EXECUTION COPY
AMENDMENT AGREEMENT dated as of March 29, 2001 (this
"Agreement"), among TEREX CORPORATION, a Delaware
corporation ("Terex"), the LENDERS listed on the signature
pages hereof under the captions "Existing Tranche C Lenders"
and "Additional Lenders" (together, the "Lenders"), and
CREDIT SUISSE FIRST BOSTON, a bank organized under the laws
of Switzerland, acting through its New York branch ("CSFB"),
as administrative agent (in such capacity, the
"Administrative Agent") and collateral agent (in such
capacity, the "Collateral Agent") for the Lenders.
A. Reference is made to (i) the Credit Agreement dated as of March 6, 1998,
as amended prior to the date hereof (the "Original Credit Agreement"), among
Terex, certain subsidiaries of Terex, the lenders party thereto (the "Original
Lenders") and the administrative agent and the collateral agent for the Original
Lenders, and (ii) the Tranche C Credit Agreement dated as of July 2, 1999, as
amended prior to the date hereof (the "Original Tranche C Credit Agreement" and,
together with the Original Credit Agreement, the "Existing Credit Agreements"),
among Terex, the lenders party thereto (the "Tranche C Lenders") and CSFB, as
Administrative Agent and Collateral Agent.
B. Pursuant to the Original Tranche C Credit Agreement, the Tranche C
Lenders have made term loans (the "Tranche C Term Loans") to Terex.
C. Terex has informed the Administrative Agent that it intends to issue
$300,000,000 aggregate principal amount of new senior subordinated notes (the
"New Subordinated Notes") and to use the Net Cash Proceeds from the first
$200,000,000 of such notes to (i) prepay in full the Tranche A Term Loans (as
defined in the Original Credit Agreement) and (ii) to apply the balance of such
amount pro rata to prepay the Tranche B Term Loans (as defined in the Original
Credit Agreement) and the Tranche C Term Loans.
D. Terex has requested (i) that the Original Tranche C Credit Agreement be
amended and restated in the form of the Amended and Restated Tranche C Credit
Agreement set forth as Exhibit A hereto (the "Restated Tranche C Credit
Agreement") and (ii) that the Additional Lenders agree to become Revolving
Lenders under the Restated Tranche C Credit Agreement (as such term is defined
therein).
E. The Required Lenders (as defined in and under the Original Tranche C
Credit Agreement) are willing so to amend and restate the Original Tranche C
Credit Agreement, and the Additional Lenders are willing to become Revolving
Lenders under the Restated Tranche C Credit Agreement, in each case, on the
terms and subject to the conditions set forth or referred to herein.
F. Accordingly, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used and not defined herein
shall have the meanings assigned to such terms in the Restated Tranche C Credit
Agreement.
SECTION 2. Amendment and Restatement of the Original Tranche C Credit
Agreement. (a) Terex, the Required Lenders, the Additional Lenders, the
Administrative Agent and the Collateral Agent agree that the Original Tranche C
Credit Agreement (including all Exhibits and Schedules thereto) is hereby
amended and restated, effective as of the Restatement Closing Date (as defined
below), to read in its entirety as set forth in Exhibit A hereto. As used in the
Restated Tranche C Credit Agreement, the terms "Agreement", "this Agreement",
"herein", "hereinafter", "hereto", "hereof" and words of similar import shall,
unless the context otherwise requires, mean the Original Tranche C Credit
Agreement as amended and restated by this Agreement.
(b) On the Restatement Closing Date, upon the effectiveness of this
Agreement, each Loan (in each case, as defined in and outstanding under the
Original Tranche C Credit Agreement) shall be deemed to be a Tranche C Term Loan
under the Restated Tranche C Credit Agreement.
SECTION 3. Representations and Warranties. Terex hereby makes to each of
the other parties hereto, on and as of the Restatement Closing Date, each of the
representations and warranties contained in Article III of the Restated Tranche
C Credit Agreement, and each of such representations and warranties is hereby
incorporated by reference herein.
SECTION 4. Fees. On the Restatement Closing Date, upon the effectiveness of
this Agreement, Terex agrees to pay a fee (the "Amendment Fee") to each Lender
that executes and delivers to the Administrative Agent (or its counsel) a
signature page to this Agreement on or prior to the Restatement Closing Date,
through the Administrative Agent, in an amount equal to 0.25% of the aggregate
amount of the outstanding Tranche C Term Loans of such Lender, in each case (i)
immediately prior to the effectiveness of this Agreement but (ii) after giving
effect to the prepayments referred to in Section 5(g) below. The Amendment Fee
shall be payable on the Restatement Closing Date in immediately available funds.
Once paid, the Amendment Fee shall not be refundable under any circumstances.
SECTION 5. Conditions to Effectiveness. The effectiveness of this Agreement
and the amendment and restatement of the Original Tranche C Credit Agreement
shall be subject to the satisfaction on a single date (the "Restatement Closing
Date") on or prior to March 31, 2001, of the following conditions precedent:
(a) The Administrative Agent shall have received, on behalf of itself and
the Lenders, a favorable written opinion of Xxxx Xxxxx, General Counsel of
Terex, substantially to the effect set forth in Exhibit D of the Restated
Tranche C Credit Agreement, (i) dated the Restatement Closing Date, (ii)
addressed to the Administrative Agent and the Lenders, and (iii) covering such
other matters relating to this Agreement and the Loan Documents as the
Administrative Agent shall reasonably request.
(b) All legal matters incident to this Agreement, the Restated Tranche C
Credit Agreement and the other Loan Documents shall be reasonably satisfactory
to the Required Lenders, the Additional Lenders and to the Administrative Agent.
(c) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation or other organizational documents,
including all amendments thereto, of each Loan Party, certified as of a recent
date by the Secretary of State or other Governmental Authority of the state or
other jurisdiction of its organization, and a certificate as to the good
standing of each Loan Party as of a recent date, from such Secretary of State or
other Governmental Authority; (ii) a certificate of the Secretary or Assistant
Secretary of each Loan Party dated the Restatement Closing Date and certifying
(A) that attached thereto is a true and complete copy of the By-laws or other
organizational documents of such Loan Party as in effect on the Restatement
Closing Date and at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a true and complete
copy of resolutions duly adopted by the Board of Directors or other appropriate
party of such Loan Party authorizing the execution, delivery and performance of
the Loan Documents to which such person is a party and, in the case of Terex,
the borrowings thereunder, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect, (C) that the certificate
or articles of incorporation or other organizational documents of such Loan
Party have not been amended since the date of the last amendment thereto shown
on the certificate of good standing furnished pursuant to clause (i) above, (D)
as to the incumbency and specimen signature of each officer executing any Loan
Document or any other document delivered in connection herewith on behalf of
such Loan Party, and (E) as to the incumbency and specimen signature of the
Secretary or Assistant Secretary executing such certificate; and (iv) such other
documents as the Lenders or the Administrative Agent may reasonably request.
(d) The Administrative Agent shall have received a certificate, dated the
Restatement Closing Date and signed by a Financial Officer of Terex, confirming
that (i) the representations and warranties set forth in Article III of the
Restated Tranche C Credit Agreement are true and correct in all material
respects on and as of the Restatement Closing Date, (ii) each Loan Party is in
compliance with the terms and provisions set forth in each Loan Document to
which it is a party and (iii) no Default or Event of Default has occurred and is
continuing.
(e) The Administrative Agent shall have received the Amendment Fee and all
other amounts due and payable by Terex on or prior to the Restatement Closing
Date, including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by Terex under the
Restated Tranche C Credit Agreement or under any other Loan Document.
(f) Each of the Loan Documents (other than the Restated Tranche C Credit
Agreement) shall be in full force and effect.
(g) Terex shall have issued the New Subordinated Notes and shall have
applied the Net Cash Proceeds substantially concurrent therewith from the first
$200,000,000 thereof to the prepayment of the Term Loans and the Loans under and
as defined in the Original Credit Agreement and the Original Tranche C Credit
Agreement, respectively. The application of such Net Cash Proceeds to the
outstanding Term Loans and Loans shall be as set forth on Schedule 1 hereto, and
the Required Lenders hereby consent to such application.
SECTION 6. Conditions to First Credit Event After Restatement Closing Date.
The following shall be further conditions precedent to the first Credit Event
after the Restatement Closing Date:
(a) The Collateral Agent shall have received a Perfection Certificate with
respect to the Loan Parties dated on or after the Restatement Closing Date and
duly executed by a Responsible Officer of Terex, or a certificate duly executed
by a Responsible Officer of Terex indicating that no changes to the information
contained therein are necessary since the last such Perfection Certificate
delivered to the Collateral Agent by Terex.
(b) To the extent indicated in the Perfection Certificate delivered
pursuant to paragraph (a) above, or with respect to any Mortgaged Property or
property required to be Mortgaged Property, each document (including each
Uniform Commercial Code financing statement) required by law or reasonably
requested by the Administrative Agent to be filed, registered or recorded in
order to create in favor of the Collateral Agent for the benefit of the Secured
Parties a valid, legal and perfected first-priority security interest in and
lien on the Collateral shall have been delivered to the Collateral Agent.
SECTION 7. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. No Novation. Neither this Agreement nor the effectiveness of the
Restated Tranche C Credit Agreement shall extinguish the obligations for the
payment of money outstanding under the Original Tranche C Credit Agreement or
discharge or release the Lien or priority of any security agreement, any pledge
agreement or any other security therefor. Nothing herein contained shall be
construed as a substitution or novation of the Obligations outstanding under the
Original Tranche C Credit Agreement or instruments securing the same, which
shall remain in full force and effect, except as modified hereby or by
instruments executed concurrently herewith. Nothing expressed or implied in this
Agreement, the Restated Tranche C Credit Agreement or any other document
contemplated hereby or thereby shall be construed as a release or other
discharge of Terex under the Original Tranche C Credit Agreement or Terex or any
other Loan Party under any Loan Document (as defined in the Original Tranche C
Credit Agreement) from any of its obligations and liabilities thereunder. Each
of the Original Tranche C Credit Agreement and the other Loan Documents shall
remain in full force and effect, until and except as modified hereby or in
connection herewith. This Agreement shall constitute a Loan Document for all
purposes of the Original Credit Agreement and the Restated Tranche C Credit
Agreement.
SECTION 9. Notices. All notices hereunder shall be given in accordance with
the provisions of Section 9.01 of the Restated Tranche C Credit Agreement.
SECTION 10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which when taken together shall constitute but one
contract, and shall become effective as provided in Section 12 hereof. Delivery
of an executed signature page to this Agreement by facsimile transmission shall
be as effective as delivery of a manually signed counterpart hereof.
SECTION 11. Headings. The headings of this Agreement are for convenience of
reference only, are not part of this Agreement and are not to be taken into
consideration in interpreting this Agreement.
SECTION 12. Effectiveness. This Agreement shall become effective on the
date that the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of Terex, the Required Lenders
and the Additional Lenders.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
TEREX CORPORATION,
by:
___________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent, as Collateral Agent,
and as an Issuing Bank
by:
____________________________
Name:
Title:
by:
____________________________
Name:
Title:
Existing Tranche C Lenders
_______________________________,
as an Existing Tranche C Lender
by
_____________________________
Name:
Title:
Additional Lenders
________________________________,
as an Additional Lender
by
______________________________
Name:
Title:
Schedule 1
--------------------------------------------------------------------------------
Term Loans Outstanding Prior to Net Cash Proceeds Applied Outstanding
Prepayment Toward Prepayment After Prepayment
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Tranche A $41.0 $41.0 $0
--------------------------------------------------------------------------------
Tranche B $169.5 $45.8 $123.7
--------------------------------------------------------------------------------
Tranche C $398.9 $107.7 $291.2
--------------------------------------------------------------------------------
Total $609.4 $194.5 $414.9
--------------------------------------------------------------------------------
EXHIBIT A
================================================================================
AMENDED AND RESTATED TRANCHE C CREDIT AGREEMENT
dated as of March 29, 2001,
among
TEREX CORPORATION,
THE LENDERS NAMED HEREIN
and
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
and
as Collateral Agent
CREDIT SUISSE FIRST BOSTON
and
XXXXXXX XXXXX BARNEY INC.,
as Joint Lead Arrangers
and Joint Bookrunners
XXXXXXX XXXXX XXXXXX INC.
as Syndication Agent
================================================================================
[CS&M Ref No. 5865-043]
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms................................................1
SECTION 1.02. Terms Generally.............................................30
SECTION 1.03. Classification of Loans and Borrowings......................30
ARTICLE II
The Credits
SECTION 2.01. Commitments and Loans.......................................31
SECTION 2.02. Loans.......................................................31
SECTION 2.03. Borrowing Procedure.........................................33
SECTION 2.04. Evidence of Debt; Repayment of Loans........................34
SECTION 2.05. Fees........................................................35
SECTION 2.06. Interest on Loans...........................................36
SECTION 2.07. Default Interest............................................36
SECTION 2.08. Alternate Rate of Interest..................................37
SECTION 2.09. Termination and Reduction of Commitments....................37
SECTION 2.10. Conversion and Continuation of Borrowings...................38
SECTION 2.11. Repayment of Term Borrowings................................39
SECTION 2.12. Prepayment..................................................40
SECTION 2.13. Mandatory Prepayments.......................................41
SECTION 2.14. Reserve Requirements; Change in Circumstances...............43
SECTION 2.15. Change in Legality..........................................45
SECTION 2.16. Indemnity...................................................46
SECTION 2.17. Pro Rata Treatment..........................................47
SECTION 2.18. Sharing of Setoffs..........................................47
SECTION 2.19. Payments....................................................48
SECTION 2.20. Taxes.......................................................48
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate..................................50
SECTION 2.22. Pro Rata Treatment of Term Loans and Existing Term Loans....51
SECTION 2.23. Letters of Credit...........................................51
SECTION 2.24. Incremental Revolving Credit Commitments....................56
SECTION 2.25. Incremental Term Loan Commitments...........................58
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers........................................59
SECTION 3.02. Authorization...............................................59
SECTION 3.03. Enforceability..............................................60
SECTION 3.04. Governmental Approvals......................................60
SECTION 3.05. Financial Statements........................................60
SECTION 3.06. No Material Adverse Change..................................60
SECTION 3.07. Title to Properties; Possession Under Leases................61
SECTION 3.08. Subsidiaries................................................61
SECTION 3.09. Litigation; Compliance with Laws............................61
SECTION 3.10. Agreements..................................................62
SECTION 3.11. Federal Reserve Regulations.................................62
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act..62
SECTION 3.13. Use of Proceeds.............................................62
SECTION 3.14. Tax Returns.................................................62
SECTION 3.15. No Material Misstatements...................................63
SECTION 3.16. Employee Benefit Plans......................................63
SECTION 3.17. Environmental Matters.......................................64
SECTION 3.18. Insurance...................................................65
SECTION 3.19. Security Documents..........................................65
SECTION 3.20. Location of Real Property and Leased Premises...............66
SECTION 3.21. Labor Matters...............................................66
SECTION 3.22. Solvency....................................................66
ARTICLE IV
Conditions of Lending
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties........................67
SECTION 5.02. Insurance...................................................68
SECTION 5.03. Obligations and Taxes.......................................70
SECTION 5.04. Financial Statements, Reports, etc..........................70
SECTION 5.05. Litigation and Other Notices................................72
SECTION 5.06. Employee Benefits...........................................72
SECTION 5.07. Maintaining Records; Access to Properties and Inspections...72
SECTION 5.08. Use of Proceeds.............................................73
SECTION 5.09. Compliance with Environmental Laws..........................73
SECTION 5.10. Preparation of Environmental Reports........................73
SECTION 5.11. Further Assurances..........................................73
ARTICLE VINegative Covenants
SECTION 6.01. Indebtedness................................................75
SECTION 6.02. Liens.......................................................77
SECTION 6.03. Sale and Lease-Back Transactions............................79
SECTION 6.04. Investments, Loans and Advances.............................79
SECTION 6.05. ..................................................81
SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Restricted Subsidiaries to Pay Dividends..........82
SECTION 6.07. Transactions with Affiliates................................83
SECTION 6.08. Business of the Borrower and Restricted Subsidiaries........83
SECTION 6.09. Other Indebtedness and Agreements...........................83
SECTION 6.10. Capital Expenditures........................................84
SECTION 6.11. Consolidated Leverage Ratio.................................85
SECTION 6.12. Consolidated Interest Coverage Ratio........................85
SECTION 6.13. Consolidated Fixed Charge Coverage Ratio....................85
SECTION 6.14. Fiscal Year.................................................85
SECTION 6.15. Designation of Unrestricted Subsidiaries....................85
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent and the Collateral Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices.....................................................93
SECTION 9.02. Survival of Agreement.......................................94
SECTION 9.03. Binding Effect..............................................94
SECTION 9.04. Successors and Assigns......................................94
SECTION 9.05. Expenses; Indemnity.........................................98
SECTION 9.06. Right of Setoff.............................................99
SECTION 9.07. Applicable Law.............................................100
SECTION 9.08. Waivers; Amendment.........................................100
SECTION 9.09. Interest Rate Limitation...................................101
SECTION 9.10. Entire Agreement...........................................101
SECTION 9.11. Waiver of Jury Trial.......................................101
SECTION 9.12. Severability...............................................102
SECTION 9.13. Counterparts...............................................102
SECTION 9.14. Headings...................................................102
SECTION 9.15. Jurisdiction; Consent to Service of Process................102
SECTION 9.16. Confidentiality............................................103
SECTION 9.17. Rights of Existing Lenders.................................104
SECTION 9.18. Designated Senior Indebtedness.............................104
SECTION 9.19. Rights of Additional L/C Issuing Banks.....................101
SCHEDULES
Schedule 1.01(a) Subsidiary Guarantors
Schedule 1.01(b) Mortgaged Properties
Schedule 2.01 Lenders; Commitments
Schedule 3.08 Subsidiaries
Schedule 3.09 Litigation
Schedule 3.17 Environmental
Schedule 3.18 Insurance
Schedule 3.20(a) Owned Real Property
Schedule 3.20(b) Leased Real Property
Schedule 3.21 Labor
EXHIBITS
Exhibit A Form of Administrative Questionnaire
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Borrowing Request
Exhibit D Opinion of General Counsel
AMENDED AND RESTATED TRANCHE C CREDIT AGREEMENT dated
as of March 29, 2001 (this "Agreement"), among TEREX
CORPORATION, a Delaware corporation (the "Borrower"), the
LENDERS party hereto, the ISSUING BANKS (as defined in
Article I) and CREDIT SUISSE FIRST BOSTON, a bank organized
under the laws of Switzerland, acting through its New York
branch, as administrative agent and collateral agent for the
Lenders.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
shall have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Acquired Indebtedness" shall mean Indebtedness of a person or any of its
subsidiaries (the "Acquired Person") (a) existing at the time such person
becomes a Restricted Subsidiary of the Borrower or at the time it merges or
consolidates with the Borrower or any of its Restricted Subsidiaries or (b)
assumed in connection with the acquisition of assets from such person; provided
in each case that (i) such Indebtedness was not created in contemplation of such
acquisition, merger or consolidation and (ii) such acquisition, merger or
consolidation is otherwise permitted under this Agreement.
"Acquired Person" shall have the meaning assigned to such term in the
definition of the term "Acquired Indebtedness".
"Additional L/C Issuing Bank" shall have the meaning assigned to such term
in the Existing Credit Agreement as in effect on the Restatement Closing Date.
"Additional Letter of Credit" shall mean each letter of credit issued
pursuant to the Additional L/C Facility.
"Additional L/C Exposure" shall mean at any time the sum of (a) the
aggregate undrawn amount of all outstanding Additional Letters of Credit at such
time and (b) the aggregate principal amount of all disbursements in respect of
Additional Letters of Credit that have not yet been reimbursed at such time.
"Additional L/C Facility" shall mean the letter of credit subfacility under
this Agreement or any other credit facility, and any refinancing or replacement
of such facility, entered into by the Borrower, one or more of the Subsidiary
Borrowers and one or more Additional L/C Issuing Banks that shall have as its
sole purpose the issuance of letters of credit to be used by the Borrower and
one or more of the Subsidiary Borrowers in the ordinary course of business and
that shall require prompt reimbursement upon any funding of any such letter of
credit.
"Additional Subordinated Notes" shall mean subordinated notes issued from
time to time by the Borrower, or assumed in connection with a Permitted
Acquisition after the Restatement Closing Date; provided that (a) such
subordinated notes do not require any scheduled payment of principal prior to a
date that is 12 months after the Term Loan Maturity Date and (b) the
subordination provisions and other non-pricing terms and conditions of such
subordinated notes are no less favorable to the Loan Parties and the Lenders
than the analogous provisions of the New Subordinated Notes.
"Administrative Agent" shall mean CSFB in its capacity as administrative
agent under this Agreement unless and until a successor agent is appointed
pursuant to Article VIII.
"Administrative Fees" shall have the meaning assigned to such term in
Section 2.05(b).
"Adjusted LIBO Rate" shall mean, with respect to any Eurocurrency Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the LIBO Rate in effect for such
Interest Period multiplied by Statutory Reserves.
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in the form of Exhibit A, or such other form as shall be supplied by the
Administrative Agent.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"Agents" shall have the meaning assigned to such term in Article VIII.
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount of
the Lenders' Revolving Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 2 of 1%. If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive absent manifest
error) that it is unable to ascertain the Federal Funds Effective Rate for any
reason, including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms of the definition thereof,
the Alternate Base Rate shall be determined without regard to clause (b) of the
preceding sentence until the circumstances giving rise to such inability no
longer exist. Any change in the Alternate Base Rate due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective on the effective
date of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively. The term "Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by the Administrative Agent as its prime
rate in effect at its principal office in New York City; each change in the
Prime Rate shall be effective on the date such change is publicly announced as
being effective. The term "Federal Funds Effective Rate" shall mean, for any
day, the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business Day,
the average of the quotations for the day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Amendment Agreement" shall mean the Amendment Agreement dated as of the
Restatement Closing Date, among the Borrower, the Administrative Agent, the
Collateral Agent and certain Lenders.
"Applicable Percentage" shall mean, for any day, with respect to any
Eurocurrency Revolving Loan, Eurocurrency Term Loan, ABR Revolving Loan, ABR
Term Loan or with respect to the Facility Fees, as the case may be, the
applicable percentage set forth below under the caption "Eurocurrency Spread
-Revolving Loans", "Eurocurrency Spread - Term Loans", "ABR Spread - Revolving
Loans", "ABR Spread - Term Loans" or "Facility Fee Percentage", as the case may
be, based upon the Consolidated Leverage Ratio as of the relevant date of
determination:
====================================================================================================================
Eurocurrency Eurocurrency ABR ABR Facility Fee
Consolidated Spread-Revolving Spread - Spread-Revolving Spread -
Leverage Ratio Loans Term Loans Loans Term Loans Percentage 1/
--------------------------------------------------------------------------------------------------------------------
Category 1
Greater than or equal to
4.50 to 1.00 2.50% 3.25% 1.50% 2.25% 0.500%
--------------------------------------------------------------------------------------------------------------------
Category 2
Greater than or equal to
4.00 to 1.00 but less than
4.50 to 1.00 2.25% 3.00% 1.25% 2.00% 0.500%
--------------------------------------------------------------------------------------------------------------------
Category 3
Greater than or equal to
3.50 to 1.00 but less than
4.00 to 1.00 1.75% 3.00% 0.75% 2.00% 0.500%
--------------------------------------------------------------------------------------------------------------------
Category 4
Greater than or equal to
3.00 to 1.00 but less than
3.50 to 1.00 1.625% 3.00% 0.625% 2.00% 0.375%
--------------------------------------------------------------------------------------------------------------------
Category 5
Less than 3.00 to 1.00 1.375% 3.00% 0.375% 2.00% 0.375%
====================================================================================================================
Each change in the Applicable Percentage resulting from a change in the
Consolidated Leverage Ratio shall be effective with respect to all Loans and
Letters of Credit on the date of delivery to the Administrative Agent of the
financial statements and certificates required by Section 5.04(a) or (b) based
upon the Consolidated Leverage Ratio as of the end of the most recent fiscal
quarter included in such financial statements so delivered, and shall remain in
effect until the date immediately preceding the next date of delivery of such
financial statements and certificates indicating another such change.
Notwithstanding the foregoing, at any time after the occurrence and during the
continuance of an Event of Default, the Consolidated Leverage Ratio shall be
deemed to be in Category 1 for purposes of determining the Applicable
Percentage.
"Approved Fund" shall have the meaning assigned to such term in Section
9.04(b).
------------------------
1/ Provided that Facility Fees shall increse by 0.125% at all times that
utilaization under the Total Revolving Credit Commitments pursuant to this
Agreement and the Existing Credit Agreement is less that 15%.
"Asset Sale" shall mean the sale, transfer or other disposition (by way of
merger or otherwise and including by way of a Sale and Leaseback) by the
Borrower or any Restricted Subsidiary to any person other than the Borrower or
any Subsidiary Guarantor of (a) any capital stock of any Subsidiary (other than
directors' qualifying shares) or (b) any other assets of the Borrower or any
Restricted Subsidiary (other than inventory, excess, damaged, obsolete or worn
out assets, scrap, Permitted Investments, accounts receivable and/or letters of
credit supporting accounts receivable issued to the Borrower or any Restricted
Subsidiary, in each case disposed of in the ordinary course of business and, in
the case of accounts receivable, consistent with past practice); provided that
any asset sale or series of related asset sales described in clause (b) above
having a value not in excess of $5,000,000 shall be deemed not to be an "Asset
Sale" for purposes of this Agreement; and provided, further, that, without
limiting the generality of the foregoing and any rights that exist as a result
thereof with respect to the sale of accounts receivable, the sale of Program
Receivables pursuant to the Receivables Program shall be deemed not to be an
"Asset Sale" for the purposes of this Agreement.
"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Lender and an assignee, and accepted by the Administrative Agent, in
the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in effect.
"Borrowing Request" shall mean a request by the Borrower in accordance with
the terms of Section 2.03 and substantially in the form of Exhibit C.
"Breakage Event" shall have the meaning assigned to such term in Section
2.16.
"Business Day" shall mean any day other than a Saturday, Sunday or day on
which banks in New York City are authorized or required by law to close;
provided, however, that when used in connection with a Eurocurrency Loan, the
term "Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Casualty" shall have the meaning assigned to such term in the Mortgages.
"Casualty Proceeds" shall have the meaning assigned to such term in the
Mortgages.
A "Change in Control" shall be deemed to have occurred if (a) any person or
group (within the meaning of Rule 13d-5 of the Securities Exchange Act of 1934
as in effect on the Restatement Closing Date) shall own directly or indirectly,
beneficially or of record, shares representing more than 30% of the aggregate
ordinary voting power represented by the issued and outstanding capital stock of
the Borrower; (b) a majority of the seats (other than vacant seats) on the board
of directors of the Borrower shall at any time be occupied by persons who were
neither (i) nominated by the board of directors of the Borrower, nor (ii)
appointed by directors so nominated; (c) any change in control (or similar
event, however denominated) with respect to the Borrower or any of its
Restricted Subsidiaries shall occur under and as defined in any indenture or
agreement in respect of Indebtedness in an outstanding principal amount in
excess of $5,000,000 to which the Borrower or any of its Restricted Subsidiaries
is a party; or (d) any person or group shall otherwise directly or indirectly
Control the Borrower.
"Charges" shall have the meaning assigned to such term in Section 9.09.
"Class", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Tranche
C Term Loans or Incremental Term Loans and, when used in reference to any
Commitment, refers to whether such Commitment is a Revolving Credit Commitment
or an Incremental Term Loan Commitment.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" shall mean all the "Collateral" as defined in any Security
Document and shall also include the Mortgaged Properties.
"Collateral Agent" shall mean CSFB in its capacity as collateral agent
under this Agreement unless and until a successor agent is appointed pursuant to
Article VIII.
"Commitment" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment and Incremental Term Loan Commitment (if any).
"Condemnation" shall have the meaning assigned to such term in the
Mortgages.
"Condemnation Proceeds" shall have the meaning assigned to such term in the
Mortgages.
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated March 2001.
"Consolidated Capital Expenditures" shall mean, for any period, the
aggregate of all expenditures (whether paid in cash or other consideration or
accrued as a liability) by the Borrower or any of its Restricted Subsidiaries
during such period that, in accordance with GAAP, are or should be included in
"additions to property, plant and equipment" or similar items reflected in the
consolidated statement of cash flows of the Borrower and the Restricted
Subsidiaries for such period (including the amount of assets leased by incurring
any Capital Lease Obligation); provided that expenditures for Permitted
Acquisitions shall not constitute Consolidated Capital Expenditures.
"Consolidated Current Assets" shall mean, as of any date of determination,
the total assets that would properly be classified as current assets (other than
cash and cash equivalents) of the Borrower and its Restricted Subsidiaries as of
such date, determined on a consolidated basis in accordance with GAAP.
"Consolidated Current Liabilities" shall mean, as of any date of
determination, the total liabilities (other than, without duplication, (a) the
current portion of long-term Indebtedness and (b) outstanding Revolving Loans)
that would properly be classified as current liabilities of the Borrower and its
Restricted Subsidiaries as of such date, determined on a consolidated basis in
accordance with GAAP.
"Consolidated EBITDA" shall mean, for any period, Consolidated Net Income
for such period, plus, without duplication and to the extent deducted from
revenues in determining Consolidated Net Income for such period, the sum of (a)
the aggregate amount of Consolidated Interest Expense for such period, (b) the
aggregate amount of letter of credit fees paid during such period, (c) the
aggregate amount of income and franchise tax expense for such period, (d) all
amounts attributable to depreciation and amortization for such period, (e) all
non-recurring non-cash charges during such period and (f) all non-cash
adjustments made to translate foreign assets and liabilities for changes in
foreign exchange rates made in accordance with FASB No. 52, and minus, without
duplication and to the extent added to revenues in determining Consolidated Net
Income for such period, (i) all non-recurring non-cash gains during such period
and (ii) all non-cash adjustments made to translate foreign assets and
liabilities for changes in foreign exchange rates made in accordance with FASB
No. 52, all as determined on a consolidated basis with respect to the Borrower
and its Restricted Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" shall mean, for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) the sum, without
duplication, of (i) Consolidated Interest Expense for such period; (ii) income
or franchise taxes paid in cash during such period; (iii) scheduled and
voluntary payments of principal with respect to all Indebtedness (including the
principal portion of Capital Lease Obligations but excluding payments for
inventory to be sold in the ordinary course of business) of the Borrower and its
Restricted Subsidiaries on a consolidated basis during such period (other than
repayments of (x) Loans under the Original Tranche C Credit Agreement made on
the Restatement Closing Date or (y) Indebtedness with the proceeds of other
Indebtedness permitted to be incurred hereunder or equity); (iv) payments
permitted pursuant to Section 6.06 made in cash during such period; and (v)
Consolidated Capital Expenditures made in cash during such period.
"Consolidated Interest Coverage Ratio" shall mean, for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) Consolidated Interest
Expense for such period.
"Consolidated Interest Expense" of the Borrower and its Restricted
Subsidiaries shall mean, for any period, interest expense of the Borrower and
its Restricted Subsidiaries for such period, net of interest income, included in
the determination of Consolidated Net Income. For purposes of the foregoing,
interest expense shall be determined after giving effect to any net payments
made or received by the Borrower and its Restricted Subsidiaries under Interest
Rate Protection Agreements. Notwithstanding that the Receivables Program does
not constitute Indebtedness under GAAP, for the purposes of calculating
Consolidated Interest Expense under this Agreement, Consolidated Interest
Expense shall also include, for any period, any fees, discounts, premiums,
expenses or similar amounts (other than legal fees and expenses) incurred,
without duplication, by the Borrower or any of its Restricted Subsidiaries in
connection with the Receivables Program for such period, including, without
limitation, purchase discounts (net of any loss reserves), purchase premiums,
operating expense fees, structuring fees, collection agent fees, unutilized
purchase limit fees and other similar fees and expenses.
"Consolidated Leverage Ratio" shall mean, as of any date of determination,
the ratio of (a) Total Debt on such date to (b) the sum of (i) Consolidated
EBITDA for the most recent period of four consecutive fiscal quarters ended on
or prior to such date and (ii) the Pro Forma Acquisition EBITDA of all Acquired
Persons acquired during such period of four consecutive fiscal quarters. For
purposes of calculating the Consolidated Leverage Ratio as of any date, if any
portion of the Total Debt outstanding on such date is denominated in a currency
other than dollars, then the portion, if any, of Consolidated EBITDA or Pro
Forma Acquisition EBITDA during the period of four consecutive fiscal quarters
ending on or prior to such date and denominated in any such other currency shall
be translated to dollars using the same exchange rate as is used to translate
such portion of the Total Debt denominated in such other currency.
"Consolidated Net Income" shall mean, for any period, the sum of net income
(or loss) for such period of the Borrower and its Subsidiaries on a consolidated
basis determined in accordance with GAAP, but excluding: (a) any income of any
person if such person is not a Subsidiary, except that the Borrower's equity in
the net income of any such person for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash actually distributed
by such person during such period to the Borrower or a Restricted Subsidiary as
a dividend or other distribution; (b) the income (or loss) of any person accrued
prior to the date it became a Restricted Subsidiary of the Borrower or is merged
into or consolidated with the Borrower or such person's assets are acquired by
the Borrower or any of its Restricted Subsidiaries; (c) non-recurring gains (or
losses) during such period; (d) extraordinary gains (or losses), as defined
under GAAP during such period; and (e) the income of any Restricted Subsidiary
to the extent that the declaration or payment of dividends or similar
distributions by the Restricted Subsidiary of that income is prohibited by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, statute, rule or governmental regulation applicable to the Restricted
Subsidiary.
"Control" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a person,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "Controlling" and "Controlled" shall have meanings correlative
thereto.
"CSFB" shall mean Credit Suisse First Boston, a bank organized under the
laws of Switzerland, acting through its New York branch.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"dollars" or "$" shall mean lawful money of the United States of America.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"Environmental Claim" shall mean any written accusation, allegation,
notice of violation, claim, demand, order, directive, cost recovery action or
other cause of action by, or on behalf of, any Governmental Authority or any
person for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon (a) the existence, or
the continuation of the existence, of a Release (including sudden or non-sudden,
accidental or non-accidental Releases), (b) exposure to any Hazardous Material,
(c) the presence, use, handling, transportation, storage, treatment or disposal
of any Hazardous Material or (d) the violation or alleged violation of any
Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable present and future
treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by or with any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
Release or threatened Release of any Hazardous Material or to health and safety
matters, including the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. " 9601 et seq. (collectively "CERCLA"),
the Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42 U.S.C.
Sections 6901 et seq., the Federal Water Pollution Control Act, as amended by
the Clean Water Act of 1977, 33 U.S.C. Sections 1251 et seq., the Clean Air Act
of 1970, as amended 42 U.S.C. Sections 7401 et seq., the Toxic Substances
Control Act of 1976, 15 U.S.C. Sections 2601 et seq., the Occupational Safety
and Health Act of 1970, as amended, 29 U.S.C. Sections 651 et seq., the
Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Sections
11001 et seq., the Safe Drinking Water Act of 1974, as amended, 42 U.S.C.
Sections 300(f) et seq., the Hazardous Materials Transportation Act, 49 U.S.C.
Sections 5101 et seq., and any similar or implementing state or local law, and
all amendments or regulations promulgated under any of the foregoing.
"Environmental Permit" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"Equity Issuance" shall mean any issuance or sale by the Borrower or any
Restricted Subsidiary of any shares of capital stock or other equity securities
of any such person or any obligations convertible into or exchangeable for, or
giving any person a right, option or warrant to acquire such securities or such
convertible or exchangeable obligations, except in each case for (a) any
issuance or sale to the Borrower or any Restricted Subsidiary, (b) any issuance
of directors' qualifying shares, (c) sales or issuances of common stock to
management or employees of the Borrower or any Restricted Subsidiary under any
employee stock option plan, stock purchase plan, retirement plan, deferred
compensation plan or other employee benefit plan in existence from time to time
to the extent that (i) the proceeds from all sales and issuances described in
this clause (c) shall not exceed in the aggregate $5,000,000 in any fiscal year
of the Borrower and (ii) the shares of common stock issued pursuant to this
clause (c) shall not exceed 10% of the common stock of the Borrower or such
Restricted Subsidiary, as applicable.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder, with respect to a Plan; (b)
the adoption of any amendment to a Plan that would require the provision of
security pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA; (c)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (d) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (e) the incurrence of any liability under Title IV of ERISA
with respect to the termination of any Plan or the withdrawal or partial
withdrawal of the Borrower or any of its ERISA Affiliates from any Plan or
Multiemployer Plan; (f) the receipt by the Borrower or any ERISA Affiliate from
the PBGC or a plan administrator of any notice relating to the intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (g)
the receipt by the Borrower or any ERISA Affiliate of any notice concerning the
imposition of Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA; (h) the occurrence of a "prohibited transaction" with respect
to which the Borrower or any of its Subsidiaries is a "disqualified person"
(within the meaning of Section 4975 of the Code) or with respect to which the
Borrower or any such Subsidiary could otherwise be liable; (i) any other event
or condition with respect to a Plan or Multiemployer Plan that could reasonably
be expected to result in liability of the Borrower; and (j) any Foreign Benefit
Event.
"Euro" shall mean the single currency of the European Union as constituted
by the Treaty on European Union.
"Eurocurrency", when used in reference to any Loan or Borrowing, refers to
whether such Loan or the Loans comprising such Borrowing are bearing interest at
a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" shall have the meaning assigned to such term in Section
7.01.
"Excess Cash Flow" shall mean, for any fiscal year of the Borrower, the
excess of (a) the sum, without duplication, of (i) Consolidated EBITDA for such
fiscal year, (ii) extraordinary or non-recurring cash receipts of the Borrower
and its Restricted Subsidiaries, if any, during such fiscal year and not
included in Consolidated EBITDA and (iii) reductions to non-cash working capital
of the Borrower and its Restricted Subsidiaries for such fiscal year (i.e., the
decrease, if any, in Consolidated Current Assets minus Consolidated Current
Liabilities from the beginning to the end of such fiscal year), over (b) the
sum, without duplication, of (i) the amount of any cash income taxes payable by
the Borrower and its Restricted Subsidiaries with respect to such fiscal year,
(ii) cash interest paid by the Borrower and its Restricted Subsidiaries during
such fiscal year, (iii) Consolidated Capital Expenditures committed or made in
cash in accordance with Section 6.10 during such fiscal year (and not deducted
from Excess Cash Flow in any prior year), (iv) scheduled principal repayments of
Indebtedness made by the Borrower and its Restricted Subsidiaries during such
fiscal year, (v) optional and mandatory prepayments of the principal of the Term
Loans and the Existing Term Loans and reductions of Revolving Credit Commitments
and the Existing Revolving Credit Commitments during such fiscal year, but only
to the extent that such prepayments and reductions do not occur in connection
with a refinancing of all or any portion of the Term Loans or Existing Loans,
(vi) extraordinary or non-recurring expenses and losses to the extent paid in
cash by the Borrower and its Restricted Subsidiaries, if any, during such fiscal
year and not included in Consolidated EBITDA and (vii) additions to non-cash
working capital for such fiscal year (i.e., the increase, if any, in
Consolidated Current Assets minus Consolidated Current Liabilities from the
beginning to the end of such fiscal year); provided that, to the extent
otherwise included therein, the Net Cash Proceeds of Asset Sales and Equity
Issuances shall be excluded from the calculation of Excess Cash Flow.
"Existing Credit Agreement" shall mean the Amended and Restated Credit
Agreement dated as of March 29, 2001, among the Borrower, the Subsidiary
Borrowers, the Existing Lenders, the issuing banks party thereto and CSFB, as
administrative agent and collateral agent for such lenders and issuing banks, as
amended, supplemented or otherwise modified from time to time.
"Existing Lenders" shall mean the lenders from time to time party to the
Existing Credit Agreement.
"Existing Loans" shall mean the Existing Term Loans and the Existing
Revolver Loans.
"Facility Fee " shall have the meaning assigned to such term in Section
2.05(a).
"Existing Revolver Loans" shall mean the Revolving Loans, the A/C Fronted
Loans and the Swingline Loans as such terms are defined in the Existing Credit
Agreement.
"Existing Revolving Credit Commitments" shall mean the Revolving Credit
Commitments under and as defined in the Existing Credit Agreement.
"Existing Term Loans" shall mean the Tranche B Term Loans as such term is
defined in the Existing Credit Agreement.
"Federal Funds Effective Rate" shall have the meaning assigned to such term
in the definition of "Alternate Base Rate".
"Fee Letter" shall mean the Fee Letter dated as of August 3, 1999, between
the Borrower and CSFB.
"Fees" shall mean the Facility Fees, the Administrative Agent Fees, the L/C
Participation Fees and the Issuing Bank Fees.
"Financial Officer" of any person shall mean the chief financial officer, a
Vice President-Finance, principal accounting officer, Treasurer or Controller of
such person.
"Finsub" shall mean a bankruptcy-remote corporation that is a wholly owned
Restricted Subsidiary of the Borrower organized solely for the purpose of
engaging in the Receivables Program.
"Floor Plan Guarantees" shall mean Guarantees (including but not limited to
repurchase or remarketing obligations) by the Borrower or a Restricted
Subsidiary incurred in the ordinary course of business consistent with past
practice of Indebtedness incurred by a franchise dealer, or other purchaser or
lessor, for the purchase of inventory manufactured or sold by the Borrower or a
Restricted Subsidiary, the proceeds of which Indebtedness is used solely to pay
the purchase price of such inventory to such franchise dealer or other purchaser
or lessor and any related reasonable fees and expenses (including financing
fees); provided, however, that (a) to the extent commercially practicable, the
Indebtedness so Guaranteed is secured by a perfected first priority Lien on such
inventory in favor of the holder of such Indebtedness and (b) if the Borrower or
such Restricted Subsidiary is required to make payment with respect to such
Guarantee, the Borrower or such Restricted Subsidiary will have the right to
receive either (i) title to such inventory, (ii) a valid assignment of a
perfected first priority Lien in such inventory or (iii) the net proceeds of any
resale of such inventory.
"Foreign Benefit Event" shall mean, with respect to any Foreign Pension
Plan, (a) the existence of unfunded liabilities in excess of the amount
permitted under any applicable law, or in excess of the amount that would be
permitted absent a waiver from a Governmental Authority, (b) the failure to make
the required contributions or payments, under any applicable law, on or before
the due date for such contributions or payments, (c) the receipt of a notice by
a Governmental Authority relating to the intention to terminate any such Foreign
Pension Plan or to appoint a trustee or similar official to administer any such
Foreign Pension Plan, or alleging the insolvency of any such Foreign Pension
Plan and (d) the incurrence of any liability in excess of $5,000,000 (or the
dollar equivalent thereof in another currency) by the Borrower or any of its
Subsidiaries under applicable law on account of the complete or partial
termination of such Foreign Pension Plan or the complete or partial withdrawal
of any participating employer therein, or (e) the occurrence of any transaction
that is prohibited under any applicable law and could reasonably be expected to
result in the incurrence of any liability by the Borrower or any of its
Subsidiaries, or the imposition on the Borrower or any of its Subsidiaries of
any fine, excise tax or penalty resulting from any noncompliance with any
applicable law, in each case in excess of $5,000,000 (or the dollar equivalent
thereof in another currency).
"Foreign Pension Plan" shall mean any benefit plan which under applicable
law is required to be funded through a trust or other funding vehicle other than
a trust or funding vehicle maintained exclusively by a Governmental Authority.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"Foreign Subsidiary Issuer" shall mean any Foreign Subsidiary, 65% or more
of the equity interest in which has been pledged to secure the Obligations
pursuant to the Pledge Agreement.
"GAAP" shall mean generally accepted accounting principles in effect in the
United States applied on a consistent basis.
"Governmental Authority" shall mean the government of the United States of
America, the United Kingdom, Germany, France, Italy, Australia, any other nation
or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Granting Lender" shall have the meaning assigned to such term in Section
9.04(j).
"Guarantee" of or by any person shall mean any obligation, contingent or
otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness or (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness; provided, however, that the
term "Guarantee" shall not include (i) endorsements for collection or deposit in
the ordinary course of business and (ii) Floor Plan Guarantees except to the
extent that they appear as debt on the Borrower's balance sheet.
"Guarantee Agreements" shall mean the Subsidiary Guarantee Agreement and
the Terex Guarantee Agreement.
"Hazardous Materials" shall mean all explosive or radioactive materials,
substances or wastes, hazardous or toxic materials, substances or wastes,
pollutants, solid, liquid or gaseous wastes, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls ("PCBs") or PCB-containing materials or equipment, radon gas,
infectious or medical wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law.
"Hedging Agreement" shall mean any Interest Rate Protection Agreement or
any foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement
not entered into for speculation.
"Inactive Subsidiary" shall mean each Subsidiary of the Borrower listed on
Schedule 1.01(f) of the Existing Credit Agreement until such time as such
Subsidiary shall become a Subsidiary Guarantor.
"Incremental Revolving Facility Amount" shall mean, at any time, the lesser
of (a) $100,000,000 and (b) the excess, if any, of (i) $100,000,000 over (ii)
the sum of (x) the aggregate amount of all Incremental Term Loan Commitments
established at or prior to such time pursuant to Section 2.25 and (y) the
aggregate increase in the Revolving Credit Commitments established prior to such
time pursuant to Section 2.24.
"Incremental Term Lender" shall mean a Lender with an Incremental Term Loan
Commitment or an outstanding Incremental Term Loan.
"Incremental Term Loan Amount" shall mean, at any time, the excess, if any,
of (a) $100,000,000 over (b) the sum of (i) the aggregate increase in the
Revolving Credit Commitments established at or prior to such time pursuant to
Section 2.24 and (ii) the aggregate amount of all Incremental Term Loan
Commitments established prior to such time pursuant to Section 2.25.
"Incremental Term Loan Assumption Agreement" shall mean an Incremental Term
Loan Assumption Agreement in form and substance reasonably satisfactory to the
Administrative Agent and the Borrower, among the Borrower, the Administrative
Agent and one or more Incremental Term Lenders.
"Incremental Term Loan Commitment" shall mean the commitment of any Lender,
established pursuant to Section 2.25, to make Incremental Term Loans to the
Borrower.
"Incremental Term Loan Repayment Date" shall mean each date regularly
scheduled for the payment of principal on the Incremental Term Loans.
"Incremental Term Loans" shall mean Term Loans made by one or more Lenders
to the Borrower pursuant to Section 2.01(b).
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or advances of any kind, (b) all
obligations of such person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such person upon which interest charges are
customarily paid, (d) all obligations of such person under conditional sale or
other title retention agreements relating to property or assets purchased by
such person, (e) all obligations of such person issued or assumed as the
deferred purchase price of property or services (excluding trade accounts
payable and accrued obligations incurred in the ordinary course of business),
(f) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on property owned or acquired by such person, whether or not the
obligations secured thereby have been assumed, (g) all Guarantees by such person
of Indebtedness of others, (h) all Capital Lease Obligations of such person, (i)
all obligations of such person in respect of interest rate protection
agreements, foreign currency exchange agreements or other interest or exchange
rate hedging arrangements and (j) all obligations of such person as an account
party in respect of letters of credit and bankers' acceptances. The Indebtedness
of any person shall include the Indebtedness of any partnership in which such
person is a general partner, to the extent such Indebtedness is recourse to such
person either expressly or by operation of law. Notwithstanding that the
Receivables Program does not constitute Indebtedness under GAAP, solely for the
purposes of calculating Indebtedness under this Agreement, the Indebtedness of
Finsub shall also include all consideration provided to Finsub by the purchaser
of Program Receivables less any amounts collected (or deemed collected) with
respect to such Program Receivables and accounted for as required by the
Receivables Program Documentation (such amount being referred to in the
Receivables Program Documentation as the "Investment").
"Indemnitee" shall have the meaning assigned to such term in Section
9.05(b).
"Indemnity, Subrogation and Contribution Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement, dated as of March 6, 1998,
among the Borrower, the Subsidiaries party thereto and the Collateral Agent.
"Information" shall have the meaning assigned to such term in Section 9.16.
"Interest Payment Date" shall mean, with respect to any Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurocurrency Borrowing with an Interest Period of more
than three months' duration, each day that would have been an Interest Payment
Date had successive Interest Periods of three months' duration been applicable
to such Borrowing, and, in addition, the date of any prepayment of such
Borrowing or conversion of such Borrowing to a Borrowing of a different Type.
"Interest Period" shall mean (a) as to any Eurocurrency Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter, as the
Borrower may elect and (b) as to any ABR Borrowing, the period commencing on the
date of such Borrowing and ending on the earliest of (i) the next succeeding
March 31, June 30, September 30 or December 31, (ii) the Tranche C Maturity Date
and the Revolving Credit Maturity Date, as applicable, and (iii) the date such
Borrowing is converted to a Borrowing of a different Type in accordance with
Section 2.10 or repaid or prepaid in accordance with Section 2.11 or 2.12;
provided, however, that if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day. Interest shall accrue from and including the first day
of an Interest Period to, but excluding, the last day of such Interest Period.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or
similar agreement or arrangement designed to protect the Borrower or any
Restricted Subsidiary against fluctuations in interest rates, and not entered
into for speculation.
"Irish Facilities" shall mean the credit facilities of Powerscreen.
"Issuing Bank" shall mean, as the context may require, (a) CSFB or (b) any
other Lender that may become an Issuing Bank pursuant to Section 2.23(i) or (k),
with respect to Letters of Credit issued by such Lender. For purposes of each
Loan Document, other than this Agreement, each Issuing Bank hereunder shall be
deemed to be an "Additional L/C Issuing Bank" under such Loan Document.
"Issuing Bank Fees" shall have the meaning assigned to such term in Section
2.05(c).
"Italian Facilities" shall mean the credit facilities of any Restricted
Subsidiary located in Italy.
"L/C Commitment" shall mean the commitment of each Issuing Bank to issue
Letters of Credit pursuant to Section 2.23.
"L/C Disbursement" shall mean a payment or disbursement made by an Issuing
Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time and (b) the aggregate
principal amount of all L/C Disbursements that have not yet been reimbursed at
such time. The L/C Exposure of any Revolving Credit Lender at any time shall
mean its Pro Rata Percentage of the total L/C Exposure at such time. For
purposes of each Loan Document, other than this Agreement, the L/C Exposure
hereunder shall be deemed to be "Additional L/C Exposure" under such Loan
Document. Solely for purposes of determining the Required Lenders at any time,
the L/C Exposure of any Revolving Credit Lender shall be deemed not to have
reduced the Revolving Credit Commitment of such Revolving Credit Lender.
"L/C Participation Fee" shall have the meaning assigned to such term in
Section 2.05(c).
"Lenders" shall mean (a) the financial institutions listed on Schedule 2.01
(other than any such financial institution that has ceased to be a party hereto
pursuant to an Assignment and Acceptance) and (b) any financial institution that
has become a party hereto pursuant to an Assignment and Acceptance.
"Letter of Credit" shall mean (a) any letter of credit issued pursuant to
Section 2.23 and (b) any Existing Letter of Credit. For the purpose of each Loan
Document other than this Agreement, each Letter of Credit hereunder shall be
deemed to be an "Additional Letter of Credit" under such Loan Document.
"LIBO Rate" shall mean, with respect to any Eurocurrency Borrowing, the
rate per annum determined by the Administrative Agent at approximately 11:00
a.m. (London time) on the date which is two Business Days prior to the beginning
of the relevant Interest Period (as specified in the applicable Borrowing
Request) by reference to the British Bankers' Association Interest Settlement
Rates for deposits in dollars (as set forth by any service selected by the
Administrative Agent which has been nominated by the British Bankers'
Association as an authorized information vendor for the purpose of displaying
such rates), for a period equal to such Interest Period; provided that, to the
extent that an interest rate is not ascertainable pursuant to the foregoing
provisions of this definition, the "LIBO Rate" shall be the interest rate per
annum determined by the Administrative Agent to be the average of the rates per
annum at which deposits in dollars are offered for such relevant Interest Period
to major banks in the London interbank market in London, England by the
Administrative Agent at approximately 11:00 a.m. (London time) on the date which
is two Business Days prior to the beginning of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Amendment Agreement, the
Guarantee Agreements, the Security Documents, each Incremental Term Loan
Assumption Agreement and the Indemnity, Subrogation and Contribution Agreement.
"Loan Parties" shall mean the Borrower and the Subsidiary Guarantors.
"Loans" shall mean the Term Loans and the Revolving Loans.
"Margin Stock" shall have the meaning assigned to such term in Regulation
U.
"Material Adverse Effect" shall mean (a) a materially adverse effect on the
business, assets, operations, prospects or condition, financial or otherwise, of
the Borrower and its Restricted Subsidiaries, taken as a whole, (b) material
impairment of the ability of the Loan Parties to perform their obligations under
the Loan Documents or (c) material impairment of the rights of or benefits
available to the Lenders under any Loan Document.
"Maximum Rate" shall have the meaning assigned to such term in Section
9.09.
"Mortgaged Properties" shall mean the owned real properties and leasehold
and subleasehold interests specified on Schedule 1.01(b) and 1.01(c).
"Mortgages" shall mean the mortgages, deeds of trust, leasehold mortgages,
assignments of leases and rents, modifications and other security documents
listed on Schedule 1.01(d) or delivered pursuant to Section 5.11.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale, the cash
proceeds (including cash proceeds subsequently received (as and when received)
in respect of non-cash consideration initially received and including all
insurance settlements and condemnation awards in excess of $250,000 from any
single event or series of related events), net of (i) transaction expenses
(including reasonable broker's fees or commissions, legal fees, accounting fees,
investment banking fees and other professional fees, transfer and similar taxes
and the Borrower's good faith estimate of income taxes paid or payable in
connection with the receipt of such cash proceeds), (ii) amounts provided as a
reserve, in accordance with GAAP, including pursuant to any escrow arrangement,
against any liabilities under any indemnification obligations associated with
such Asset Sale (provided that, to the extent and at the time any such amounts
are released from such reserve, such amounts shall constitute Net Cash
Proceeds), (iii) in the case of insurance settlements and condemnation awards,
amounts previously paid by the Borrower and its Restricted Subsidiaries to
replace or restore the affected property, and (iv) the principal amount, premium
or penalty, if any, interest and other amounts on any Indebtedness for borrowed
money which is secured by the asset sold in such Asset Sale and is required to
be repaid with such proceeds (other than any such Indebtedness assumed by the
purchaser of such asset); provided, however, that, with respect to the proceeds
of any Asset Sale or series of related Asset Sales in an amount of less than or
equal to $50,000,000 in the aggregate, if (A) the Borrower shall deliver a
certificate of a Financial Officer to the Administrative Agent at the time of
receipt thereof setting forth the Borrower's intent to reinvest such proceeds in
productive assets of a kind then used or usable in the business of the Borrower
and its Restricted Subsidiaries within 300 days of receipt of such proceeds and
(B) no Default or Event of Default shall have occurred and shall be continuing
at the time of such certificate or at the proposed time of the application of
such proceeds, such proceeds shall not constitute Net Cash Proceeds except to
the extent not so used at the end of such 300-day period, at which time such
proceeds shall be deemed to be Net Cash Proceeds, and (b) with respect to any
Equity Issuance or any other issuance or disposition of Indebtedness, the cash
proceeds thereof, net of all taxes and customary fees, commissions, costs and
other expenses (including reasonable broker's fees or commissions, legal fees,
accounting fees, investment banking fees and other professional fees, and
underwriter's discounts and commissions) incurred in connection therewith.
"New Subordinated Note Indenture" shall mean the indenture dated as of
March 29, 2001, between the Borrower, the Guarantors identified therein and
United States Trust Company of New York, as trustee, as in effect on the
Restatement Closing Date and as thereafter amended from time to time in
accordance with the requirements thereof and hereof, pursuant to which the New
Subordinated Notes are issued.
"New Subordinated Notes" shall mean the Borrower's 10.375% Senior
Subordinated Notes due 2011, in an initial aggregate principal amount of
$300,000,000 issued pursuant to the New Subordinated Note Indenture.
"Non-US Lender" shall have the meaning assigned to such term in Section
2.20.
"Obligations" shall mean all obligations defined as "Obligations" in any of
the Guarantee Agreements and the Security Documents.
"Original Closing Date" shall mean July 2, 1999.
"Original Tranche C Credit Agreement" shall mean the Tranche C Credit
Agreement dated as of July 2, 1999, an amended and restated as of August 23,
1999.
"Other Taxes" shall have the meaning assigned to such term in Section 2.20.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"Permitted Acquisitions" shall mean acquisitions (in a single transaction
or a series of related transactions) of not less than 100% (other than
directors' qualifying shares) of the outstanding capital stock or other equity
interests of any corporation, partnership, a division of any corporation or any
similar business unit (or of all or substantially all the assets and business of
any of the foregoing) engaged in a Related Business so long as (a) in the case
of each such acquisition of capital stock or other equity interests, such
acquisition was not preceded by an unsolicited tender offer for such capital
stock or other equity interests by the Borrower or any of its Affiliates, (b)
the Borrower shall have delivered to the Administrative Agent a certificate
certifying that at the time of and immediately after giving effect to such
acquisition, no Default or Event of Default shall have occurred and be
continuing, and (c) either (i) the total consideration with respect to such
acquisition shall not exceed $2,500,000, (ii) the Borrower shall have delivered
to the Administrative Agent a certificate certifying that at the time of and
immediately after giving effect to such acquisition, the Pro Forma Acquisition
EBITDA of the entity acquired pursuant to such acquisition shall not exceed 25%
of the sum of such Pro Forma Acquisition EBITDA plus Consolidated EBITDA, in
each case for the period of four fiscal quarters ended on the last day of the
most recent fiscal quarter ended prior to the date of such acquisition or (iii)
(A) the Borrower shall have delivered to the Administrative Agent a certificate
certifying that at the time of and immediately after giving effect to such
acquisition, the ratio of (1) the Total Debt of the Borrower and its Restricted
Subsidiaries on the date of such acquisition (including all Indebtedness
incurred in connection with or resulting from such acquisition that would
constitute Total Debt) to (2) the sum of (x) Pro Forma Acquisition EBITDA of the
entity acquired pursuant to such acquisition, (y) Pro Forma Acquisition EBITDA
for all other Acquired Persons acquired during the period of four consecutive
fiscal quarters most recently ended prior to the date of such acquisition and
(z) Consolidated EBITDA, in each case for the period of four fiscal quarters
most recently ended prior to the date of such acquisition, shall be at least
0.15 to 1.00 less than the Consolidated Leverage Ratio required pursuant to
Section 6.11 on such date and (B) such corporation, partnership, division,
business or assets, as applicable, are located in the United States (or the
principal place of business with respect thereto and substantially all of the
applicable assets are located in the United States) or in any country included
on Schedule 1.01(e) to the Existing Credit Agreement or on a list approved by
the Required Lenders prior to the date of such acquisition. For purposes of
determining compliance with clause (c)(i) above, the principal amount of
Indebtedness assumed in connection with an acquisition shall be included in
calculating the consideration therefor.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from Standard & Poor's Ratings Service or
from Xxxxx'x Investors Service, Inc.;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within one year from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, (i) the Administrative Agent or any domestic office
of any commercial bank organized under the laws of the United States of
America or any State thereof or (ii) a commercial banking institution
organized and located in a country recognized by the United States of
America, in each case that has a combined capital and surplus and undivided
profits of not less than $250,000,000 (or the dollar equivalent thereof in
another currency);
(d) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (a) above entered
into with any bank meeting the qualifications specified in clause (c)
above;
(e) investments in money market funds which invest substantially all
their assets in securities of the types described in clauses (a) through
(d) above; and
(f) other short-term investments utilized by Foreign Subsidiaries in
accordance with normal investment practices for cash management not
exceeding $1,000,000 in aggregate principal amount outstanding at any time.
"person" shall mean any natural person, corporation, business trust, joint
venture, association, company, limited liability company, partnership, other
business entity or government, or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" shall mean the Pledge Agreement, dated as of March 6,
1998, among the Borrower, the Subsidiaries party thereto and the Collateral
Agent for the benefit of the Secured Parties.
"Powerscreen" shall mean Powerscreen International PLC, a company organized
under the laws of England, and all subsidiaries of Powerscreen at the time of
the acquisition of all of its shares by New Terex Holdings UK Limited, a company
organized under the laws of England.
"Prime Rate" shall have the meaning assigned to such term in the definition
of the term "Alternate Base Rate".
"Pro Forma Acquisition EBITDA" shall mean with respect to any entity or
business unit acquired or to be acquired in a Permitted Acquisition, the amount
of Consolidated EBITDA of such entity or business unit (as if such entity or
business unit were the Borrower) determined by the Borrower and acceptable to
the Administrative Agent in its reasonable discretion, based upon and derived
from financial information delivered to the Administrative Agent prior to
consummation of such Permitted Acquisition for the four-quarter period ending on
the last day of the immediately preceding fiscal quarter of such entity or
business unit for which such financial information for such entity or business
unit has been delivered to the Administrative Agent, adjusted by the estimated
amount of non-recurring revenues and expenditures with respect to the business
of such entity or business unit, as calculated by the Borrower and acceptable to
the Administrative Agent in its reasonable discretion. On each subsequent
determination date occurring within one year after the consummation of a
Permitted Acquisition, the entity's Pro Forma Acquisition EBITDA shall include
the Pro Forma Acquisition EBITDA only for those fiscal quarters in the trailing
four-quarter period occurring prior to the closing of such Permitted
Acquisition.
"Program Receivables" shall mean all trade receivables and related contract
rights originated and owned by the Borrower or any Restricted Subsidiary (other
than an Inactive Subsidiary) and sold pursuant to the Receivables Program.
"Pro Rata Percentage" of any Revolving Credit Lender at any time, shall
mean the percentage of the Total Revolving Credit Commitment represented by such
Lenders' Revolving Credit Commitment.
"Purchase Money Indebtedness" shall mean any Indebtedness of a person to
any seller or other person incurred to finance the acquisition (including in the
case of a Capital Lease Obligation, the lease) of any after acquired real or
personal tangible property or assets related to the business of the Borrower or
its Restricted Subsidiaries and which is incurred substantially concurrently
with such acquisition and is secured only by the assets so financed.
"Receivables Program" shall mean, collectively, (a) the sale of, or
transfer of interests in, Program Receivables to Finsub in exchange for
consideration equal to the fair market value of such Program Receivables (i.e.,
a "true sale") (provided that not less than 95% of such consideration shall be
in the form of cash) and (b) the sale of, or transfer of interests in, such
Program Receivables by Finsub to special purpose trusts or corporations which
are not Affiliates of the Borrower; provided, that all governing terms and
conditions (including, without limitation, any terms or conditions providing for
recourse to the Borrower or any of its Restricted Subsidiaries (other than
Finsub)) of the Receivables Program shall be subject to the prior written
approval of the Administrative Agent, which approval shall not be unreasonably
withheld or delayed.
"Receivables Program Documentation" shall mean all written agreements that
may from time to time be entered into by the Borrower, any Restricted Subsidiary
(other than an Inactive Subsidiary) and/or Finsub in connection with any
Receivables Program, as such agreements may be amended, supplemented or
otherwise modified from time to time in accordance with the provisions thereof
and hereof.
"Refinancing Indebtedness" shall have the meaning assigned to such term in
Section 6.01(n).
"Register" shall have the meaning given such term in Section 9.04(d).
"Regulation T" shall mean Regulation T of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Related Business" shall mean any business in the manufacture or sale of
capital goods or parts or services, or otherwise reasonably related, ancillary
or complementary to the businesses of the Borrower and its Restricted
Subsidiaries on the Restatement Closing Date.
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the environment.
"Remedial Action" shall mean (a) "remedial action" as such term is defined
in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions required by any
Governmental Authority or voluntarily undertaken to: (i) clean up, remove,
treat, xxxxx or in any other way address any Hazardous Material in the
environment; (ii) prevent the Release or threat of Release, or minimize the
further Release of any Hazardous Material so it does not migrate or endanger or
threaten to endanger public health, welfare or the environment; or (iii) perform
studies and investigations in connection with, or as a precondition to, (i) or
(ii) above.
"Repayment Date" shall mean any date that is a Tranche C Term Loan
Repayment Date or an Incremental Term Loan Repayment Date.
"Required Lenders" shall mean, at any time, Lenders having Loans and unused
Commitments representing at least 51% of the sum of all Loans outstanding and
unused Commitments at such time; provided that so long as at least one of the
Lenders is not an Affiliate of CSFB, the Required Lenders must include at least
one Lender other than CSFB and its Affiliates.
"Responsible Officer" of any person shall mean any executive officer or
Financial Officer of such person and any other officer or similar official
thereof responsible for the administration of the obligations of such person in
respect of this Agreement.
"Restatement Closing Date" shall mean March 29, 2001.
"Restricted Subsidiary" shall mean (i) each direct or indirect Subsidiary
of the Borrower that is not an Unrestricted Subsidiary of the Borrower on the
Restatement Closing Date and (ii) each direct or indirect Subsidiary of the
Borrower organized or acquired after the Restatement Closing Date that has not
been designated an Unrestricted Subsidiary in accordance with the provisions of
Section 6.15. A Restricted Subsidiary may be referred to herein as a "Restricted
Domestic Subsidiary" or as a "Restricted Foreign Subsidiary", as applicable.
"Revolving Credit Availability Period" shall mean the period commencing
with the Restatement Closing Date and ending on the Revolving Credit Maturity
Date.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of Revolving
Loans.
"Revolving Credit Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Revolving Loans and to acquire participations
in L/C Disbursements hereunder as set forth on Schedule 2.01(a), or in the
Assignment and Acceptance pursuant to which such Lender assumed its Revolving
Credit Commitment, as applicable, as the same may be (a) reduced from time to
time pursuant to Section 2.09 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 2.24 or 9.04.
The initial aggregate principal amount of the Revolving Credit Commitment under
this Agreement is $175,000,000.
"Revolving Credit Exposure" shall mean, with respect to any Lender at any
time, the sum of (a) the aggregate principal amount of all outstanding Revolving
Loans of such Lender at such time and (b) the aggregate amount of such Lender's
L/C Exposure at such time.
"Revolving Credit Lender" shall mean a Lender with a Revolving Credit
Commitment or an outstanding Revolving Loan.
"Revolving Credit Maturity Date" shall mean March 6, 2004.
"Revolving Loans" shall mean the revolving loans made by the Lenders to any
Borrower pursuant to Section 2.01(c). Each Revolving Loan shall be a
Eurocurrency Revolving Loan or an ABR Revolving Loan.
"Sale and Leaseback" shall have the meaning set forth in Section 6.03.
"Second-Tier Foreign Subsidiary" shall mean any Foreign Subsidiary that is
not a Foreign Subsidiary Issuer or a Special Purpose Foreign Holding Subsidiary.
"Secured Parties" shall have the meaning assigned to such term in the
Security Agreement and shall also include the Lenders and the Issuing Banks.
"Security Agreement" shall mean the Security Agreement, dated as of March
6, 1998, among the Borrower, the Subsidiaries party thereto and the Collateral
Agent for the benefit of the Secured Parties.
"Security Documents" shall mean the Mortgages, the Security Agreement, the
Pledge Agreement and each of the security agreements, mortgages and other
instruments and documents executed and delivered pursuant to any of the
foregoing or pursuant to Section 5.11.
"Senior Subordinated Notes" shall mean (a) the Borrower's 8-7/8% Senior
Subordinated Notes due 2008 issued under an indenture dated March 31, 1998,
among the Borrower, the guarantors named therein and the United States Trust
Company of New York, as trustee, and (b) the Borrower's 8-7/8% Series C and
Series D Senior Subordinated Notes due 2008 issued under an indenture dated
March 9, 1999, among the Borrower, the guarantors named therein and the United
States Trust Company of New York, as trustee, in each case as amended from time
to time in accordance with the provisions thereof and this Agreement.
"SPC" shall have the meaning assigned to such term in Section 9.04(j).
"Special Purpose Foreign Holding Subsidiary" shall mean (a) any Foreign
Subsidiary Issuer that does not engage in any trade or business or otherwise
conduct any business activity other than (i) the ownership of any Foreign
Subsidiary and activities incidental to such ownership, (ii) the incurrence of
Indebtedness permitted by Section 6.01 and (iii) the making of investments,
loans and advances permitted by Section 6.04 or (b) any direct and wholly owned
subsidiary of a Special Purpose Foreign Holding Subsidiary as defined in clause
(a) of this definition if such direct and wholly owned subsidiary does not
engage in any trade or business or otherwise conduct any business activity other
than (i) the ownership of any Foreign Subsidiary and activities incidental to
such ownership, (ii) the incurrence of Indebtedness permitted by Section 6.01
and (iii) the making of investments, loans and advances permitted by Section
6.04.
"Statutory Reserves" shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by any Governmental Authority to which banks are subject for any
category of deposits or liabilities customarily used to fund loans or by
reference to which interest rates applicable to Loans are determined. Such
reserve, liquid asset or similar percentages shall include those imposed
pursuant to Regulation D of the Board (and for purposes of Regulation D,
Eurocurrency Loans denominated in dollars shall be deemed to constitute
Eurocurrency Liabilities). Loans shall be deemed to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under Regulation D or any
other applicable law, rule or regulation. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"subsidiary" shall mean, with respect to any person (herein referred to as
the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held, or (b) that is, at the time any
determination is made, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
"Subsidiary" shall mean any subsidiary of the Borrower.
"Subsidiary Borrowers" shall mean the Subsidiaries party to the Existing
Credit Agreement as subsidiary borrowers.
"Subsidiary Guarantee Agreement" shall mean the Guarantee Agreement, dated
as of March 6, 1998, made by the Subsidiary Guarantors in favor of the
Collateral Agent for the benefit of the Secured Parties.
"Subsidiary Guarantors" shall mean each person listed on Schedule 1.01(a)
and each other person that becomes party to the Subsidiary Guarantee Agreement
as a Guarantor, and the permitted successors and assigns of each such person.
"Taxes" shall have the meaning assigned to such term in Section 2.20.
"Terex Guarantee Agreement" shall mean the Guarantee Agreement, dated as of
March 6, 1998, made by the Borrower in favor of the Collateral Agent for the
benefit of the Secured Parties.
"Term Loans" shall mean the Tranche C Term Loans and the Incremental Term
Loans.
"Total Debt" shall mean, as of any date of determination, without
duplication, the aggregate principal amount of Indebtedness of the Borrower and
its Restricted Subsidiaries outstanding as of such date, determined on a
consolidated basis (other than Indebtedness of the type referred to in clause
(j) of the definition of the term "Indebtedness", except to the extent of any
unreimbursed drawings thereunder). For purposes of calculating the Consolidated
Leverage Ratio on any date, the amount of Total Debt on such date shall be
reduced by the amount, if any, that cash on the balance sheet of the Borrower
and its consolidated Restricted Subsidiaries on such date exceeds $5,000,000.
"Total Revolving Credit Commitment" shall mean, at any time, the aggregate
amount of the Revolving Credit Commitments, as in effect at such time.
"Tranche C Lender" shall mean a Lender with an outstanding Term Loan.
"Tranche C Term Borrowing" shall mean a Borrowing composed of Tranche C
Term Loans.
"Tranche C Term Loan Maturity Date" shall mean March 6, 2006.
"Tranche C Term Loan Repayment Date" shall have the meaning assigned to
such term in Section 2.11(a).
"Tranche C Term Loans" shall mean the "Powerscreen Loans" and the
"Cedarapids Loans" made by the Lenders to the Borrower under the Original
Tranche C Credit Agreement. Each Tranche C Term Loan shall be either a
Eurocurrency Tranche C Term Loan or an ABR Tranche C Term Loan.
"Transactions" shall have the meaning assigned to such term in Section
3.02.
"Transferee" shall have the meaning assigned to such term in Section 2.20.
"Type", when used in respect of any Loan or Borrowing, shall refer to the
Rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, the term "Rate" shall include the
Adjusted LIBO Rate and the Alternate Base Rate.
"UK Holdings" shall mean New Terex Holdings UK Limited, a limited company
incorporated under the laws of England.
"Unrestricted Subsidiary" shall mean any Subsidiary of the Borrower that
has been designated as an Unrestricted Subsidiary by the Borrower pursuant to
and in compliance with Section 6.15. No Unrestricted Subsidiary may own any
capital stock of a Restricted Subsidiary.
"wholly owned Subsidiary" of any person shall mean a subsidiary of such
person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the equity or 100% of the ordinary
voting power or 100% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held by such person or one or
more wholly owned subsidiaries of such person or by such person and one or more
wholly owned subsidiaries of such person; provided that each of Terex Cranes,
Inc., P.P.M. Cranes, Inc., P.P.M. S.A.S., and any future wholly owned
subsidiaries of any of the foregoing shall be deemed to be wholly owned
Subsidiaries, in each case so long as the Borrower or one or more wholly owned
Subsidiaries maintains a percentage ownership interest in such entity equal to
or greater than such ownership interest (on a fully diluted basis) on the later
of (a) the Original Closing Date or (b) the date such entity is incorporated or
acquired by the Borrower or one or more wholly owned Subsidiaries.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". All references
herein to Articles, Sections, Exhibits and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. Except as otherwise expressly
provided herein, (a) any reference in this Agreement to any Loan Document shall
mean such document as amended, restated, supplemented or otherwise modified from
time to time and (b) all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided,
however, that if the Borrower notifies the Administrative Agent that the
Borrower wishes to amend any covenant in Article VI or any related definition to
eliminate the effect of any change in GAAP occurring after the date of this
Agreement on the operation of such covenant (or if the Administrative Agent
notifies the Borrower that the Required Lenders wish to amend Article VI or any
related definition for such purpose), then the Borrower's compliance with such
covenant shall be determined on the basis of GAAP in effect immediately before
the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Borrower
and the Required Lenders.
SECTION 1.03. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type (e.g., a
"Eurocurrency Revolving Loan"). Borrowings also may be classified and referred
to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurocurrency
Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving Borrowing").
ARTICLE II
The Credits
SECTION 2.01. Commitments and Loans. (a) The Borrower and the Lenders
acknowledge the making of the Tranche C Term Loans pursuant to the Original
Tranche C Credit Agreement and agree that such Tranche C Term Loans shall
continue to be outstanding pursuant to the terms and conditions of this
Agreement and the other Loan Documents. The aggregate principal amount of the
Tranche C Term Loans of each Lender outstanding on the Restatement Closing Date
(after giving effect to the prepayments thereof to be made on the Restatement
Closing Date) is set forth on Schedule 2.01. Amounts paid or prepaid in respect
of Tranche C Term Loans may not be reborrowed.
(b) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees, severally
and not jointly, if such Lender has so committed pursuant to Section 2.25, to
make Incremental Term Loans to the Borrower, in an aggregate principal amount
not to exceed its Incremental Term Loan Commitment and otherwise on the terms
and subject to the conditions set forth in the Incremental Term Loan Assumption
Agreement to which such Lender may become a party. Amounts paid or prepaid in
respect of Incremental Term Loans may not be reborrowed.
(c) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees, severally
and not jointly, to make Revolving Loans to the Borrower, at any time and from
time to time during the Revolving Credit Availability Period, and until the
earlier of the Revolving Credit Maturity Date and the termination of the
Revolving Credit Commitment of such Lender in accordance with the terms hereof,
in dollars in an aggregate principal amount at any time outstanding that will
not result in such Lender's Revolving Credit Exposure exceeding such Lender's
Revolving Credit Commitment. Subject to the terms, conditions and limitations
set forth herein, the Borrower may borrow, pay or prepay and reborrow Revolving
Loans.
SECTION 2.02. Loans. (a) Each Loan to be made on or after the Restatement
Closing Date shall be made as part of a Borrowing consisting of Loans made by
the Lenders ratably in accordance with their respective Revolving Credit
Commitments or Incremental Term Loan Commitments, as applicable; provided,
however, that the failure of any Lender to make any Loan shall not in itself
relieve any other Lender of its obligation to lend hereunder (it being
understood, however, that no Lender shall be responsible for the failure of any
other Lender to make any Loan required to be made by such other Lender). Except
for Loans deemed made pursuant to Section 2.02(f), the Loans comprising any
Borrowing shall be in an aggregate principal amount that is (i) an integral
multiple of $100,000 and not less than $2,500,000 (except with respect to any
Incremental Term Borrowing, to the extent otherwise provided in the related
Incremental Term Loan Assumption Agreement) or (ii) equal to the remaining
available balance of the applicable Commitments.
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be comprised
entirely of ABR Loans or Eurocurrency Loans as the Borrower may request pursuant
to Section 2.03. Each Lender may at its option make any Eurocurrency Loan by
causing any domestic or foreign branch of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement.
Borrowings of more than one Type may be outstanding at the same time; provided,
however, that the Borrower shall not be entitled to request any Borrowing that,
if made, would result in more than ten Eurocurrency Borrowings outstanding
hereunder at any time. For purposes of the foregoing, Borrowings having
different Interest Periods, regardless of whether they commence on the same day,
shall be considered separate Borrowings.
(c) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds to such
account in New York City as the Administrative Agent may designate not later
than 11:00 a.m., New York City time, and the Administrative Agent shall,
promptly upon receipt thereof, credit the amounts so received to an account as
designated by the Borrower, in the applicable Borrowing Request or, if a
Borrowing shall not occur on such date because any condition precedent herein
specified shall not have been met, return the amounts so received to the
respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, the Federal Funds Effective Rate. If such
Lender shall repay to the Administrative Agent such corresponding amount, such
amount shall constitute such Lender's Loan as part of such Borrowing for
purposes of this Agreement.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Interest Period with respect to any
Eurocurrency Borrowing that would end after the Tranche C Term Loan Maturity
Date or the Revolving Credit Maturity Date, as the case may be.
(f) If any Issuing Bank shall not have received from the Borrower the
payment required to be made by it pursuant to Section 2.23(e) within the time
specified in such Section, such Issuing Bank will promptly notify the
Administrative Agent of the L/C Disbursement and the Administrative Agent will
promptly notify each Revolving Credit Lender of such L/C Disbursement and its
Pro Rata Percentage thereof. Each Revolving Credit Lender shall pay by wire
transfer of immediately available funds to the Administrative Agent not later
than 2:00 p.m., New York City time, on such date (or, if such Revolving Credit
Lender shall have received such notice later than 12:00 (noon), New York City
time, on any day, not later than 10:00 a.m., New York City time, on the
immediately following Business Day), an amount equal to such Lender's Pro Rata
Percentage of such L/C Disbursement (it being understood that such amount shall
be deemed to constitute an ABR Revolving Loan of such Lender and such payment
shall be deemed to have reduced the L/C Exposure), and the Administrative Agent
will promptly pay to the applicable Issuing Bank amounts so received by it from
the Revolving Credit Lenders. The Administrative Agent will promptly pay to the
applicable Issuing Bank any amounts received by it from the Borrower pursuant to
Section 2.23(e) prior to the time that any Revolving Credit Lender makes any
payment pursuant to this paragraph (f); any such amounts received by the
Administrative Agent thereafter will be promptly remitted by the Administrative
Agent to the Revolving Credit Lenders that shall have made such payments and to
the applicable Issuing Bank, as their interests may appear. If any Revolving
Credit Lender shall not have made its Pro Rata Percentage of such L/C
Disbursement available to the Administrative Agent as provided above, such
Lender and the Borrower severally agree to pay interest on such amount, for each
day from and including the date such amount is required to be paid in accordance
with this paragraph to but excluding the date such amount is paid, to the
Administrative Agent for the account of the applicable Issuing Bank at (i) in
the case of the Borrower, a rate per annum equal to the interest rate applicable
to Revolving Loans pursuant to Section 2.06(a), and (ii) in the case of such
Lender, for the first such day, a rate determined by the Administrative Agent to
represent its cost of overnight funds in the applicable currency, and for each
day thereafter, the Alternate Base Rate.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing, the
Borrower shall hand deliver or telecopy to the Administrative Agent a duly
completed Borrowing Request (or telephone the Administrative Agent, promptly
confirmed with a written and duly completed Borrowing Request) (a) in the case
of a Eurocurrency Borrowing, not later than 12:00 (noon), New York City time,
three Business Days before a proposed Borrowing, and (b) in the case of an ABR
Borrowing, not later than 1:00 p.m., New York City time, one Business Day before
a proposed Borrowing. Each Borrowing Request (including a telephonic Borrowing
Request) shall be irrevocable, shall be signed by or on behalf of the Borrower
and shall specify the following information: (i) whether the Borrowing is to be
a Eurocurrency Borrowing or an ABR Borrowing; (ii) the date of such Borrowing
(which shall be a Business Day); (iii) the number and location of the account to
which funds are to be disbursed (which shall be an account that complies with
the requirements of Section 2.02(c)); (iv) the amount of such Borrowing; and (v)
if such Borrowing is to be a Eurocurrency Borrowing, the initial Interest Period
with respect thereto; provided, however, that, notwithstanding any contrary
specification in any Borrowing Request, each requested Borrowing shall comply
with the requirements set forth in Section 2.02. If no election as to the Type
of Borrowing is specified in any such notice, then the requested Borrowing shall
be an ABR Borrowing. If no Interest Period with respect to any Eurocurrency
Borrowing is specified in any such notice, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration. The Administrative
Agent shall promptly advise the applicable Lenders of any notice given pursuant
to this Section 2.03 (and the contents thereof), of each Lender's portion of the
requested Borrowing and the account to which Loans made in connection with the
requested Borrowing are to be wired.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
the Lender entitled thereto (i) the principal amount of each Tranche C Term Loan
of such Lender as provided in Section 2.11, (ii) the principal amount of each
Incremental Term Loan of such Lender as provided in the applicable Incremental
Term Loan Assumption Agreement and (iii) the then unpaid principal amount of
each Revolving Loan on the Revolving Credit Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower or any Subsidiary Guarantor and each Lender's share
thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs (b)
and (c) above shall be prima facie evidence of the existence and amounts of the
obligations therein recorded absent manifest error; provided, however, that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligations of the Borrower
to repay the Loans in accordance with their terms.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall execute and deliver to such
Lender a promissory note payable to the order of such Lender (or, if requested
by such Lender, to such Lender and its registered assigns) and in a form and
substance reasonably acceptable to the Administrative Agent and the Borrower.
Notwithstanding any other provision of this Agreement, in the event any Lender
shall request and receive a promissory note payable to such Lender and its
registered assigns, the interests represented by such note shall at all times
(including after any assignment of all or part of such interests pursuant to
Section 9.04) be represented by one or more promissory notes payable to the
payee named therein or its registered assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each Lender, through
the Administrative Agent, on the last day of March, June, September and December
in each year, on each date on which any Revolving Credit Commitment of such
Lender shall expire or be terminated as provided herein, a facility fee (a
"Facility Fee") equal to the Applicable Percentage per annum on the total amount
of the Revolving Credit Commitments of such Lender during the preceding quarter
(or other period ending with the Revolving Credit Maturity Date, or the date on
which the Revolving Credit Commitments of such Lender shall expire or be
terminated) provided, however, that if any Revolving Credit Exposure remains
outstanding following any such expiration or termination of the Revolving Credit
Commitments, the Facility Fees with respect to such Revolving Credit Exposure
shall continue to accrue for so long as such Revolving Credit Exposure remains
outstanding and shall be payable on demand. All Facility Fees shall be computed
on the basis of the actual number of days elapsed in a year of 360 days. The
Facility Fee due to each Lender shall commence to accrue on the Restatement
Closing Date and shall cease to accrue on the date on which the Revolving Credit
Commitment of such Lender shall expire or be terminated as provided herein and
there is not any remaining Revolving Credit Exposure.
(b) The Borrower agrees to pay to the Administrative Agent the fees set
forth in the Fee Letter at the times and in the amounts specified therein (the "
Administrative Fees").
(c) The Borrower agrees to pay (i) to each Revolving Credit Lender, through
the Administrative Agent, on the last day of March, June, September and December
of each year and on the date on which the Revolving Credit Commitment of such
Lender shall be terminated as provided herein, a fee (an "L/C Participation
Fee") calculated on such Lender's Pro Rata Percentage of the average daily
aggregate L/C Exposure (excluding the portion thereof attributable to
unreimbursed L/C Disbursements) during the preceding quarter (or shorter period
commencing with the Restatement Closing Date or ending with the Revolving Credit
Maturity Date or the date on which all Letters of Credit have been canceled or
have expired and the Revolving Credit Commitments of all Lenders shall have been
terminated) at a rate equal to the Applicable Percentage from time to time used
to determine the interest rate on Revolving Credit Borrowings comprised of
Eurocurrency Loans pursuant to Section 2.06, and (ii) to each Issuing Bank with
respect to each Letter of Credit issued by it on the last day of March, June,
September and December in each year and on each date on which any Revolving
Credit Commitment shall expire or be terminated as set forth herein a fronting
fee equal to 0.125% per annum on the amount of Letters of Credit issued by such
Issuing Bank and outstanding during the preceding quarter (or other period
ending with the Revolving Credit Maturity Date or the date on which the
Revolving Credit Commitments shall expire or be terminated) (the "Issuing Bank
Fees"). All L/C Participation Fees and Issuing Bank Fees shall be computed on
the basis of the actual number of days elapsed in a year of 360 days and shall
be payable in dollars.
(d) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Issuing Bank Fees shall be paid directly to
the applicable Issuing Bank. Once paid, none of the Fees shall be refundable
under any circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of Section
2.07, the Loans comprising each ABR Borrowing shall bear interest (computed on
the basis of the actual number of days elapsed over a year of 365 or 366 days,
as the case may be, when the Alternate Base Rate is determined by reference to
the Prime Rate and over a year of 360 days at all other times) at a rate per
annum equal to the sum of (i) the Alternate Base Rate and (ii) the Applicable
Percentage for such Loans in effect from time to time.
(b) Subject to the provisions of Section 2.07, the Loans comprising each
Eurocurrency Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to the
sum of (i) the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing and (ii) the Applicable Percentage for such Loans in effect from time
to time.
(c) Interest on each Loan shall be payable on the Interest Payment Dates
applicable to such Loan except as otherwise provided in this Agreement. The
applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest Period or
day within an Interest Period, as the case may be, shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, or under any other Loan Document,
the Borrower shall on demand from time to time pay interest, to the extent
permitted by law, on such defaulted amount to, but excluding, the date of actual
payment (after as well as before judgment) (a) in the case of the Loans, at the
rate that would otherwise be applicable thereto pursuant to Section 2.06 plus
2.00% and (b) in the case of any interest payable on any Loan or reimbursement
obligation with respect to any L/C Disbursement or any Facility Fee or other
amount payable hereunder, at a rate per annum equal to the rate applicable to
ABR Loans that are Revolving Loans plus 2.00%.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurocurrency Borrowing the Administrative Agent shall have
determined that (a) deposits in the principal amounts of the Loans comprising
such Borrowing are not generally available in the London interbank market, or
(b) the rates at which such deposits are being offered will not adequately and
fairly reflect the cost to any Lender of making or maintaining its Eurocurrency
Loan during such Interest Period, or (c) reasonable means do not exist for
ascertaining the Adjusted LIBO Rate, the Administrative Agent shall, as soon as
practicable thereafter, give written or telecopy notice explaining such
determination to the Borrower and the Lenders. In the event of any such
determination, until the Administrative Agent shall have advised the Borrower
and the Lenders that the circumstances giving rise to such notice no longer
exist, any request by the Borrower for a Eurocurrency Borrowing pursuant to
Section 2.03 or 2.10 shall be deemed to be a request for an ABR Borrowing. Each
determination by the Administrative Agent hereunder shall be conclusive absent
manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) The Revolving
Credit Commitments and the L/C Commitment shall automatically terminate on the
Revolving Credit Maturity Date. Any Incremental Term Loan Commitments shall
terminate as provided in the applicable Incremental Term Loan Assumption
Agreement.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Commitments; provided, however, that (i) each partial reduction of the
Commitments shall be in an integral multiple of $1,000,000 and in a minimum
amount of $5,000,000 and (ii) the Total Revolving Credit Commitment shall not be
reduced to an amount that is less than the sum of the Aggregate Revolving Credit
Exposures at the time.
(c) Each reduction in the Revolving Credit Commitments hereunder shall be
made ratably among the Lenders in accordance with their respective Revolving
Credit Commitments. The Borrower shall pay to the Administrative Agent for the
account of the applicable Lenders, on the date of each termination or reduction,
the Facility Fees on the amount of any Revolving Credit Commitments so
terminated or reduced accrued to but excluding the date of such termination or
reduction.
SECTION 2.10. Conversion and Continuation of Borrowings. The Borrower shall
have the right at any time upon prior irrevocable notice to the Administrative
Agent (a) not later than 1:00 p.m., New York City time, one Business Day prior
to conversion, to convert any Eurocurrency Borrowing into an ABR Borrowing, (b)
not later than 12:00 (noon), New York City time, three Business Days prior to
conversion or continuation, to convert any ABR Borrowing into a Eurocurrency
Borrowing or to continue any Eurocurrency Borrowing as a Eurocurrency Borrowing
for an additional Interest Period, and (c) not later than 12:00 (noon), New York
City time, three Business Days prior to conversion, to convert the Interest
Period with respect to any Eurocurrency Borrowing to another permissible
Interest Period, subject in each case to the following:
(i) each conversion or continuation shall be made pro rata among the
Lenders in accordance with the respective principal amounts of the Loans
comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting Borrowing
shall satisfy the limitations specified in Sections 2.02(a) and 2.02(b)
regarding the principal amount and maximum number of Borrowings of the
relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the new
Loan of such Lender resulting from such conversion and reducing the Loan
(or portion thereof) of such Lender being converted by an equivalent
principal amount; accrued interest on any Eurocurrency Loan (or portion
thereof) being converted shall be paid by the Borrower at the time of
conversion;
(iv) if any Eurocurrency Borrowing is converted at a time other than
the end of the Interest Period applicable thereto, the Borrower shall pay,
upon demand, any amounts due to the Lenders pursuant to Section 2.16;
(v) any portion of a Borrowing maturing or required to be repaid in
less than one month may not be converted into or continued as a
Eurocurrency Borrowing;
(vi) any portion of a Eurocurrency Borrowing that cannot be converted
into or continued as a Eurocurrency Borrowing by reason of the immediately
preceding clause shall be automatically converted at the end of the
Interest Period in effect for such Borrowing into an ABR Borrowing;
(vii) no Interest Period may be selected for any Eurocurrency
Borrowing that would end later than a Repayment Date occurring on or after
the first day of such Interest Period if, after giving effect to such
selection, the aggregate outstanding amount of (A) the Eurocurrency Term
Borrowings with Interest Periods ending on or prior to such Repayment Date
and (B) the ABR Term Borrowings would not be at least equal to the
principal amount of Borrowings to be paid on such Repayment Date; and
(viii) upon notice to the Borrower from the Administrative Agent given
at the request of the Required Lenders, after the occurrence and during the
continuance of a Default or Event of Default, (A) no outstanding Borrowing
may be converted into, or continued as, a Eurocurrency Borrowing and (B)
unless repaid, each Eurocurrency Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.
Each notice pursuant to this Section 2.10 shall be irrevocable and shall
refer to this Agreement and specify (i) the identity and amount of the Borrowing
that the Borrower requests be converted or continued, (ii) whether such
Borrowing is to be converted to or continued as a Eurocurrency Borrowing or an
ABR Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted to or continued as a Eurocurrency Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurocurrency Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders of any notice given
pursuant to this Section 2.10 and of each Lender's portion of any converted or
continued Borrowing. If the Borrower shall not have given notice in accordance
with this Section 2.10 to continue any Borrowing into a subsequent Interest
Period (and shall not otherwise have given notice in accordance with this
Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be continued into a new Interest Period as an ABR Borrowing.
SECTION 2.11. Repayment of Term Borrowings. (a) The Borrower shall pay to
the Administrative Agent, for the account of the Lenders, on the dates set forth
below, or if any such date is not a Business Day, on the next succeeding
Business Day (each such date being a "Tranche C Term Loan Repayment Date"), a
principal amount of the Tranche C Term Loans (as adjusted from time to time
pursuant to Sections 2.12(b) and 2.13(f)) equal to the amount set forth below
opposite such date, together in each case with accrued and unpaid interest on
the principal amount to be paid to, but excluding, the date of such payment:
Date Percentage
December 31, 2001 .25%
March 31, 2002 .25%
June 30, 2002 .25%
September 30, 2002 .25%
December 31, 2002 .25%
March 31, 2003 .25%
June 30, 2003 .25%
September 30, 2003 .25%
December 31, 2003 .25%
March 31, 2004 .25%
June 30, 2004 .25%
September 30, 2004 .25%
December 31, 2004 .25%
March 31, 2005 .25%
June 30, 2005 24.125%
September 30, 2005 24.125%
December 31, 2005 24.125%
Tranche C Term
Loan Maturity Date 24.125%
(b) The Borrower shall pay to the Administrative Agent, for the account of
the Lenders, the principal of the Incremental Term Loans, if any, on the dates
and in the amounts set forth in the applicable Incremental Term Loan Assumption
Agreement, together in each case with accrued and unpaid interest on the
principal amount to be paid to, but excluding, the date of such payment.
(c) To the extent not previously paid, all Tranche C Term Loans shall be
due and payable on the Tranche C Maturity Date and all Incremental Term Loans
shall be due and payable on the date provided thereof in the applicable
Incremental Term Loan Assumption Agreement, in each case, together with accrued
and unpaid interest on the principal amount to be paid to, but excluding, the
date of payment.
(d) All repayments pursuant to this Section 2.11 shall be subject to
Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.12. Prepayment. (a) The Borrower shall have the right at any time
and from time to time to prepay any Borrowing, in whole or in part, upon prior
written or telecopy notice (or telephone notice promptly confirmed by written or
telecopy notice) to the Administrative Agent (i) in the case of a prepayment of
a Eurocurrency Borrowing, given before 12:00 (noon), New York City time, three
Business Days before such prepayment and (ii) in the case of a prepayment of ABR
Loans, given before 1:00 p.m. local time, one Business Day before such
prepayment; provided, however, that each partial prepayment shall be in an
amount that is an integral multiple of $100,000 and not less than $2,500,000.
(b) Optional prepayments of Term Loans shall be allocated against the
then-outstanding Term Loans pro rata, and such prepayments shall be applied (i)
first, against the remaining scheduled installments of principal due in respect
of the Term Loans under Sections 2.11(a) and (b), respectively, in the next
twelve months in the order of maturity and (ii) second, pro rata against such
remaining scheduled installments of principal.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments under this Section
2.12 shall be subject to Section 2.16 but otherwise without premium or penalty.
All prepayments under this Section 2.12 shall be accompanied by accrued interest
on the principal amount being prepaid to the date of payment.
SECTION 2.13. Mandatory Prepayments. (a) In the event of any termination of
all the Revolving Credit Commitments, the Borrower shall repay or prepay all its
outstanding Revolving Credit Borrowings on the date of such termination. In the
event of any partial reduction of the Revolving Credit Commitments, then at or
prior to the effective date of such reduction, the Administrative Agent shall
notify the Borrower and the Revolving Credit Lenders of the Aggregate Revolving
Credit Exposure after giving effect thereto. If at any time, as a result of such
a partial reduction or termination, the Aggregate Revolving Credit Exposure
would exceed the Total Revolving Credit Commitment, then the Borrower shall on
the date of such reduction or termination of Revolving Credit Commitments, repay
or prepay Revolving Credit Borrowings in an amount sufficient to eliminate such
excess.
(b) Not later than the third Business Day following the receipt of Net Cash
Proceeds in respect of any Asset Sale (other than (i) any Asset Sale the Net
Cash Proceeds of which are not greater than $5,000,000 from any single event or
series of related events and (ii) Asset Sales the aggregate Net Cash Proceeds of
which are not greater than $10,000,000 in any fiscal year of the Borrower), the
outstanding Term Loans shall be prepaid in accordance with Section 2.13(f) in an
aggregate principal amount equal to 100% of such Net Cash Proceeds.
(c) No later than the earlier of (i) 90 days after the end of each fiscal
year of the Borrower and (ii) the date on which the financial statements with
respect to such fiscal year are delivered pursuant to Section 5.04(a),
outstanding Term Loans shall be prepaid in accordance with Section 2.13(f) in an
aggregate principal amount equal to 50% of Excess Cash Flow for the fiscal year
then ended; provided, however, that no such prepayment shall be required if the
Consolidated Leverage Ratio as of the end of such fiscal year shall be less than
3.85 to 1.00.
(d) In the event that the Borrower or any Restricted Subsidiary shall
receive Net Cash Proceeds from the issuance or incurrence of any other
Indebtedness for money borrowed (other than Indebtedness for money borrowed
permitted pursuant to Section 6.01), then, substantially simultaneously with
(and in any event not later than the third Business Day next following) the
receipt of such Net Cash Proceeds, 100% of such Net Cash Proceeds shall be used
(i) to prepay outstanding Term Loans in accordance with Section 2.13(f), and/or
(ii) to prepay outstanding Revolving Loans or revolving loans under the Existing
Credit Agreement, without reducing the Revolving Credit Commitments or the
Existing Revolving Credit Commitments, respectively, in an aggregate principal
amount equal to 100% of such Net Cash Proceeds.
(e) In the event that there shall occur any Casualty or Condemnation and,
pursuant to the applicable Mortgage, the Casualty Proceeds or Condemnation
Proceeds, as the case may be, are required to be used to prepay the Loans, then
the outstanding Loans shall be prepaid in accordance with Section 2.13(f) in an
aggregate principal amount equal to 100% of such Casualty Proceeds or
Condemnation Proceeds, as the case may be.
(f) Each prepayment of outstanding Term Loans required to be made pursuant
to any paragraph of this Section 2.13 shall be made by the Borrower pro rata
among the then-outstanding Term Loans, and shall be applied (i) first against
the remaining scheduled installments of principal due in respect of Term Loans
under Sections 2.11(a) and (b), respectively, in the next twelve months in the
order of maturity and (ii) second, pro rata against such remaining scheduled
installments of principal.
(g) The Borrower shall deliver to the Administrative Agent, at the time of
each prepayment required under this Section 2.13, (i) a certificate signed by a
Financial Officer of the Borrower setting forth in reasonable detail the
calculation of the amount of such prepayment and (ii) to the extent practicable,
at least three Business Days' prior written notice of such prepayment. Each
notice of prepayment shall specify the prepayment date, the Type of each Loan
being prepaid and the principal amount of each Loan (or portion thereof) to be
prepaid. All prepayments of Borrowings under this Section 2.13 shall be subject
to Section 2.16, but shall otherwise be without premium or penalty.
(h) To the extent possible consistent with Section 2.13(f), amounts to be
applied pursuant to this Section 2.13 to the prepayment of Term Loans and
Revolving Loans shall be applied, as applicable, first to prepay outstanding ABR
Term and ABR Revolving Loans. Any amounts remaining after each such application
shall, at the option of the Borrower, be applied to prepay Eurocurrency Term
Loans and Eurocurrency Revolving Loans, as the case may be, immediately and/or
shall be deposited in the Prepayment Account (as defined below). The
Administrative Agent shall apply any cash deposited in the Prepayment Account
(i) allocable to Term Loans to prepay Eurocurrency Term Loans and (ii) allocable
to Revolving Loans to prepay Eurocurrency Revolving Loans, in each case on the
last day of the applicable Interest Periods (or, at the direction of the
Borrower, on any earlier date) until all outstanding Term Loans and Revolving
Loans, as the case may be, have been prepaid or until all the allocable cash on
deposit with respect to the Loans has been exhausted. For purposes of this
Agreement, the term "Prepayment Account" shall mean an account established by
the Borrower with the Administrative Agent and over which the Administrative
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal for application in accordance with this paragraph (h). The
Administrative Agent will, at the request of the Borrower, invest amounts on
deposit in the Prepayment Account in Permitted Investments that mature prior to
the last day of the applicable Interest Periods of the Eurocurrency Term
Borrowings and Eurocurrency Revolving Borrowings, as the case may be, to be
prepaid; provided, however, that (i) the Administrative Agent shall not be
required to make any investment that, in its sole judgment, would require or
cause the Administrative Agent to be in, or would result in any, violation of
any law, statute, rule or regulation and (ii) the Administrative Agent shall
have no obligation to invest amounts on deposit in the Prepayment Account if a
Default or Event of Default shall have occurred and be continuing. The Borrower
shall indemnify the Administrative Agent for any losses relating to the
investments so that the amount available to prepay Eurocurrency Borrowings on
the last day of the applicable Interest Period is not less than the amount that
would have been available had no investments been made pursuant thereto. Other
than any interest earned on such investments (which shall be for the account of
the Borrower, to the extent not necessary for the prepayment of Eurocurrency
Loans in accordance with this Section 2.13), the Prepayment Account shall not
bear interest. Interest or profits, if any, on such investments shall be
deposited in the Prepayment Account and reinvested and disbursed as specified
above. If the maturity of the Loans has been accelerated pursuant to Section
7.02, the Administrative Agent may, in its sole discretion, apply all amounts on
deposit in the Prepayment Account to satisfy any of the Obligations. The
Borrower hereby grants to the Administrative Agent, for its benefit and the
benefit of the Secured Parties, a security interest in its Prepayment Account to
secure the Obligations. This paragraph (h) shall not be construed to alter the
application required by Section 2.13(f).
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if after the Original
Closing Date with respect to the Tranche C Lenders, if after the Restatement
Closing Date with respect to the Revolving Credit Lenders and the Issuing Banks
and if after the date of each Incremental Term Assumption Agreement with respect
to each applicable Incremental Term Lender, any change in applicable law or
regulation or in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or administration thereof
(whether or not having the force of law) shall change the basis of taxation of
payments to any Lender or any Issuing Bank of the principal of or interest on
any Eurocurrency Loan made by such Lender or any Fees or other amounts payable
hereunder (other than changes in respect of taxes imposed on the overall net
income of such Lender or such Issuing Bank by the jurisdiction in which such
Lender or such Issuing Bank has its principal office or by any political
subdivision or taxing authority therein), or shall impose, modify or deem
applicable any reserve, special deposit or similar requirement against assets
of, deposits with or for the account of or credit extended by any Lender or any
Issuing Bank (except any such reserve requirement which is reflected in the
Adjusted LIBO Rate) or shall impose on such Lender or such Issuing Bank or the
London interbank market any other condition affecting this Agreement or
Eurocurrency Loans made by such Lender or any Letter of Credit or participation
therein, and the result of any of the foregoing shall be to increase the cost to
such Lender or such Issuing Bank of making or maintaining any Eurocurrency Loan
or increase the cost to any Lender of issuing or maintaining any Letter of
Credit or purchasing or maintaining any participation therein or to reduce the
amount of any sum received or receivable by such Lender or such Issuing Bank
hereunder (whether of principal, interest or otherwise) by an amount deemed by
such Lender or such Issuing Bank to be material, then the Borrower will pay to
such Lender or such Issuing Bank, as the case may be, upon demand such
additional amount or amounts as will compensate such Lender or such Issuing
Bank, as the case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender or any Issuing Bank shall have determined that the
adoption after the Original Closing Date with respect to the Tranche C Lenders,
after the Restatement Closing Date with respect to the Revolving Credit Lenders
and the Issuing Banks and after the date of each Incremental Term Loan
Assumption Agreement with respect to each applicable Incremental Term Lender, of
any law, rule, regulation, agreement or guideline regarding capital adequacy, or
any change after the Original Closing Date with respect to the Tranche C
Lenders, after the Restatement Closing Date with respect to the Revolving Credit
Lenders and the Issuing Banks and after the date of each Incremental Term Loan
Assumption Agreement with respect to each applicable Incremental Term Lender, in
any such law, rule, regulation, agreement or guideline (whether such law, rule,
regulation, agreement or guideline has been adopted) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or any Issuing Bank or any Lender's or any
Issuing Bank's holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any Governmental Authority
has or would have the effect of reducing the rate of return on such Lender's or
such Issuing Bank's capital or on the capital of such Lender's or such Issuing
Bank's holding company, if any, as a consequence of this Agreement or the Loans
made or participations in Letters of Credit purchased by such Lender pursuant
hereto or the Letters of Credit issued by such Issuing Bank pursuant hereto to a
level below that which such Lender or such Issuing Bank or such Lender's or such
Issuing Bank's holding company could have achieved but for such applicability,
adoption, change or compliance (taking into consideration such Lender's or such
Issuing Bank's policies and the policies of such Lender's or such Issuing Bank's
holding company with respect to capital adequacy) by an amount deemed by such
Lender or such Issuing Bank to be material, then from time to time the Borrower
shall pay to such Lender or such Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or such Issuing Bank
or such Lender's or such Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth the amount
or amounts necessary to compensate such Lender or such Issuing Bank or its
holding company, as applicable, as specified in paragraph (a) or (b) above shall
be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender or such Issuing Bank the amount shown as due on
any such certificate delivered by it within 10 days after its receipt of the
same.
(d) Failure or delay on the part of any Lender or any Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or such Issuing Bank's right to demand such compensation. The
protection of this Section shall be available to each Lender and each Issuing
Bank regardless of any possible contention of the invalidity or inapplicability
of the law, rule, regulation, agreement, guideline or other change or condition
that shall have occurred or been imposed.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other provision
of this Agreement, if, after the Original Closing Date with respect to the
Tranche C Lenders, after the Restatement Closing Date with respect to the
Revolving Credit Lenders and the Issuing Banks and after the date of each
Incremental Term Loan Assumption Agreement with respect to each applicable
Incremental Term Lender, any change in any law or regulation or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurocurrency Loan or to give effect to its obligations
as contemplated hereby with respect to any Eurocurrency Loan, then, by written
notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurocurrency Loans will not
thereafter (for the duration of such unlawfulness) be made by such Lender
hereunder (or be continued for additional Interest Periods and ABR Loans
will not thereafter (for such duration) be converted into Eurocurrency
Loans), whereupon any request for a Eurocurrency Borrowing (or to convert
an ABR Borrowing to a Eurocurrency Borrowing or to continue a Eurocurrency
Borrowing for an additional Interest Period) shall, as to such Lender only,
be deemed a request for an ABR Loan (or a request to continue an ABR Loan
as such for an additional Interest Period or to convert a Eurocurrency Loan
into an ABR Loan, as the case may be), unless such declaration shall be
subsequently withdrawn; and
(ii) such Lender may require that all outstanding Eurocurrency Loans
made by it be converted to ABR Loans in which event all such Eurocurrency
Loans shall be automatically converted to such ABR Loans as of the
effective date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurocurrency Loans that would have been made by such Lender or the
converted Eurocurrency Loans of such Lender shall instead be applied to repay
the ABR Loans made by such Lender in lieu of, or resulting from the conversion
of, such Eurocurrency Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by any
Lender shall be effective as to each Eurocurrency Loan made by such Lender, if
lawful, on the last day of the Interest Period currently applicable to such
Eurocurrency Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender against
any loss or expense, including any break-funding cost, that such Lender may
sustain or incur as a consequence of (a) any event, other than a default by such
Lender in the performance of its obligations hereunder, which results in (i)
such Lender receiving or being deemed to receive any amount on account of the
principal of any Eurocurrency Loan prior to the end of the Interest Period in
effect therefor, (ii) the conversion of any Eurocurrency Loan to an ABR Loan or
the conversion of the Interest Period with respect to any Eurocurrency Loan
other than on the last day of the Interest Period in effect therefor, or (iii)
any Eurocurrency Loan to be made by such Lender (including any Eurocurrency Loan
to be made pursuant to a conversion or continuation under Section 2.10) not
being made after notice of such Loan shall have been given by the Borrower
hereunder (any of the events referred to in this clause (a) being called a
"Breakage Event") or (b) any default in the making of any payment or prepayment
required to be made hereunder. In the case of any Breakage Event, such loss
shall include an amount equal to the excess, as reasonably determined by such
Lender, of (i) its cost of obtaining funds for the Eurocurrency Loan that is the
subject of such Breakage Event for the period from the date of such Breakage
Event to the last day of the Interest Period in effect (or that would have been
in effect) for such Loan over (ii) the amount of interest likely to be realized
by such Lender in redeploying the funds released or not utilized by reason of
such Breakage Event for such period. A certificate of any Lender setting forth
any amount or amounts which such Lender is entitled to receive pursuant to this
Section 2.16, together with a reasonably detailed calculation thereof, shall be
delivered to the Borrower and shall be conclusive absent manifest error.
SECTION 2.17. Pro Rata Treatment. Except as provided in Section 2.15, each
Borrowing, each payment or prepayment of principal of any Borrowing, each
payment of interest on the Loans, each payment of the Facility Fees, each
reduction of the Revolving Credit Commitments and each conversion of any
Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall
be allocated pro rata among the Lenders in accordance with their respective
applicable Commitments (or, if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their
outstanding Loans). Each Lender agrees that in computing such Lender's portion
of any Borrowing to be made hereunder, the Administrative Agent may, in its
discretion, round each Lender's percentage of such Borrowing to the next higher
or lower whole dollar.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower or any other Loan Party, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, obtain payment (voluntary or involuntary) in respect of any
Loan or Loans or L/C Disbursement and as a result of which the unpaid principal
portion of its Loans and participations in L/C Disbursements shall be
proportionately less than the unpaid principal portion of the Loans and
participations in L/C Disbursements or the Existing Loans of any other Lender or
Existing Lender, such Lender shall be deemed simultaneously to have purchased
from such other Lender or Existing Lender at face value, and shall promptly pay
to such other Lender or Existing Lender the purchase price for, a participation
in the Loans and L/C Exposure or the applicable Existing Loans, as the case may
be, of such other Lender or Existing Lender, so that the aggregate unpaid
principal amount of the Loans and L/C Exposure or the applicable Existing Loans
and participations in Loans and L/C Exposure or the applicable Existing Loans
held by each Lender and each Existing Lender shall be in the same proportion to
the aggregate unpaid principal amount of all Loans and L/C Exposure and Existing
Loans then outstanding as the principal amount of such Lender's Loans, L/C
Exposure and Existing Loans prior to such exercise of banker's lien, setoff or
counterclaim or other event was to the principal amount of all Loans, L/C
Exposure and Existing Loans outstanding prior to such exercise of banker's lien,
setoff or counterclaim or other event; provided, however, that if any such
purchase or purchases or adjustments shall be made pursuant to this Section 2.18
and the payment giving rise thereto shall thereafter be recovered, such purchase
or purchases or adjustments shall be rescinded to the extent of such recovery
and the purchase price or prices or adjustment restored without interest. The
Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation in a Loan, L/C Exposure or any Existing Loan
deemed to have been so purchased may exercise any and all rights of banker's
lien, setoff or counterclaim with respect to any and all moneys owing by the
Borrower to such Lender by reason thereof as fully as if such Lender had made a
Loan or Existing Loan, as applicable, directly to the Borrower in the amount of
such participation.
SECTION 2.19. Payments. (a) The Borrower shall make each payment (including
principal of or interest on any Borrowing or any L/C Disbursement or any Fees or
other amounts) hereunder and under any other Loan Document prior to 1:00 p.m.,
New York City time, on the date when due in immediately available funds, without
setoff, defense or counterclaim. Each such payment (other than Issuing Bank
Fees, which shall be paid directly to the applicable Issuing Bank) shall be made
to such account as shall from time to time be specified in a writing delivered
to the Borrower by the Administrative Agent.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by or on behalf of the
Borrower or any other Loan Party hereunder and under any other Loan Document
shall be made, in accordance with Section 2.19, free and clear of and without
deduction for any and all current or future taxes, levies, imposts, deductions,
charges or withholdings imposed by any Governmental Authority and all
liabilities with respect thereto, excluding (i) income taxes imposed on the net
income of the Administrative Agent, any Lender or an Issuing Bank (or any
transferee or assignee thereof, including a participation holder (any such
entity a "Transferee")) and (ii) franchise taxes imposed on the net income of
the Administrative Agent, any Lender or an Issuing Bank (or Transferee), in each
case by the jurisdiction under the laws of which the Administrative Agent, such
Lender or such Issuing Bank (or Transferee) is organized or any political
subdivision thereof (all such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities, collectively or individually, being
called "Taxes"). If the Borrower or any other Loan Party shall be required to
deduct any Taxes from or in respect of any sum payable hereunder or under any
other Loan Document to the Administrative Agent, any Lender or an Issuing Bank
(or any Transferee), (i) the sum payable shall be increased by the amount
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.20) the
Administrative Agent, such Lender or such Issuing Bank (or Transferee), as the
case may be, shall receive an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower or such other Loan Party shall
make such deductions and (iii) the Borrower or such other Loan Party shall pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) In addition, the Borrower agrees to pay to the relevant Governmental
Authority in accordance with applicable law any current or future stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies that arise from any payment made hereunder or under any other Loan
Document or from the execution, delivery, enforcement or registration of, or
otherwise with respect to, this Agreement or any other Loan Document imposed by
any Governmental Authority ("Other Taxes").
(c) The Borrower will indemnify the Administrative Agent, each Lender and
each Issuing Bank (or Transferee) for the full amount of Taxes and Other Taxes
paid by the Administrative Agent, such Lender or such Issuing Bank (or
Transferee), as the case may be, and any liability (including penalties,
interest and expenses (including reasonable attorney's fees and expenses))
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability prepared by the
Administrative Agent, a Lender or an Issuing Bank (or Transferee), or the
Administrative Agent on its behalf, absent manifest error, shall be final,
conclusive and binding for all purposes. Such indemnification shall be made
within 30 days after the date the Administrative Agent, any Lender or an Issuing
Bank (or Transferee), as the case may be, makes written demand therefor.
(d) As soon as practicable after the date of any payment of Taxes or Other
Taxes by the Borrower or any other Loan Party to the relevant Governmental
Authority, the Borrower or such other Loan Party will deliver to the
Administrative Agent, at its address referred to in Section 9.01, the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing payment thereof.
(e) Each Lender (or Transferee) that is organized under the laws of a
jurisdiction other than the United States, any State thereof or the District of
Columbia (a "Non-U.S. Lender") that is entitled to an exemption from, or
reduction of, withholding tax under the law of the United States with respect to
payments by the Borrower under this Agreement and the other Loan Documents shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Borrower as will permit such payments to be made without withholding or at a
reduced rate; provided that such Non-U.S. Lender has received written notice
from the Borrower advising it of the availability of such exemption or reduction
and containing all applicable documentation. In addition, each Non-U.S. Lender
shall deliver such documentation promptly upon the obsolescence or invalidity of
any documentation previously delivered by such Non-U.S. Lender. Notwithstanding
any other provision of this Section 2.20(e), a Non-U.S. Lender shall not be
required to deliver any documentation pursuant to this Section 2.20(e) that such
Non-U.S. Lender is not legally able to deliver.
(f) The Borrower shall not be required to indemnify any Non-U.S. Lender, or
to pay any additional amounts to any Non-U.S. Lender, in respect of United
States Federal withholding tax pursuant to paragraph (a) or (c) above to the
extent that (i) the obligation to withhold amounts with respect to United States
Federal withholding tax existed and would apply to payments made to such
Non-U.S. Lender on the date such Non-U.S. Lender became a party to this
Agreement (or, in the case of a Transferee that is a participation holder, on
the date such participation holder became a Transferee hereunder); provided that
this paragraph (f) shall not apply to any Transferee that becomes a Transferee
as a result of an assignment, participation, transfer or designation made at the
request of the Borrower, or (ii) the obligation to pay such additional amounts
would not have arisen but for a failure by such Non-U.S. Lender to comply with
the provisions of paragraph (e) above.
(g) Nothing contained in this Section 2.20 shall require any Lender or an
Issuing Bank (or any Transferee) or the Administrative Agent to make available
any of its tax returns (or any other information that it deems to be
confidential or proprietary).
SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty
to Mitigate. (a) In the event (i) any Lender or an Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or
an Issuing Bank delivers a notice described in Section 2.15, (iii) the Borrower
is required to pay any additional amount to any Lender or an Issuing Bank or any
Governmental Authority on account of any Lender or an Issuing Bank pursuant to
Section 2.20 or (iv) any Lender refuses to consent to a proposed amendment,
waiver, consent or other modification of this Agreement or any other Loan
Documents which has been approved by the Required Lenders and which additionally
requires the consent of such Lender for approval pursuant to Section 9.08(b),
the Borrower may, at its sole expense and effort (including with respect to the
processing and recordation fee referred to in Section 9.04(b)), upon notice to
such Lender or such Issuing Bank and the Administrative Agent, require such
Lender or such Issuing Bank to transfer and assign, without recourse (in
accordance with and subject to the restrictions contained in Section 9.04), all
of its interests, rights and obligations under this Agreement to an assignee
that shall assume such assigned obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (x) such assignment
shall not conflict with any law, rule or regulation or order of any court or
other Governmental Authority having jurisdiction, (y) the Borrower shall have
received the prior written consent of the Administrative Agent (and, if a
Revolving Credit Commitment is being assigned, of the Issuing Banks), which
consent shall not unreasonably be withheld, and (z) the Borrower or such
assignee shall have paid to the affected Lender or Issuing Bank in immediately
available funds an amount equal to the sum of the principal of and interest
accrued to the date of such payment on the outstanding Loans or L/C
Disbursements of such Lender or such Issuing Bank, respectively, plus all Fees
and other amounts accrued for the account of such Lender or such Issuing Bank
hereunder (including any amounts under Section 2.14 and Section 2.16); provided
further that, if prior to any such transfer and assignment the circumstances or
event that resulted in such Lender's or such Issuing Bank's claim for
compensation under Section 2.14 or notice under Section 2.15 or the amounts paid
pursuant to Section 2.20, as the case may be, cease to cause such Lender or such
Issuing Bank to suffer increased costs or reductions in amounts received or
receivable or reduction in return on capital, or cease to have the consequences
specified in Section 2.15, or cease to result in amounts being payable under
Section 2.20, as the case may be (including as a result of any action taken by
such Lender or such Issuing Bank pursuant to paragraph (b) below), or if such
Lender or such Issuing Bank shall waive its right to claim further compensation
under Section 2.14 in respect of such circumstances or event or shall withdraw
its notice under Section 2.15 or shall waive its right to further payments under
Section 2.20 in respect of such circumstances or event, as the case may be, then
such Lender or such Issuing Bank shall not thereafter be required to make any
such transfer and assignment hereunder.
(b) If (i) any Lender or an Issuing Bank shall request compensation under
Section 2.14, (ii) any Lender or an Issuing Bank delivers a notice described in
Section 2.15 or (iii) the Borrower is required to pay any additional amount to
any Lender or an Issuing Bank or any Governmental Authority on account of any
Lender or an Issuing Bank, pursuant to Section 2.20, then such Lender or such
Issuing Bank shall use reasonable efforts (which shall not require such Lender
or such Issuing Bank to incur an unreimbursed loss or unreimbursed cost or
expense or otherwise take any action inconsistent with its internal policies or
legal or regulatory restrictions or suffer any disadvantage or burden deemed by
it to be significant) (x) to file any certificate or document reasonably
requested in writing by the Borrower or (y) to assign its rights and delegate
and transfer its obligations hereunder to another of its offices, branches or
affiliates, if such filing or assignment would materially reduce its claims for
compensation under Section 2.14 or enable it to withdraw its notice pursuant to
Section 2.15 or would materially reduce amounts payable pursuant to Section
2.20, as the case may be, in the future. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender or any Issuing Bank in
connection with any such filing or assignment, delegation and transfer.
SECTION 2.22. Pro Rata Treatment of Term Loans and Existing Term Loans.
Notwithstanding any other provision herein, any funds to be used to prepay Term
Loans pursuant to Section 2.12 or 2.13 shall be allocated pro rata between the
Term Loans and the Existing Term Loans based upon the aggregate outstanding
principal amount of the Term Loans and Existing Term Loans on the date of
prepayment. The Lenders shall also be entitled to share pro rata in any
prepayments of the type described in Section 2.12 or 2.13 that are made to
Existing Lenders in respect of the Existing Term Loans pursuant to the Existing
Credit Agreement. The pro rata amount allocated to Term Loans in accordance with
this Section 2.22 shall be applied as otherwise required by this Agreement.
SECTION 2.23. Letters of Credit. (a) Subject to the terms and conditions
set forth herein, the Borrower may request the issuance of a Letter of Credit
for its own account, in a form reasonably acceptable to the Administrative Agent
and the applicable Issuing Bank, at any time and from time to time while the
Revolving Credit Commitments remain in effect. This Section shall not be
construed to impose an obligation upon an Issuing Bank to issue any Letter of
Credit that is inconsistent with the terms and conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
In order to request the issuance of a Letter of Credit (or to amend, renew or
extend an existing Letter of Credit), the Borrower shall hand deliver or
telecopy to the applicable Issuing Bank and the Administrative Agent (three
Business Days in advance of the requested date of issuance, amendment, renewal
or extension, or such shorter period as the Borrower, the Administrative Agent
and the applicable Issuing Bank shall agree) a notice requesting the issuance of
a Letter of Credit, or identifying the Letter of Credit to be amended, renewed
or extended, the date of issuance, amendment, renewal or extension, the date on
which such Letter of Credit is to expire (which shall comply with paragraph (c)
below), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare
such Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if, and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that,
after giving effect to such issuance, amendment, renewal or extension (A) the
L/C Exposure shall not exceed $60,000,000, and (B) the Aggregate Revolving
Credit Exposure shall not exceed the Total Revolving Credit Commitment.
(c) Expiration Date. Each Letter of Credit shall expire at the close of
business on the earlier of the date one year after the date of the issuance of
such Letter of Credit and the date that is five Business Days prior to the
Revolving Credit Maturity Date, unless such Letter of Credit expires by its
terms on an earlier date.
(d) Participations. By the issuance of a Letter of Credit and without any
further action on the part of such Issuing Bank or the Lenders, the applicable
Issuing Bank hereby grants to each Revolving Credit Lender, and each such Lender
hereby acquires from the applicable Issuing Bank, a participation in such Letter
of Credit equal to such Lender's Pro Rata Percentage of the aggregate amount
available to be drawn under such Letter of Credit, effective upon the issuance
of such Letter of Credit. In consideration and in furtherance of the foregoing,
each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay
to the Administrative Agent, for the account of the applicable Issuing Bank,
such Lender's Pro Rata Percentage of each L/C Disbursement made by such Issuing
Bank and not reimbursed by the Borrower (or, if applicable, another party
pursuant to its obligations under any other Loan Document) forthwith on the date
due as provided in Section 2.02(f). Each Revolving Credit Lender acknowledges
and agrees that its obligation to acquire participations pursuant to this
paragraph in respect of Letters of Credit is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or an Event of Default, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.
(e) Reimbursement. If an Issuing Bank shall make any L/C Disbursement in
respect of a Letter of Credit, the Borrower shall pay to the Administrative
Agent an amount equal to such L/C Disbursement not later than two hours after
the Borrower shall have received notice from the applicable Issuing Bank that
payment of such draft will be made, or, if the Borrower shall have received such
notice later than 10:00 a.m., New York City time, on any Business Day, not later
than 10:00 a.m., New York City time, on the immediately following Business Day.
(f) Obligations Absolute. The Borrower's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit or
any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from all
or any of the provisions of any Letter of Credit or any Loan Document;
(iii) the existence of any claim, setoff, defense or other right that
the Borrower, any other party guaranteeing, or otherwise obligated with,
the Borrower, any Subsidiary or other Affiliate thereof or any other person
may at any time have against the beneficiary under any Letter of Credit,
the applicable Issuing Bank, the Administrative Agent or any Lender or any
other person, whether in connection with this Agreement, any other Loan
Document or any other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect;
(v) payment by an Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of an
Issuing Bank, the Lenders, the Administrative Agent or any other person or
any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of any Borrower's obligations
hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of the
Borrower hereunder to reimburse L/C Disbursements will not be excused by the
gross negligence or wilful misconduct of an Issuing Bank. However, the foregoing
shall not be construed to excuse an Issuing Bank from liability to the Borrower
to the extent of any direct damages (as opposed to consequential damages, claims
in respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by an Issuing Bank's
gross negligence or wilful misconduct in determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof; it
is understood that an Issuing Bank may accept documents that appear on their
face to be in order, without responsibility for further investigation and, in
making any payment under any Letter of Credit (i) an Issuing Bank's exclusive
reliance on the documents presented to it under such Letter of Credit as to any
and all matters set forth therein, including reliance on the amount of any draft
presented under such Letter of Credit, whether or not the amount due to the
beneficiary thereunder equals the amount of such draft and whether or not any
document presented pursuant to such Letter of Credit proves to be insufficient
in any respect, if such document on its face appears to be in order, and whether
or not any other statement or any other document presented pursuant to such
Letter of Credit proves to be forged or invalid or any statement therein proves
to be inaccurate or untrue in any respect whatsoever and (ii) any noncompliance
in any immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute wilful
misconduct or gross negligence of an Issuing Bank.
(g) Disbursement Procedures. The applicable Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. Such Issuing Bank shall as promptly
as possible give telephonic notification, confirmed by telecopy, to the
Administrative Agent and the Borrower of such demand for payment and whether
such Issuing Bank has made or will make an L/C Disbursement thereunder; provided
that any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse such Issuing Bank and the Revolving
Credit Lenders with respect to any such L/C Disbursement. The Administrative
Agent shall promptly give each Revolving Credit Lender notice thereof.
(h) Interim Interest. If an Issuing Bank shall make any L/C Disbursement in
respect of a Letter of Credit, then, unless the Borrower shall reimburse such
L/C Disbursement in full on such date, the unpaid amount thereof shall bear
interest for the account of such Issuing Bank, for each day from and including
the date of such L/C Disbursement, to but excluding the earlier of the date of
payment by the Borrower or the date on which interest shall commence to accrue
thereon as provided in Section 2.02(f), at the rate per annum that would apply
to such amount if such amount were an ABR Revolving Loan.
(i) Resignation or Removal of an Issuing Bank. An Issuing Bank may resign
at any time by giving 180 days' prior written notice to the Administrative
Agent, the Lenders and the Borrower, and may be removed at any time by the
Borrower by notice to such Issuing Bank, the Administrative Agent and the
Lenders. Subject to the next succeeding paragraph, upon the acceptance of any
appointment as an Issuing Bank hereunder by a Lender that shall agree to serve
as a successor Issuing Bank, such successor shall succeed to and become vested
with all the interests, rights and obligations of the retiring Issuing Bank and
the retiring Issuing Bank shall be discharged from its obligations to issue
additional Letters of Credit hereunder. At the time such removal or resignation
shall become effective, the Borrower shall pay all accrued and unpaid fees
pursuant to Section 2.05(c)(ii). The acceptance of any appointment as an Issuing
Bank hereunder by a successor Lender shall be evidenced by an agreement entered
into by such successor, in a form satisfactory to the Borrower and the
Administrative Agent, and, from and after the effective date of such agreement,
(i) such successor Lender shall have all the rights and obligations of the
previous Issuing Bank under this Agreement and the other Loan Documents and (ii)
references herein and in the other Loan Documents to the term "Issuing Bank"
shall be deemed to refer to such successor or to any previous Issuing Bank, or
to such successor and all previous Issuing Banks, as the context shall require.
After the resignation or removal of an Issuing Bank hereunder, the retiring
Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement and the other
Loan Documents with respect to Letters of Credit issued by it prior to such
resignation or removal, but shall not be required to issue additional Letters of
Credit.
(j) Cash Collateralization. If (i) any Event of Default shall occur and be
continuing or (ii) to the extent and so long as the L/C Exposure exceeds the
Total Revolving Credit Commitment, the Borrower shall, on the Business Day after
the Borrower receives notice from the Administrative Agent or the Required
Lenders (or, if the maturity of the Loans has been accelerated, Revolving Credit
Lenders holding participations in outstanding Letters of Credit representing
greater than 50% of the aggregate undrawn amount of all outstanding Letters of
Credit) thereof and of the amount to be deposited, deposit in an account with
the Collateral Agent, for the benefit of the Revolving Credit Lenders, an amount
in cash equal to the L/C Exposure as of such date. Such deposit shall be held by
the Collateral Agent as collateral for the payment and performance of the
Obligations. The Collateral Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any
interest earned on the investment of such deposits in Permitted Investments,
which investments shall be made at the option and sole discretion of the
Collateral Agent, such deposits shall not bear interest. Interest or profits, if
any, on such investments shall accumulate in such account. Moneys in such
account shall (i) automatically be applied by the Administrative Agent to
reimburse any Issuing Bank for L/C Disbursements for which it has not been
reimbursed, (ii) be held for the satisfaction of the reimbursement obligations
of the Borrower for the L/C Exposure at such time and (iii) if the maturity of
the Loans has been accelerated (but subject to the consent of Revolving Credit
Lenders holding participations in outstanding Letters of Credit representing
greater than 50% of the aggregate undrawn amount of all outstanding Letters of
Credit), be applied to satisfy the Obligations. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence of
an Event of Default, such amount (to the extent not applied as aforesaid) shall
be returned to the Borrower within three Business Days after all Events of
Default have been cured or waived. If the Borrower is required to provide an
amount of cash collateral pursuant to clause (ii) of the first sentence of this
paragraph (j), such amount shall be returned to the Borrower from time to time
to the extent that the amount of such cash collateral held by the Collateral
Agent exceeds the excess, if any, of the L/C Exposure over the Total Revolving
Credit Commitment so long as no Event of Default shall have occurred and be
continuing.
(k) Additional Issuing Banks. The Borrower may, at any time and from time
to time with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld) and such Lender, designate one or more additional Lenders
to act as an issuing bank under the terms of the Agreement. Any Lender
designated as an issuing bank pursuant to this paragraph (k) shall be deemed to
be an "Issuing Bank" (in addition to being a Lender) in respect of Letters of
Credit issued or to be issued by such Lender, and, with respect to such Letters
of Credit, such term shall thereafter apply to the other Issuing Banks and such
Lender.
SECTION 2.24. Incremental Revolving Credit Commitments. (a) The Borrower
may, by written notice to the Administrative Agent from time to time, request
that the Total Revolving Credit Commitment be increased by an amount not to
exceed the Incremental Revolving Facility Amount at such time. Upon the approval
of such request by the Administrative Agent, the Administrative Agent shall
deliver a copy thereof to each Revolving Credit Lender. Such notice shall set
forth the amount of the requested increase in the Total Revolving Credit
Commitment (which shall be in minimum increments of $1,000,000 and a minimum
amount of $20,000,000 or equal to the remaining Incremental Revolving Facility
Amount) and the date on which such increase is requested to become effective
(which shall be not less than 10 Business Days nor more than 60 days after the
date of such notice and which, in any event, must be prior to the Revolving
Credit Maturity Date), and shall offer each Revolving Credit Lender the
opportunity to increase its Revolving Credit Commitment by its Pro Rata
Percentage of the proposed increased amount. Each Revolving Credit Lender shall,
by notice to the Borrower and the Administrative Agent given not more than 10
days after the date of the Administrative Agent's notice, either agree to
increase its Revolving Credit Commitment by all or a portion of the offered
amount (each Revolving Credit Lender so agreeing being an "Increasing Revolving
Lender") or decline to increase its Revolving Credit Commitment (and any
Revolving Credit Lender that does not deliver such a notice within such period
of 10 days shall be deemed to have declined to increase its Revolving Credit
Commitment) (each Revolving Credit Lender so declining or being deemed to have
declined being a "Non-Increasing Revolving Lender"). In the event that, on the
10th day after the Administrative Agent shall have delivered a notice pursuant
to the second sentence of this paragraph, the Revolving Credit Lenders shall
have agreed pursuant to the preceding sentence to increase their Revolving
Credit Commitments by an aggregate amount less than the increase in the Total
Revolving Credit Commitment requested by the Borrower, the Borrower may arrange
for one or more banks or other entities (any such bank or other financial
institution referred to in this clause (a) being called an "Augmenting Revolving
Lender"), which may include any Revolving Credit Lender, to extend Revolving
Credit Commitments or increase their existing Revolving Credit Commitments in an
aggregate amount equal to the unsubscribed amount; provided that each Augmenting
Revolving Lender, if not already a Revolving Credit Lender hereunder, shall be
subject to the approval of the Administrative Agent and the Issuing Banks (which
approvals shall not be unreasonably withheld) and the Borrower and each
Augmenting Revolving Lender shall execute all such documentation as the
Administrative Agent shall reasonably specify to evidence its Revolving Credit
Commitment and/or its status as a Revolving Credit Lender hereunder. Any
increase in the Total Revolving Credit Commitment may be made in an amount which
is less than the increase requested by the Borrower if the Borrower is unable to
arrange for, or chooses not to arrange for, Augmenting Revolving Lenders.
(b) On the effective date (the "Increase Effective Date") of any increase
in the Total Revolving Credit Commitment pursuant to this Section 2.24 (the
"Commitment Increase"), (i) the aggregate principal amount of the Revolving
Loans outstanding (the "Initial Loans") immediately prior to giving effect to
the Commitment Increase on the Increase Effective Date shall be deemed to be
paid, (ii) each Increasing Revolving Lender and each Augmenting Revolving Lender
that shall have been a Revolving Credit Lender prior to the Commitment Increase
shall pay to the Administrative Agent in same day funds an amount equal to the
difference between (A) the product of (1) such Revolving Credit Lender's Pro
Rata Percentage (calculated after giving effect to the Commitment Increase)
multiplied by (2) the amount of the Subsequent Revolving Borrowings (as
hereinafter defined) and (B) the product of (1) such Revolving Credit Lender's
Pro Rata Percentage (calculated without giving effect to the Commitment
Increase) multiplied by (2) the amount of the Initial Loans, (iii) each
Augmenting Revolving Lender that shall not have been a Revolving Credit Lender
prior to the Commitment Increase shall pay to Administrative Agent in same day
funds an amount equal to the product of (1) such Augmenting Revolving Lender's
Pro Rata Percentage (calculated after giving effect to the Commitment Increase)
multiplied by (2) the amount of the Subsequent Revolving Borrowings, (iv) after
the Administrative Agent receives the funds specified in clauses (ii) and (iii)
above, the Administrative Agent shall pay to each Non-Increasing Revolving
Lender the portion of such funds that is equal to the difference between (A) the
product of (1) such Non-Increasing Revolving Lender's Pro Rata Percentage
(calculated without giving effect to the Commitment Increase) multiplied by (2)
the amount of the Initial Loans, and (B) the product of (1) such Non-Increasing
Revolving Lender's Pro Rata Percentage (calculated after giving effect to the
Commitment Increase) multiplied by (2) the amount of the Subsequent Revolving
Borrowings, (v) after the effectiveness of the Commitment Increase, the Borrower
shall be deemed to have made new Revolving Credit Borrowings (the "Subsequent
Revolving Borrowings") in an aggregate principal amount equal to the aggregate
principal amount of the Initial Loans and of the Types and for the Interest
Periods specified in a Borrowing Request delivered to the Administrative Agent
in accordance with Section 2.03, (vi) each Non-Increasing Revolving Lender, each
Increasing Revolving Lender and each Augmenting Revolving Lender shall be deemed
to hold its Pro Rata Percentage of each Subsequent Revolving Borrowing (each
calculated after giving effect to the Commitment Increase) and (vii) the
Borrower shall pay each Increasing Revolving Lender and each Non-Increasing
Revolving Lender any and all accrued but unpaid interest on the Initial Loans.
The deemed payments made pursuant to clause (i) above in respect of each
Eurocurrency Loan shall be subject to indemnification by the Borrower pursuant
to the provisions of Section 2.16 if the Increase Effective Date occurs other
than on the last day of the Interest Period relating thereto.
(c) Notwithstanding the foregoing, no increase in the Total Revolving
Credit Commitment (or in the Revolving Credit Commitment of any Revolving Credit
Lender) or addition of a new Revolving Credit Lender shall become effective
under this Section 2.24 unless, (i) on the date of such increase, the conditions
set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the
Administrative Agent shall have received a certificate to that effect dated such
date and executed by a Financial Officer of the Borrower, and (ii) the
Administrative Agent shall have received (with sufficient copies for each of the
Revolving Credit Lenders) documents consistent with those delivered on the
Restatement Closing Date under the Amendment Agreement as to the corporate power
and authority of the Borrower to borrow hereunder after giving effect to such
increase.
SECTION 2.25. Incremental Term Loan Commitments. (a) The Borrower may, by
written notice to the Administrative Agent, request Incremental Term Loan
Commitments in an amount not to exceed the Incremental Term Loan Amount from one
or more Incremental Term Lenders, which may include any existing Lender;
provided that each Incremental Term Lender, if not already a Lender hereunder,
shall be subject to the approval of the Administrative Agent (which approval
shall not be unreasonably withheld).
(b) The Borrower and each Incremental Term Lender shall execute and deliver
to the Administrative Agent an Incremental Term Loan Assumption Agreement and
such other documentation as the Administrative Agent shall reasonably specify to
evidence the Incremental Term Loan Commitment of such Incremental Term Lender.
Each Incremental Term Loan Assumption Agreement shall specify the terms of the
Incremental Term Loans to be made thereunder; provided that, without the prior
written consent of the Required Lenders, (i) the interest rate spreads in
respect of the Incremental Term Loans shall not exceed by more than 50 basis
points the interest rate spreads for the Tranche C Term Loans, (ii) the final
maturity date of the Incremental Term Loans shall be no earlier than the Tranche
C Term Loan Maturity Date and (iii) the average life to maturity of the
Incremental Term Loans shall be no shorter than the average life to maturity of
the Tranche C Term Loans. The Administrative Agent shall promptly notify each
Lender as to the effectiveness of each Incremental Term Loan Assumption
Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness
of any Incremental Term Loan Assumption Agreement, this Agreement shall be
deemed amended to the extent (but only to the extent) necessary to reflect the
existence and terms of the Incremental Term Loan Commitment evidenced thereby.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment
shall become effective under this Section 2.25 unless (i) on the date of such
effectiveness, the conditions set forth in paragraphs (b) and (c) of Section
4.01 shall be satisfied and the Administrative Agent shall have received a
certificate to that effect dated such date and executed by a Financial Officer
of the Borrower, and (ii) the Administrative Agent shall have received (with
sufficient copies for each of the Incremental Term Lenders for such Incremental
Term Loan Commitment) documents consistent with those delivered on the
Restatement Closing Date under the Amendment Agreement as to the corporate power
and authority of the Borrower to borrow hereunder after giving effect to such
Incremental Term Loan Commitment.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Administrative Agent, the
Collateral Agent, each of the Issuing Banks and each of the Lenders that:
SECTION 3.01. Organization; Powers. The Borrower and each of the
Subsidiaries (a) is a corporation or partnership duly incorporated or formed, as
the case may be, validly existing and in good standing (if applicable) under the
laws of the jurisdiction of its incorporation or organization, (b) has all
requisite power and authority to own its property and assets and to carry on its
business as now conducted and as proposed to be conducted, (c) is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required, except where the failure so to qualify could not
reasonably be expected to result in a Material Adverse Effect, and (d) has the
corporate power and authority to execute, deliver and perform its obligations
under each of the Loan Documents and each other agreement or instrument
contemplated hereby to which it is or will be a party and, in the case of the
Borrower, to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance by
each Loan Party of each of the Loan Documents and the borrowings hereunder
(collectively, the "Transactions") (a) have been duly authorized by all
requisite corporate and, if required, stockholder action and (b) will not (i)
violate (A) any provision of law, statute, rule or regulation, (B) the
certificate or articles of incorporation or other constitutive documents or
by-laws of the Borrower or any Subsidiary, (C) any order of any Governmental
Authority applicable to the Borrower or such Subsidiary or (D) any provision of
any indenture, agreement or other instrument to which the Borrower or any
Restricted Subsidiary is a party or by which any of them or any of their
property is or may be bound, (ii) result in a breach of or constitute (alone or
with notice or lapse of time or both) a default under, or give rise to any right
to accelerate or to require the prepayment, repurchase or redemption of any
obligation under any such indenture, agreement or other instrument, except, in
the case of each of clause (i)(A), (i)(D) and (ii), where such violation, breach
or default could not reasonably be expected to result in a Material Adverse
Effect or (iii) result in the creation or imposition of any Lien upon or with
respect to any property or assets now owned or hereafter acquired by the
Borrower or any Restricted Subsidiary (other than any Lien created hereunder or
under the Security Documents).
SECTION 3.03. Enforceability. Each Loan Document has been duly executed and
delivered by each Loan Party party thereto and constitutes a legal, valid and
binding obligation of such Loan Party enforceable against such Loan Party in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
SECTION 3.04. Governmental Approvals. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
or will be required in connection with the Transactions, except for (i)
recordation of certain amendments of, or modifications to, the Mortgages and
(ii) such as have been made or obtained and are in full force and effect, except
where the failure to obtain the same could not reasonably be expected to result
in a Material Adverse Effect.
SECTION 3.05. Financial Statements. (a) The Borrower has heretofore made
available to the Lenders (i) its consolidated balance sheets and statements of
income and changes in financial condition as of and for each of the fiscal years
ended December 31, 1998, December 31, 1999 and December 31, 2000, audited by and
accompanied by the opinion of PricewaterhouseCoopers LLP, independent public
accountants. Such financial statements present fairly in all material respects
the financial condition and results of operations and cash flows of the Borrower
and its consolidated Subsidiaries as of such dates and for such periods. Such
balance sheets and the notes thereto disclose all material liabilities, direct
or contingent, of the Borrower and its consolidated Subsidiaries as of the dates
thereof required to be reflected in accordance with GAAP. Such financial
statements were prepared in accordance with GAAP applied on a consistent basis.
SECTION 3.06. No Material Adverse Change. There has been no material
adverse change in the business, assets, operations, prospects, condition,
financial or otherwise, or material agreements of the Borrower and its
Restricted Subsidiaries, taken as a whole, since December 31, 2000.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of the
Borrower and its Restricted Subsidiaries has fee title to, or valid leasehold
interests in, all its material properties and assets (including all Mortgaged
Property), except for defects in title that do not interfere with its ability to
conduct its business as currently conducted or to utilize such properties and
assets for their intended purposes. All such material properties and assets are
free and clear of Liens, other than Liens expressly permitted by Section 6.02.
(b) Each of the Borrower and its Restricted Subsidiaries has complied in
all material respects with all obligations under all material leases to which it
is a party and all such leases are in full force and effect. Each of the
Borrower and its Restricted Subsidiaries enjoys peaceful and undisturbed
possession under all such material leases.
(c) The Borrower has not received any written notice of, nor has any
knowledge of, any pending or contemplated condemnation proceeding affecting the
Mortgaged Properties or any sale or disposition thereof in lieu of condemnation.
(d) Neither the Borrower nor any of its Restricted Subsidiaries is
obligated under any right of first refusal, option or other contractual right to
sell, assign or otherwise dispose of any Mortgaged Property or any interest
therein.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Restatement
Closing Date a list of all Subsidiaries and the percentage ownership interest of
the Borrower therein. The shares of capital stock or other ownership interests
so indicated on Schedule 3.08 are fully paid and non assessable and are owned by
the Borrower, directly or indirectly through its Subsidiaries, free and clear of
all Liens, except for Liens created under the Security Documents. Each Inactive
Subsidiary (a) owns assets having a fair market value not in excess of $50,000
in the aggregate, (b) does not conduct any business activity and (c) is not an
obligor with respect to any Indebtedness.
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set forth on
Schedule 3.09, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
of its Subsidiaries or any business, property or rights of any such person (i)
that involve any Loan Document or the Transactions or (ii) as to which there is
a reasonable possibility of an adverse determination and that, if adversely
determined in the ordinary course of such action, suit or proceeding, at the
time of such determination, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect.
(b) None of the Borrower or any of its Subsidiaries or any of their
respective material properties or assets is in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate, any law, rule or regulation (including any zoning, building,
Environmental Law, ordinance, code or approval or any building permits) or any
restrictions of record or agreements affecting the Mortgaged Property, or is in
default with respect to any judgment, writ, injunction, decree or order of any
Governmental Authority, where such violation or default could reasonably be
expected to result in a Material Adverse Effect.
(c) Certificates of occupancy and permits are in effect for each Mortgaged
Property as currently constructed, except where the failure to have the same
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10. Agreements. (a) Neither the Borrower nor any of its
Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(b) Neither the Borrower nor any of its Subsidiaries is in default in any
manner under any provision of any indenture or other agreement or instrument
evidencing Indebtedness, or any other material agreement or instrument to which
it is a party or by which it or any of its properties or assets are or may be
bound, where such default could reasonably be expected to result in a Material
Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) Neither the Borrower nor any
of its Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of buying or
carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of the regulations of the Board, including Regulation T, U
or X.
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act.
Neither the Borrower nor any of its Subsidiaries is (a) an "investment company"
as defined in, or subject to regulation under, the Investment Company Act of
1940 or (b) a "holding company" as defined in, or subject to regulation under,
the Public Utility Holding Company Act of 1935.
SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of the
Loans and will request the issuance of Letters of Credit only for working
capital and other general corporate purposes (including financing Permitted
Acquisitions).
SECTION 3.14. Tax Returns. Each of the Borrower and its Subsidiaries has
filed or caused to be filed all Federal, state, local and foreign tax returns or
materials required to have been filed by it and has paid or caused to be paid
all taxes due and payable by it and all assessments received by it (in each case
giving effect to applicable extensions), except taxes that are being contested
in good faith by appropriate proceedings and for which the Borrower or such
Subsidiary, as applicable, shall have set aside on its books reserves in
accordance with GAAP.
SECTION 3.15. No Material Misstatements. None of (a) the Confidential
Information Memorandum or (b) any other information, report, financial
statement, exhibit or schedule furnished by or on behalf of the Borrower in
writing to the Administrative Agent or any Lender in connection with the
negotiation of any Loan Document or included therein or delivered pursuant
thereto contained, contains or will contain any material misstatement of fact or
omitted, omits or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were, are
or will be made, not misleading; provided that to the extent any such
information, report, financial statement, exhibit or schedule was based upon or
constitutes a forecast or projection, the Borrower represents only that it acted
in good faith and utilized assumptions believed by it to be reasonable and due
care in the preparation of such information, report, financial statement,
exhibit or schedule.
SECTION 3.16. Employee Benefit Plans. (a) Each of the Borrower and its
respective ERISA Affiliates is in compliance in all material respects with the
applicable provisions of ERISA and the Code and the regulations and published
interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in a Material Adverse Effect. The present
value of all benefit liabilities under each Plan (based on those assumptions
used to fund such Plan) did not, as of December 31, 2000, exceed by more than
$5,600,000 the fair market value of the assets of such Plan, and the present
value of all benefit liabilities of all underfunded Plans (based on those
assumptions used to fund each such Plan) did not, as of December 31, 2000,
exceed by more than $5,600,000 the fair market value of the assets of all such
underfunded Plans.
(b) Each Foreign Pension Plan is in compliance in all material respects
with all requirements of law applicable thereto and the respective requirements
of the governing documents for such plan except to the extent such
non-compliance could not reasonably be expected to result in a Material Adverse
Effect. With respect to each Foreign Pension Plan, none of the Borrower, its
Affiliates or any of its directors, officers, employees or agents has engaged in
a transaction which would subject the Borrower or any of its Subsidiaries,
directly or indirectly, to a material tax or civil penalty which could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect. With respect to each Foreign Pension Plan, reserves
have been established in the financial statements furnished to Lenders in
respect of any unfunded liabilities in accordance with applicable law and
prudent business practice or, where required, in accordance with ordinary
accounting practices in the jurisdiction in which such Foreign Pension Plan is
maintained. The aggregate unfunded liabilities, with respect to such Foreign
Pension Plans could not reasonably be expected to result in a Material Adverse
Effect. There are no actions, suits or claims (other than routine claims for
benefits) pending or threatened against the Borrower or any of its Affiliates
with respect to any Foreign Pension Plan which could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect.
SECTION 3.17. Environmental Matters. Except as set forth in Schedule 3.17:
(a) The properties owned, leased or operated by each of the Borrower and its
Subsidiaries (the "Properties") do not contain any Hazardous Materials in
amounts or concentrations which (i) constitute, or constituted a violation of,
(ii) require Remedial Action under, or (iii) could give rise to liability under,
Environmental Laws, which violations, Remedial Actions and liabilities, in the
aggregate, could reasonably be expected to result in a Material Adverse Effect;
(b) The Properties and all operations of each of the Borrower and its
Subsidiaries are in compliance in all material respects, and in the last five
years have been in compliance, with all Environmental Laws, and all necessary
Environmental Permits have been obtained and are in effect, except to the extent
that such non-compliance or failure to obtain any necessary permits, in the
aggregate, could reasonably be expected to not result in a Material Adverse
Effect;
(c) There have been no Releases or threatened Releases at, from, under or
proximate to the Properties or otherwise in connection with the current or
former operations of the Borrower or its Subsidiaries, which Releases or
threatened Releases, in the aggregate, could reasonably be expected to result in
a Material Adverse Effect;
(d) Neither the Borrower nor any of its Subsidiaries has received any
notice of an Environmental Claim in connection with the Properties or the
current or former operations of the Borrower or such Subsidiaries or with regard
to any person whose liabilities for environmental matters the Borrower or such
Subsidiaries has retained or assumed, in whole or in part, contractually, by
operation of law or otherwise, which, in the aggregate, could reasonably be
expected to result in a Material Adverse Effect, nor do the Borrower or its
Subsidiaries have reason to believe that any such notice will be received or is
being threatened; and
(e) Hazardous Materials have not been transported from the Properties, nor
have Hazardous Materials been generated, treated, stored or disposed of at, on
or under any of the Properties in a manner that could give rise to liability
under any Environmental Law, nor have the Borrower or its Subsidiaries retained
or assumed any liability, contractually, by operation of law or otherwise, with
respect to the generation, treatment, storage or disposal of Hazardous
Materials, which liabilities, in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and
correct description of all material insurance maintained by the Borrower or any
of its Restricted Subsidiaries as of the Restatement Closing Date. As of such
date, such insurance is in full force and effect and all premiums have been duly
paid. Each of the Borrower and its Restricted Subsidiaries has insurance in such
amounts and covering such risks and liabilities as are in accordance with normal
industry practice.
SECTION 3.19. Security Documents. (a) The Pledge Agreement is effective to
create in favor of the Collateral Agent, for the ratable benefit of the Secured
Parties, a legal, valid and enforceable security interest in the Collateral (as
defined in the Pledge Agreement) and, with respect to all Collateral previously
delivered to and in the possession of the Collateral Agent, constitutes, or in
the case of Collateral to be delivered in the future, will constitute, a fully
perfected first priority Lien on, and security interest in, all right, title and
interest of the pledgors thereunder in such Collateral, in each case prior and
superior in right to any other person.
(b) The Security Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral (as defined in the Security
Agreement) and, together with the financing statements previously filed or to be
filed in the future, constitutes, or in the case of any future filing, will
constitute, a fully perfected Lien on, and security interest in, all right,
title and interest of the grantors thereunder in such Collateral (other than the
Intellectual Property, as defined in the Security Agreement), in each case prior
and superior in right to any other person, other than with respect to Liens
expressly permitted by Section 6.02.
(c) The Security Agreement currently on file in the United States Patent
and Trademark Office and the United States Copyright Office constitutes a fully
perfected Lien on, and security interest in, all right, title and interest of
the grantors thereunder in the Intellectual Property (as defined in the Security
Agreement), in each case prior and superior in right to any other person (it
being understood that subsequent recordings in the United States Patent and
Trademark Office and the United States Copyright Office may be necessary to
perfect a lien on registered trademarks, trademark applications and copyrights
acquired by the grantors after the Original Closing Date).
(d) The Mortgages are effective to create in favor of the Collateral Agent,
for the ratable benefit of the Secured Parties, a legal, valid and enforceable
Lien on all of the Loan Parties' right, title and interest in and to the
Mortgaged Property thereunder and the proceeds thereof, and a fully perfected
Lien on, and security interest in, all right, title and interest of the Loan
Parties in such Mortgaged Property and the proceeds thereof, in each case prior
and superior in right to any other person, other than with respect to the rights
of persons pursuant to Liens expressly permitted by Section 6.02.
SECTION 3.20. Location of Real Property and Leased Premises. (a) Schedule
3.20(a) lists completely and correctly as of the Restatement Closing Date all
real property owned by the Borrower and the Restricted Subsidiaries and the
addresses thereof. The Borrower and the Restricted Subsidiaries own in fee all
the real property set forth on Schedule 3.20(a).
(b) Schedule 3.20(b) lists completely and correctly as of the Restatement
Closing Date all real property leased by the Borrower and the Restricted
Subsidiaries and the addresses thereof. The Borrower and the Restricted
Subsidiaries have valid leases in all the real property set forth on Schedule
3.20(b).
SECTION 3.21. Labor Matters. Except as set forth on Schedule 3.21, as of
the Restatement Closing Date, there are no strikes, lockouts or slowdowns
against the Borrower or any of its Restricted Subsidiaries pending or, to the
knowledge of the Borrower, threatened. The hours worked by and payments made to
employees of the Borrower and its Restricted Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Federal,
state, local or foreign law dealing with such matters. All payments due from the
Borrower or any of its Restricted Subsidiaries, or for which any claim may be
made against the Borrower or any such Restricted Subsidiary, on account of wages
and employee health and welfare insurance and other benefits, have been paid or
accrued as a liability on the books of the Borrower or such Restricted
Subsidiary. The consummation of the Transactions will not give rise to any right
of termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which the Borrower or any of its Restricted
Subsidiaries is bound on the Restatement Closing Date.
SECTION 3.22. Solvency. Immediately after the consummation of the
Transactions and immediately following the making of each Loan and after giving
effect to the application of the proceeds of such Loan, (a) the fair value of
the assets of the Loan Parties, at a fair valuation, will exceed their debts and
liabilities, subordinated, contingent or otherwise; (b) the present fair
saleable value of the property of the Loan Parties will be greater than the
amount that will be required to pay the probable liability of their debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) each Loan Party will be able
to pay its debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (d) each Loan Party will
not have unreasonably small capital with which to conduct the business in which
it is engaged as such business is now conducted and is proposed to be conducted
following the Restatement Closing Date.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans and of the Issuing Banks to
issue Letters of Credit hereunder are subject to the satisfaction of the
following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing and on the
date of each issuance, amendment or renewal of a Letter of Credit (each such
event being called a "Credit Event"):
(a) The Administrative Agent shall have received a notice of such Borrowing
as required by Section 2.03 (or such notice shall have been deemed given in
accordance with Section 2.03) or, in the case of the issuance, amendment or
renewal of a Letter of Credit, the applicable Issuing Bank and the
Administrative Agent shall have received a notice requesting the issuance of
such Letter of Credit as required by Section 2.23(b).
(b) The representations and warranties set forth in Article III hereof
shall be true and correct in all material respects on and as of the date of such
Credit Event with the same effect as though made on and as of such date, except
to the extent such representations and warranties expressly relate to an earlier
date.
(c) Each Borrower and each other Loan Party shall be in compliance with all
the terms and provisions set forth herein and in each other Loan Document on its
part to be observed or performed, and at the time of and immediately after such
Credit Event, no Event of Default or Default shall have occurred and be
continuing.
Each Credit Event shall be deemed to constitute a representation and
warranty by each Borrower on the date of such Credit Event as to the matters
specified in paragraphs (b) and (c) of this Section 4.01.
ARTICLE V
Affirmative Covenants
The Borrower covenants and agrees with each Lender that so long as this
Agreement shall remain in effect and until the Commitments have been terminated
and the principal of and interest on each Loan and all Fees and all other
expenses or amounts payable under any Loan Document shall have been paid in full
and all Letters of Credit have been canceled or have expired and all amounts
drawn thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and will cause each of its
Restricted Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence, except as otherwise expressly permitted under Section 6.05.
(b) Do or cause to be done all things necessary to obtain, preserve, renew,
extend and keep in full force and effect the rights, licenses, permits,
franchises, authorizations, patents, copyrights, trademarks and trade names
material to the conduct of its business; maintain and operate such business in
substantially the manner in which it is presently conducted and operated or in
an otherwise prudent manner; comply in all material respects with all applicable
laws, rules, regulations (including any zoning, building, Environmental Law,
ordinance, code or approval or any building permits or any restrictions of
record or agreements affecting the Mortgaged Properties) and decrees and orders
of any Governmental Authority, whether now in effect or hereafter enacted unless
failure to comply could not reasonably be expected to result in a Material
Adverse Effect; and at all times maintain and preserve all property material to
the conduct of such business and keep such property in working order and
condition and from time to time make, or cause to be made, all needful and
proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith may be
conducted at all times in a commercially reasonably manner.
SECTION 5.02. Insurance. (a) Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers; maintain such
other insurance (including self insurance), to such extent and against such
risks, including fire and other risks insured against by extended coverage, as
is customary with companies in the same or similar businesses operating in the
same or similar locations and of same or similar size, including public
liability insurance against claims for personal injury or death or property
damage occurring upon, in, about or in connection with the use of any properties
owned, occupied or controlled by it; and maintain such other insurance as may be
required by law.
(b) Cause all such policies of the Borrower or any Domestic Restricted
Subsidiary to be endorsed or otherwise amended to include a "standard" or "New
York" lender's loss payable endorsement, in form and substance reasonably
satisfactory to the Administrative Agent and the Collateral Agent, which
endorsement shall provide that, from and after the Restatement Closing Date, if
the insurance carrier shall have received written notice from the Administrative
Agent or the Collateral Agent of the occurrence of an Event of Default, the
insurance carrier shall pay all proceeds otherwise payable to the Borrower or
any such Loan Parties under such policies directly to the Collateral Agent;
cause all such policies to provide that no Borrower, the Administrative Agent,
the Collateral Agent nor any other party shall be a coinsurer thereunder and to
contain a "Replacement Cost Endorsement", without any deduction for
depreciation, and such other provisions as the Administrative Agent or the
Collateral Agent may reasonably require from time to time to protect their
interests; deliver original or certified copies of all such policies to the
Collateral Agent; cause each such policy to provide that it shall not be
canceled, modified or not renewed for any other reason upon not less than 30
days' prior written notice thereof by the insurer to the Administrative Agent
and the Collateral Agent; deliver to the Administrative Agent and the Collateral
Agent, prior to the cancelation, modification or nonrenewal of any such policy
of insurance, a copy of a renewal or replacement policy (or other evidence of
renewal of a policy previously delivered to the Administrative Agent and the
Collateral Agent) together with evidence satisfactory to the Administrative
Agent and the Collateral Agent of payment of the premium therefor.
(c) If at any time the area in which the Premises (as defined in the
Mortgages) are located is designated (i) a "flood hazard area" in any Flood
Insurance Rate Map published by the Federal Emergency Management Agency (or any
successor agency), obtain flood insurance in such total amount as the
Administrative Agent, the Collateral Agent or the Required Lenders may from time
to time require, and otherwise comply with the National Flood Insurance Program
as set forth in the Flood Disaster Protection Act of 1973, as it may be amended
from time to time, or (ii) a "Zone 1" area, obtain earthquake insurance in such
total amount as the Administrative Agent, the Collateral Agent or the Required
Lenders may from time to time require.
(d) With respect to any Mortgaged Property, carry and maintain
comprehensive general liability insurance including the "broad form CGL
endorsement" and coverage on an occurrence basis against claims made for
personal injury (including bodily injury, death and property damage) and
umbrella liability insurance against any and all claims, in no event for a
combined single limit of less than that in effect on the Restatement Closing
Date, naming the Collateral Agent as an additional insured, on forms reasonably
satisfactory to the Collateral Agent.
(e) Notify the Administrative Agent and the Collateral Agent immediately
whenever any separate insurance concurrent in form or contributing in the event
of loss with that required to be maintained under this Section 5.02 is taken out
by the Borrower; and promptly deliver to the Administrative Agent and the
Collateral Agent a duplicate original copy of such policy or policies.
(f) In connection with the covenants set forth in this Section 5.02, it is
understood and agreed that:
(i) none of the Administrative Agent, the Lenders, the Issuing Banks,
or their respective agents or employees shall be liable for any loss or
damage insured by the insurance policies required to be maintained under
this Section 5.02, it being understood that (A) the Borrower and the other
Loan Parties shall look solely to their insurance companies or any other
parties other than the aforesaid parties for the recovery of such loss or
damage and (B) such insurance companies shall have no rights of subrogation
against the Administrative Agent, the Collateral Agent, the Lenders, the
Issuing Banks or their agents or employees. If, however, the insurance
policies do not provide waiver of subrogation rights against such parties,
as required above, then the Borrower hereby agrees, to the extent permitted
by law, to waive its right of recovery, if any, against the Administrative
Agent, the Collateral Agent, the Lenders, the Issuing Banks and their
agents and employees; and
(ii) the designation of any form, type or amount of insurance coverage
by the Administrative Agent, the Collateral Agent or the Required Lenders
under this Section 5.02 shall in no event be deemed a representation,
warranty or advice by the Administrative Agent, the Collateral Agent or the
Lenders that such insurance is adequate for the purposes of the business of
the Borrower and its Subsidiaries or the protection of their properties and
the Administrative Agent, the Collateral Agent and the Required Lenders
shall have the right from time to time to require the Borrower and the
other Loan Parties to keep other insurance in such form and amount as the
Administrative Agent, the Collateral Agent or the Required Lenders may
reasonably request; provided that such insurance shall be obtainable on
commercially reasonable terms.
SECTION 5.03. Obligations and Taxes. Pay its Indebtedness and other
obligations promptly and in accordance with their terms and pay and discharge
promptly when due all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise that, if unpaid, could
reasonably be expected to give rise to a Lien upon such properties or any part
thereof; provided, however, that such payment and discharge shall not be
required with respect to any such obligation, tax, assessment, charge, levy or
claim so long as the validity or amount thereof shall be contested in good faith
by appropriate proceedings and the Borrower shall have set aside on its books
reserves with respect thereto in accordance with GAAP and such contest operates
to suspend collection of the contested obligation, tax, assessment or charge and
enforcement of a Lien and, in the case of a Mortgaged Property, there is no risk
of forfeiture of such property.
SECTION 5.04. Financial Statements, Reports, etc. In the case of the
Borrower, furnish to the Administrative Agent for distribution by the
Administrative Agent to each Lender:
(a) within 90 days after the end of each fiscal year, its consolidated
and consolidating balance sheets and related statements of operations,
stockholders' equity and cash flows showing the financial condition of the
Borrower and its consolidated Subsidiaries as of the close of such fiscal
year and the results of its operations and the operations of such
Subsidiaries during such year, all audited by PricewaterhouseCoopers LLP or
other independent public accountants of recognized national standing or
otherwise reasonably acceptable to the Required Lenders and accompanied by
an opinion of such accountants (which shall not be qualified in any
material respect) to the effect that such consolidated financial statements
fairly present the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, its consolidated and consolidating balance
sheets and related statements of operations, stockholders' equity and cash
flows showing the financial condition of the Borrower and its consolidated
Subsidiaries as of the close of such fiscal quarter and the results of its
operations and the operations of such Subsidiaries during such fiscal
quarter and the then elapsed portion of the fiscal year, all certified by
one of its Financial Officers as fairly presenting in all material respects
the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under
sub-paragraph (a) or (b) above (i) if there shall have been any
Unrestricted Subsidiaries during the relevant period, comparable financial
statements (which need not be audited or contain footnotes) for such period
covering the Borrower and its Restricted Subsidiaries, and (ii) a
certificate of the accounting firm (unless at such time it is the practice
and policy of such accounting firm not to deliver such certificates) or
Financial Officer opining on or certifying such statements (which
certificate, when furnished by an accounting firm, may be limited to
accounting matters and disclaim responsibility for legal interpretations)
(x) certifying that no Event of Default or Default has occurred or, if such
an Event of Default or Default has occurred, specifying the nature and
extent thereof and any corrective action taken or proposed to be taken with
respect thereto; and (y) in the case of any such letter from such Financial
Officer, setting forth reasonably detailed calculations demonstrating
compliance with Sections 6.10, 6.11, 6.12 and 6.13;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Borrower or any Restricted Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or
distributed to its shareholders, as the case may be;
(e) as promptly as practicable, but in no event later than 10 Business
Days after the last day of each fiscal year of the Borrower, a copy of the
budget for its consolidated balance sheet and related statements of income
and selected working capital and capital expenditure analyses for each
quarter of the following fiscal year; and
(f) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the Borrower or any
Restricted Subsidiary, or compliance with the terms of any Loan Document,
as the Administrative Agent or any Lender may reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the Administrative
Agent, the Issuing Banks and each Lender, promptly after obtaining knowledge
thereof, written notice of the following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) taken or proposed to be taken
with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any Governmental
Authority, against the Borrower or any Affiliate thereof that could
reasonably be expected to result in a Material Adverse Effect; and
(c) any development with respect to the Borrower or any Subsidiary
that has resulted in, or could reasonably be expected to result in, a
Material Adverse Effect.
SECTION 5.06. Employee Benefits. (a) Comply in all material respects with
the applicable provisions of ERISA and the Code and the laws applicable to any
Foreign Benefit Plan and (b) furnish to the Administrative Agent (i) as soon as
possible after, and in any event within 10 days after any Responsible Officer of
the Borrower or any Affiliate knows that any ERISA Event has occurred that,
alone or together with any other ERISA Event could reasonably be expected to
result in liability of the Borrower in an aggregate amount exceeding $5,000,000
(or the dollar equivalent thereof in another currency), a statement of a
Financial Officer of the Borrower setting forth details as to such ERISA Event
and the action, if any, that the Borrower proposes to take with respect thereto.
SECTION 5.07. Maintaining Records; Access to Properties and Inspections.
Keep proper books of record and account in which full, true and correct entries
in conformity in all material respects with GAAP and all requirements of law are
made of all dealings and transactions in relation to its business and
activities. Each Loan Party will, and will cause each of its Restricted
Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender to visit and inspect the financial records and the
properties of the Borrower or any Restricted Subsidiary at reasonable times and
as often as reasonably requested (but in no event more than twice annually
unless an Event of Default shall have occurred and be continuing) and to make
extracts from and copies of such financial records, and permit any
representatives designated by the Administrative Agent or any Lender to discuss
the affairs, finances and condition of the Borrower or any Restricted Subsidiary
with the officers thereof and independent accountants therefor.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans and request
the issuance of Letters of Credit only for working capital and other general
corporate purposes (including the financing of Permitted Acquisitions).
SECTION 5.09. Compliance with Environmental Laws. Comply, and cause all
lessees and other persons occupying its Properties to comply, in all material
respects with all Environmental Laws and Environmental Permits applicable to its
operations and Properties; obtain and renew all Environmental Permits necessary
for its operations and Properties; and conduct any Remedial Action in accordance
with Environmental Laws; provided, however, that the Borrower and the Restricted
Subsidiaries shall not be required to undertake any Remedial Action to the
extent that its obligation to do so is being contested in good faith and by
proper proceedings and appropriate reserves are being maintained with respect to
such circumstances in accordance with GAAP.
SECTION 5.10. Preparation of Environmental Reports. If an Event of Default
caused by reason of a breach of Section 3.17 or 5.09 shall have occurred and be
continuing, at the request of the Required Lenders through the Administrative
Agent, provide to the Lenders within 45 days after such request, at the expense
of the Borrower, an environmental site assessment report for the Properties
which are the subject of such default, prepared by an environmental consulting
firm reasonably acceptable to the Administrative Agent and indicating the
presence or absence of Hazardous Materials and the estimated cost of any
Remedial Action or any other activity required to bring the Properties into
compliance with Environmental Laws in connection with such Properties.
SECTION 5.11. Further Assurances. (a) Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing Uniform Commercial Code and other financing
statements, mortgages and deeds of trust) that may be required under applicable
law, or that the Required Lenders, the Administrative Agent or the Collateral
Agent may reasonably request, in order to effectuate the transactions
contemplated by the Loan Documents and in order to grant, preserve, protect and
perfect the validity and first priority of the security interests created or
intended to be created by the Security Documents. The Borrower will cause any
subsequently acquired or organized Restricted Domestic Subsidiary (other than an
Inactive Subsidiary or Finsub) to execute a supplement to the Subsidiary
Guarantee Agreement, the Indemnity Subrogation and Contribution Agreement and
each applicable Security Document in favor of the Collateral Agent. In addition,
from time to time, the Borrower will, at its cost and expense, promptly secure
the Obligations by pledging or creating, or causing to be pledged or created,
perfected security interests with respect to such of its assets and properties
as the Administrative Agent or the Required Lenders shall reasonably designate
(it being understood that it is the intent of the parties that the Obligations
shall be secured by, among other things, substantially all the assets of the
Borrower and the Subsidiary Guarantors (including real and other properties
acquired subsequent to the Original Closing Date)). Such security interests and
Liens will be created under the Security Documents and other security
agreements, mortgages, deeds of trust and other instruments and documents in
form and substance reasonably satisfactory to the Collateral Agent, and the
Borrower shall deliver or cause to be delivered to the Lenders all such
instruments and documents (including legal opinions, title insurance policies
and lien searches) as the Collateral Agent shall reasonably request to evidence
compliance with this Section.
(b) In the case of the Borrower and the Subsidiary Guarantors, promptly to
notify the Collateral Agent in writing of any change (i) in its corporate name
or in any trade name used to identify it in the conduct of its business or in
the ownership of its properties, (ii) in the location of its chief executive
office, its principal place of business, any office in which it maintains books
or records relating to Collateral owned by it or any office or facility at which
Collateral owned by it is located (including the establishment of any such new
office or facility), (iii) in its identity or corporate structure or (iv) in its
Federal Taxpayer Identification Number. The Borrower and each Subsidiary
Guarantor agrees not to effect or permit any change referred to in the preceding
sentence unless all filings have been made under the Uniform Commercial Code or
otherwise that are required in order for the Collateral Agent to continue at all
times following such change to have a valid, legal and perfected first priority
security interest in all the Collateral. The Borrower and each Subsidiary
Guarantor agrees promptly to notify the Collateral Agent if any material portion
of the Collateral owned or held by the Borrower is damaged or destroyed.
ARTICLE VI
Negative Covenants
The Borrower covenants and agrees with each Lender that, so long as this
Agreement shall remain in effect and until the Commitments have been terminated
and the principal of and interest on each Loan and all Fees and all other
expenses or amounts payable under any Loan Document have been paid in full and
all Letters of Credit have been cancelled or have expired and all amounts drawn
thereunder have been reimbursed in full, unless the Required Lenders shall
otherwise consent in writing, the Borrower will not, and will not cause or
permit any of the Restricted Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist any
Indebtedness, except that the Borrower and any Restricted Subsidiary (other than
any Inactive Subsidiary or Finsub (except as expressly permitted by subsection
(p) below)) may incur, create, assume or permit to exist:
(a) Indebtedness for borrowed money existing on the Restatement
Closing Date and set forth in Schedule 6.01 to the Existing Credit
Agreement;
(b) Indebtedness created hereunder, under the Existing Credit
Agreement and under the other Loan Documents; provided, however, that the
sum of the Existing Loans and the aggregate available commitments under the
Existing Credit Agreement shall not exceed $248,700,000 at any time;
(c) The Existing Senior Subordinated Notes, the New Subordinated Notes
and the Additional Subordinated Notes;
(d) Indebtedness pursuant to (i) Hedging Agreements and (ii) the
Additional L/C Facility; provided, however, that the Additional L/C
Exposure shall not exceed $60,000,000 at any time; (e) Indebtedness of (i)
the Borrower or any wholly owned Restricted Subsidiary (other than an
Inactive Subsidiary or Finsub) to any other wholly owned Restricted
Subsidiary (other than an Inactive Subsidiary or Finsub), (ii) any wholly
owned Restricted Subsidiary (other than an Inactive Subsidiary or Finsub)
to the Borrower or (iii) Finsub to the Borrower or any wholly owned
Restricted Subsidiary (other than an Inactive Subsidiary) incurred pursuant
to the Receivables Program; provided, however, that (i) any Indebtedness of
a Loan Party shall be subordinated to the prior payment in full of the
Obligations and (ii) any Indebtedness of Finsub incurred pursuant to this
subsection (e) shall be permitted only for such limited period of time as
is required to account for any sale of Program Receivables, which period of
time shall not in any event exceed two Business Days;
(f) Indebtedness resulting from endorsement of negotiable instruments
for collection in the ordinary course of business;
(g) Indebtedness arising under indemnity agreements to title insurers
to cause such title insurers to issue to the Collateral Agent mortgagee
title insurance policies;
(h) Indebtedness arising with respect to customary indemnification and
purchase price adjustment obligations incurred in connection with Asset
Sales and Permitted Acquisitions permitted hereunder;
(i) Indebtedness incurred in the ordinary course of business with
respect to surety and appeal bonds, performance, insurance and
return-of-money bonds and other similar obligations;
(j) Indebtedness consisting of (i) Acquired Indebtedness or (ii)
Purchase Money Indebtedness or Capital Lease Obligations incurred in the
ordinary course of business after the Original Closing Date; provided that
the aggregate principal amount of any such Indebtedness pursuant to this
paragraph (j) shall not exceed $125,000,000;
(k) Indebtedness of O&K Mining GmbH; provided that the aggregate
principal amount of any such Indebtedness pursuant to this paragraph (k)
shall not exceed DM17,500,000 or equivalent in Euro;
(l) Floor Plan Guarantees;
(m) Indebtedness incurred under (i) the Italian Facilities in an
amount not exceeding Lit12,850,000,000 or equivalent in Euro in the
aggregate at any time outstanding and (ii) the Irish Facilities in an
amount not exceeding ,10,000,000 in the aggregate at any time outstanding;
(n) Indebtedness incurred to extend, renew or refinance Indebtedness
described in paragraph (a), (c), (j), (k) or (l) above ("Refinancing
Indebtedness") so long as (i) such Refinancing Indebtedness is in an
aggregate principal amount not greater than the aggregate principal amount
of the Indebtedness being extended, renewed or refinanced, plus the amount
of any interest or premiums required to be paid thereon plus fees and
expenses associated therewith, (ii) such Refinancing Indebtedness has a
later or equal final maturity and a longer or equal weighted average life
than the Indebtedness being extended, renewed or refinanced, (iii) if the
Indebtedness being extended, renewed or refinanced is subordinated to the
Obligations, the Refinancing Indebtedness is subordinated to the
Obligations to the extent of the Indebtedness being extended, renewed or
refinanced and (iv) the covenants, events of default and other non-pricing
provisions of the Refinancing Indebtedness shall be no less favorable to
the Lenders than those contained in the Indebtedness being extended,
renewed or refinanced;
(o) Indebtedness classified as Capital Lease Obligations incurred in
connection with the purchase of inventory to be sold in the ordinary course
of business;
(p) Indebtedness of Finsub incurred pursuant to the Receivables
Program Documentation in an amount not exceeding $100,000,000 in the
aggregate at any time outstanding;
(q) other unsecured Indebtedness in an aggregate principal amount not
exceeding $15,000,000 at any time outstanding; and
(r) Indebtedness of Foreign Subsidiaries acquired after the
Restatement Closing Date under local credit lines not exceeding $25,000,000
in the aggregate at any time outstanding;
SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien on
any property or assets (including stock or other securities of any person,
including any Restricted Subsidiary) now owned or hereafter acquired by it or on
any income or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower and its Restricted
Subsidiaries existing on the Restatement Closing Date and as set forth in
Schedule 6.02 to the Existing Credit Agreement; provided that such Liens
shall secure only those obligations which they secure on the Restatement
Closing Date;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Restricted Subsidiary; provided
that (i) such Lien is not created in contemplation of or in connection with
such acquisition, (ii) such Lien does not apply to any other property or
assets of the Borrower or any Restricted Subsidiary and (iii) such Lien
does not (A) materially interfere with the use, occupancy and operation of
any Mortgaged Property, (B) materially reduce the fair market value of such
Mortgaged Property but for such Lien or (C) result in any material increase
in the cost of operating, occupying or owning or leasing such Mortgaged
Property;
(d) Liens for taxes not yet due or which are being contested in
compliance with Section 5.03;
(e) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business and securing
obligations that are not due and payable or which are being contested in
compliance with Section 5.03;
(f) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other
social security laws or regulations;
(g) (i) deposits to secure the performance of bids, trade contracts
(other than for Indebtedness), leases (other than Capital Lease
Obligations), statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the ordinary
course of business and (ii) Liens on the receivables of Terex Equipment
Limited to secure Indebtedness of Terex Equipment Limited in respect of
performance bonds and similar obligations in an aggregate principal amount
not to exceed ,3,000,000;
(h) zoning restrictions, easements, rights-of-way, restrictions on use
of real property and other similar encumbrances incurred in the ordinary
course of business which, in the aggregate, are not substantial in amount
and do not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of the
Borrower or any of its Restricted Subsidiaries;
(i) purchase money security interests in real property, improvements
thereto or equipment hereafter acquired (or, in the case of improvements,
constructed) by the Borrower or any Restricted Subsidiary (other than an
Inactive Subsidiary or Finsub) or in respect of Capital Lease Obligations;
provided that (i) such security interests secure Indebtedness permitted by
Section 6.01(j), (ii) such security interests are incurred, and the
Indebtedness secured thereby is created, within 90 days after such
acquisition (or construction), (iii) the Indebtedness secured thereby does
not exceed 100% of the lesser of the cost or the fair market value of such
real property, improvements or equipment at the time of such acquisition
(or construction) and (iv) such security interests do not apply to any
other property or assets of the Borrower or any Restricted Subsidiary;
(j) Liens arising from the rendering of a final judgment or order that
does not give rise to an Event of Default;
(k) Liens securing Acquired Indebtedness; provided that (i) such
Acquired Indebtedness was secured by such Liens at the time of the relevant
Permitted Acquisition and such Liens were not incurred in contemplation
thereof and (ii) such Liens do not extend to (x) any property of the
Borrower or the Restricted Subsidiaries (other than the Acquired Person) or
(y) to any property of the Acquired Person other than the property securing
such Liens on the date of the relevant Permitted Acquisition;
(l) Liens securing Refinancing Indebtedness, to the extent that the
Indebtedness being refinanced was originally secured in accordance with
this Section 6.02; provided that such Lien does not apply to any additional
property or assets of the Borrower or any Restricted Subsidiary;
(m) Liens in favor of the Borrower;
(n) Liens on the assets of Powerscreen with a fair market value not in
excess of the amount reasonably required to fully secure the Irish
Facilities; and
(o) Liens on the property of Finsub incurred pursuant to the
Receivables Program Documentation.
SECTION 6.03. Sale and Lease-Back Transactions. Enter into any arrangement,
directly or indirectly, with any person whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property
which it intends to use for substantially the same purpose or purposes as the
property being sold or transferred (a "Sale and Leaseback"); provided that the
Borrower or any Restricted Subsidiary may enter into any such transaction to the
extent that the Capital Lease Obligations and Liens associated therewith would
be permitted under this Agreement.
SECTION 6.04. Investments, Loans and Advances. Purchase, hold or acquire
any capital stock, evidences of indebtedness or other securities of, make or
permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other person, except:
(a) investments by the Borrower and its Restricted Subsidiaries
existing on the Restatement Closing Date in the capital stock of the
Subsidiaries and other investments by the Borrower and its Restricted
Subsidiaries existing on the Restatement Closing Date and set forth in
Schedule 6.04 to the Existing Credit Agreement;
(b) Permitted Investments;
(c) [Intentionally Omitted]
(d) the Borrower may make any Permitted Acquisition; provided that the
Borrower complies, and causes any acquired entity to comply, with the
applicable provisions of Section 5.11 and the Security Documents with
respect to the person or assets so acquired;
(e) the Borrower and the Restricted Subsidiaries (other than Inactive
Subsidiaries) may make loans and advances to employees for moving,
entertainment, travel and other similar expenses in the ordinary course of
business not to exceed $5,000,000 in the aggregate at any time outstanding;
(f) Consolidated Capital Expenditures permitted pursuant to Section
6.10;
(g) cash collateral provided to the Collateral Agent pursuant to the
Loan Documents;
(h) promissory notes issued by any purchaser in connection with any
Asset Sale permitted pursuant to Section 6.05(b);
(i) provided that no Default or Event of Default shall have occurred
and be continuing at the time of such payment or after giving effect
thereto, (A) the purchase by the Borrower of shares of its common stock
(for not more than fair market value) in connection with the delivery of
such stock to grantees under any stock option plan (upon the exercise by
such grantees of their stock options) or any other deferred compensation
plan of the Borrower approved by the board of directors of the Borrower and
(B) the repurchase of shares of, or options to purchase shares of, common
stock of the Borrower or any of its Subsidiaries from employees, former
employees, directors or former directors of the Borrower or any of its
Subsidiaries (or permitted transferees of such employees, former employees,
directors or former directors) pursuant to the terms of the agreements
(including employment agreements) or plans (or amendments thereto) approved
by the board of directors of the Borrower under which such individuals
purchase or sell or are granted the option to purchase or sell, such common
stock; provided that the aggregate amount of all such purchases and
repurchases permitted under this paragraph (i) shall not exceed $2,400,000
per year or $16,800,000 in the aggregate during the term of this Agreement;
(j) accounts receivable arising in the ordinary course of business
from the sale of inventory;
(k) Guarantees constituting Indebtedness permitted by Section 6.01;
(l) investments in joint ventures in Related Businesses and
investments in Unrestricted Subsidiaries in a combined aggregate amount
(without giving effect to any write down or write off thereof) not
exceeding $75,000,000 at any time outstanding;
(m) intercompany loans and advances constituting Indebtedness
permitted by Section 6.01(e); and
(n) other investments in an aggregate amount (without giving effect to
any write down or write off thereof) not exceeding $50,000,000 at any time
outstanding.
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions.
(a) Merge into or consolidate with any other person, or permit any other person
to merge into or consolidate with it, or sell, transfer, lease or otherwise
dispose of (in one transaction or in a series of transactions) all or any
substantial part of its assets (whether now owned or hereafter acquired) or any
capital stock of any Subsidiary, or purchase, lease or otherwise acquire (in one
transaction or a series of transactions) all or substantially all of the assets
of any other person, except that (i) the Borrower and any Restricted Subsidiary
(other than an Inactive Subsidiary or Finsub) may purchase and sell inventory in
the ordinary course of business, (ii)(A) the Borrower and any Restricted
Subsidiary (other than an Inactive Subsidiary) may sell Program Receivables to
Finsub and (B) Finsub may sell Program Receivables pursuant to the Receivables
Program Documentation and (iii) if at the time thereof and immediately after
giving effect thereto no Event of Default or Default shall have occurred and be
continuing (A) any wholly owned Subsidiary (other than Finsub) may merge into
the Borrower in a transaction in which the Borrower is the surviving
corporation, (B) any wholly owned Restricted Subsidiary (other than Finsub) may
merge into or consolidate with any other wholly owned Subsidiary in a
transaction in which the surviving entity is a wholly owned Restricted
Subsidiary and no person other than the Borrower or a wholly owned Restricted
Subsidiary receives any consideration; provided that, if either of the wholly
owned Subsidiaries party to such merger or consolidation is a Guarantor, then
the surviving entity shall be or become a Guarantor, (C) in connection with any
Permitted Acquisition pursuant to Section 6.04(d), the Borrower or any wholly
owned Subsidiary may acquire or merge into or consolidate with any entity
acquired pursuant to such Permitted Acquisition in a transaction in which the
surviving entity is the Borrower or a wholly owned Subsidiary; provided that,
(x) if the Borrower is a party to such merger or consolidation, the Borrower
shall be the surviving corporation, and (y) if any wholly owned Subsidiary that
is a Guarantor merges into or consolidates with any entity acquired pursuant to
such Permitted Acquisition, then the surviving entity shall be or become a
Guarantor, (D) the Borrower or any Subsidiary may transfer not less than 100% of
the capital stock of, or assets of, a Domestic Subsidiary to the Borrower or to
any wholly owned Domestic Subsidiary where no person other than the Borrower or
a wholly owned Subsidiary receives any consideration; provided that, if (x) such
capital stock or such assets being transferred is capital stock of, or assets
of, a Guarantor, then the recipient thereof shall be or become a Guarantor, and
(y) if the transferor of such capital stock or such assets is a Guarantor, then
the recipient thereof shall be or become a Guarantor, (E) the Borrower or any
Subsidiary may transfer not less than 100% of the capital stock of a Foreign
Subsidiary Issuer to any Special Purpose Foreign Holding Subsidiary where no
person other than the Borrower or a wholly owned Subsidiary receives any
consideration, (F) any Second-Tier Foreign Subsidiary may transfer not less than
100% of the capital stock of, or assets of, a Second-Tier Foreign Subsidiary to
the Borrower or any wholly owned Subsidiary where no person other than the
Borrower or a wholly owned Subsidiary receives any consideration and (G) the
Borrower or any Subsidiary may transfer not less than 100% of the capital stock
of, or assets of, a Second-Tier Foreign Subsidiary to any Special Purpose
Foreign Holding Subsidiary or any Foreign Subsidiary Issuer where no person
other than the Borrower or a wholly owned Subsidiary receives any consideration;
provided, however, that any merger, consolidation or transfer of assets by or
between the Borrower or a Restricted Subsidiary, on the one hand, and an
Unrestricted Subsidiary, on the other hand, shall be subject to the limitation
set forth in Section 6.04(1).
(b) Engage in any Asset Sale not otherwise prohibited by Section 6.05(a)
unless all of the following conditions are met: (i) the consideration received
is at least equal to the fair market value of such assets; (ii) at least 80% of
the consideration received is cash; (iii) the Net Cash Proceeds of such Asset
Sale are applied as required by Section 2.13(a); (iv) after giving effect to the
sale or other disposition of the assets included within the Asset Sale and the
repayment of Indebtedness with the proceeds thereof, the Borrower is in
compliance on a pro forma basis with the covenants set forth in Sections 6.11,
6.12 and 6.13 recomputed for the most recently ended fiscal quarter for which
information is available and is in compliance with all other terms and
conditions contained in this Agreement; and (v) no Default or Event of Default
shall result from such Asset Sale.
SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Restricted Subsidiaries to Pay Dividends. (a) Declare or pay, directly or
indirectly, any dividend or make any other distribution (by reduction of capital
or otherwise), whether in cash, property, securities or a combination thereof,
with respect to any shares of its capital stock or directly or indirectly
redeem, purchase, retire or otherwise acquire for value (or permit any
Restricted Subsidiary to purchase or acquire) any shares of any class of its
capital stock or set aside any amount for any such purpose; provided, however,
that (i) any Restricted Subsidiary may declare and pay dividends or make other
distributions to the Borrower of which it is a Restricted Subsidiary and (ii)
the Borrower may pay dividends on, and redeem and repurchase its capital stock,
provided that all of the following conditions are satisfied: (A) at the time of
such dividend, redemption or purchase and after giving effect thereto, no
Default or Event of Default has occurred and is continuing or would arise as a
result thereof; (B) the amount of all dividends, redemptions and purchases made
pursuant to this clause (ii) together with all distributions and payments made
pursuant to Section 6.09(b)(i), since the Original Closing Date shall not exceed
$50,000,000, and (c) on a pro forma basis and after giving effect to such
payment and all other payments pursuant to this clause (a) and Section
6.09(b)(i) made after the last day of the most recent fiscal quarter for which
financial statements have been delivered pursuant to Section 5.04(a) or (b), as
applicable, as if such payments were made in the four-fiscal-quarter period
ending on such last day of such fiscal quarter, the Consolidated Leverage Ratio
as of the end of such four-fiscal-quarter period shall be less than 3.85 to 1.00
and provided further that the Borrower may at any time pay dividends with
respect to its capital stock solely in additional shares of its capital stock.
(b) Permit its Restricted Subsidiaries to, directly or indirectly, create
or otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such Restricted Subsidiary to (i) pay any
dividends or make any other distributions on its capital stock or any other
interest or (ii) make or repay any loans or advances to the Borrower or the
parent of such Restricted Subsidiary, except, in the case of Finsub, for
encumbrances or restrictions existing pursuant to the Receivables Program
Documentation.
SECTION 6.07. Transactions with Affiliates. Sell or transfer any property
or assets to, or purchase or acquire any property or assets from, or otherwise
engage in any other transactions with, any of its Affiliates, except that the
Borrower or any Restricted Subsidiary may engage in any of the foregoing
transactions in the ordinary course of business at prices and on terms and
conditions not less favorable to the Borrower or such Restricted Subsidiary than
could be obtained on an arm's-length basis from unrelated third parties, and
except that this Section shall not apply to any transaction between or among the
Borrower and the Subsidiary Guarantors or any transaction between the Borrower
or any Restricted Subsidiary (other than an Inactive Subsidiary) and Finsub
pursuant to the Receivables Program.
SECTION 6.08. Business of the Borrower and Restricted Subsidiaries. Engage
at any time in any business or business activity other than the Related
Business; provided, however, that (a) UK Holdings shall not engage in any trade
or business, or otherwise conduct any business activity, other than the
ownership, of any Foreign Subsidiary and activities incidental to such
ownership, (b) Finsub shall not engage in any trade or business, or otherwise
conduct any business activity, other than the performance of its obligations
pursuant to the Receivables Program and other incidental activities and (c) each
Special Purpose Foreign Holding Subsidiary shall not engage in any trade or
business or otherwise conduct any business activity, other than as permitted by
the definition of Special Purpose Foreign Holding Subsidiary.
SECTION 6.09. Other Indebtedness and Agreements. (a) Permit any waiver,
supplement, modification, amendment, termination or release of any indenture,
instrument or agreement pursuant to which any Indebtedness of the Borrower or
any Restricted Subsidiary in an aggregate principal amount in excess of
$5,000,000 is outstanding if the effect of such waiver, supplement,
modification, amendment, termination or release is to (i) increase the interest
rate on such Indebtedness; (ii) accelerate the dates upon which payments of
principal or interest are due on such Indebtedness; (iii) add or change any
event of default or add any material covenant with respect to such Indebtedness;
(iv) change the prepayment provisions of such Indebtedness in any manner adverse
to the Lenders; (v) change the subordination provisions thereof (or the
subordination terms of any Guarantee thereof); or (vi) change or amend any other
term if such change or amendment would materially increase the obligations of
the obligor or confer additional material rights on the holder of such
Indebtedness in a manner adverse to the Borrower, any Restricted Subsidiary, the
Administrative Agent or the Lenders.
(b)(i) Make any distribution, whether in cash, property, securities or a
combination thereof, other than regular scheduled payments of principal and
interest as and when due (to the extent not prohibited by applicable
subordination provisions), in respect of, or pay, or offer or commit to pay, or
directly or indirectly redeem, repurchase, retire or otherwise acquire for
consideration, or set apart any sum for the aforesaid purposes, any Indebtedness
for borrowed money (other than the Loans and the Existing Loans) of the Borrower
or any Restricted Subsidiary except that (A) the Borrower shall be permitted to
use the Net Cash Proceeds of any Equity Issuance to prepay not more than
one-third of the Senior Subordinated Notes, the New Subordinated Notes or any
other Indebtedness, (B) the Borrower and its Restricted Subsidiaries shall be
permitted to make any such distribution or payment if all of the following
conditions are satisfied: (1) at the time of such distribution or payment and
after giving effect thereto, no Default or Event of Default has occurred and is
continuing or would arise as a result thereof; (2) the amount of all such
distributions and payments made pursuant to this clause (i), together with all
dividends, redemptions and purchases made pursuant to Section 6.06(a)(ii), since
the Original Closing Date shall not exceed $50,000,000; and (3) on a pro forma
basis and after giving effect to such distribution or payment and all other
distributions or payments pursuant to this clause (i) and Section 6.06(a) made
after the last day of the most recent fiscal quarter for which financial
statements have been delivered pursuant to Section 5.04(a) or (b), as
applicable, as if such payments or distributions were made in the
four-fiscal-quarter period ending on such last day of such fiscal quarter, the
Consolidated Leverage Ratio as of the end of such four-fiscal-quarter period
shall be less than 3.85 to 1.00, or (ii) pay in cash any amount in respect of
such Indebtedness that may at the obligor's option be paid in kind or in other
securities and (C) the Borrower may at any time repay Indebtedness of the
Borrower or any Restricted Subsidiary solely in shares of its capital stock.
SECTION 6.10. Capital Expenditures. Permit the aggregate amount of
Consolidated Capital Expenditures made by the Borrower and its Restricted
Subsidiaries, taken as a whole, in any fiscal year of the Borrower to exceed
$25,000,000 plus 75% of all Consolidated Capital Expenditures made by Restricted
Subsidiaries within twelve months prior to such Restricted Subsidiaries being
acquired as Permitted Acquisitions. The amount of permitted Consolidated Capital
Expenditures set forth in the immediately preceding sentence in respect of any
fiscal year shall be increased by (a) the amount of unused permitted
Consolidated Capital Expenditures for the immediately preceding fiscal year less
(b) an amount equal to unused Consolidated Capital Expenditures carried forward
to such preceding fiscal year.
SECTION 6.11. Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio on the last day of any fiscal quarter of the Borrower ending during any
period set forth below to be in excess of the ratio set forth below for such
period:
Period Ratio
April 1, 2000 - March 31, 2001 5.00 to 1.00
April 1, 2001 - March 31, 2002 4.50 to 1.00
April 1, 2002 - March 31, 2003 3.75 to 1.00
Thereafter 3.50 to 1.00
SECTION 6.12. Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio for any period of four consecutive fiscal quarters of
the Borrower ending during any period set forth below to be less than the ratio
set forth below for such period:
Period Ratio
April 1, 2000 - March 31, 2001 2.10 to 1.00
April 1, 2001 - March 31, 2002 2.25 to 1.00
April 1, 2002 - March 31, 2003 2.35 to 1.00
April 1, 2003 - March 31, 2005 2.50 to 1.00
Thereafter 2.75 to 1.00
SECTION 6.13. Consolidated Fixed Charge Coverage Ratio. Permit the
Consolidated Fixed Charge Coverage Ratio for any period of four consecutive
fiscal quarters of the Borrower ending during any period set forth below to be
less than the ratio set forth below for such period:
Period Ratio
March 29, 2001 - March 31, 2002 1.15 to 1.00
April 1, 2002 - March 31, 2004 1.20 to 1.00
April 1, 2004 - March 31, 2005 1.25 to 1.00
Thereafter 1.50 to 1.00
SECTION 6.14. Fiscal Year. Permit the fiscal year of the Borrower to end on
a day other than December 31.
SECTION 6.15. Designation of Unrestricted Subsidiaries. (a) The Borrower
may not designate any Restricted Subsidiary that is a Loan Party (other than
Earthking, Inc. and its subsidiaries) as an Unrestricted Subsidiary; provided,
that the Borrower may designate any Subsidiary created or acquired after the
Restatement Closing Date as an Unrestricted Subsidiary under this Agreement (a
"Designation") only if:
(i) such Subsidiary does not own any capital stock or other equity
interests of any Restricted Subsidiary;
(ii) no Event of Default shall have occurred and be continuing at the
time of or after giving effect to such Designation;
(iii) after giving effect to such Designation and any related
investment to be made in such designated Subsidiary by the Borrower or any
Restricted Subsidiary, the Borrower and the Restricted Subsidiaries would
be in compliance with Section 6.04 and with each of the covenants set forth
in Sections 6.11, 6.12 and 6.13; and
(iv) the Borrower has delivered to the Administrative Agent (x)
written notice of such Designation and (y) a certificate, dated the
effective date of such Designation, of a Financial Officer certifying
compliance with the conditions set forth in subclause (iii) above and
setting forth reasonably detailed calculations demonstrating such
compliance.
(b) The Borrower may designate any Unrestricted Subsidiary as a Restricted
Subsidiary under this Agreement (an "RS Designation") only if:
(i) no Event of Default shall have occurred and be continuing at the
time of or after giving effect to such RS Designation, and after giving
effect thereto, the Borrower would be in compliance with each of the
covenants set forth in Sections 6.11, 6.12 and 6.13;
(ii) all Liens on assets of such Unrestricted Subsidiary and all
Indebtedness of such Unrestricted Subsidiary outstanding immediately
following the RS Designation would, if initially incurred at such time,
have been permitted to be incurred pursuant to Sections 6.01 and 6.02,
respectively;
(iii) such designation would meet the applicable criteria of the
term"Permitted Acquisition" were the Borrower acquiring 100% of the capital
stock of such Unrestricted Subsidiary at such time; and
(iv) the Borrower has delivered to the Administrative Agent (x)
written notice of such RS Designation and (y) a certificate, dated the
effective date of such RS Designation, of a Financial Officer certifying
compliance with the conditions set forth in subclause (iii) above and
setting forth reasonably detailed calculations demonstrating such
compliance.
(c) Upon any such RS Designation with respect to an Unrestricted Subsidiary
(i) the Borrower and the Restricted Subsidiaries shall be deemed to have
received a return of their investment in such Unrestricted Subsidiary equal to
the lesser of (x) the amount of such Investment immediately prior to such RS
Designation and (y) the fair market value (as reasonably determined by the
Borrower) of the net assets of such Subsidiary at the time of such RS
Designation and (ii) for purposes of Section 6.04(l) the Borrower and the
Restricted Subsidiaries shall be deemed to have maintained an investment in an
Unrestricted Subsidiary equal to the excess, if positive, of the amount referred
to in clause (i)(x) above over the amount referred to in clause (i)(y) above.
(d) Neither the Borrower nor any Restricted Subsidiary shall at any time
(x) provide a Guarantee of any Indebtedness of any Unrestricted Subsidiary, (y)
be directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary or (z) be directly or indirectly liable for any other Indebtedness
which provides that the holder thereof may (upon notice, lapse of time or both)
declare a default thereon (or cause such Indebtedness or the payment thereof to
be accelerated, payable or subject to repurchase prior to its final scheduled
maturity) upon the occurrence of a default with respect to any other
Indebtedness that is Indebtedness of an Unrestricted Subsidiary, except in the
case of clause (x) or (y) to the extent permitted under Section 6.01 and Section
6.04 hereof. Except as provided in paragraph (c) above, each Designation shall
be irrevocable, and no Unrestricted Subsidiary may become a Restricted
Subsidiary, be merged with or into the Borrower or a Restricted Subsidiary or
liquidate into or transfer substantially all its assets to the Borrower or a
Restricted Subsidiary.
ARTICLE VII
Events of Default
In the case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document or the borrowings or issuances of Letters
of Credit hereunder, or any representation, warranty, statement or
information contained in any report, certificate, financial statement or
other instrument furnished in connection with or pursuant to any Loan
Document, shall prove to have been false or misleading in any material
respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any Loan
or the reimbursement with respect to any L/C Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan
or any Fee or L/C Disbursement or any other amount (other than an amount
referred to in (b) above) due under any Loan Document, when and as the same
shall become due and payable, and such default shall continue unremedied
for a period of three Business Days after notice;
(d) default shall be made in the due observance or performance by the
Borrower or any Subsidiary of any covenant, condition or agreement
contained in Section 5.01(a), 5.05 or 5.07 or in Article VI;
(e) default shall be made in the due observance or performance by the
Borrower or any Restricted Subsidiary of any covenant, condition or
agreement contained in any Loan Document (other than those specified in
(b), (c) or (d) above) and such default shall continue unremedied for a
period of 15 days after notice thereof from the Administrative Agent or any
Lender to the Borrower;
(f) the Borrower or any Restricted Subsidiary shall (i) fail to pay
any principal or interest, regardless of amount, due in respect of any
Indebtedness in a principal amount in excess of $5,000,000, when and as the
same shall become due and payable, or (ii) fail to observe or perform any
other term, covenant, condition or agreement contained in any agreement or
instrument evidencing or governing any such Indebtedness if the effect of
any failure referred to in this clause (ii) is to cause, or to permit the
holder or holders of such Indebtedness or a trustee on its or their behalf
(with or without the giving of notice, the lapse of time or both) to cause,
such Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of the Borrower or any Restricted Subsidiary, or of a
substantial part of the property or assets of the Borrower or a Restricted
Subsidiary, under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Restricted Subsidiary or for a substantial part of
the property or assets of the Borrower or any Restricted Subsidiary or
(iii) the winding-up or liquidation of the Borrower or any Restricted
Subsidiary; and such proceeding or petition shall continue undismissed for
60 days or an order or decree approving or ordering any of the foregoing
shall be entered;
(h) the Borrower or any Restricted Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11
of the United States Code, as now constituted or hereafter amended, or any
other Federal, state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or the filing of any petition
described in (g) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Restricted Subsidiary or for a substantial part of
the property or assets of the Borrower or any Restricted Subsidiary, (iv)
file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the
benefit of creditors, (vi) become unable, admit in writing its inability or
fail generally to pay its debts as they become due or (vii) take any action
for the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money the aggregate
amount which is not covered by insurance is in excess of $5,000,000 shall
be rendered against the Borrower, any Restricted Subsidiary or any
combination thereof and the same shall remain undischarged for a period of
45 consecutive days during which execution shall not be effectively stayed,
or any action shall be legally taken by a judgment creditor to levy upon
assets or properties of the Borrower or any Restricted Subsidiary to
enforce any such judgment;
(j) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other such ERISA Events,
could reasonably be expected to result in liability of the Borrower and its
ERISA Affiliates in an aggregate amount exceeding $5,000,000;
(k) any security interest purported to be created by any Security
Document shall cease to be, or shall be asserted by the Borrower or any
other Loan Party not to be, a valid, perfected, first priority (except as
otherwise expressly provided in this Agreement or such Security Document)
security interest in the securities, assets or properties covered thereby,
except to the extent that any such loss of perfection or priority results
from the failure of the Collateral Agent to maintain possession of
certificates representing securities pledged under the Pledge Agreement and
except to the extent that such loss is covered by a lender's title
insurance policy and the related insurer promptly after such loss shall
have acknowledged in writing that such loss is covered by such title
insurance policy; or
(l) there shall have occurred a Change in Control.
then, and in every such event (other than an event with respect to any Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, with the consent of the
Required Lenders, may, and at the request of the Required Lenders shall, by
notice to the Borrower, take either or both of the following actions, at the
same or different times: (i) terminate forthwith the Commitments and (ii)
declare the Loans then outstanding to be forthwith due and payable in whole or
in part, whereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrowers accrued hereunder and under any other Loan
Document, shall become forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived by the Borrowers, anything contained herein or in any other Loan Document
to the contrary notwithstanding; and in any event with respect to any Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrowers accrued hereunder and under any other Loan Document, shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrowers, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
ARTICLE VIII
The Administrative Agent and the Collateral Agent
In order to expedite the transactions contemplated by this Agreement, CSFB
is hereby appointed to act as Administrative Agent and Collateral Agent on
behalf of the Lenders and the Issuing Banks (for purposes of this Article VIII,
the Administrative Agent and the Collateral Agent are referred to collectively
as the "Agents"). Each of the Lenders, the Issuing Banks, and each assignee of
any such Lender or Issuing Bank hereby irrevocably authorizes the Agents to take
such actions on behalf of such Lender, Issuing Bank or assignee and to exercise
such powers as are specifically delegated to the Agents by the terms and
provisions hereof and of the other Loan Documents, together with such actions
and powers as are reasonably incidental thereto. The Administrative Agent is
hereby expressly authorized by the Lenders and the Issuing Banks, without hereby
limiting any implied authority, (a) to receive on behalf of the Lenders and the
Issuing Banks all payments of principal of and interest on the Loans, all
payments in respect of L/C Disbursements and all other amounts due to the
Lenders hereunder, and promptly to distribute to each Lender or each Issuing
Bank its proper share of each payment so received; (b) to give notice on behalf
of each of the Lenders to the Borrower of any Event of Default specified in this
Agreement of which the Administrative Agent has actual knowledge acquired in
connection with its agency hereunder; and (c) to distribute to each Lender
copies of all notices, financial statements and other materials delivered by the
Borrower or any other Loan Party pursuant to this Agreement or the other Loan
Documents as received by the Administrative Agent. Without limiting the
generality of the foregoing, the Agents are hereby expressly authorized to
execute any and all documents (including releases) with respect to the
Collateral and the Program Receivables and the rights of the Secured Parties
with respect thereto, as contemplated by and in accordance with the provisions
of this Agreement and the Security Documents.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any other Loan Party of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Agents shall not be responsible
to the Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents, instruments or
agreements. The Agents shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Required Lenders and, except as otherwise specifically provided herein, such
instructions and any action or inaction pursuant thereto shall be binding on all
the Lenders. Each Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any instrument or document believed by it in good faith to
be genuine and correct and to have been signed or sent by the proper person or
persons. Neither the Agents nor any of their respective directors, officers,
employees or agents shall have any responsibility to the Borrower or any other
Loan Party on account of the failure of or delay in performance or breach by any
Lender or an Issuing Bank of any of its obligations hereunder or to any Lender
or an Issuing Bank on account of the failure of or delay in performance or
breach by any other Lender or an Issuing Bank or the Borrower or any other Loan
Party of any of their respective obligations hereunder or under any other Loan
Document or in connection herewith or therewith. Each of the Agents may execute
any and all duties hereunder by or through agents or employees and shall be
entitled to rely upon the advice of legal counsel selected by it with respect to
all matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that neither Agent shall be under any duty
to take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement unless it shall be requested in writing to do so by
the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as provided
below, either Agent may resign at any time by notifying the Lenders and the
Borrower. Upon any such resignation, the successor to such Agent shall be
selected in accordance with Article VIII of the Existing Credit Agreement and
such successor Agent selected thereunder shall serve as the Administrative Agent
or the Collateral Agent, as the case may be, hereunder. Without limiting the
generality of the foregoing, it is understood and agreed that, at any time,
there shall be only one Collateral Agent for all of the Secured Parties. If all
Existing Loans and other amounts owing under the Existing Credit Agreement have
been repaid and all commitments under the Existing Credit Agreement have been
terminated, the Required Lenders shall have the right to appoint a successor
Agent. If no successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the retiring Agent
gives notice of its resignation, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent which shall be a bank with an office in New
York, New York, having a combined capital and surplus of at least $500,000,000
or an Affiliate of any such bank. Upon the acceptance of any appointment as
Agent hereunder by a successor bank, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After the Agent's resignation hereunder, the provisions of this
Article VIII and Section 9.05 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not an Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in the amount of
its pro rata share (based on the sum of its aggregate available Commitments and
outstanding Loans hereunder) of any expenses incurred for the benefit of the
Lenders by the Agents, including counsel fees and compensation of agents and
employees paid for services rendered on behalf of the Lenders, that shall not
have been reimbursed by the Borrower and (b) to indemnify and hold harmless each
Agent and any of its directors, officers, employees or agents, on demand, in the
amount of such pro rata share, from and against any and all liabilities, taxes,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by or asserted against it in its capacity as Agent or any of them
in any way relating to or arising out of this Agreement or any other Loan
Document or any action taken or omitted by it or any of them under this
Agreement or any other Loan Document, to the extent the same shall not have been
reimbursed by the Borrower or any other Loan Party; provided that no Lender
shall be liable to an Agent or any such other indemnified person for any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or wilful misconduct of such Agent or any of its directors,
officers, employees or agents. Each Revolving Credit Lender agrees to reimburse
each of the Issuing Banks and their directors, employees and agents, in each
case, to the same extent and subject to the same limitations as provided above
for the Agents.
Each Lender acknowledges that it has, independently and without reliance
upon the Agents or any other Lender and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon the Agents or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement or any other Loan Document, any related agreement or any
document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 000 Xxxx Xxxx Xxxx, Xxxxxxxx, XX
00000, Attention of General Counsel (Telecopy No. (000) 000-0000);
(b) if to the Administrative Agent, to Credit Suisse First Boston, 00
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxx Xxxxxxxx
(Telecopy No. (000) 000-0000;
(c) if to a Lender, to it at its address (or telecopy number) set
forth on Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Lender shall have become a party hereto; and
(d) if to an Existing Lender that is not also a Lender, to it in care of
Credit Suisse First Boston, 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention of Xxx Xxxxxxxx (Telecopy No. (000) 000-0000).
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and the Issuing Banks and shall survive the
making by the Lenders of the Loans and the issuance of Letters of Credit by the
Issuing Banks, regardless of any investigation made by the Lenders or the
Issuing Banks or on their behalf, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any Fee or any
other amount payable under this Agreement or any other Loan Document or the
Additional L/C Facility is outstanding and unpaid or any Letter of Credit or
Additional Letter of Credit is outstanding and unpaid and so long as the
Commitments have not been terminated. The provisions of Sections 2.14, 2.16,
2.20 and 9.05 shall remain operative and in full force and effect regardless of
the expiration of the term of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Loans, the
expiration of the Commitments, the expiration of any Letter of Credit, the
invalidity or unenforceability of any term or provision of this Agreement or any
other Loan Document, or any investigation made by or on behalf of the
Administrative Agent, the Collateral Agent or any Lender or any Issuing Bank.
SECTION 9.03. Binding Effect. This Agreement shall become effective as
provided in the Amendment Agreement, and thereafter shall be binding upon and
inure to the benefit of the parties hereto and their respective permitted
successors and assigns.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to include the
permitted successors and assigns of such party; and all covenants, promises and
agreements by or on behalf of the Borrower, the Administrative Agent, the
Issuing Banks or the Lenders that are contained in this Agreement shall bind and
inure to the benefit of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of its
interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender or an
Affiliate of such Lender or an Approved Fund, (x) the Borrower and the
Administrative Agent (and, in the case of any assignment of a Revolving Credit
Commitment, the Issuing Banks) must give their prior written consent to such
assignment (which consent shall not be unreasonably withheld) and (y) the amount
of the Commitment or Loans, as applicable, of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000 (or, if less, the entire remaining amount of such
Lender's Commitment or Loans, as applicable), (ii) the parties to each such
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of $3,500, and
(iii) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. For purposes of this
Section 9.04(b), "Approved Fund" shall mean, with respect to any Lender that is
a fund that invests in bank loans, any other fund that invests in bank loans
which is managed or advised by the same investment advisor as such Lender or by
an affiliate of such investment advisor. Upon acceptance and recording pursuant
to paragraph (e) of this Section 9.04, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least five Business Days after the execution thereof, (A) the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement and (B) the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.16,
2.20 and 9.05, as well as to any Fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and that its
Commitments and the outstanding balances of its Loans, in each case without
giving effect to assignments thereof which have not become effective, are as set
forth in such Assignment and Acceptance, (ii) except as set forth in (i) above,
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of the Borrower or any Subsidiary or the
performance or observance by the Borrower or any Subsidiary of any of its
obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements referred
to in Section 3.05 or delivered pursuant to Section 5.04 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (v) such
assignee will independently and without reliance upon the Administrative Agent,
the Collateral Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (vi) such assignee appoints and authorizes the Administrative
Agent and the Collateral Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Administrative
Agent and the Collateral Agent, respectively, by the terms hereof, together with
such powers as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all the obligations which by
the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices in The City of New York a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive and the Borrower, the Administrative Agent, the Issuing Banks, the
Collateral Agent and the Lenders may treat each person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, any Issuing Bank, the Collateral Agent
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Borrower, the Issuing
Banks and the Administrative Agent to such assignment, the Administrative Agent
shall (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Lenders and the Issuing Banks. No assignment shall be effective unless it has
been recorded in the Register as provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower, the Issuing Banks
or the Administrative Agent sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided, however, that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the participating
banks or other entities shall be entitled to the benefit of the cost protection
provisions contained in Sections 2.14, 2.16 and 2.20 to the same extent as if
they were Lenders and (iv) the Borrower, the Administrative Agent, the Issuing
Banks and the Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to the Loans or L/C Disbursements and to
approve any amendment, modification or waiver of any provision of this Agreement
(other than amendments, modifications or waivers decreasing any fees payable
hereunder or the amount of principal of or the rate at which interest is payable
on the Loans, extending any scheduled principal payment date or date fixed for
the payment of interest on the Loans, releasing the Borrower or any Subsidiary
Guarantor or all or any substantial part of the Collateral or increasing or
extending the Commitment applicable to such participant).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.16.
(h) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest, provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(i) The Borrower shall not assign or delegate any of its rights or duties
hereunder without the prior written consent of the Administrative Agent, each
Issuing Bank and each Lender, and any attempted assignment without such consent
shall be null and void.
(j) Notwithstanding anything to the contrary contained herein, any Lender
(a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC"),
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower, the option to provide to the Borrower all
or any part of any Loan that such Granting Lender would otherwise be obligated
to make to the Borrower pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to make any Loan and (ii) if an
SPC elects not to exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan were made by such Granting Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender). In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any SPC, it will not institute
against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any State thereof. In addition,
notwithstanding anything to the contrary contained in this Section 9.04, (i) any
SPC may (x) with notice to, but without the prior written consent of, the
Borrower and the Administrative Agent and without paying any processing fee
therefore, assign all or a portion of its interests in any Loans to the Granting
Lender or to any financial institutions providing liquidity and/or credit
support to or for the account of such SPC to support the funding or maintenance
of Loans and (y) disclose on a confidential basis any non-public information
relating to its Loans to any rating agency, commercial paper dealer or provider
of any surety, guarantee or credit or liquidity enhancement to such SPC, and
(ii) the protections afforded to any SPC pursuant to the provisions of this
Section 9.04(j) may not be amended or modified without the written consent of
such SPC.
(k) In the event that Standard & Poor's Ratings Group, Xxxxx'x Investors
Service, Inc., and Xxxxxxxx'x BankWatch (or Insurance Watch Ratings Service, in
the case of Lenders that are insurance companies (or Best's Insurance Reports,
if such insurance company is not rated by Insurance Watch Ratings Service))
shall, after the date that any Lender becomes a Revolving Credit Lender,
downgrade the long-term certificate deposit ratings of such Lender, and the
resulting ratings shall be below BBB-, Baa3 and C (or BB, in the case of a
Lender that is an insurance company (or B, in the case of an insurance company
not rated by Insurance Watch Ratings Service)), then each Issuing Bank shall
have the right, but not the obligation, at its own expense, upon notice to such
Lender and the Administrative Agent, to replace (or to request the Borrower to
use its reasonable efforts to replace) such Lender with an assignee (in
accordance with and subject to the restrictions contained in paragraph (b)
above), and such Lender hereby agrees to transfer and assign without recourse
(in accordance with and subject to the restrictions contained in paragraph (b)
above) all its interests, rights and obligations in respect of its Revolving
Credit Commitment to such assignee; provided, however, that (i) no such
assignment shall conflict with any law, rule and regulation or order of any
Governmental Authority and (ii) the applicable Issuing Bank or such assignee, as
the case may be, shall pay to such Lender in immediately available funds on the
date of such assignment the principal of and interest accrued to the date of
payment on the Loans made by such Lender hereunder and all other amounts accrued
for such Lender's account or owed to it hereunder.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower agrees to pay all
reasonable out-of-pocket expenses incurred by the Administrative Agent, the
Issuing Banks and the Collateral Agent in connection with the syndication of the
credit facilities provided for herein and the preparation and administration of
this Agreement and the other Loan Documents or in connection with any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions hereby or thereby contemplated shall be
consummated) or incurred by the Administrative Agent, the Collateral Agent or
any Lender in connection with the enforcement or protection of its rights in
connection with this Agreement and the other Loan Documents or in connection
with the Loans made or Letters of Credit issued hereunder, as applicable,
including the reasonable fees, charges and disbursements of Cravath, Swaine &
Xxxxx, counsel for the Administrative Agent and the Collateral Agent, and, in
connection with any such enforcement or protection, the fees, charges and
disbursements of any other counsel for the Administrative Agent, the Collateral
Agent or any Lender.
(b) The Borrower agrees to indemnify the Administrative Agent, the
Collateral Agent, each Lender and each Issuing Bank, each Affiliate of any of
the foregoing persons and each of their respective directors, officers,
employees and agents (each such person being called an "Indemnitee") against,
and to hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees, charges and
disbursements, incurred by or asserted against any Indemnitee arising out of, in
any way connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties thereto of their respective obligations
thereunder or the consummation of the Transactions and the other transactions
contemplated thereby, (ii) the use of the proceeds of the Loans or issuance of
Letters of Credit, (iii) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not any Indemnitee is a party
thereto, or (iv) any actual or alleged presence, Release or threat of Release of
Hazardous Materials on any Properties, or any Environmental Claim related in any
way to the Borrower or the Subsidiaries; provided that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the expiration of the Commitments, the expiration of any Letter of
Credit, the invalidity or unenforceability of any term or provision of this
Agreement or any other Loan Document, or any investigation made by or on behalf
of the Administrative Agent, the Collateral Agent, an Issuing Bank or any
Lender. All amounts due under this Section 9.05 shall be payable on written
demand therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender is hereby authorized at any time and from time to
time, except to the extent prohibited by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for the
credit or the account of the Borrower against any of and all the obligations of
the Borrower now or hereafter existing under this Agreement and other Loan
Documents held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement or such other Loan Document and
although such obligations may be unmatured. The rights of each Lender under this
Section 9.06 are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(OTHER THAN AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. EACH
LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE
WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO SUCH LAWS
OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 500
(THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS,
THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Collateral Agent, an Issuing Bank or any Lender in
exercising any power or right hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Collateral Agent, the Issuing Banks and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrower or any other Loan Party therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on the Borrower in any case
shall entitle the Borrower to any other or further notice or demand in similar
or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrower and the Required Lenders; provided, however, that no such
agreement shall (i) decrease the principal amount of, or extend the maturity of
or any scheduled principal payment date or date for the payment of any interest
on any Loan or any date for reimbursement of an L/C Disbursement, or waive or
excuse any such payment or any part thereof, or decrease the rate of interest on
any Loan or L/C Disbursement, without the prior written consent of each Lender
affected thereby, (ii) change or extend the Commitment or decrease or extend the
date for payment of the Facility Fees of any Lender without the prior written
consent of such Lender, or (iii) amend or modify the pro rata sharing provisions
of Section 2.17 or the provisions of Section 9.04(i), the provisions of this
Section, the definition of the term "Required Lenders" or release the Borrower
or any Subsidiary Guarantor or all or any substantial part of the Collateral,
without the prior written consent of each Lender; provided further that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, any Issuing Bank or the Collateral Agent hereunder or
under any other Loan Document without the prior written consent of the
Administrative Agent, such Issuing Bank or the Collateral Agent.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement, together with all fees, charges and other
amounts which are treated as interest on such Loan or participation in any L/C
Disbursement under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan or participation in
accordance with applicable law, the rate of interest payable in respect of such
Loan or participation hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan or
participation but were not payable as a result of the operation of this Section
9.09 shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or participations or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender.
SECTION 9.10. Entire Agreement. This Agreement, the other Loan Documents
and the Fee Letter constitute the entire contract among the parties relative to
the subject matter hereof. Any other previous agreement among the parties with
respect to the subject matter hereof is superseded by this Agreement and the
other Loan Documents. Except as provided in Section 9.17, nothing in this
Agreement or in the other Loan Documents, expressed or implied, is intended to
confer upon any party other than the parties hereto and thereto any rights,
remedies, obligations or liabilities under or by reason of this Agreement or the
other Loan Documents.
SECTION 9.11. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.11.
SECTION 9.12. Severability. In the event any one or more of the provisions
contained in this Agreement or in any other Loan Document should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in
and of itself affect the validity of such provision in any other jurisdiction).
The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original but all of which when taken together shall constitute a
single contract, and shall become effective as provided in Section 9.03.
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 9.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) The Borrower
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or Federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the other Loan Documents, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent,
the Collateral Agent, or any Issuing Bank or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or the other Loan
Documents against the Borrower or its properties in the courts of any
jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan Documents in any
New York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 9.01. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 9.16. Confidentiality. The Administrative Agent, the Collateral
Agent, each Issuing Bank and each of the Lenders agrees to keep confidential
(and to use its best efforts to cause its respective agents and representatives
to keep confidential) the Information (as defined below) and all copies thereof,
extracts therefrom and analyses or other materials based thereon, except that
the Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender
shall be permitted to disclose Information (a) to such of its respective
officers, directors, employees, agents, affiliates and representatives as need
to know such Information, (b) to the extent requested by any regulatory
authority (provided such authority shall be advised of the confidential nature
of the Information), (c) to the extent otherwise required by applicable laws and
regulations or by any subpoena or similar legal process, (d) in connection with
any suit, action or proceeding relating to the enforcement of its rights
hereunder or under the other Loan Documents, (e) to any direct or indirect
contractual counterparty in swap agreements or such contractual counterparty's
professional advisor (so long as such contractual counterparty (or its
affiliates) is not a competitor of the Borrower or any of its Subsidiaries and
agrees to be bound by the provisions of this Section 9.16) or (f) to the extent
such Information (i) becomes publicly available other than as a result of a
breach of this Section 9.16 or (ii) becomes available to the Administrative
Agent, any Issuing Bank, any Lender or the Collateral Agent on a nonconfidential
basis from a source other than the Borrower. For the purposes of this Section,
"Information" shall mean all financial statements, certificates, reports,
agreements and information (including all analyses, compilations and studies
prepared by the Administrative Agent, the Collateral Agent, any Issuing Bank or
any Lender based on any of the foregoing) that are received from the Borrower
and related to the Borrower, any shareholder of the Borrower or any employee,
customer or supplier of the Borrower, other than any of the foregoing that were
available to the Administrative Agent, the Collateral Agent, any Issuing Bank or
any Lender on a nonconfidential basis prior to its disclosure thereto by the
Borrower, and which are in the case of Information provided after the Closing
Date, clearly identified at the time of delivery as confidential. The provisions
of this Section 10.16 shall remain operative and in full force and effect
regardless of the expiration and term of this Agreement.
SECTION 9.17. Rights of Existing Lenders. Without the consent of each
Existing Lender, the Borrower and the Lenders shall not enter into, consent to
or approve of any amendment, modification or waiver of any provision of this
Agreement or any other Loan Document if, as a result of such amendment, waiver
or modification, any Existing Lender would no longer be entitled to the pro rata
sharing requirements of Section 2.22 or the mandatory participation provisions
of Section 2.18 and any such attempted amendment, modification or waiver shall
be null and void. Each Existing Lender shall be entitled to enforce the
provisions of this Section 9.17.
SECTION 9.18. Designated Senior Indebtedness. For the purposes of each
indenture governing the Senior Subordinated Notes, the New Subordinated Notes or
the Additional Subordinated Notes, the Loans and all Fees and all other expenses
or amounts payable under this Agreement shall be "Designated Senior
Indebtedness" as such term is defined in such indentures.
SECTION 9.19. Rights of Additional L/C Issuing Banks. Without the consent
of each Additional L/C Issuing Bank, the Borrowers and the Lenders shall not
enter into, consent to or approve of any amendment, modification or waiver of
any provision of this Agreement or any other Loan Document if, as a result of
such amendment, waiver or modification, (a) any Additional L/C Issuing Bank
would no longer be entitled to (i) its ratable share in the benefits of the
Collateral, (ii) the pro rata sharing requirements of Section 2.22 or (iii) the
mandatory participation provisions of Section 2.18, (b) all or substantially all
of the Collateral would be released or (c) any Guarantor would be released from
its obligations under the applicable Loan Document or Loan Documents, and any
such attempted amendment, modification or waiver shall be null and void. Each
Additional L/C Issuing Bank shall be entitled to enforce the provisions of this
Section 9.19 and shall be deemed to have issued Additional Letters of Credit, as
applicable, in reliance on this Section 9.19.
SECTION 9.20. Effect of Restatement. This Agreement shall, except as
otherwise expressly set forth herein, supersede the Original Tranche C Credit
Agreement from and after the Restatement Closing Date with respect to the
transactions hereunder and with respect to the outstanding Loans. The parties
hereto acknowledge and agree, however, that (i) this Agreement and all other
Loan Documents executed and delivered herewith do not constitute a novation,
payment and reborrowing or termination of the Obligations under the Original
Tranche C Credit Agreement and the other Loan Documents as in effect immediately
prior to the Restatement Closing Date, (ii) such Obligations are in all respects
continuing with only the terms being modified as provided in this Agreement and
the other Loan Documents, (iii) the liens and security interests in favor of the
Agent for the benefit of the Lenders and the other Secured Parties securing
payment of such Obligations are in all respects continuing and in full force and
effect with respect to all Obligations and (iv) all references in the other Loan
Documents to this Agreement shall be deemed to refer without further amendment
to this Agreement.
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