxes. Each Borrower and each Subsidiary thereof has filed all
federal, state and local tax returns required to be filed by it and has not
failed to pay any taxes, or interest and penalties relating thereto, on or
before the due dates thereof except for taxes not yet due and except for those
the amount or validity of which is currently being contested in good faith by
appropriate proceedings. Except to the extent that reserves therefor are
reflected in the financial statements, to the best knowledge of the Borrowers
(a) there are no material federal, state or local tax liabilities of any
Borrower or any of their respective Subsidiaries due or to become due for any
tax year ended on or prior to the Closing Date relating to any Borrower or any
of their respective Subsidiaries, whether incurred in respect of or measured by
the income of any Borrower or any of their respective Subsidiaries, which are
not properly reflected in the financial statements delivered pursuant to Section
4.05, and (b) there are no material claims pending, proposed or threatened
against any Borrower or any of their respective Subsidiaries for past federal,
state or local taxes, except those, if any, as to which proper reserves in
accordance with GAAP are reflected in such financial statements.
ARTICLE V
CONDITIONS OF LENDING
5.01. Conditions to Making of Initial Loans and Issuance of Initial Letter
of Credit. The obligation of each Lender to make Loans and the obligation of the
Issuing Banks to issue Letters of Credit on the Closing Date are subject to the
satisfaction, immediately prior to or concurrently with the making of such Loan
or issuance of such Letter of Credit, of the following conditions precedent, in
addition to the conditions precedent set forth in Section 5.02 hereof:
(a) Agreement; Notes. The Agent shall have received an executed counterpart
of this Agreement for each Lender, duly executed by each Borrower, and an
executed Revolving Credit Note and Swing Line Note from each Borrower for each
applicable Lender, conforming to the requirements hereof, duly executed on
behalf of each Borrower.
(b) Opinion of Counsel. There shall have been delivered to the Agent an
opinion of counsel of each Borrower, dated the Closing Date in substantially the
form attached hereto as Exhibit B.
(c) No Default. On the Closing Date, no Potential Default or Event of
Default shall have occurred or be continuing.
(d) Representations and Warranties. On the Closing Date, all
representations and warranties of each Borrower contained herein or otherwise
made in writing in connection herewith shall be true and correct with the same
force and effect as though such representations and warranties had been made on
and as of such time.
(e) Corporate Proceedings. The Agent shall have received, with a
counterpart for each Lender, certificates by the Secretary or Assistant
Secretary of each Borrower dated as of the Closing Date as to (i) true copies of
the articles of incorporation and by-laws (or other constituent documents) of
each Borrower in effect on such date, (ii) true copies of all corporate action
taken by each Borrower relative to this Agreement and the other Loan Documents
and (iii) the incumbency and signature of the respective officers of each
Borrower executing this
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Agreement and the other Loan Documents to which each Borrower is a party,
together with satisfactory evidence of the incumbency of such Secretary or
Assistant Secretary. The Agent shall have received, with a copy for each Lender,
certificates from the appropriate Secretaries of State or other applicable
Governmental Authorities dated not more than 30 days before the Closing Date
showing the good standing of each Borrower in its state of incorporation.
(f) Financial Statements. The Agent shall have received, with a counterpart
for each Lender, copies of the consolidated financial statements referred to in
Section 4.05 hereof.
(g) Fees, Expenses, etc. All fees and other compensation required to be
paid to the Agent or the Lenders pursuant hereto or pursuant to any other
written agreement on or prior to the Closing Date shall have been paid or
received.
(h) Financial Forecast. The Agent shall have received the five-year
financial forecast of Xxxxxxx-Xxxxxx, including balance sheets, income
statements and cash flow statements, and shall have determined, in its absolute
discretion, that the five-year forecast is satisfactory.
(i) Environmental Reports. The Agent shall have received appropriate
environmental reports with respect to the properties of Xxxxxxx-Xxxxxx and its
Subsidiaries, in form and substance satisfactory to the Agent, and shall have
determined in its absolute discretion that such reports are satisfactory.
(j) Material Adverse Change. No material adverse change in the assets,
business, condition (financial or otherwise), operations or prospects of
Xxxxxxx-Xxxxxx and its consolidated Subsidiaries considered as a whole has
occurred since December 31, 2001.
(k) No Litigation. There shall be no actions, suits, arbitration
proceedings or other proceedings pending or, to the knowledge of any Borrower,
threatened against or affecting any Borrower, or any properties or rights of
any Borrower which, if determined adversely to any Borrower, would have a
Material Adverse Effect, or which seeks to challenge or prevent or declare
illegal the transactions contemplated by this Agreement or any of the Loan
Documents.
(l) Additional Matters. The Agent shall have received such other
certificates, opinions, documents and instruments as may be requested by any
Lender. All corporate and other proceedings, and all documents, instruments and
other matters in connection with the transactions contemplated by this Agreement
and the other Loan Documents shall be satisfactory in form and substance to the
Agent, each Lender and their counsel. The Agent, each Lender and their counsel
shall have received all such counterpart originals or certified or other copies
of such documents as the Agent or such counsel shall reasonably request.
(m) Original Credit Agreements. The Original Credit Agreements shall have
been terminated and shall be of no further force and effect, and all amounts
outstanding thereunder shall have been paid in full.
(n) Guarantees. The Agent shall have received (i) a Guaranty and Suretyship
Agreement in substantially the form of Exhibit E hereto (the "Xxxxxxx-Xxxxxx
Guaranty"), duly executed by Xxxxxxx-Xxxxxx and (ii) a Guaranty and Suretyship
Agreement in substantially the
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form of Exhibit F hereto (the "Subsidiary Guarantees"), duly executed by each
Subsidiary Borrower and each Significant Subsidiary.
5.02. Conditions to All Loans. The obligation of each Lender to make any
Loan (including the initial Loans) and the obligation of each Issuing Bank to
issue Letters of Credit (including the initial Letter of Credit issued on or
after the Closing Date) are subject to performance by each Borrower of its
obligations to be performed hereunder or under the other Loan Documents on or
before the date of such Loan or issuance of such Letter of Credit, satisfaction
of the conditions precedent set forth herein and in the other Loan Documents and
satisfaction of the following further conditions precedent:
(a) Notice. Appropriate notice of such Loan or Letter of Credit shall have
been given by the applicable Borrower as provided in Article II or Article III,
respectively, hereof.
(b) Representations and Warranties. On the date of the making of such Loan
or the issuance of such Letter of Credit, as the case may be, all
representations and warranties of each Borrower contained herein or otherwise
made in writing in connection herewith shall be true and correct (except with
respect to representations and warranties which specifically refer to an earlier
date, which shall be true and correct in all material respects as of such
earlier date) with the same force and effect as though such representations and
warranties had been made on and as of such time.
(c) No Defaults. No Event of Default or Potential Default shall have
occurred and be continuing on such date or after giving effect to the Loans
requested to be made or the Letters of Credit requested to be issued on such
date.
(d) No Violations of Law, etc. Neither the making nor use of the Loans or
Letters of Credit shall cause any Lender to violate or conflict with any Law.
Each request by any Borrower for any Loan (including the initial Loans) or
Letter of Credit shall constitute a representation and warranty by such Borrower
that the conditions set forth in this Section 5.02 have been satisfied as of the
date of such request. Failure of the Agent to receive notice from the applicable
Borrower to the contrary before such Loan is made or Letter of Credit is issued,
shall constitute a further representation and warranty by such Borrower that the
conditions referred to in this Section 5.02 have been satisfied as of the date
such Loan is made or Letter of Credit is issued.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Loan or Letter of Credit is outstanding, any Obligation is
outstanding, the Issuing Banks have any obligation to issue, or the Lenders have
any obligation to participate in, Letters of Credit, or the Lenders have any
obligation to make any Loan:
6.01. Basic Reporting Requirements.
(a) Annual Audit Reports. Xxxxxxx-Xxxxxx shall deliver to the Agent, with a
copy for each Lender, as soon as available, but in any event within 90 days
after the last day of each of its
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fiscal years, consolidated statements of earnings, consolidated balance sheets,
consolidated statements of cash flows and consolidated statements of
stockholders' equity of Xxxxxxx-Xxxxxx as at such last day of the fiscal year,
each prepared in accordance with GAAP (except as required by any change in
accounting principles or concurred in by Xxxxxxx-Xxxxxx'x independent certified
public accountants), in reasonable detail, and, as to the financial statements,
certified without qualification (other than relating to a change in accounting
principles with which such accountants concur and other than any other
qualification which the Agent and the Required Lenders deem, in their reasonable
judgment, to be immaterial) by PriceWaterhouseCoopers or another firm of
independent certified public accountants of nationally recognized standing
(reasonably acceptable to the Agent and the Required Lenders) as fairly
presenting the financial position and the results of operations of
Xxxxxxx-Xxxxxx as at and for the year ending on such date and as having been
prepared in accordance with GAAP.
(b) Quarterly Consolidated Reports. Xxxxxxx-Xxxxxx shall deliver to the
Agent, with a copy for each Lender, as soon as available, but in any event
within 60 days after the end of each of Xxxxxxx-Xxxxxx'x fiscal quarterly
periods, consolidated statements of earnings, consolidated balance sheets,
consolidated statements of cash flows and consolidated statements of
stockholders' equity of Xxxxxxx-Xxxxxx as of the last day of such quarter, and
on a comparative basis figures for the corresponding period of the immediately
preceding fiscal year, all in reasonable detail, each such statement to be
certified in a certificate of a Responsible Officer of Xxxxxxx-Xxxxxx, as the
case may be, as fairly presenting the financial position and the results of
operations of Xxxxxxx-Xxxxxx as at such date and for such quarter and as having
been prepared in accordance with GAAP (subject to year-end audit adjustments).
(c) Quarterly Compliance Certificates. Xxxxxxx-Xxxxxx shall deliver to the
Agent, with a copy for each Lender, a quarterly compliance certificate in
substantially the form set forth as Exhibit C hereto, duly completed and signed
by a Responsible Officer of Xxxxxxx-Xxxxxx, concurrently with the delivery of
the financial statements referred to in subsections (a) and (b) of this Section
6.01. Each Quarterly Compliance Certificate shall be accompanied by a
certificate, duly completed and signed by a Responsible Officer of
Xxxxxxx-Xxxxxx providing, as of the end of the preceding calendar quarter, the
information contained in Schedule 7.09 hereto.
(d) Certain Other Reports and Information. Promptly upon their becoming
available to Xxxxxxx-Xxxxxx, Xxxxxxx-Xxxxxx shall deliver to the Agent, with a
copy for each Lender, a copy of (i) all regular or special reports, registration
statements and amendments to the foregoing which Xxxxxxx-Xxxxxx or any
Subsidiary of Xxxxxxx-Xxxxxx shall file with the Securities and Exchange
Commission (or any successor thereto) or any securities exchange other than
reports required by Section 16 of the Securities Exchange Act of 1934 which
Xxxxxxx-Xxxxxx files as an accommodation for its officers, and (ii) all reports,
proxy statements, financial statements and other written information distributed
by Xxxxxxx-Xxxxxx to its stockholders or bondholders.
(e) Further Information. Xxxxxxx-Xxxxxx will promptly furnish to the Agent,
with a copy for each Lender, such other information and in such form as the
Agent or any Lender may reasonably request from time to time.
(f) Notice of Certain Events. Promptly upon becoming aware of any of the
following, Xxxxxxx-Xxxxxx shall give the Agent notice thereof, together with a
written statement
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of a Responsible Officer of Xxxxxxx-Xxxxxx setting forth the details thereof and
any action with respect thereto taken or proposed to be taken by such Borrower:
(i) Any Event of Default or Potential Default; provided, however, that
Xxxxxxx-Xxxxxx shall not be required to deliver notice of any violation of
any covenant contained in Article VI hereof during the 30 days immediately
following the onset of such violation if Xxxxxxx-Xxxxxx reasonably believes
that such violation will be cured within such 30 day period;
(ii) Any change in the business, operations or condition (financial or
otherwise) of Xxxxxxx-Xxxxxx and its Subsidiaries taken as a whole which
could have a Material Adverse Effect.
(iii) Any pending or threatened action, suit, proceeding or
investigation by or before any Governmental Authority against or affecting
Xxxxxxx-Xxxxxx or any Subsidiary of Xxxxxxx-Xxxxxx, except for matters that
if adversely decided, individually or in the aggregate, could not have a
Material Adverse Effect.
(iv) Any violation, breach or default by Xxxxxxx-Xxxxxx or any
Subsidiary of Xxxxxxx-Xxxxxx of or under any agreement or instrument
material to the business, operations or condition (financial or otherwise)
of Xxxxxxx-Xxxxxx and its Subsidiaries taken as a whole which could in the
reasonable judgment of Xxxxxxx-Xxxxxx have a Material Adverse Effect.
(v) Any Termination Event. Such notice shall be accompanied by: (A) a
copy of any notice, request, return, petition or other document received by
Xxxxxxx-Xxxxxx or any Controlled Group Member from any Person, or which has
been or is to be filed with or provided to any Person (including without
limitation the Internal Revenue Service, the Department of Labor, PBGC or
any Plan participant, beneficiary, alternate payee or employer
representative), in connection with such Termination Event, and (B) in the
case of any Termination Event with respect to a Plan, the most recent
Annual Report (5500 Series), with attachments thereto, and the most recent
actuarial valuation report, for such Plan.
The Agent shall promptly deliver to each Lender copies of all notices
received pursuant to this Section 6.01.
6.02. Inspection. Each Borrower covenants that upon reasonable notice it
will permit any Person reasonably designated by the Agent or any Lender in
writing and who is acting on behalf of the Agent or any Lender pursuant to this
Agreement, at the Agent's or such Lender's expense, to visit any of the
properties of such Borrower and its Subsidiaries and to discuss the affairs,
finances and accounts of any of such corporations with the principal officers of
such Borrower and its Subsidiaries and with such Borrower's independent
accountants, all at such reasonable times and as often as the Agent or any
Lender may reasonably request. Such Person shall contact a Borrower's
independent accountants only through such Borrower, and not directly. Each
Borrower shall have the right to have an officer, employee or other
representative
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present during any discussion relating to such Borrower with such Borrower's
independent accountants.
6.03. Payment of Taxes, etc. Each Borrower covenants that it will pay and
discharge and will cause each of its Subsidiaries to pay and discharge all
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or profits, or upon any properties belonging to it, and all lawful
claims which, if unpaid, would become a Lien upon any of its properties;
provided that no Borrower nor any Subsidiary of any Borrower shall be required
to pay any such tax, assessment, charge, levy or claim which is being contested
in good faith and by appropriate proceedings.
6.04. Preservation of Corporate Existence, etc. Each Borrower and each
Significant Subsidiary covenants that it will (a) preserve and maintain its
corporate existence, and its material rights, franchises and privileges in the
jurisdiction of its incorporation, and (b) qualify and remain qualified as a
foreign corporation in each jurisdiction in which failure to so qualify would
have a Material Adverse Effect.
6.05. Compliance with Laws, etc. Each Borrower covenants that it and each
of its Subsidiaries will comply with the requirements of all applicable Laws
(including without limitation Environmental Laws), noncompliance with which
would have a Material Adverse Effect upon any Borrower's ability to perform its
obligations under this Agreement, unless the same is being contested in good
faith and by appropriate proceedings and such contest shall operate to stay the
Material Adverse Effect of any such noncompliance.
6.06. Maintenance of Insurance. Each Borrower covenants that it and each of
its Subsidiaries will maintain insurance with responsible and reputable
insurance companies in such amounts, with such deductibles and covering such
risks as is usually maintained by companies engaged in similar businesses and
owning similar properties.
6.07. Notice of Environmental Claims. Each Borrower covenants that it will
deliver to the Agent, with a copy for each Lender, promptly upon the request by
the Agent or any Lender, copies of all Environmental Claims made or brought
against any Borrower or any Subsidiary of any Borrower. Xxxxxxx-Xxxxxx covenants
to provide to the Agent, with a copy for each Lender, promptly upon a request by
the Agent or any Lender, a report describing the principal facts and
circumstances known to Xxxxxxx-Xxxxxx underlying all such Environmental Claims,
together with Xxxxxxx-Xxxxxx'x then current estimate as to its probable
liability with respect thereto. Xxxxxxx-Xxxxxx covenants that it will deliver to
the Agent, with a copy for each Lender, concurrently with the financial
statements delivered pursuant to Section 6.01 hereof, a report describing the
principal facts and circumstances known to Xxxxxxx-Xxxxxx underlying each
Environmental Claim made or brought against Xxxxxxx-Xxxxxx or any of its
Subsidiaries during such quarter and providing an update of the principal facts
and circumstances known to Xxxxxxx-Xxxxxx underlying each Environmental Claim
made or brought against Xxxxxxx-Xxxxxx or any of its Subsidiaries during a prior
quarter and not, as of the end of the applicable quarter, terminated or
resolved. Xxxxxxx-Xxxxxx covenants that it shall make available for meetings
with the Agent or any Lender and its consultants and advisors appropriate
personnel employed by or consultants retained by Xxxxxxx-Xxxxxx and its
Subsidiaries having knowledge of such matters. With respect to each
Environmental Claim, Xxxxxxx-Xxxxxx shall make available to the Agent and
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each Lender for inspection and copying such historical and operational
information, copies of correspondence with Governmental Authorities and
environmental audits or reviews regarding properties, products and wastes of
Xxxxxxx-Xxxxxx or its Subsidiaries as are within its possession, custody or
control. The Agent shall promptly deliver to each Lender copies of all notices
received pursuant to this Section 6.07.
6.08. Governmental Approvals and Filings. Each Borrower shall, and shall
cause each of its Subsidiaries to, keep and maintain in full force and effect
all Governmental Actions necessary in connection with the operation of its
business.
6.09. Maintenance of Properties. Each Borrower shall, and shall cause each
of its Subsidiaries to, maintain or cause to be maintained in good repair,
working order and condition the material properties now or hereafter owned,
leased or otherwise possessed by it and shall make or cause to be made all
needful and proper repairs, renewals, replacements and improvements thereto so
that they are able to serve the functions for which they are currently being
used.
6.10. Avoidance of Other Conflicts. No Borrower shall, nor shall it permit
any of its Subsidiaries to, conflict with, be in conflict with, or be or remain
subject to any liability (contingent or otherwise) on account of any conflict
with
(a) any Law,
(b) its articles of incorporation or by-laws (or other constituent
documents), or
(c) any agreement or instrument to which it is party or by which any of
them or any of their respective Subsidiaries is a party or by which any of them
or any of their respective properties (now owned or hereafter acquired) may be
subject or bound
except for matters which, individually or in the aggregate, could not have a
Material Adverse Effect.
6.11. Financial Accounting Practices. Each Borrower shall, and shall cause
each of its Subsidiaries to, keep proper books of record and account in
accordance with normal business practice in which full and appropriate entries
shall be made of all dealings or transactions in relation to its business and
activities.
6.12. Use of Proceeds. The Borrowers shall apply the proceeds of Loans
hereunder (i) to fund acquisitions permitted by Section 7.06 hereof, (ii) for
general working capital and corporate purposes, and (iii) for Xxxxxxx-Xxxxxx to
repurchase its stock, subject to compliance with the terms of this Agreement.
The Borrowers shall not use the proceeds of any Loans hereunder directly or
indirectly for any unlawful purpose or in any manner inconsistent with any other
provision of any Loan Document.
6.13. Continuation of or Change in Business. The Borrowers and their
respective Subsidiaries considered as a whole shall continue to engage in their
businesses substantially as conducted and operated during the present and
preceding fiscal year, and the Borrowers shall not, and shall not permit any of
their respective Subsidiaries to, (a) make any material change in
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its or their respective businesses, or in the nature of its or their respective
operations, (b) liquidate or dissolve itself (or suffer any liquidation or
dissolution) or (c) convey, sell, assign, transfer or otherwise dispose of any
capital stock of or other ownership interest in any Significant Subsidiaries
held by it.
6.14. Consolidated Tax Return. The Borrowers shall not, and shall not
suffer any of their respective Subsidiaries to, file or consent to the filing of
any consolidated income tax return with any Person other than the Borrowers and
their respective Subsidiaries.
6.15. Fiscal Year. The Borrowers shall not, and shall not suffer any of
their respective Subsidiaries to, change its fiscal year or fiscal quarter
except in accordance with GAAP.
6.16. ERISA Compliance.
With respect to any Plan neither any Borrower nor any member of the
Borrower's Controlled Group shall:
(a) engage in any "prohibited transaction" (as such term is defined in
Section 406 of ERISA or Section 4975 of the Code) for which a civil penalty
pursuant to Section 502(i) of ERISA or a tax pursuant to Section 4975 of the
Code in excess of $1,000,000 could be imposed;
(b) permit to be incurred any "accumulated funding deficiency" (as such
term is defined in Section 302 of ERISA) in excess of $1,000,000, whether or not
waived;
(c) permit the occurrence of any Termination Event which could result in a
liability to any member of the Controlled Group in excess of $1,000,000;
(d) be an "employer" (as such term is defined in Section 3(5) of ERISA)
required to contribute to any Multiemployer Plan or a "substantial employer" (as
such term is defined in Section 4001(a)(2) of ERISA) required to contribute to
any Single Employer Plan; or
(e) permit the establishment, or amendment of any Plan or fail to comply
with the applicable provisions of ERISA and the Code with respect to any Plan
which could reasonably be expected to result in liability to any member of the
Controlled Group which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
6.17. Additional Subsidiary Guarantors. Xxxxxxx-Xxxxxx will cause each
Person which is or becomes a Significant Subsidiary or Subsidiary Borrower
(other than a Subsidiary which is not organized under the laws of the United
States or a state or political subdivision jurisdiction thereof), or which is
designated by Xxxxxxx-Xxxxxx as a "Significant Subsidiary" pursuant to Section
7.13 to become a Subsidiary Guarantor as promptly as practicable after (but in
any event within 90 days of) the date such Person first satisfies the foregoing
criteria, by causing such Subsidiary to execute and deliver to the Agent a
Subsidiary Guaranty, together with all documents which the Agent may reasonably
request relating to the existence of such Subsidiary, the corporate authority
for and the validity of such Subsidiary Guaranty, and any other matters
reasonably determined by the Agent to be relevant thereto, all in form and
substance reasonably satisfactory to the Agent.
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ARTICLE VII
NEGATIVE COVENANTS
So long as any Loan or Letter of Credit is outstanding, any Obligation is
outstanding, any Issuing Bank has any obligation to issue, or the Lenders have
any obligation to participate in, Letters of Credit, or the Lenders have any
obligation to make any Loan:
7.01. Financial Covenants. Xxxxxxx-Xxxxxx covenants that it will not:
(a) Leverage Ratio. Permit the Leverage Ratio at any time to exceed
3.0:1.0.
(b) Interest Coverage Ratio. Permit the Interest Coverage Ratio at any time
to be less than 3.0:1.0.
(c) Consolidated Net Worth. Permit the Consolidated Net Worth at any time
to be less than $297,000,000 plus an amount to be added on the last day of each
quarter during the term of this Agreement equal to 50% of the Consolidated Net
Income (excluding net losses) less 50% of any after-tax gain associated with
sales by Xxxxxxx-Xxxxxx of real estate (to the extent included in Consolidated
Net Income), for the immediately preceding quarter, beginning March 31, 2002.
For purposes of calculation of Consolidated Net Worth pursuant to this Section
7.01(c), (i) Xxxxxxx Xxxxxx'x repurchase of its stock after the date hereof in
the maximum aggregate amount of $50,000,000 or (ii) write-offs of goodwill after
the date hereof in the maximum aggregate amount of $12,000,000 shall not be
considered a reduction of Consolidated Net Worth.
7.02. Liens. No Borrower will, nor will it permit any of its Subsidiaries
to, create, or assume or permit to exist, any Lien on any of the properties or
assets of any Borrower or any of its Subsidiaries, whether now owned or
hereafter acquired except:
(a) ERISA Liens in an aggregate amount at any time outstanding which, when
added to the amount of any Liens outstanding at such time which arose after the
Closing Date and secure Indebtedness of any Borrower or any Subsidiaries of any
Borrower, does not exceed 10% of the Consolidated Net Worth of Xxxxxxx-Xxxxxx;
(b) Purchase money mortgages or purchase money security interests,
conditional sale arrangements and other similar security interests, on property
or assets acquired by any Borrower or any Subsidiary of any Borrower
simultaneously (hereinafter referred to individually as a "Purchase Money
Security Interest") or replacements thereof, upon incurring Indebtedness the
proceeds of which are used to acquire such property or asset; provided, however,
that:
(i) The transaction in which any Purchase Money Security Interest is
proposed to be created is not then prohibited by this Agreement;
(ii) Any Purchase Money Security Interest shall attach only to the
property or asset so acquired in such transaction or any addition thereto
or replacement thereof and shall not extend to or cover any other assets or
properties of any Borrower or any of their respective Subsidiaries; and
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(iii) The Indebtedness secured or covered by any Purchase Money
Security Interest together with any other Indebtedness secured by the
property or asset acquired shall not exceed 100% of the lesser of the cost
or fair market value of the property or asset acquired and shall not be
renewed, extended or prepaid from the proceeds of any borrowing by any
Borrower or any of their respective Subsidiaries;
(c) Liens on the property or assets of any Borrower and its Subsidiaries in
existence immediately prior to the Closing Date as listed on Schedule 7.02
hereto, provided that no such Lien is spread to cover any additional property
after the Closing Date and the amount of Indebtedness secured thereby is not
increased, provided that the maturity of such Indebtedness may be extended or
renewed;
(d) Liens on all or any part of the property or the assets of any
Subsidiary in favor of any Borrower or any other Subsidiary as security for the
Indebtedness owing to any Borrower or such other Subsidiary of such Borrower;
and
(e) Permitted Liens.
7.03. Indebtedness. No Borrower will, nor will it permit any of its
Subsidiaries to, create, incur or suffer to exist any Indebtedness, except:
(a) the Obligations;
(b) Indebtedness existing (or committed to) on the date hereof and
described on Schedule 7.03 hereto;
(c) Indebtedness which in the aggregate for all Subsidiaries of
Xxxxxxx-Xxxxxx at any one time does not exceed $25,000,000;
(d) Deemed Debt which in the aggregate at any one time does not exceed
$100,000,000; and
(e) Indebtedness of Xxxxxxx-Xxxxxx ("Additional Indebtedness") which (i) is
not senior to the Obligations and (ii) is not subject to covenants more
restrictive than those set forth herein in Articles VI and VII; provided, that
on the date of the incurrence of such Additional Indebtedness, and both before
and after the existence thereof and the application of any proceeds related
thereto, (i) there is no Event of Default or Potential Default with respect to
any Borrower or any Subsidiaries of any Borrower and (ii) Xxxxxxx-Xxxxxx must be
in pro forma compliance with the financial covenants set forth in Section 7.01.
7.04. Restriction on Liens and Additional Indebtedness. No Borrower will,
nor will it permit any of its Subsidiaries to, enter into any agreement or
covenant on or after the Closing Date which would directly and expressly limit
or restrict any Borrower's ability to grant any Lien to the Lenders or to incur
additional Indebtedness to the Lenders, whether pursuant to this Agreement or
otherwise (it being understood and agreed that this Section 7.04 is not intended
to restrict the Borrowers from entering into any covenant or agreement limiting
generally the ability of any Borrowers from incurring Indebtedness).
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7.05. Amendment of Certain Documents. No Borrower will, nor will it permit
any of its Subsidiaries to, modify, amend, supplement or terminate, or agree to
modify, amend, supplement or terminate any of their respective certificates of
incorporation or by-laws (or other constituent documents), in any manner which
would have a material adverse effect upon the interests of the Agent or any of
the Lenders hereunder or under any other agreement to which the Agent or any
Lender is a party.
7.06. Mergers; Acquisitions. No Borrower will, nor will it permit any of
its Subsidiaries to, merge or consolidate with any Person or acquire all or
substantially all of the assets or any of the capital stock of any Person;
provided, however, that any Borrower or any of its Subsidiaries may merge or
consolidate with another Person or acquire all or substantially all of the
assets or capital stock of another Person if (a) such Borrower or such
Subsidiary, as the case may be, is the surviving corporation, (b) the Person
whose capital stock or assets are being acquired or that is merging into a
Borrower or any Subsidiary of a Borrower is in a similar line of business as
such Borrower, as determined by the Agent, (c) Xxxxxxx-Xxxxxx will be in
compliance, on a pro forma basis, both before and after the merger,
consolidation or acquisition, with each of the financial covenants in Section
7.01, and (d) after giving effect to any such merger, consolidation or
acquisition, no Potential Default or Event of Default would then exist.
7.07. Limitation on Other Restrictions on Dividends by Subsidiaries, etc.
No Borrower will, nor will it permit any of its Subsidiaries to, be or become
subject to any restriction of any nature (whether arising by operation of Law,
by agreement, by its articles of incorporation, by-laws or other constituent
documents of any Subsidiary of such Borrower, or otherwise) on its right from
time to time to (w) declare and pay Stock Payments with respect to capital stock
owned by any Borrower or any Subsidiary of any Borrower, (x) pay any
indebtedness, obligations or liabilities from time to time owed to any Borrower
or any Subsidiary of any Borrower, (y) make loans or advances to any Borrower or
any Subsidiary of any Borrower, or (z) transfer any of its properties or assets
to any Borrower or any Subsidiary of any Borrower, except with respect to:
(a) restrictions pursuant to the Loan Documents;
(b) legal restrictions of general applicability under the corporation or
other applicable law under which such Subsidiary is organized, and fraudulent
conveyance or similar laws of general applicability for the benefit of creditors
of such Subsidiary generally;
(c) with respect to clause (z) above: (i) nonassignment provisions of any
executory contract or of any lease by any Borrower or such Subsidiary as lessee,
and (ii) restrictions on transfer of property subject to a Permitted Lien for
the benefit of the holder of such Permitted Lien; and
(d) any restriction contained in an agreement or instrument applicable to
any Subsidiary acquired by any Borrower or any Subsidiary of any Borrower after
the date hereof, which restriction was not entered into in connection with or in
contemplation of such acquisition, and which restriction is not applicable to
any Person, property or assets, other than such acquired Subsidiary and its
property and assets.
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7.08. Sale of Assets. No Borrower will, nor will it permit any of its
Subsidiaries to, lease, sell, transfer or otherwise dispose of its property, or
permit any Subsidiary to lease, sell, transfer or otherwise dispose of its
property to any other Person except for (a) sales of Investments in the ordinary
course of business by any Borrower or any Subsidiary of any Borrower, including
without limitation, transactions undertaken for the purpose of restructuring all
or a part of the portfolio of investments owned by such Borrower or Subsidiary
thereof and (b) leases, sales, transfers or other dispositions of its property
that together with all other property of its Subsidiaries previously leased,
sold or disposed of (other than Investments sold in the ordinary course of
business by Subsidiaries of Borrowers) as permitted by this Section 7.08 since
the date hereof do not constitute a Substantial Portion of the property of
Xxxxxxx-Xxxxxx and its consolidated Subsidiaries.
7.09. Guaranties, Indemnities, etc. No Borrower will, nor will it permit
any of its Subsidiaries to, be or become subject to or bound by any Guaranty
Equivalent, or agree, become or remain liable (contingently or otherwise) to do
any of the foregoing, except:
(a) Guaranty Equivalents existing on the date hereof and listed in Schedule
7.09;
(b) Guaranty Equivalents of Xxxxxxx-Xxxxxx in respect of any Assured
Obligation of any of its Subsidiaries;
(c) Contingent liabilities arising from the endorsement of negotiable or
other instruments for deposit or collection or similar transactions in the
ordinary course of business; and
(d) Indemnities by the Borrowers or any of their respective Subsidiaries of
the liabilities of its directors or officers (or equivalent managing members) in
their capacities as such pursuant to provisions presently contained in their
articles of incorporation or by-laws (or other constituent documents) or as
permitted by Law; and
(e) the Xxxxxxx-Xxxxxx Guaranty and the Subsidiary Guarantees.
7.10. Sale-Leasebacks. No Borrower will, nor will it permit any of its
Subsidiaries to, enter into or suffer to remain in effect any transaction to
which any Borrower or any Subsidiary of any Borrower is a party involving the
sale, transfer or other disposition by such Borrower or any Subsidiary of any
Borrower of any property (now owned or hereafter acquired), with a view directly
or indirectly to the leasing back of any part of the same property or any other
property used for the same or a similar purpose or purposes, or agree, become or
remain liable (contingently or otherwise) to do any of the foregoing
(collectively, "Sale-Leasebacks"), except Sale-Leasebacks to which any Borrower
or any Subsidiary of any Borrower is a party that will not result in sales,
transfers or other dispositions of more than $2,500,000 in the aggregate at any
time.
7.11. Leases. No Borrower will, nor will it permit any of its Subsidiaries
to, enter into or suffer to remain in effect any lease, as lessee, of any
property, or agree, become or remain liable (contingently or otherwise) to do
any of the foregoing, except:
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(a) Operating leases of data processing equipment, office equipment,
manufacturing equipment, transportation equipment, office space or manufacturing
space used by the lessee in the ordinary course of business, provided that such
leases will not result in the payment or accrual by the Borrowers and their
respective Subsidiaries of more than $10,000,000 in the aggregate in any
twelve-month period and no such lease has a term longer than 8 years;
(b) Leases cancelable by the lessee without penalty on not more than 90
days' notice;
(c) Leases by any Borrower or any Subsidiary of any Borrower, as lessor to
any other Borrower or Subsidiary of any Borrower, as lessee; and
(d) Leases described on Schedule 7.11.
7.12. Affiliates. No Borrower will, nor will it permit any of its
Subsidiaries to, enter into or permit any Subsidiary to enter into any
transaction (including, without limitation, the purchase or sale of any property
or service) with, or make any payment or transfer to, any Affiliate of such
Borrower or Subsidiary except in the ordinary course of business and pursuant to
the reasonable requirements of such Borrower's or such Subsidiary's business and
upon fair and reasonable terms no less favorable to such Borrower or such
Subsidiary than such Borrower or such Subsidiary would obtain in a comparable
arm's-length transaction.
7.13. Significant Subsidiaries. Xxxxxxx-Xxxxxx will not permit the total
assets of all Significant Subsidiaries and Xxxxxxx-Xxxxxx to be less than 90% of
the total assets of Xxxxxxx-Xxxxxx and its Subsidiaries (determined on a
consolidated basis) as of the end of the most recently completed fiscal quarter
for which financial information is available, determined in accordance with
GAAP; provided, that Xxxxxxx-Xxxxxx shall have the right to designate any of its
Subsidiaries that is not then a Significant Subsidiary as a Significant
Subsidiary in order to comply with the provisions set forth in this Section, so
long as such designation is made no later than the last day for delivery of a
quarterly compliance certificate pursuant to Section 6.01 for the end of the
preceding fiscal quarter for which such designation is made.
ARTICLE VIII
EVENTS OF DEFAULT
8.01. Events of Default. An Event of Default shall mean the occurrence or
existence of one or more of the following events or conditions (for any reason,
whether voluntary, involuntary or effected or required by Law):
(a) Any Borrower shall fail to pay when due principal of any Loan or Letter
of Credit Reimbursement Obligations.
(b) Any Borrower shall fail to pay when due interest on any Loan, or any
fees, indemnity or expenses, or any other amount due hereunder or under any
other Loan Document and such failure shall have continued for a period of five
days.
(c) Any representation or warranty made or deemed made by any Borrower in
or pursuant to any Loan Document or in any certificate delivered thereunder, or
any statement made by any Borrower in any financial statement, certificate,
report, exhibit or document furnished by
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any Borrower to either the Agent or any Lender pursuant to or in connection with
any Loan Document, shall prove to have been false or misleading in any material
respect as of the time when made or deemed made (including by omission of
material information necessary to make such representation, warranty or
statement not misleading).
(d) Any Borrower shall default in the performance or observance of (i) any
covenant, agreement or duty set forth in Sections 7.01, 7.02 or 7.03 of this
Agreement, (ii) any covenant, agreement or duty set forth in Section 6.01, 6.17
or 7.13 of this Agreement, and such default shall have continued for a period of
five days after the first occurrence of such default, (iii) any covenant,
agreement or duty set forth in Sections 6.04(a), 7.04, 7.06, 7.07 or 7.08 of
this Agreement, and such default shall have continued for a period of 30 days
after the first occurrence of such default, or (iv) any other covenant,
agreement or duty under this Agreement or any other Loan Document, and such
default shall have continued for a period of 30 days after notice from the Agent
to the applicable Borrower.
(e) (i) Any Borrower shall fail to perform or observe any term, condition
or covenant of any bond, note, debenture, loan agreement, indenture, guaranty,
trust agreement, mortgage or similar instrument (other than a non-recourse
obligation) to which any Borrower is a party or by which it is bound, or to
which any of its properties or assets is subject (a "Debt Instrument"), so that,
as a result of any such failure to perform, the Indebtedness included therein or
secured or covered thereby may at the time be declared due and payable prior to
the date on which such Indebtedness would otherwise become due and payable; or
(ii) any event or condition referred to in any Debt Instrument shall occur or
fail to occur, so that, as a result thereof, the Indebtedness included therein
or secured or covered thereby may at such time be declared due and payable prior
to the date on which such Indebtedness would otherwise become due and payable;
or (iii) any Borrower shall fail to pay any Indebtedness when due, pursuant to
demand under any Debt Instrument or otherwise; provided, however, that each of
clauses (i), (ii) and (iii) above shall be subject to any applicable grace
period provided in the relevant Debt Instrument; and provided, further, that the
provisions of this Section 8.01(e) shall be applicable only if the aggregate
principal amount of such Indebtedness exceeds $5,000,000.
(f) One or more final judgments for the payment of money shall have been
entered against any Borrower, which judgment or judgments exceed $5,000,000 in
the aggregate, and such judgment or judgments shall have remained undischarged,
in effect, and unstayed or unbonded for a period of thirty consecutive days.
(g) One or more writs or warrants of attachment, garnishment, execution,
distraint or similar process exceeding in value the aggregate amount of
$5,000,000 shall have been issued against any Borrower or any of its properties
and shall have remained undischarged, in effect and unstayed or unbonded for a
period of thirty consecutive days.
(h) A Change of Control shall have occurred.
(i) This Agreement or any Loan Document or term or provision hereof or
thereof shall cease to be in full force and effect, or any Borrower shall, or
shall purport to, terminate (other than termination in accordance with the last
sentence of Section 2.02(b) hereof), repudiate, declare voidable or void or
otherwise contest, this Agreement or any Loan Document or term or
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provision hereof or thereof or any obligation or liability of any Borrower
hereunder or thereunder.
(j) Any one or more Termination Events shall have occurred.
(k) A proceeding shall have been instituted in respect of any Borrower or
any Subsidiary of any Borrower:
(i) seeking to have an order for relief entered in respect of such
Person, or seeking a declaration or entailing a finding that such Person is
insolvent or a similar declaration or finding, or seeking dissolution,
winding-up, charter revocation or forfeiture, liquidation, reorganization,
arrangement, adjustment, composition or other similar relief with respect
to such Person, its assets or its debts under any Law relating to
bankruptcy, insolvency, relief of debtors or protection of creditors,
termination of legal entities or any other similar Law now or hereafter in
effect, or
(ii) seeking appointment of a receiver, trustee, liquidator, assignee,
sequestrator or other custodian for such Person or for all or any
substantial part of its property,
and such proceeding shall result in the entry, making or grant of any such
order for relief, declaration, finding, relief or appointment, or such
proceeding shall remain undismissed, unstayed and unbonded for a period of
sixty consecutive days.
(l) Any Borrower or any Subsidiary of any Borrower shall become insolvent;
shall fail to pay, become unable to pay, or state that it is or will be unable
to pay, its debts as they become due; shall voluntarily suspend transaction of
its business; shall make a general assignment for the benefit of creditors;
shall institute (or fail to controvert in a timely and appropriate manner) a
proceeding described in Section 8.01(k)(i) hereof, or (whether or not any such
proceeding has been instituted) shall consent to or acquiesce in any such order
for relief, declaration, finding or relief described therein; shall institute
(or fail to controvert in a timely and appropriate manner) a proceeding
described in Section 8.01(k)(ii) hereof, or (whether or not any such proceeding
has been instituted) shall consent to or acquiesce in any such appointment or to
the taking of possession by any such custodian of all or any substantial part of
its property; shall dissolve, wind-up, revoke or forfeit its charter (or other
constituent documents) or liquidate itself or any substantial part of its
property; or shall take any action in furtherance of any of the foregoing.
(m) Any consent, approval or other action by any Governmental Authority
that is necessary for the valid execution, delivery or performance by the
Borrowers of this Agreement ceases to be in full force and effect and the
cessation of such consent, approval or other action could reasonably be expected
to have a Material Adverse Effect.
(n) Xxxxxxx-Xxxxxx shall cease to own, beneficially or of record, directly
or indirectly, 100% of the issued and outstanding shares of capital stock of any
Significant Subsidiary or any other Subsidiary Borrower.
8.02. Consequences of an Event of Default.
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(a) If an Event of Default specified in subsections (a) through (j), (m) or
(n) of Section 8.01 hereof shall occur and be continuing or shall exist, then,
in addition to all other rights and remedies which the Agent or any Lender may
have hereunder or under any other Loan Document, at law, in equity or otherwise,
the Lenders shall be under no further obligation to make Loans hereunder, the
Issuing Banks shall be under no further obligation to issue Letters of Credit
hereunder and the Agent, upon the written request of the Required Lenders shall,
by notice to the Borrowers, from time to time do any or all of the following:
(i) Declare the Commitments terminated, whereupon the Commitments will
terminate and any fees accrued but unpaid hereunder shall be immediately
due and payable without presentment, demand, protest or further notice of
any kind, all of which are hereby waived, and an action therefor shall
immediately accrue.
(ii) Declare the unpaid principal amount of the Loans, interest
accrued thereon and all other Obligations to be immediately due and payable
without presentment, demand, protest or further notice of any kind, all of
which are hereby waived, and an action therefor shall immediately accrue.
(b) If an Event of Default specified in subsection (k) or (l) of Section
8.01 hereof shall occur or exist, then, in addition to all other rights and
remedies which the Agent or any Lender may have hereunder or under any other
Loan Document, at law, in equity or otherwise, the Commitments shall
automatically terminate and the Lenders shall be under no further obligation to
make Loans, the Issuing Banks shall be under no further obligation to issue
Letters of Credit hereunder and the unpaid principal amount of the Loans, Letter
of Credit Reimbursement Obligations, interest accrued thereon and all other
Obligations shall become immediately due and payable without presentment,
demand, protest or notice of any kind, all of which are hereby waived, and an
action therefor shall immediately accrue.
(c) Without limitation of other rights and remedies under this Agreement or
the Loan Documents or at law or in equity, if all of the Obligations shall have
become due and payable pursuant to clause (a) or (b) of this Section 8.02, the
Borrowers shall immediately pay to the Agent, for deposit in the Letter of
Credit Collateral Account, an amount equal to the excess, if any, of the
aggregate Letter of Credit Exposure at such time over the balance in the Letter
of Credit Collateral Account. Amounts in the Letter of Credit Collateral Account
shall be applied by the Agent to the Obligations as the Required Lenders shall
elect.
8.03. Judgment Currency. If any Lender or the Agent obtains a judgment
against any Borrower in an Other Currency, the obligations of such Borrower in
respect of any sum adjudged to be due to such Lender or the Agent hereunder or
under the Notes (the "Judgment Amount") shall be discharged only to the extent
that, on the Business Day following receipt by such Lender or the Agent of the
Judgment Amount in such Other Currency, such Lender or Agent, in accordance with
normal banking procedures, purchases Dollars with the Judgment Amount in such
Other Currency. If the amount of Dollars so purchased is less than the amount of
Dollars that could have been purchased with the Judgment Amount on the date or
dates the Judgment Amount was originally due and owing to the Lenders or the
Agent hereunder or under the Notes (the "Original Due Date") (excluding the
portion of the Judgment Amount which has accrued as a result of the failure of
any Borrower to pay the sum originally due hereunder or under the
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Notes when it was originally due hereunder or under the Notes) (the "Loss"), the
Borrowers agree to indemnify such Lender or the Agent, as the case may be,
against the Loss, and if the amount of Dollars so purchased exceeds the amount
of Dollars that could have been purchased with the Judgment Amount on the
Original Due Date, such Lender or the Agent agrees to remit such excess to the
applicable Borrower.
ARTICLE IX
THE AGENT
9.01. Appointment. Each Lender hereby irrevocably appoints Scotia Capital
to act as Agent for such Lender under this Agreement and the other Loan
Documents. Each Lender hereby irrevocably authorizes the Agent to take such
action on behalf of such Lender under the provisions of this Agreement and the
other Loan Documents, and to exercise such powers and to perform such duties, as
are expressly delegated to or required of the Agent by the terms hereof or
thereof, together with such powers as are reasonably incidental thereto. Scotia
Capital hereby agrees to act as Agent on behalf of the Lenders on the terms and
conditions set forth in this Agreement and the other Loan Documents, subject to
its right to resign as provided in Section 9.10 hereof. Each Lender hereby
irrevocably authorizes the Agent to execute and deliver each of the Loan
Documents and to accept delivery of such of the other Loan Documents as may not
require execution by the Agent. Each Lender agrees that the rights and remedies
granted to the Agent under the Loan Documents shall be exercised exclusively by
the Agent, and that no Lender shall have any right individually to exercise any
such right or remedy, except to the extent expressly provided herein or therein.
9.02. General Nature of Agent's Duties. Notwithstanding anything to the
contrary elsewhere in this Agreement or in any other Loan Document:
(a) The Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement and the other Loan Documents, and no
implied duties or responsibilities on the part of the Agent shall be read into
this Agreement or any Loan Document or shall otherwise exist; provided, however,
that nothing contained in this Article IX shall affect the express duties and
responsibilities of the Agent to the Borrowers under this Agreement and the
other Loan Documents.
(b) The duties and responsibilities of the Agent under this Agreement and
the other Loan Documents shall be mechanical and administrative in nature, and
the Agent shall not have a fiduciary relationship in respect of any Lender.
(c) The Agent is and shall be solely the agent of the Lenders. The Agent
does not assume, and shall not at any time be deemed to have, any relationship
of agency or trust with or for, or any other duty or responsibility to, the
Borrowers or any other Person (except only for its relationship as agent for the
Lenders, and its express duties and responsibilities to the Lenders and the
Borrowers, as provided in this Agreement and the other Loan Documents).
(d) The Agent shall be under no obligation to take any action hereunder or
under any other Loan Document if the Agent believes in good faith that taking
such action may conflict
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with any Law or any provision of this Agreement or any other Loan Document, or
may require the Agent to qualify to do business in any jurisdiction where it is
not then so qualified.
9.03. Exercise of Powers. The Agent shall take any action of the type
specified in this Agreement or any other Loan Document as being within the
Agent's rights, powers or discretion in accordance with directions from the
Required Lenders (or, to the extent this Agreement or such Loan Document
expressly requires the direction or consent of some other Person or set of
Persons, then instead in accordance with the directions of such other Person or
set of Persons). In the absence of such directions, the Agent shall have the
authority (but under no circumstances shall be obligated), in its sole
discretion, to take any such action, except to the extent this Agreement or such
Loan Document expressly requires the direction or consent of the Required
Lenders (or some other Person or set of Persons), in which case the Agent shall
not take such action absent such direction or consent. Any action or inaction
pursuant to such direction, discretion or consent shall be binding on all the
Lenders. Subject to Section 9.04(a) hereof, the Agent shall not have any
liability to any Person as a result of (x) the Agent acting or refraining from
acting in accordance with the directions of the Required Lenders (or other
applicable Person or set of Persons), (y) the Agent refraining from acting in
the absence of instructions to act from the Required Lenders (or other
applicable Person or set of Persons), whether or not the Agent has discretionary
power to take such action, or (z) the Agent taking discretionary action it is
authorized to take under this Section.
9.04. General Exculpatory Provisions. Notwithstanding anything to the
contrary elsewhere in this Agreement or any other Loan Document:
(a) Neither the Agent nor any Issuing Bank shall be liable for any action
taken or omitted to be taken by it under or in connection with this Agreement or
any other Loan Document, unless caused by its own gross negligence or willful
misconduct.
(b) Neither the Agent nor any Issuing Bank shall be responsible for (i) the
execution, delivery, effectiveness, enforceability, genuineness, validity or
adequacy of this Agreement or any other Loan Document, (ii) any recital,
representation, warranty, document, certificate, report or statement in,
provided for in, or received under or in connection with, this Agreement or any
other Loan Document, or (iii) any failure of any Lender to perform any of its
obligations under this Agreement or any other Loan Document.
(c) Neither the Agent nor any Issuing Bank shall be under any obligation to
ascertain, inquire or give any notice relating to (i) the performance or
observance of any of the terms or conditions of this Agreement or any other Loan
Document on the part of the Borrowers or their respective Subsidiaries, (ii) the
business, operations, condition (financial or otherwise) or prospects of the
Borrowers or their respective Subsidiaries, or any other Person, or (iii) except
to the extent set forth in Section 9.05(f) hereof, the existence of any Event of
Default or Potential Default.
(d) Neither the Agent nor any Issuing Bank shall be under any obligation,
either initially or on a continuing basis, to provide any Lender with any
notices, reports or information of any nature, whether in its possession
presently or hereafter, except for such notices, reports
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and other information expressly required by this Agreement or any other Loan
Document to be furnished by the Agent or any Issuing Bank to such Lender.
9.05. Administration by the Agent and the Issuing Banks.
(a) Each of the Agent and the Issuing Banks may rely upon any notice or
other communication of any nature (written or oral, including but not limited to
telephone conversations, whether or not such notice or other communication is
made in a manner permitted or required by this Agreement or any Loan Document)
purportedly made by or on behalf of the proper party or parties, and each of the
Agent and the Issuing Banks shall not have any duty to verify the identity or
authority of any Person giving such notice or other communication.
(b) Each of the Agent and the Issuing Banks may consult with legal counsel
(including, without limitation, in-house counsel for the Agent or the applicable
Issuing Bank, respectively, or in-house or other counsel for any Borrower),
independent public accountants and any other experts selected by it from time to
time, and each of the Agent and the Issuing Banks shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts.
(c) Each of the Agent and the Issuing Banks may conclusively rely upon the
truth of the statements and the correctness of the opinions expressed in any
certificates or opinions furnished to the Agent or the Issuing Banks in
accordance with the requirements of this Agreement or any other Loan Document.
Whenever the Agent or any Issuing Bank shall deem it necessary or desirable that
a matter be proved or established with respect to any Borrower or any Lender,
such matter may be established by a certificate of the applicable Borrower or
such Lender, as the case may be, and the Agent or such Issuing Bank may
conclusively rely upon such certificate (unless other evidence with respect to
such matter is specifically prescribed in this Agreement or another Loan
Document).
(d) Each of the Agent and the Issuing Banks may fail or refuse to take any
action unless it shall be indemnified to its satisfaction from time to time
against any and all amounts, liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature which may be imposed on, incurred by or asserted against the
Agent and the Issuing Banks by reason of taking or continuing to take any such
action.
(e) The Agent may perform any of its duties under this Agreement or any
other Loan Document by or through agents or attorneys-in-fact. The Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected and supervised by it with reasonable care.
(f) Neither the Agent nor the Issuing Banks shall be deemed to have any
knowledge or notice of the occurrence of any Event of Default or Potential
Default unless the Agent has received notice from a Lender or any Borrower
referring to this Agreement, describing such Event of Default or Potential
Default. If the Agent receives such a notice, the Agent shall give prompt notice
thereof to each Lender and if any Issuing Bank receives such a notice, such
Issuing Bank shall give prompt notice thereof to the Agent.
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9.06. Lender Not Relying on Agent or Other Lenders. Each Lender
acknowledges as follows: (a) neither the Agent nor any other Lender has made any
representations or warranties to such Lender, and no act taken hereafter by the
Agent or any other Lender shall be deemed to constitute any representation or
warranty by the Agent or such other Lender to it; (b) such Lender has,
independently and without reliance upon the Agent or any other Lender, and based
upon such documents and information as it has deemed appropriate, made its own
credit and legal analysis and decision to enter into this Agreement and the
other Loan Documents; and (c) such Lender will, independently and without
reliance upon the Agent or any other Lender, and based upon such documents and
information as it shall deem appropriate at the time, make its own decisions to
take or not take action under or in connection with this Agreement and the other
Loan Documents.
9.07. Indemnification. Each Lender agrees to reimburse and indemnify each
of the Agent and the Issuing Banks and their respective directors, officers,
employees and agents (to the extent not reimbursed by the Borrowers and without
limitation of the obligations of the Borrowers to do so), Pro Rata, from and
against any and all amounts, losses, liabilities, claims, damages, expenses,
obligations, penalties, actions, judgments, suits, costs or disbursements of any
kind or nature (including, without limitation, the fees and disbursements of
counsel for the Agent or the Issuing Banks or such other Person in connection
with any investigative, administrative or judicial proceeding commenced or
threatened, whether or not the Agent or the Issuing Banks or such other Person
shall be designated a party thereto) that may at any time be imposed on,
incurred by or asserted against the Agent or the Issuing Banks or such other
Person as a result of, or arising out of, or in any way related to or by reason
of, this Agreement, any other Loan Document, any transaction from time to time
contemplated hereby or thereby, or any transaction financed in whole or in part
or directly or indirectly with the proceeds of any Loan; provided, that no
Lender shall be liable for any portion of such amounts, losses, liabilities,
claims, damages, expenses, obligations, penalties, actions, judgments, suits,
costs or disbursements resulting solely from the gross negligence or willful
misconduct of the Agent or the Issuing Banks or such other Person, as finally
determined by a court of competent jurisdiction. Payments under this Section
9.07 shall be due and payable on demand, and to the extent that any Lender fails
to pay any such amount on demand, such amount shall bear interest for each day
from the date of demand until paid (before and after judgment) at a rate per
annum (calculated on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed) which for each day shall be equal to the Prime Rate.
9.08. Agent in its Individual Capacity. With respect to the Commitments and
the Obligations owing to the Agent, the Agent shall have the same rights and
powers under this Agreement and each other Loan Document as any other Lender and
may exercise the same as though it were not the Agent, and the terms "Lenders,"
"holders of Notes" and like terms shall include the Agent in its individual
capacity as such. The Agent and its affiliates may, without liability to
account, make loans to, accept deposits from, acquire debt or equity interests
in, act as trustee under indentures of, and engage in any other business with,
any Borrower and any stockholder, subsidiary or affiliate of any Borrower, as
though the Agent were not the Agent hereunder.
9.09. Holders of Notes. The Agent may deem and treat the Lender which is
payee of a Note as the owner and holder of such Note for all purposes hereof
unless and until a Transfer
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Supplement with respect to the assignment or transfer thereof shall have been
filed with the Agent in accordance with Section 10.14 hereof. Any authority,
direction or consent of any Person who at the time of giving such authority,
direction or consent is shown in the Register as being a Lender shall be
conclusive and binding on each present and subsequent holder, transferee or
assignee of any Note or Notes payable to such Lender or of any Note or Notes
issued in exchange therefor.
9.10. Successor Agent. The Agent may resign at any time by giving 10 days'
prior written notice thereof to the Lenders and the Borrowers. The Agent may be
removed by the Required Lenders at any time by giving 10 days' prior written
notice thereof to the Agent, the other Lenders and the Borrowers. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed and
consented to, and shall have accepted such appointment, within 30 days after
such notice of resignation or removal, then the retiring Agent may, on behalf of
the Lenders, appoint a successor Agent. Each successor Agent shall be a
commercial bank or trust company organized or licensed under the laws of the
United States of America or any State thereof and having a combined capital and
surplus of at least $1,000,000,000. Upon the acceptance by a successor Agent of
its appointment as Agent hereunder, such successor Agent shall thereupon succeed
to and become vested with all the properties, rights, powers, privileges and
duties of the former Agent, without further act, deed or conveyance. Upon the
effective date of resignation or removal of a retiring Agent, such Agent shall
be discharged from its duties under this Agreement and the other Loan Documents,
but the provisions of this Agreement shall inure to its benefit as to any
actions taken or omitted by it while it was Agent under this Agreement. If and
so long as no successor Agent shall have been appointed, then any notice or
other communication required or permitted to be given by the Agent shall be
sufficiently given if given by the Required Lenders, all notices or other
communications required or permitted to be given to the Agent shall be given to
each Lender, and all payments to be made to the Agent shall be made directly to
such Borrower or Lender for whose account such payment is made.
9.11. Additional Agents. If the Agent shall from time to time deem it
necessary or advisable, for its own protection in the performance of its duties
hereunder or in the interest of the Lenders and if the Borrowers and the
Required Lenders shall consent (which consent shall not be unreasonably
withheld), the Agent and the Borrowers shall execute and deliver a supplemental
agreement and all other instruments and agreements necessary or advisable, in
the opinion of the Agent, to constitute another commercial bank or trust
company, or one or more other Persons approved by the Agent, to act as co-Agent,
with such powers of the Agent as may be provided in such supplemental agreement,
and to vest in such bank, trust company or Person as such co-Agent or separate
agent, as the case may be, any properties, rights, powers, privileges and duties
of the Agent under this Agreement or any other Loan Document.
9.12. Calculations. The Agent shall not be liable for any calculation,
apportionment or distribution of payments made by it in good faith. If such
calculation, apportionment or distribution is subsequently determined to have
been made in error, the sole recourse of any Lender to whom payment was due but
not made shall be to recover from the other Lenders any payment in excess of the
amount to which they are determined to be entitled.
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9.13. Agent's Fee. Xxxxxxx-Xxxxxx agrees to pay to the Agent, for its
individual account, the Agent's fees in the amounts set forth in the Revolving
Credit Facility Fee Letter by and between Xxxxxxx-Xxxxxx and Scotia Capital (or
one of its affiliates) dated March 28, 2002.
9.14. Funding by Agent. Unless the Agent shall have been notified in
writing by any Lender not later than the close of business on the day before the
day on which Loans are requested by any Borrower to be made that such Lender
will not make its Pro Rata share of such Loans, the Agent may assume that such
Lender will make its Pro Rata share of the Loans, and in reliance upon such
assumption the Agent may (but in no circumstances shall be required to) make
available to any Borrower a corresponding amount. If and to the extent that any
Lender fails to make such payment to the Agent on such date, such Lender shall
pay such amount on demand (or, if such Lender fails to pay such amount on
demand, the applicable Borrower shall pay such amount on demand), together with
interest, for the Agent's own account, for each day from and including the date
of the Agent's payment to and including the date of repayment to the Agent
(before and after judgment) at the rate per annum applicable to such Loans. All
payments to the Agent under this Section shall be made to the Agent at its
Office in Dollars in funds immediately available at such Office, without
set-off, withholding, counterclaim or other deduction of any nature.
9.15. Syndication Agent and Documentation Agent. The titles "Syndication
Agent" and "Documentation Agent" given to certain Lenders named on the cover
page of this Agreement are purely honorific, and no Syndication Agent or
Documentation Agent, as the case may be, in its capacity as such, shall have any
liabilities, duties or responsibilities hereunder.
ARTICLE X
MISCELLANEOUS
10.01. Holidays. Whenever any payment or action to be made or taken
hereunder or under any other Loan Document shall be stated to be due on a day
which is not a Business Day, such payment or action shall be made or taken on
the next following Business Day and such extension of time shall be included in
computing interest or fees, if any, in connection with such payment or action.
10.02. Records. The unpaid principal amount of the Loans owing to each
Lender, the unpaid interest accrued thereon, the interest rate or rates
applicable to such unpaid principal amount, the duration of such applicability,
each Lender's Revolving Credit Committed Amount and the accrued and unpaid
Facility Fees shall at all times be ascertained from the records of the Agent,
which shall be conclusive absent manifest error.
10.03. Amendments and Waivers. Neither this Agreement nor any Loan Document
may be amended, modified or supplemented except in accordance with the
provisions of this Section. The Required Lenders and the Borrowers may from time
to time amend, modify or supplement the provisions of this Agreement or any
other Loan Document for the purpose of amending, adding to, or waiving any
provisions or changing in any manner the rights and duties of the Borrowers, the
Agent or any Lender. Any such amendment, modification or supplement made in
accordance with the provisions of this Section shall be binding upon the
Borrowers, each Lender and the Agent. The Agent shall enter into such
amendments, modifications or supplements from
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time to time as directed by the Required Lenders, and only as so directed;
provided, that no such amendment, modification or supplement may be made which
will:
(a) increase the Revolving Credit Committed Amount of any Lender over the
amount thereof then in effect, or extend the Maturity Date, without the written
consent of each Lender affected thereby;
(b) reduce the principal amount of or extend the time for any payment of
any Loan or Letter of Credit Reimbursement Obligation, or reduce the amount of
or rate of interest or extend the time for payment of interest borne by any Loan
or extend the time for payment of or reduce the amount of any Facility Fee or
reduce or postpone the date for payment of any other fees, expenses, indemnities
or amounts payable under any Loan Document, without the written consent of each
Lender affected thereby;
(c) change the definition of "Required Lenders" or amend this Section
10.03, without the written consent of all the Lenders;
(d) release any collateral from the Letter of Credit Collateral Account
without the written consent of all Lenders;
(e) release any "Guarantor" or reduce any "Guaranteed Obligations" (as such
terms are defined in the Subsidiary Guarantees) of any Guarantor under any
Subsidiary Guaranty in connection with the sale or other disposition of all of
the capital stock of and other equity interests in such Guarantor to a Person or
Persons other than any Borrower or any Subsidiary of any Borrower, which sale or
other disposition is in compliance with this Agreement and the Loan Documents (a
"Permitted Sale"), without the written consent of the Required Lenders;
(f) release any "Guarantor" or reduce any "Guaranteed Obligations" (as such
terms are defined in the Xxxxxxx-Xxxxxx Guaranty or Subsidiary Guarantees, as
applicable) of any Guarantor under the Xxxxxxx-Xxxxxx Guaranty or any Subsidiary
Guaranty, other than in connection with a Permitted Sale, without the written
consent of all Lenders; or
(g) amend or waive any of the provisions of Article IX hereof, or impose
additional duties upon the Agent or any Issuing Bank or otherwise adversely
affect the rights, interests or obligations of the Agent or any Issuing Bank,
without the written consent of the Agent and the Issuing Banks;
provided, further, that Transfer Supplements may be entered into in the manner
provided in Section 10.14 hereof. Any such amendment, modification or supplement
must be in writing and shall be effective only to the extent set forth in such
writing. Any Event of Default or Potential Default waived or consented to in any
such amendment, modification or supplement shall be deemed to be cured and not
continuing to the extent and for the period set forth in such waiver or consent,
but no such waiver or consent shall extend to any other or subsequent Event of
Default or Potential Default or impair any right consequent thereto.
10.04. No Implied Waiver; Cumulative Remedies. No course of dealing and no
delay or failure of the Agent or any Lender in exercising any right, power or
privilege under this Agreement or any other Loan Document shall affect any other
or future exercise thereof or
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exercise of any other right, power or privilege; nor shall any single or partial
exercise of any such right, power or privilege or any abandonment or
discontinuance of steps to enforce such a right, power or privilege preclude any
further exercise thereof or of any other right, power or privilege. The rights
and remedies of the Agent and the Lenders under this Agreement and any other
Loan Document are cumulative and not exclusive of any rights or remedies which
either the Agent or any Lender would otherwise have hereunder or thereunder, at
law, in equity or otherwise.
10.05. Notices.
(a) Except to the extent otherwise expressly permitted hereunder or
thereunder, all notices, requests, demands, directions and other communications
(collectively "notices") under this Agreement or any other Loan Document shall
be in writing (including telexed and telecopied communication) and shall be sent
by first-class mail, or by nationally-recognized overnight courier, or by telex
or telecopier (with confirmation in writing mailed first-class or sent by such
an overnight courier), or by personal delivery. All notices shall be sent to the
applicable party at the address stated on the signature pages hereof or in
accordance with the last unrevoked written direction from such party to the
other parties hereto, in all cases with postage or other charges prepaid. All
notices given to Xxxxxxx-Xxxxxx under this Agreement shall be deemed to be given
to each Borrower. Any such properly given notice shall be effective on the
earliest to occur of receipt, telephone confirmation of receipt of telex or
telecopy communication, one Business Day after delivery to a
nationally-recognized overnight courier, or three Business Days after deposit in
the mail.
(b) Any Lender giving any notice to the Borrowers shall simultaneously send
a copy thereof to the Agent, and the Agent shall promptly notify the other
Lenders of the receipt by it of any such notice.
(c) The Agent and each Lender may rely on any notice (whether or not such
notice is made in a manner permitted or required by this Agreement or any Loan
Document) purportedly made by or on behalf of the Borrowers, and neither the
Agent nor any Lender shall have any duty to verify the identity or authority of
any Person giving such notice.
(d) The parties hereto agree that delivery of an executed counterpart of a
signature page to this Agreement and each other Loan Document by facsimile shall
be effective as delivery of an original executed counterpart of this Agreement
or such other Loan Document.
10.06. Expenses; Taxes; Indemnity.
(a) Xxxxxxx-Xxxxxx agrees to pay or cause to be paid and to save the Agent
and each of the Lenders harmless against liability for the payment of all
reasonable out-of-pocket costs and expenses (including but not limited to
reasonable fees and expenses of counsel to the Agent and, with respect to costs
incurred by the Agent, or any Lender pursuant to clause (iii) below, such
counsel and local counsel) incurred by the Agent or, in the case of clause (iii)
below, any Lender from time to time arising from or relating to (i) the
negotiation, preparation, execution, delivery, administration and performance of
this Agreement and the other Loan Documents, (ii) any requested amendments,
modifications, supplements, waivers or consents (whether or not ultimately
entered into or granted) to this Agreement or any other Loan Document, and (iii)
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except as to costs and expenses made necessary by reason of the gross negligence
or willful misconduct of the Agent, any Issuing Bank or any Lender, the
enforcement or preservation of rights under this Agreement or any Loan Document
(including but not limited to any such costs or expenses arising from or
relating to (A) collection or enforcement of an outstanding Loan or any other
amount owing hereunder or thereunder by either the Agent or any Lender, (B) any
litigation brought by the Agent, any Lender, any Issuing Bank or any Borrower
and related in any way to this Agreement or the other Loan Documents (other than
the costs and expenses incurred by the Agent, any Lender or any Issuing Bank,
respectively, in connection with any litigation which results in a final,
non-appealable judgment against the Agent, such Issuing Bank or such Lender) and
(C) any proceeding, dispute, work-out, restructuring or rescheduling related in
any way to this Agreement or the Loan Documents).
(b) The Borrowers hereby agree to pay all stamp, document, transfer,
recording, filing, registration, search, sales and excise fees and taxes and all
similar impositions now or hereafter determined by the Agent or any Lender to be
payable in connection with this Agreement or any other Loan Documents or any
other documents, instruments or transactions pursuant to or in connection
herewith or therewith, and the Borrowers agree to save the Agent and each Lender
harmless from and against any and all present or future claims, liabilities or
losses with respect to or resulting from any omission to pay or delay in paying
any such fees, taxes or impositions other than those resulting from omissions to
pay or delays in payment attributable to the acts or omissions of the Agent or
any Lender.
(c) Xxxxxxx-Xxxxxx hereby agrees to reimburse and indemnify each of the
Indemnified Parties from and against any and all losses, liabilities, claims,
damages, expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements of any kind or nature whatsoever (including, without limitation,
the reasonable fees and disbursements of counsel for such Indemnified Party in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Indemnified Party shall be
designated a party thereto) that may at any time be imposed on, asserted against
or incurred by such Indemnified Party as a result of, or arising out of, or in
any way related to or by reason of, any act or conduct of any Borrower with
respect to or in connection with the transactions described in this Agreement or
any other Loan Document, or any transaction financed in whole or in part or
directly or indirectly with the proceeds of any Loan (and without in any way
limiting the generality of the foregoing, including any violation or breach of
any requirement of Law or any other Law by any Borrower or any Subsidiary of any
Borrower); or any exercise by either the Agent or any Lender of any of its
rights or remedies under this Agreement or any other Loan Document); but
excluding any such losses, liabilities, claims, damages, expenses, obligations,
penalties, actions, judgments, suits, costs or disbursements resulting solely
from the gross negligence or willful misconduct of such Indemnified Party, as
finally determined by a court of competent jurisdiction. If and to the extent
that the foregoing obligations of the Borrowers under this subsection (c), or
any other indemnification obligation of the Borrowers hereunder or under any
other Loan Document, are unenforceable for any reason, the Borrowers hereby
agree to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable Law.
10.07. Severability. The provisions of this Agreement are intended to be
severable. If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any
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jurisdiction such provision shall, as to such jurisdiction, be ineffective to
the extent of such invalidity or unenforceability without in any manner
affecting the validity or enforceability thereof in any other jurisdiction or
the remaining provisions hereof in any jurisdiction.
10.08. Prior Understandings. This Agreement and the other Loan Documents
supersede all prior and contemporaneous understandings and agreements, whether
written or oral, among the parties hereto relating to the transactions provided
for herein and therein.
10.09. Duration; Survival. All representations and warranties of the
Borrowers contained herein or in any other Loan Document or made in connection
herewith shall survive the making of, and shall not be waived by the execution
and delivery, of this Agreement or any other Loan Document, any investigation by
the Agent or any Lender, the making of any Loan, or any other event or condition
whatever. All covenants and agreements of the Borrowers contained herein or in
any other Loan Document shall continue in full force and effect from and after
the date hereof so long as any Borrower may borrow hereunder and until payment
in full of all Obligations. Without limitation, all obligations of the Borrowers
hereunder or under any other Loan Document to make payments to or indemnify the
Agent or any Lender shall survive the payment in full of all other Obligations,
termination of the Borrowers' rights to borrow hereunder, and all other events
and conditions whatever. In addition, all obligations of each Lender to make
payments to or indemnify the Agent shall survive the payment in full by the
Borrowers of all Obligations, termination of the Borrowers' rights to borrow
hereunder, and all other events or conditions whatever.
10.10. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts each
of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
10.11. Limitation on Payments. The parties hereto intend to conform to all
applicable Laws in effect from time to time limiting the maximum rate of
interest that may be charged or collected. Accordingly, notwithstanding any
other provision hereof or of any other Loan Document, the Borrowers shall not be
required to make any payment to or for the account of any Lender, and each
Lender shall refund any payment made by the Borrowers, to the extent that such
requirement or such failure to refund would violate or conflict with nonwaivable
provisions of applicable Laws limiting the maximum amount of interest which may
be charged or collected by such Lender.
10.12. Set-Off. The Borrowers hereby agree that, to the fullest extent
permitted by law, if any Obligation of any Borrower shall be due and payable (by
acceleration or otherwise), each Lender shall have the right, without notice to
such Borrower, to set-off against and to appropriate and apply to the Obligation
any indebtedness, liability or obligation of any nature owing to such Borrower
by such Lender, including but not limited to all deposits (whether time or
demand, general or special, provisionally credited or finally credited, whether
or not evidenced by a certificate of deposit) now or hereafter maintained by
such Borrower with such Lender. Such right shall be absolute and unconditional
in all circumstances and, without limitation, shall exist whether or not such
Lender or any other Person shall have given notice or made any demand to such
Borrower or any other Person, whether such indebtedness, obligation or liability
owed to
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such Borrower is contingent, absolute, matured or unmatured, and regardless of
the existence or adequacy of any collateral, guaranty or any other security,
right or remedy available to any Lender or any other Person. The Borrowers
hereby agree that, to the fullest extent permitted by law, any Participant and
any branch, subsidiary or affiliate of any Lender or any Participant shall have
the same rights of set-off as a Lender as provided in this Section (regardless
of whether such Participant, branch, subsidiary or affiliate would otherwise be
deemed in privity with or a direct creditor of such Borrower). The rights
provided by this Section are in addition to all other rights of set-off and
banker's lien and all other rights and remedies which any Lender (or any such
Participant, branch, subsidiary or affiliate) may otherwise have under this
Agreement, any other Loan Document, at law or in equity, or otherwise, and
nothing in this Agreement or any Loan Document shall be deemed a waiver or
prohibition of or restriction on the rights of set-off or bankers' lien of any
such Person.
10.13. Sharing of Collections. The Lenders hereby agree among themselves
that if any Lender shall receive (by voluntary payment, realization upon
security, set-off or from any other source) any amount on account of the Loans,
interest thereon, or any other Obligation contemplated by this Agreement or the
other Loan Documents to be made by the Borrowers Pro Rata to all Lenders in
greater proportion than any such amount received by any other Lender, then the
Lender receiving such proportionately greater payment shall notify each other
Lender and the Agent of such receipt, and equitable adjustment will be made in
the manner stated in this Section so that, in effect, all such excess amounts
will be shared Pro Rata among all of the Lenders. The Lender receiving such
excess amount shall purchase (which it shall be deemed to have done
simultaneously upon the receipt of such excess amount) for cash from the other
Lenders a participation in the applicable Obligations owed to such other Lenders
in such amount as shall result in a Pro Rata sharing by all Lenders of such
excess amount (and to such extent the receiving Lender shall be a Participant).
If all or any portion of such excess amount is thereafter recovered from the
Lender making such purchase, such purchase shall be rescinded and the purchase
price restored to the extent of such recovery, together with interest or other
amounts, if any, required by Law to be paid by the Lender making such purchase.
The Borrowers hereby consent to and confirm the foregoing arrangements. Each
Participant shall be bound by this Section as fully as if it were a Lender
hereunder.
10.14. Successors and Assigns; Participations; Assignments.
(a) Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the Borrowers, the Lenders, all future holders of the Notes,
the Agent and their respective successors and assigns, except that the Borrowers
may not assign or transfer any of their respective rights hereunder or interests
herein without the prior written consent of all the Lenders and the Agent, and
any purported assignment without such consent shall be void.
(b) Participations. Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable Law, at any time
sell participations to one or more commercial banks or other Persons (each a
"Participant") in all or a portion of its rights and obligations under this
Agreement and the other Loan Documents (including, without limitation, all or a
portion of its Commitments and the Loans owing to such Lender and any Note held
by such Lender); provided, that
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(i) any such Lender's obligations under this Agreement and the other
Loan Documents shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations,
(iii) the parties hereto shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations
under this Agreement and each of the other Loan Documents,
(iv) such Participant shall be bound by the provisions of Section
10.13 hereof, and the Lender selling such participation shall obtain from
such Participant a written confirmation of its agreement to be so bound,
(v) no Participant (unless such Participant is an affiliate of such
Lender, or is itself a Lender) shall be entitled to require such Lender to
take or refrain from taking action under this Agreement or under any other
Loan Document, except that such Lender may agree with such Participant that
such Lender will not, without such Participant's consent, take action of
the type described in subsections (a), (b), (c), (d) or (e) of Section
10.03 hereof; notwithstanding the foregoing, in no event shall any
participation by any Lender have the effect of releasing such Lenders from
its obligations hereunder, and
(vi) no Participant shall be a Borrower or an Affiliate of any
Borrower.
The Borrowers agree that any such Participant shall be entitled to the benefits
of Sections 2.10, 2.12 and 10.06 with respect to its participation in the
Commitments and the Loans outstanding from time to time but only to the extent
such Participant sustains such losses; provided, that no such Participant shall
be entitled to receive any greater amount pursuant to such Sections than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred to such Participant had no such transfer
occurred; provided, further, that any such Participant, as a condition precedent
to receiving the benefits of Sections 2.10, 2.12 and 10.06, shall agree in
writing to indemnify the Borrowers and hold them harmless as against any and all
claims or demands by or liabilities to the transferor Lender or Lenders or any
other Person for an amount which in whole or in part duplicates, but only to the
extent of such duplication, the amount or amounts to be paid to such Participant
under this Section.
(c) Assignments. Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable Law, at any time assign all
or a portion of its rights and obligations under this Agreement and the other
Loan Documents (including, without limitation, all or any portion of its
Commitments and Loans owing to such Lender and any Note held by such Lender) to
any Lender, any affiliate of any Lender or to one or more additional commercial
banks or other Persons (each a "Purchasing Lender"); provided, that
(i) any such assignment to a Purchasing Lender which is not a Lender
shall be made only with the consent of Xxxxxxx-Xxxxxx if no Event of
Default has occurred and is continuing (which consent if required shall not
be unreasonably withheld), the Issuing Banks and the Agent,
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(ii) if a Lender makes such an assignment of less than all of its then
remaining rights and obligations under this Agreement and the other Loan
Documents, such transferor Lender shall retain, after such assignment, a
minimum principal amount of $5,000,000 of the Revolving Credit Commitments
and Revolving Credit Extensions of Credit and Swing Line Extensions of
Credit then outstanding, and such assignment shall be in a minimum
aggregate principal amount of $5,000,000 of the Revolving Credit
Commitments and Revolving Credit Extensions of Credit and Swing Line
Extensions of Credit then outstanding,
(iii) each such assignment shall be of a constant, and not a varying,
percentage of each applicable Commitment of the transferor Lender and of
all of the transferor Lender's rights and obligations under this Agreement
and the other Loan Documents, and
(iv) each such assignment shall be made pursuant to a Transfer
Supplement in substantially the form of Exhibit D to this Agreement, duly
completed (a "Transfer Supplement").
In order to effect any such assignment, the transferor Lender and the Purchasing
Lender shall execute and deliver to the Agent a duly completed Transfer
Supplement (including the consents required by clause (i) of the preceding
sentence) with respect to such assignment, together with any Note or Notes
subject to such assignment (the "Transferor Lender Notes") and a processing and
recording fee of $2,500; and, upon receipt thereof, the Agent shall accept such
Transfer Supplement. Upon receipt of the Purchase Price Receipt Notice pursuant
to such Transfer Supplement, the Agent shall record such acceptance in the
Register. Upon such execution, delivery, acceptance and recording, from and
after the Transfer Effective Date specified in such Transfer Supplement
(x) the Purchasing Lender shall be a party hereto and, to the extent
provided in such Transfer Supplement, shall have the rights and obligations
of any Lender hereunder, and
(y) the transferor Lender thereunder shall be released from its
obligations under this Agreement to the extent so transferred (and, in the
case of an Transfer Supplement covering all or the remaining portion of a
transferor Lender's rights and obligations under this Agreement, such
transferor Lender shall cease to be a party to this Agreement) from and
after the Transfer Effective Date.
On or prior to the Transfer Effective Date specified in an Transfer Supplement,
the Borrowers, at their expense, shall execute and deliver to the Agent (for
delivery to the Purchasing Lender) new Notes evidencing such Purchasing Lender's
assigned Commitments or Loans and (for delivery to the transferor Lender)
replacement Notes in the principal amount of the Loans or Commitments retained
by the transferor Lender (such Notes to be in exchange for, but not in payment
of, those Notes then held by such transferor Lender). Each such Note shall be
dated the date and be substantially in the form of the predecessor Note. The
Agent shall xxxx the predecessor Notes "exchanged" and deliver them to the
applicable Borrower. Accrued interest and accrued fees shall be paid to the
Purchasing Lender at the same time or times provided in the predecessor Notes
and this Agreement. Notwithstanding anything to the contrary set forth above,
any Lender
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may (without requesting the consent of any Borrower or the Agent) pledge its
Loans to a Federal Reserve Bank in support of borrowings made by such Lender
from such Federal Reserve Bank.
(d) Register. The Agent shall maintain at its office a copy of each
Transfer Supplement delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Commitments of,
and principal amount of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive absent manifest error and the
Borrowers, the Agent and the Lenders may treat each person whose name is
recorded in the Register as a Lender hereunder for all purposes of the
Agreement. The Register shall be available for inspection by the Borrowers or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Financial and Other Information. The Borrowers authorize the Agent and
each Lender to disclose to any Participant or Purchasing Lender (each, a
"transferee") and any prospective transferee any and all financial and other
information in such Person's possession concerning the Borrowers and their
respective Subsidiaries and Affiliates which has been or may be delivered to
such Person by or on behalf of such Borrowers in connection with this Agreement
or any other Loan Document or such Person's credit evaluation of such Borrowers
and their respective Subsidiaries and Affiliates; subject, however, to the
provisions of Section 10.16 hereof.
10.15. Governing Law; Submission to Jurisdiction; Limitation of Liability.
(a) Governing Law. THIS AGREEMENT AND ALL OTHER LOAN DOCUMENTS (EXCEPT TO
THE EXTENT, IF ANY, OTHERWISE EXPRESSLY STATED IN SUCH OTHER LOAN DOCUMENTS)
SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES.
(b) Certain Waivers. EACH BORROWER, THE AGENT AND EACH LENDER HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(i) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON ARISING
FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY
STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT OCCURRING IN
CONNECTION HEREWITH OR THEREWITH (COLLECTIVELY, "RELATED LITIGATION") MAY
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING
IN XXX XXXX XXX XXXXXX XX XXX XXXX, XXX XXXX, SUBMITS TO THE JURISDICTION
OF SUCH COURTS, AND TO THE FULLEST EXTENT PERMITTED BY LAW AGREES THAT IT
WILL NOT BRING ANY RELATED LITIGATION IN ANY OTHER FORUM;
(ii) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING
OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, WAIVES ANY
CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM, AND
-77-
WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO ANY RELATED LITIGATION BROUGHT
IN ANY SUCH COURT, THAT SUCH COURT DOES NOT HAVE JURISDICTION;
(iii) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR CERTIFIED
U.S. MAIL, POSTAGE PREPAID, AT THE ADDRESS FOR NOTICES DESCRIBED IN SECTION
10.05 HEREOF, AND CONSENTS AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE IN
EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT
THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER
PERMITTED BY LAW); AND
(iv) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED LITIGATION.
(c) Appointment of Xxxxxxx-Xxxxxx as Process Agent. IN ADDITION TO THE
CONSENT TO SERVICE SET FORTH IN CLAUSE (b) HEREOF, ANY SUBSIDIARY THAT IS NOT A
SUBSIDIARY THAT IS ORGANIZED UNDER THE LAWS OF ANY STATE OF THE UNITED STATES OR
THE DISTRICT OF COLUMBIA THAT BECOMES A BORROWER HEREUNDER (INCLUDING
XXXXXXX-XXXXXX ANTRIEBSTECHNIK GMBH ("XXXXXXX-XXXXXX GMBH")) HEREBY IRREVOCABLY
AND UNCONDITIONALLY APPOINTS XXXXXXX-XXXXXX AS ITS AGENT TO RECEIVE, ON BEHALF
OF ITSELF AND ON BEHALF OF ITS PROPERTY, SERVICE OF COPIES OF THE SUMMONS AND
COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH ACTION OR
PROCEEDING, AND XXXXXXX-XXXXXX HEREBY IRREVOCABLY AND UNCONDITIONALLY ACCEPTS
SUCH APPOINTMENT. SUCH SERVICE MAY BE MADE BY MAILING OR DELIVERING A COPY OF
SUCH PROCESS TO SUCH SUBSIDIARY IN CARE OF XXXXXXX-XXXXXX AT ITS ADDRESS FOR
NOTICES AS SET FORTH IN SECTION 10.05, AND SUCH SUBSIDIARY HEREBY IRREVOCABLY
AUTHORIZES AND DIRECTS XXXXXXX-XXXXXX TO ACCEPT SUCH SERVICE ON ITS BEHALF.
10.16. Confidentiality. Each party hereto agrees to keep confidential any
information concerning the business and financial activities of the other party
hereto obtained in connection with this Agreement except information which (a)
is lawfully in the public domain, (b) is obtained from a third party who is not
bound by an obligation of confidentiality with respect to such information, (c)
is required to be disclosed to any Governmental Authority having jurisdiction
over such Person but only to the extent of such requirement, or (d) is disclosed
by the Agent or any Lender in accordance with Section 10.14 hereof.
[Signatures on following pages]
-78-
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed and delivered this Agreement as of the date first
above written.
ATTEST: XXXXXXX-XXXXXX CORPORATION
By By
----------------------------------- --------------------------------------
Title: Xxxx X. Xxxxxxxx
Treasurer
[Corporate Seal]
Address for Notices:
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Treasurer
Telephone: 000-000-0000
Telecopier: 000-000-0000
ATTEST: XXXXXXX-XXXXXX FLIGHT SYSTEMS, INC.
By By
----------------------------------- --------------------------------------
Title: Xxxx X. Xxxxxxxx
Treasurer
[Corporate Seal]
Address for Notices:
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Treasurer
Telephone: 000-000-0000
Telecopier: 000-000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
ATTEST: XXXXXXX-XXXXXX FLOW CONTROL CORPORATION
By By
----------------------------------- --------------------------------------
Title: Xxxx X. Xxxxxxxx
Treasurer
[Corporate Seal]
Address for Notices:
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Treasurer
Telephone: 000-000-0000
Telecopier: 000-000-0000
ATTEST: METAL IMPROVEMENT COMPANY, INC.
By By
----------------------------------- --------------------------------------
Title: Xxxx X. Xxxxxxxx
Treasurer
[Corporate Seal]
Address for Notices:
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Treasurer
Telephone: 000-000-0000
Telecopier: 000-000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
ATTEST: XXXXXXX-XXXXXX FLOW CONTROL SERVICE
CORPORATION
By By
----------------------------------- --------------------------------------
Title: Xxxx X. Xxxxxxxx
Treasurer
[Corporate Seal]
Address for Notices:
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Treasurer
Telephone: 000-000-0000
Telecopier: 000-000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
ATTEST: XXXXXXX-XXXXXX ANTRIEBSTECHNIK GmbH
By By
----------------------------------- --------------------------------------
Title: Xxxxxx X. Xxxxxxxx
Manager
[Corporate Seal]
Address for Notices:
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Treasurer
Telephone: 000-000-0000
Telecopier: 000-000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
THE BANK OF NOVA SCOTIA, as Agent,
Issuing Bank and Lender
By
--------------------------------------
Initial Revolving Credit
Committed Amount: $20,400,000.00
Commitment Percentage: 15.1111111111%
Address for Notices:
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: _____________________
Telephone:
Telecopier:
with a copy to:
000 Xxxxxxxxx Xxxxxx XX
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: _____________________
Telephone:
Telecopier:
[SIGNATURE PAGE TO CREDIT AGREEMENT]
FLEET NATIONAL BANK, as Syndication
Agent and Lender
By
--------------------------------------
Xxxx Xxxxxxx
Senior Vice President
Initial Revolving Credit
Committed Amount: $19,200,000.00
Commitment Percentage: 14.2222222222%
Address for Notices:
000 Xxxxxx Xxx
Xxxxxxxx, XX
Attn: Xxxx Xxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
SUN TRUST BANK, as Documentation Agent
and Lender
By
--------------------------------------
Xxxxx Xxxxxxxx
Vice President
Initial Revolving Credit
Committed Amount: $19,200,000.00
Commitment Percentage: 14.2222222222%
Address for Notices:
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
PNC BANK, NATIONAL ASSOCIATION,
as Lender
By
--------------------------------------
Xxxx X. Xxxxxxxx
Vice President
Initial Revolving Credit
Committed Amount: $15,000,000.00
Commitment Percentage: 11.1111111111%
Address for Notices:
Xxx Xxxxxx Xxxxxxxx Xx
X Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
THE BANK OF NEW YORK, as Lender
By
--------------------------------------
Xxxxxx X. Xxxxxxx
Vice President
Initial Revolving Credit
Committed Amount: $15,000,000.00
Commitment Percentage: 11.1111111111%
Address for Notices:
000 Xxxxx Xxxx Xx.
X. Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
MELLON BANK, N. A., as Lender
By
--------------------------------------
J. Xxxx Xxxx
Vice President
Initial Revolving Credit
Committed Amount: $15,000,000.00
Commitment Percentage: 11.1111111111%
Address for Notices:
0000 Xxxxxx Xx., 0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attn: J. Xxxx Xxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
JPMORGAN CHASE BANK, as Lender
By
--------------------------------------
Initial Revolving Credit
Committed Amount: $15,000,000.00
Commitment Percentage: 11.1111111111%
Address for Notices:
[ ]
Attn: _____________________
Telephone:
Telecopier:
with a copy to:
[ ]
Attn: _____________________
Telephone:
Telecopier:
[SIGNATURE PAGE TO CREDIT AGREEMENT]
CITIBANK, N.A., as Lender
By
--------------------------------------
Xxxxxxx X. Xxxxxxx
Vice President
Initial Revolving Credit
Committed Amount: $16,200,000.00
Commitment Percentage: 12%
Address for Notices:
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
[SIGNATURE PAGE TO CREDIT AGREEMENT]
SCHEDULE I
OTHER CURRENCIES
BRITISH POUNDS STERLING
DIRECT CHAPS Scotiabank Europe Plc
CHAPS Sort Code: 40-54-12
&/Or HSBC Plc
International Division, 27-32 Poultry, London
Sort Code: 40-05-15
Swift Code: XXXXXX00
For A/C of: Scotiabank Europe Plc
Account No: 00000000
CANADIAN DOLLARS The Bank Of Nova Scotia
International Banking Division, Toronto, Canada
Swift Code: XXXXXXXX
For A/C of: Scotiabank Europe Plc
Account No: 1257-17
EUROS HSBC Plc
International Division, 27-32 Poultry, London
Swift Code: XXXXXX00
For A/C of: Scotiabank Europe Plc
Account No: 00000000
SWISS FRANCS Union Banque Suisse AG
Zurich, Switzerland.
Swift Code: XXXXXXXX00X
For A/C of: Scotiabank Europe Plc, London
Account No: 0230-40954.05D
DANISH KRONE Unibank A/S
Copenhagen, Denmark
Swift Code: XXXXXXXX
For A/C of: Scotiabank Europe Plc, London
Account No: 0000000000
SWEDISH KRONA Swedbank
Stockholm
Swift Code: XXXXXXXX
For A/C of: Scotiabank Europe Plc, London
Account No: 00000
