CREDIT AGREEMENT dated as of November 21, 2006 among TRANSCAT, INC. and JPMORGAN CHASE BANK, N.A.
Exhibit 10.1
![(CHASE LOGO)](https://www.sec.gov/Archives/edgar/data/99302/000095015206009693/l23439al2343901.gif)
dated as of
November 21, 2006
among
TRANSCAT, INC.
and
JPMORGAN CHASE BANK, N.A.
TABLE OF CONTENTS
Page | ||
ARTICLE I — DEFINITIONS |
1 | |
SECTION 1.01. Defined Terms |
1 | |
SECTION 1.02. Classification of Loans and Borrowings |
12 | |
SECTION 1.03. Terms Generally |
12 | |
SECTION 1.04. Accounting Terms; GAAP |
12 | |
ARTICLE II — THE CREDIT |
13 | |
SECTION 2.01. Commitment |
13 | |
SECTION 2.02. Loans and Borrowings |
13 | |
SECTION 2.03. Borrowing Procedures; Requests for Borrowings |
13 | |
SECTION 2.04. [Section Intentionally Omitted] |
13 | |
SECTION 2.05. Letters of Credit |
13 | |
SECTION 2.06. Funding of Borrowings |
15 | |
SECTION 2.07. Interest Elections |
15 | |
SECTION 2.08. Termination and Reduction of Commitments |
16 | |
SECTION 2.09. Repayment and Amortization of Loans; Evidence of Debt |
16 | |
SECTION 2.10. Prepayment of Loans |
17 | |
SECTION 2.11. Fees |
17 | |
SECTION 2.12. Interest |
17 | |
SECTION 2.13. Alternate Rate of Interest |
18 | |
SECTION 2.14. Increased Costs |
18 | |
SECTION 2.15. Break Funding Payments |
19 | |
SECTION 2.16. Taxes |
19 | |
SECTION 2.17. Payments Generally; Allocation of Proceeds |
20 | |
SECTION 2.18. Indemnity for Returned Payments |
20 | |
ARTICLE III — Representations and Warranties |
20 | |
SECTION 3.01. Organization; Powers |
20 | |
SECTION 3.02. Authorization; Enforceability |
21 | |
SECTION 3.03. Governmental Approvals; No Conflicts |
21 | |
SECTION 3.04. Financial Condition; No Material Adverse Change |
21 | |
SECTION 3.05. Properties |
21 | |
SECTION 3.06. Litigation and Environmental Matters |
21 | |
SECTION 3.07. Compliance with Laws and Agreements |
22 | |
SECTION 3.08. Investment and Holding Company Status |
22 | |
SECTION 3.09. Taxes |
22 | |
SECTION 3.10. ERISA |
22 | |
SECTION 3.11. Disclosure |
22 | |
SECTION 3.12. Material Agreements |
22 | |
SECTION 3.13. Solvency |
22 | |
SECTION 3.14. Insurance |
22 | |
SECTION 3.15. Capitalization and Subsidiaries |
23 | |
SECTION 3.16. Security Interest in Collateral |
23 | |
SECTION 3.17. Labor Disputes |
23 | |
SECTION 3.18. Affiliate Transactions |
23 | |
SECTION 3.19. Common Enterprise |
23 |
i
Page | ||
ARTICLE IV — CONDITIONS |
24 | |
SECTION 4.01. Effective Date |
24 | |
SECTION 4.02. Each Credit Event |
24 | |
ARTICLE V — AFFIRMATIVE COVENANTS |
25 | |
SECTION 5.01. Financial Statements; Borrowing Base and Other Information |
25 | |
SECTION 5.02. Notices of Material Events |
26 | |
SECTION 5.03. Existence; Conduct of Business |
26 | |
SECTION 5.04. Payment of Obligations |
27 | |
SECTION 5.05. Maintenance of Properties |
27 | |
SECTION 5.06. Books and Records; Inspection Rights |
27 | |
SECTION 5.07. Compliance with Laws |
27 | |
SECTION 5.08. Use of Proceeds and Letters of Credit |
27 | |
SECTION 5.09. Insurance |
27 | |
SECTION 5.10. Casualty and Condemnation |
27 | |
SECTION 5.11. Depository Banks |
27 | |
SECTION 5.12. Additional Collateral; Further Assurances |
28 | |
ARTICLE VI — NEGATIVE COVENANTS |
28 | |
SECTION 6.01. Indebtedness |
28 | |
SECTION 6.02. Liens |
29 | |
SECTION 6.03. Fundamental Changes |
30 | |
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions |
30 | |
SECTION 6.05. Asset Sales |
31 | |
SECTION 6.06. Sale and Leaseback Transactions |
32 | |
SECTION 6.07. Swap Agreements |
32 | |
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness |
32 | |
SECTION 6.09. Transactions with Affiliates |
32 | |
SECTION 6.10. Restrictive Agreements |
33 | |
SECTION 6.11. Amendment of Material Documents |
33 | |
SECTION 6.12. Financial Covenants |
33 | |
ARTICLE VII — EVENTS OF DEFAULT |
33 | |
ARTICLE VIII — MISCELLANEOUS |
35 | |
SECTION 8.01. Notices |
35 | |
SECTION 8.02. Waivers; Amendments |
36 | |
SECTION 8.03. Expenses; Indemnity; Damage Waiver |
36 | |
SECTION 8.04. Successors and Assigns |
36 | |
SECTION 8.05. Survival |
38 | |
SECTION 8.06. Counterparts; Integration; Effectiveness |
39 | |
SECTION 8.07. Severability |
39 | |
SECTION 8.08. Right of Setoff |
39 | |
SECTION 8.09. Governing Law; Jurisdiction; Consent to Service of Process |
39 | |
SECTION 8.10. WAIVER OF JURY TRIAL |
39 | |
SECTION 8.11. Headings |
40 | |
SECTION 8.12. Confidentiality |
40 | |
SECTION 8.13. Nonreliance; Violation of Law |
40 | |
SECTION 8.14. USA PATRIOT Act |
40 | |
SECTION 8.15. Disclosure |
40 | |
SECTION 8.16. Interest Rate Limitation |
40 |
ii
The schedules and exhibits to the Credit Agreement are listed
below. Upon request, Transcat, Inc. will furnish supplementally a copy of any schedule or
exhibit to the Securities and Exchange Commission.
SCHEDULES:
Schedule 3.05 — Properties
Schedule 3.06 — Disclosed Matters
Schedule 3.14 — Insurance
Schedule 3.15 — Capitalization and Subsidiaries
Schedule 3.18 — Affiliate Transactions
Schedule 6.01 — Existing Indebtedness
Schedule 6.02 — Existing Liens
Schedule 6.04 — Existing Investments
Schedule 6.10 — Existing Restrictions
Schedule 3.06 — Disclosed Matters
Schedule 3.14 — Insurance
Schedule 3.15 — Capitalization and Subsidiaries
Schedule 3.18 — Affiliate Transactions
Schedule 6.01 — Existing Indebtedness
Schedule 6.02 — Existing Liens
Schedule 6.04 — Existing Investments
Schedule 6.10 — Existing Restrictions
EXHIBITS:
Exhibit A — Form of Opinion of Borrower’s Counsel
Exhibit B — Form of Compliance Certificate
Exhibit C — Closing Checklist
Exhibit B — Form of Compliance Certificate
Exhibit C — Closing Checklist
iii
CREDIT AGREEMENT dated as of November 21, 2006 (as it may be amended or modified from time to
time, this “Agreement”), by and between TRANSCAT, INC. and JPMORGAN CHASE BANK, N.A.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
The following terms shall have the meanings given to them in the Sections of the Agreement
identified following each term: “Approved Fund"- §8.04(b); “LC Collateral
Account"- §2.05(h); “Participant"- §8.04; “Projections"-
§5.01(f).
“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.
“Acquisition” means any transaction, or any series of related transactions,
consummated on or after the Closing Date, by which any Loan Party (a) acquires any going business
or all or substantially all of the assets of any Person, whether through purchase of assets, merger
or otherwise or (b) directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of votes) of the Equity
Interests of a Person which has ordinary voting power for the election of directors or other
similar management personnel of a Person (other than Equity Interests having such power only by
reason of the happening of a contingency) or a majority of the outstanding Equity Interests of a
Person.
“Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
(a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
“Affiliate” means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
“Alternate Base Rate” means, for any day, a rate per annum equal to the greater of (a)
the Prime Rate in effect on such day, (b) the Base CD Rate in effect on such day plus 1%, and (c)
the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the Prime Rate, the Base
CD Rate or the Federal Funds Effective Rate, respectively.
“Applicable Rate” means, for any day, with respect to any ABR Loan or Eurodollar Loan,
or with respect to the commitment fees payable hereunder, as the case may be, the applicable rate
per annum set forth below under the caption “ABR Spread”, “Eurodollar Spread” or “Commitment Fee
Rate”, as the case may be, based upon the Borrower’s Leverage Ratio as of the most recent
determination date, provided that until the delivery to the Lender, pursuant to Section
5.01, of the Borrower’s consolidated financial information for the Borrower’s fiscal quarter ending
December 31, 2006, the “Applicable Rate” shall be the applicable rate per annum set forth below in
Category 4:
ABR Plus ABR | Eurodollar Plus | Commitment Fee | ||||||||||
Leverage Ratio | Spread of | Eurodollar Spread of | Rate | |||||||||
Category 1
³ 2.5 to 1.0 |
0 | 2 | % | .35 | % | |||||||
Category 2
< 2.5 to 1.0 but ³ 2.0 to 1.0 |
0 | 1.75 | % | .30 | % | |||||||
Category 3
< 2.0 to 1.0 but ³ 1.5 to 1.0 |
-.45 | % | 1.25 | % | .25 | % | ||||||
Category 4
< 1.5 to 1.0 but ³ 1.0 to 1.0 |
-.45 | % | 1 | % | .15 | % | ||||||
Category 5
< 1.0 to 1.0 |
-.70 | % | .65 | % | .10 | % |
For purposes of the foregoing, (a) the Applicable Rate shall be determined based upon the
Borrower’s annual or quarterly consolidated financial statements delivered pursuant to Section 5.01
and (b) each change in the Applicable Rate resulting from a change in the Leverage Ratio shall be
effective on and as of the date of delivery to the Lender of such consolidated financial statements
indicating such change and ending on the date immediately preceding the effective date of the next
such change, provided that the Leverage Ratio shall be deemed to be in Category 1 at the
option of the Lender if the Borrower fails to deliver the annual or quarterly consolidated
financial statements required to be delivered by it pursuant to Section 5.01, during the period
from the expiration of the time for delivery thereof until such consolidated financial statements
are delivered.
“Assessment Rate” means, for any day, the annual assessment rate in effect on such day
that is payable by a member of the Lender Insurance Fund classified as “well-capitalized” and
within supervisory subgroup “B” (or a comparable successor risk classification) within the meaning
of 12 C.F.R. Part 327 (or any successor provision) to the Federal Deposit Insurance Corporation for
insurance by such Corporation of time deposits made in dollars at the offices of such member in the
United States.
“Available Commitment” means, at any time, the Commitment then in effect minus
the Revolving Exposure at such time.
“Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of termination of the Commitment.
“Banking Services” means each and any of the following bank services provided to any
Loan Party by the Lender or any of its Affiliates: (a) commercial credit cards, (b) stored value
cards and (c) treasury management services (including, without limitation, controlled disbursement,
automated clearinghouse transactions, return items, overdrafts and interstate depository network
services).
“Banking Services Obligations” of the Loan Parties means any and all obligations of
the Loan Parties, whether absolute or contingent and howsoever and whensoever created, arising,
evidenced or acquired (including all renewals, extensions and modifications thereof and
substitutions therefor) in connection with Banking Services.
“Banking Services Reserves” means all reserves which the Lender from time to time
establishes in its discretion for Banking Services then provided or outstanding.
“Base CD Rate” means the sum of (a) the Three-Month Secondary CD Rate multiplied by
the Statutory Reserve Rate plus (b) the Assessment Rate.
“Board” means the Board of Governors of the Federal Reserve System of the United
States of America.
“Borrower” means Transcat, Inc., an Ohio corporation.
“Borrowing” means Loans of the same Type, made, converted or continued on the same
date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.
“Borrowing Request” means a request by the Borrower for a Borrowing in accordance with
Section 2.03.
“Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.
“Capital Expenditures” means, without duplication, any expenditure or commitment to
expend money for any purchase or other acquisition of any asset which would be classified as a
fixed or capital asset on a consolidated balance sheet of the Borrower and its Subsidiaries
prepared in accordance with GAAP.
“Capital Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance
2
sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
“Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof), of shares at any time representing in the aggregate more than 30% of the aggregate
ordinary voting power represented by the issued and outstanding capital stock of the Borrower; (b)
occupation of a majority of the seats (other than vacant seats) on the board of directors of the
Borrower by Persons who were neither (i) nominated by the board of directors of the Borrower nor
(ii) appointed by directors so nominated, or (c) the acquisition of direct or indirect Control of
the Borrower by any Person or group.
“Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by the Lender (or, for purposes of Section 2.14(b), by any lending office of the Lender
or by the Lender’s holding company, if any) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued after the date of this
Agreement.
“Closing Checklist” means that certain closing checklist, dated as of the date hereof,
between the Loan Parties and the Lender, in the form of Exhibit C hereto.
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Collateral” means any and all property owned, leased or operated by a Loan Party
covered by the Collateral Documents and any and all other property of any Loan Party, now existing
or hereafter acquired, that may at any time be or become subject to a security interest or Lien in
favor of the Lender, to secure the Obligations.
“Collateral Documents” means, collectively, the Security Agreement and any other
documents granting a Lien upon the Collateral as security for payment of the Obligations.
“Commitment” means the commitment of the Lender to make Loans and issue Letters of
Credit hereunder as such commitment may be reduced from time to time pursuant to Section 2.08. The
initial amount of the Lender’s Commitment is $10,000,000.00.
“Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.
“Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
“Disclosed Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.06.
“dollars” or “$” refers to lawful money of the United States of America.
“Domestic Subsidiaries” means any domestic Subsidiary which has assets in the
aggregate of at least $100,000.00.
“EBITDA” means, for any period, Net Income for such period plus (a) without
duplication and to the extent deducted in determining Net Income for such period, the sum of (i)
Interest Expense for such period, (ii) income tax expense for such period, (iii) all amounts
attributable to depreciation and amortization expense for such period, (iv) any extraordinary
non-cash charges for such period and (v) any other non-cash charges for such period, including
compensation expense from options or stock grants (but excluding any non-cash charge in respect of
an item that was included in Net Income in a prior period and any non-cash charge that relates to
the write-down or write off of inventory, asset impairment (other than goodwill) or reserve
expense), minus (b) without duplication and to the extent included in Net Income, (i) any
cash payments made during such period in respect of non-cash charges described in
3
clause (a)(v) taken in a prior period and (ii) any extraordinary gains and any non-cash items
of income for such period, all calculated for the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP.
“Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 9.02).
“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, release or threatened release of any Hazardous Material or to
health and safety matters.
“Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any contract, agreement
or other consensual arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.
“Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such equity interest.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC
or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is,
or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
“Eurodollar”, 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” has the meaning assigned to such term in Article VII.
“Excluded Taxes” means, with respect to the Lender, or any other recipient of any
payment to be made by or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States of America, or by
the jurisdiction under the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable lending office is located,
(b) any branch profits taxes imposed by the United States of America or any similar tax imposed by
any other jurisdiction in which the Borrower is located.
“Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the
4
Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a
Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
quotations for such day for such transactions received by the Lender from three Federal funds
brokers of recognized standing selected by it.
“Financial Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of the Borrower.
“Fixed Charges” means, with reference to any period, without duplication, cash
Interest Expense, plus prepayments (excluding those prepayments of the Loans hereunder
which are not given in connection with the termination or reduction of the Commitment) and
scheduled principal payments and loan fees on Indebtedness made during such period, plus
expense for taxes paid in cash, plus permitted Restricted Payments paid in cash,
plus Capital Lease Obligation payments, plus cash contributions to any Plan, all
calculated for the Borrower and its Subsidiaries on a consolidated basis.
“Fixed Charge Coverage Ratio” means, the ratio, determined as of the end of each of
fiscal quarter of the Borrower for the most-recently ended four fiscal quarters, of (a) EBITDA
minus the unfinanced portion of Capital Expenditures to (b) Fixed Charges, all calculated
for the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP.
“Funding Account” means the deposit account of the Borrower to which the Lender is
authorized by the Borrower to transfer proceeds of any Borrowings requested or authorized pursuant
to this Agreement.
“GAAP” means generally accepted accounting principles in the United States of America.
“Governmental Authority” means the government of the United States of America, 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.
“Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided, that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.
“Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of
such Person upon which interest charges are customarily paid, (d) all obligations of such Person
under conditional sale or other title retention agreements relating to property acquired by such
Person, (e) all obligations of such Person in respect of the deferred purchase price of property or
services (excluding current accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by
such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all
obligations, contingent or otherwise, of such Person as an account party in respect of letters of
credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in
respect of bankers’ acceptances, (k) obligations under any liquidated earn-out and (l) obligations
of such Person to purchase securities or other property arising out of or in connection with the
sale of the same or substantially similar securities or
5
property or any other Off-Balance Sheet Liability. The Indebtedness of any Person shall include
the Indebtedness of any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such Person’s ownership
interest in or other relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
“Indemnified Taxes” means Taxes other than Excluded Taxes.
“Interest Election Request” means a request by the Borrower to convert or continue a
Borrowing in accordance with Section 2.07.
“Interest Expense” means, with reference to any period, the interest expense
(including that attributable to Capital Lease Obligations) of the Borrower and its Subsidiaries for
such period with respect to all outstanding Indebtedness of the Borrower and its Subsidiaries
(including all commissions, discounts and other fees and charges owed with respect to letters of
credit and bankers’ acceptance financing and net costs under Swap Agreements in respect of interest
rates to the extent such net costs are allocable to such period in accordance with GAAP),
calculated on a consolidated basis for the Borrower and its Subsidiaries for such period in
accordance with GAAP.
“Interest Payment Date” means (a) with respect to any ABR Loan, the first Business Day
of each calendar month and the Maturity Date, (b) with respect to any Eurodollar 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 Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day prior
to the last day of such Interest Period that occurs at intervals of three months’ duration after
the first day of such Interest Period, and (c) the Maturity Date.
“Interest Period” means with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter, as the Borrower may elect;
provided, that (i) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day and (ii) any Interest Period pertaining to a
Eurodollar Borrowing that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of such Interest Period)
shall end on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is
made and thereafter shall be the effective date of the most recent conversion or continuation of
such Borrowing.
“LC Disbursement” means a payment made by the Lender pursuant to a Letter of Credit.
“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the Borrower at such time.
“Lender” means JPMorgan Chase Bank, N.A.
“Letter of Credit” means any letter of credit issued pursuant to this Agreement.
“Leverage Ratio” means, on any date, the ratio of (a) Total Funded Debt on such date
to (b) EBITDA for the period of four consecutive fiscal quarters ended on such date (or, if such
date is not the last day of a fiscal quarter, ended on the last day of the fiscal quarter most
recently ended prior to such date), provided that solely for purposes of Section 6.12, to
the extent the Borrower or any Subsidiary makes any acquisition permitted pursuant to Section 6.04
or disposition of assets outside the ordinary course of business that is permitted by Section 6.05
during the period of four fiscal quarters of the Borrower most recently ended, the Leverage Ratio
shall be calculated after giving pro forma effect thereto (including pro forma adjustments arising
out of events which are directly attributable to the acquisition or the disposition of assets, are
factually supportable and are expected to have a continuing impact, in each case as determined on a
basis consistent with Article 11 of Regulation S-X of the Securities Act of 1933, as amended, as
interpreted by the SEC, and as certified by a Financial Officer of the Borrower), as if such
acquisition or such disposition (and any related incurrence, repayment or assumption of
Indebtedness) had occurred in the first day of such four quarter period.
6
“LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on Page 3750 of the Dow Xxxxx Market Service (or on any successor or substitute
page of such Service, or any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as determined by the Lender
from time to time for purposes of providing quotations of interest rates applicable to dollar
deposits in the London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not available at such
time for any reason, then the “LIBO Rate” with respect to such Eurodollar Borrowing for
such Interest Period shall be the rate at which dollar deposits of $5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London office of the Lender in
immediately available funds in the London interbank market at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period.
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities.
“Loan Documents” means this Agreement, any promissory notes issued pursuant to the
Agreement, any Letter of Credit applications, the Collateral Documents, and all other agreements,
instruments, documents and certificates identified in Section 4.01 executed and delivered to, or in
favor of, the Lender and including all other pledges, powers of attorney, consents, assignments,
contracts, notices, letter of credit agreements and all other written documents whether heretofore,
now or hereafter executed by or on behalf of any Loan Party, or any officer of any Loan Party, and
delivered to the Lender in connection with the Agreement or the transactions contemplated thereby.
Any reference in the Agreement or any other Loan Document to a Loan Document shall include all
appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other
modifications thereto, and shall refer to the Agreement or such Loan Document as the same may be in
effect at any and all times such reference becomes operative.
“Loan Guarantor” means each Loan Party other than the Borrower.
“Loan Guaranty” means each Guaranty in form and substance satisfactory to the Lender,
delivered by each Loan Guarantor that is a Domestic Subsidiary, as it may be amended or modified
and in effect from time to time.
“Loan Parties” means the Borrower, the Borrower’s Domestic Subsidiaries, and any other
Person who executes and delivers a Loan Guaranty or Security Agreement with respect to the
Obligations and their successors and assigns.
“Loans” means the loans and advances made by the Lender pursuant to this Agreement.
“Material Adverse Effect” means a material adverse effect on (a) the business, assets,
operations, prospects or condition, financial or otherwise, of the Borrower and the Subsidiaries
taken as a whole, (b) the ability of all Loan Parties taken together to perform their obligations
under the Loan Documents, (c) the Collateral, or the Lender’s Liens on the Collateral or the
priority of such Liens, or (d) the rights of or benefits available to the Lender thereunder.
“Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the
Borrower and its Subsidiaries, taken as a whole, in an aggregate principal amount exceeding
$500,000.00. For purposes of determining Material Indebtedness, the “obligations” of the Borrower
or any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be
required to pay if such Swap Agreement were terminated at such time.
“Maturity Date” means November 21, 2009 or any earlier date on which the Commitments
are reduced to zero or otherwise terminated pursuant to the terms hereof.
“Moody’s” means Xxxxx’x Investors Service, Inc.
“Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
7
“Net Income” means, for any period, the consolidated net income (or loss) of the
Borrower and its Subsidiaries, determined on a consolidated basis in accordance with GAAP;
provided that there shall be excluded (a) the income (or deficit) of any Person accrued
prior to the date it becomes a Subsidiary of the Borrower or is merged into or consolidated with
the Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a
Subsidiary of the Borrower) in which the Borrower or any of its Subsidiaries has an ownership
interest, except to the extent that any such income is actually received by the Borrower or such
Subsidiary in the form of dividends or similar distributions and (c) the undistributed earnings of
any Subsidiary of the Borrower to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary is not at the time permitted by the terms of any
contractual obligation (other than under any Loan Document) or Requirement of Law applicable to
such Subsidiary.
“Net Proceeds” means, with respect to any event, (a) the cash proceeds received in
respect of such event including (i) any cash received in respect of any non-cash proceeds
(including any cash payments received by way of deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment receivable or otherwise, but excluding any
interest payments), but only as and when received, (ii) in the case of a casualty, insurance
proceeds and (iii) in the case of a condemnation or similar event, condemnation awards and similar
payments, net of (b) the sum of (i) all reasonable fees and out-of-pocket expenses paid to third
parties (other than Affiliates) in connection with such event, (ii) in the case of a sale, transfer
or other disposition of an asset (including pursuant to a sale and leaseback transaction or a
casualty or a condemnation or similar proceeding), the amount of all payments required to be made
as a result of such event to repay Indebtedness (other than Loans) secured by such asset or
otherwise subject to mandatory prepayment as a result of such event and (iii) the amount of all
taxes paid (or reasonably estimated to be payable) and the amount of any reserves established to
fund contingent liabilities reasonably estimated to be payable, in each case during the year that
such event occurred or the next succeeding year and that are directly attributable to such event
(as determined reasonably and in good faith by a Financial Officer).
“Obligations” means all unpaid principal of and accrued and unpaid interest on the
Loans, all LC Exposure, all accrued and unpaid fees and all expenses, reimbursements, indemnities
and other obligations of the Loan Parties to the Lender or any indemnified party arising under the
Loan Documents. Obligations shall also include (i) all Banking Services Obligations; and (ii) all
Swap Obligations owing to the Lender or its Affiliates.
“Off-Balance Sheet Liability” of a Person means (a) any repurchase obligation or
liability of such Person with respect to accounts or notes receivable sold by such Person, (b) any
indebtedness, liability or obligation under any sale and leaseback transaction which is not a
Capital Lease Obligation, or (c) any indebtedness, liability or obligation under any so-called
“synthetic lease” transaction entered into by such Person, or (d) any indebtedness, liability or
obligation arising with respect to any other transaction which is the functional equivalent of or
takes the place of borrowing but which does not constitute a liability on the balance sheets of
such Person (other than operating leases).
“Other Taxes” means any and all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any payment made hereunder
or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement.
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.
“Permitted Acquisition” means any Acquisition by any Loan Party in a transaction that
satisfies each of the following requirements:
(a) such Acquisition is not a hostile or contested acquisition;
(b) the business acquired in connection with such Acquisition is not engaged, directly
or indirectly, in any line of business other than the businesses in which the Loan Parties
are engaged on the Closing Date and any business activities that are substantially similar,
related, or incidental thereto;
(c) both before and after giving effect to such Acquisition and the Loans (if any)
requested to be made in connection therewith, each of the representations and warranties in
the Loan Documents is true and correct (except (i) any such representation or warranty which
relates to a specified prior date and (ii) to the extent the Lender has been notified in
writing by the Loan Parties that any representation or warranty is not
8
correct and the Lender has explicitly waived in writing compliance with such
representation or warranty) and no Default exists, will exist, or would result therefrom;
(d) as soon as available, but not less than thirty days prior to such Acquisition, the
Borrower have provided the Lender (i) notice of such Acquisition and (ii) a copy of all
business and financial information reasonably requested by the Lender including pro forma
financial statements, statements of cash flow, and projections;
(e) the purchase price for all Acquisitions in any twelve month period does not exceed
$2,000,000 and for all Acquisitions made during the term of this Agreement shall not exceed
$6,000,000;
(f) if such Acquisition is an acquisition of the Equity Interests of a Person, the
Acquisition is structured so that the acquired Person shall become a Wholly-Owned Subsidiary
of the Borrower and, a Loan Party pursuant to the terms of this Agreement;
(g) if such Acquisition is an acquisition of assets, the Acquisition is structured so
that the Borrower shall acquire such assets;
(h) if such Acquisition is an acquisition of Equity Interests, such Acquisition will not
result in any violation of Regulation U;
(i) no Loan Party shall, as a result of or in connection with any such Acquisition,
assume or incur any direct or contingent liabilities (whether relating to environmental, tax,
litigation, or other matters) that could be reasonably expected to have a Material Adverse
Effect;
(j) in connection with an Acquisition of the Equity Interests of any Person, all Liens
on property of such Person shall be terminated unless the Lender in its sole discretion
consents otherwise, and in connection with an Acquisition of the assets of any Person, all
Liens on such assets shall be terminated;
(k) before and after giving effect to the Acquisition, the Borrower shall be in
compliance with all financial covenants contained herein.
“Permitted Consignment Inventory” means, provided there exists no Event of
Default, Inventory in the maximum aggregate amount of $100,000 at any one time which may be
held by third parties on a consignment basis for Canadian west coast distribution. The
Borrower shall provide to Lender upon its request therefor, a detailed listing of all
consignment arrangements and the Inventory thereunder.
“Permitted Encumbrances” means:
(a) Liens imposed by law for taxes that are not yet due or are being contested in
compliance with Section 5.04;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like
Liens imposed by law, arising in the ordinary course of business and securing obligations
that are not overdue by more than 30 days or are being contested in compliance with Section
5.04;
(c) pledges and deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not constitute an Event of Default
under clause (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that do not secure any
monetary obligations and
9
do not materially detract from the value of the affected property or interfere with the
ordinary conduct of business of the Borrower or any Subsidiary;
provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.
“Permitted Investments” means:
(a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the United States of
America), in each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date of
acquisition thereof and having, at such date of acquisition, the highest credit rating
obtainable from S&P or from Moody’s;
(c) investments in certificates of deposit, banker’s acceptances and time deposits
maturing within 180 days from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of America or any State
thereof which has a combined capital and surplus and undivided profits of not less than
$500,000,000;
(d) fully collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial institution
satisfying the criteria described in clause (c) above; and
(e) money market funds that (i) comply with the criteria set forth in Securities and
Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by
S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000.
“Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.
“Prime Rate” means the rate of interest per annum publicly announced from time to time
by the Lender as its prime rate; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.
“Related Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.
“Report” means reports prepared by the Lender or another Person showing the results of
appraisals, field examinations or audits pertaining to the Borrower’s assets from information
furnished by or on behalf of the Borrower, after the Lender has exercised its rights of inspection
pursuant to this Agreement.
“Requirement of Law”: means, as to any Person, the Certificate of Incorporation and
By-Laws or other organizational or governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
“Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the Borrower or any
Subsidiary, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such Equity Interests in the Borrower or any option, warrant or
other right to acquire any such Equity Interests in the Borrower.
10
“Revolving Exposure” means, at any time, the sum of the outstanding principal amount
of Loans and LC Exposure at such time.
“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw Hill
Companies, Inc.
“SEC” means the United States Securities and Exchange Commission.
“Security Agreement” means those certain Security Agreement(s), dated as of the date
hereof, between the Loan Parties and the Lender and any other pledge or security agreement entered
into after the date of this Agreement by any other Loan Party or any other Person, (as required by
this Agreement or any other Loan Document, as any of the same may be amended, restated or otherwise
modified from time to time.
“Statutory Reserve Rate” means 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 the Board to which the Lender is subject (a) with respect to
the Base CD Rate, for new negotiable nonpersonal time deposits in dollars of over $100,000 with
maturities approximately equal to three months, in the case of the Base CD Rate, and (b) with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding
and to be subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender under such Regulation D
or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
“Subordinated Indebtedness” of a Person means any Indebtedness of such Person the
payment of which is subordinated to payment of the Obligations to the written satisfaction of the
Lender.
“subsidiary” means, with respect to any Person (the “Parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the Parent in the Parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50% of the equity or
more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as
of such date, otherwise Controlled, by the Parent or one or more subsidiaries of the Parent or by
the Parent and one or more subsidiaries of the Parent.
“Subsidiary” means any subsidiary of the Borrower or a Loan Party, as applicable.
“Swap Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a
Swap Agreement.
“Swap Obligations” of a Person means any and all obligations of such Person, whether
absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions therefor), under
(a) any and all Swap Agreements, and (b) any and all cancellations, buy backs, reversals,
terminations or assignments of any Swap Agreement transaction.
“Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
“Three-Month Secondary CD Rate” means, for any day, the secondary market rate for
three-month certificates of deposit reported as being in effect on such day (or, if such day is not
a Business Day, the next preceding Business Day) by the Board through the public information
telephone line of the Federal Reserve Lender of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not so reported on such day or such next preceding
Business Day, the average of the secondary market quotations for three-month certificates of
deposit of
11
major money center banks in New York City received at approximately 10:00 a.m., New York City time,
on such day (or, if such day is not a Business Day, on the next preceding Business Day) by the
Lender from three negotiable certificate of deposit dealers of recognized standing selected by it.
“Total Funded Debt” means, in respect of any Person, (i) all long term Indebtedness of
such Person, (ii) all payments in respect of item (i) above that were required to be made within
one year prior to the date of any determination of Total Funded Debt, if the obligation to make
such payments shall constitute a current liability of the obligor under GAAP (nothing herein shall
be construed to include accounts payable), (iii) all capitalized rentals of such Person, and (iv)
interest bearing Indebtedness for borrowed money (other than long term Indebtedness) having a
maturity of less than one year.
“Transactions” means the execution, delivery and performance by the Borrower of this
Agreement, the borrowing of Loans and other credit extensions, the use of the proceeds thereof and
the issuance of Letters of Credit hereunder.
“Type” when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Alternate Base Rate.
“UCC” means the Uniform Commercial Code as in effect from time to time in the State of
New York or any other state the laws of which are required to be applied in connection with the
issue of perfection of security interests under any Security Agreement.
“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
“Working Capital” means, at any date, the excess of current assets of the Borrower and
its Subsidiaries on such date over current liabilities of the Borrower and its Subsidiaries
on such date, all determined on a consolidated basis in accordance with GAAP.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Type (e.g., a “Eurodollar Loan”).
Borrowings also may be classified and referred to by Type (e.g., a “Eurodollar Borrowing”).
SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Borrower notifies the Lender that the
Borrower requests an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the operation of such
provision (or if the Lender notifies the Borrower that Lender will require an amendment to any
provision hereof for such purpose), regardless of whether any such notice is given before or after
such change in GAAP or in the application thereof, then such provision shall be interpreted on the
basis of GAAP as in effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in accordance herewith.
12
ARTICLE II
The Credit
SECTION 2.01. Commitment. Subject to the terms and conditions set forth herein, the
Lender agrees to make Loans to the Borrower from time to time during the Availability Period in an
aggregate principal amount that will not result in the Revolving Exposure exceeding the Commitment.
Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be made as part of a
Borrowing consisting of Loans of the same Type.
(b) Subject to Section 2.13, each Borrowing shall be comprised entirely of ABR Loans or
Eurodollar Loans as the Borrower may request in accordance herewith, provided that all Borrowings
made on the Effective Date must be made as ABR Borrowings. The Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of the 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.
(c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing
shall be in an aggregate amount that is an integral multiple of $50,000.00 and not less than
$250,000.00. ABR Borrowings may be in any amount. Borrowings of more than one Type may be
outstanding at the same time; provided that there shall not at any time be more than a
total of seven (7) Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.
SECTION 2.03. Borrowing Procedures; Requests for Borrowings. To request a Borrowing,
the Borrower shall notify the Lender of such request by telephone (a) in the case of a Eurodollar
Borrowing, not later than 10:00 a.m., New York time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 10:00 a.m., New York
time, on the date of the proposed Borrowing; provided that any such notice of an ABR
Borrowing to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(d) may
be given not later than 10:00 a.m., New York time, on the date of the proposed Borrowing. Any
notices given after such time shall be considered at the discretion of the Bank. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery
or facsimile to the Lender of a written Borrowing Request in a form approved by the Lender and
signed by the Borrower. Each such telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:
(i) | the aggregate amount of the requested Borrowing; | ||
(ii) | the date of such Borrowing, which shall be a Business Day; | ||
(iii) | whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and | ||
(iv) | in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period.” |
If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar
Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s
duration.
SECTION 2.04. [Section Intentionally Omitted].
SECTION 2.05. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of Credit for its
own account, or for the account of any Domestic Subsidiary, in a form reasonably acceptable to the
Lender at any time and from time to time during the Availability Period. In the event of any
inconsistency between the terms and
13
conditions of this Agreement and the terms and conditions of
any form of letter of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, the Lender relating to any Letter of Credit, the terms and
conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter
of Credit), the Borrower shall hand deliver or facsimile (or transmit by electronic communication,
if arrangements for doing so have been approved by the Lender) to the Lender prior to 9:00 am, New
York time, at least three Business Days prior to the requested date of issuance, amendment, renewal
or extension, a notice requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal
or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the
name and address of the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by the Lender, the Borrower
also shall submit a letter of credit application on the Lender’s standard form in connection with
any request for a 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, (i) the LC Exposure shall not exceed $2,000,000.00 and (ii) the
total Revolving Exposures shall not exceed the Commitment.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five Business Days prior to the Maturity Date; provided
however, that any Letter of Credit with a one year term may provide for the renewal thereof for
additional one year periods (which shall in no event extend beyond the date referred to in clause
(ii) above).
(d) Reimbursement. If the Lender shall make any LC Disbursement in respect of a
Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Lender an
amount equal to such LC Disbursement not later than 11:00 a.m., New York time, on the date that
such LC Disbursement is made, if the Borrower shall have received notice of such LC Disbursement
prior to 9:00 a.m., New York time, on such date, or, if such notice has not been received by the
Borrower prior to such time on such date, then not later than 11:00 a.m., New York time, on (i) the
Business Day that the Borrower receives such notice, if such notice is received prior to 9:00 a.m.,
New York time, on the day of receipt, or (ii) the Business Day immediately following the day that
the Borrower receives such notice, if such notice is not received prior to such time on the day of
receipt; provided that the Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.03 that such payment be financed with an ABR Borrowing
in an equivalent amount and, to the extent so financed, the Borrower’s obligation to make such
payment shall be discharged and replaced by the resulting ABR Borrowing.
(e) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as
provided in paragraph (d) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
Lender 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, or (iv) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s
obligations hereunder. Neither the Lender nor any of its Related Parties, shall have any liability
or responsibility by reason of or in connection with the issuance or transfer of any Letter of
Credit or any payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or
delay in transmission or delivery of any draft, notice or other communication under or relating to
any Letter of Credit (including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond the control of the
Lender; provided that the foregoing shall not be construed to excuse the Lender from
liability to the Borrower to the extent of any direct damages (as opposed to consequential damages,
claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable
law) suffered by the Borrower that are caused by the Lender’s failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of
gross negligence or willful misconduct on the part of the Lender (as finally determined by a court
of competent jurisdiction), the Lender shall be deemed to have exercised care in each such
determination. In furtherance of the foregoing and without limiting the
14
generality thereof, the
parties agree that, with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Lender may, in its sole
discretion, either accept and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict compliance with the terms of
such Letter of Credit.
(f) Disbursement Procedures. The Lender shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of
Credit. The Lender shall promptly notify the Borrower by telephone (confirmed by facsimile) of
such demand for payment and whether the Lender has made or will make an LC Disbursement thereunder;
provided that any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse the Lender with respect to any such LC Disbursement.
(g) Interim Interest. If the Lender shall make any LC Disbursement, then, unless the
Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the
unpaid amount thereof shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement,
at the rate per annum then applicable to ABR Revolving Loans; provided that, if the
Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (d) of this
Section, then Section 2.12(d) shall apply. Interest accrued pursuant to this paragraph shall be
for the account of the Lender.
(h) Cash Collateralization. If any Event of Default shall occur and be continuing, on
the Business Day that the Borrower receives notice from the Lender demanding the deposit of cash
collateral pursuant to this paragraph, the Borrower shall deposit in an account with the Lender, in
the name and for the benefit of the Lender (the “LC Collateral Account”), an amount in cash
equal to 105% of the LC Exposure as of such date plus any accrued and unpaid interest thereon;
provided that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower
described in clause (h) or (i) of Article VII. Such deposit shall be held by the Lender as
Collateral for the payment and performance of the Obligations. The Lender shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such account and the
Borrower hereby grants the Lender a security interest in the LC Collateral Account. Other than any
interest earned on the investment of such deposits, which investments shall be made at the option
and sole discretion of the Lender and at the Borrower’s risk and expense, such deposits shall not
bear interest. Interest or profits, if any, on such investments shall accumulate in such account.
Moneys in such account shall be applied by the Lender for LC Disbursements for which it has not
been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of
the Loans has been accelerated, be applied to satisfy other 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 such Defaults have been cured or waived.
SECTION 2.06. Funding of Borrowings. The Lender shall make each Loan to be made by
it hereunder on the proposed date thereof available to the Borrower by promptly crediting the
amounts in immediately available funds, to the Funding Account; provided that ABR Loans
made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(d) shall be
retained by the Lender.
SECTION 2.07. Interest Elections. (a) Each Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the
case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this
Section. The Borrower may elect different options with respect to different portions of the
affected Borrowing, and the Loans comprising each such portion shall be considered a separate
Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall notify the Lender of such
election by telephone by the time that a Borrowing Request would be required under Section 2.03 if
the Borrower were
requesting a Borrowing of the Type resulting from such election to be made on the effective date of
such election. Each such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or facsimile to the Lender of a written Interest Election
Request in a form approved by the Lender and signed by the Borrower.
15
(c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the portions thereof to
be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election Request,
which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period contemplated
by the definition of the term “Interest Period”.
If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.
(d) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Revolving Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof,
if a Default has occurred and is continuing and the Lender so notifies the Borrower, then, so long
as a Default is continuing (i) no outstanding Revolving Borrowing may be converted to or continued
as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.08. Termination and Reduction of Commitments. (a) Unless previously
terminated, the Commitment shall terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or from time to time reduce, the Commitment;
provided that (i) each reduction of the Commitment shall be in an amount that is an
integral multiple of $1,000,000.00 and not less than $1,000,000.00 and (ii) the Borrower shall not
terminate or reduce the Commitment if, after giving effect to any concurrent prepayment of the
Loans in accordance with Section 2.09, the Revolving Exposure exceeds the Commitment.
(c) The Borrower shall notify the Lender of any election to terminate or reduce the Commitment
under paragraph (b) of this Section at least three Business Days prior to the effective date of
such termination or reduction, specifying such election and the effective date thereof. Each
notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided
that a notice of termination of the Commitment delivered by the Borrower may state that such notice
is conditioned upon the effectiveness of other credit facilities, in which case such notice may be
revoked by the Borrower (by notice to the Lender on or prior to the specified effective date) if
such condition is not satisfied. Any termination or reduction of the Commitment shall be
permanent.
SECTION 2.09. Repayment and Amortization of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay to the Lender for its account the then unpaid
principal amount of each Loan on the Maturity Date. All unpaid Obligations shall be paid in full
in cash by the Borrower on the Maturity Date.
(b) The Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to the Lender resulting from each Loan made by the
Lender, including the amounts of principal and interest payable and paid to the Lender from time to
time hereunder.
(c) The Lender shall maintain accounts in which it shall 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 the Lender
hereunder and (iii) the amount of any sum received by the Lender hereunder.
16
(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of the Lender to maintain such
accounts or any error therein shall not in any manner affect the obligation of the Borrower to
repay the Loans in accordance with the terms of this Agreement.
(e) The Lender may request that Loans made by it be evidenced by a promissory note. In such
event, the Borrower shall prepare, execute and deliver to the Lender a promissory note payable to
the order of the Lender (or, if requested by the Lender, to the Lender and its registered assigns)
and in a form approved by the Lender. Thereafter, the Loans evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to Section 8.04) be
represented by one or more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its registered
assigns).
SECTION 2.10. Prepayment of Loans. (a) The Borrower shall have the right at any
time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (b) of this Section.
(b) The Borrower shall notify the Lender by telephone (confirmed by facsimile) of any
prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 10:00
a.m., New York time, three Business Days before the date of prepayment, or (ii) in the case of
prepayment of an ABR Borrowing, not later than 10:00 a.m., New York time, on the date of
prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid; provided that, if a
notice of prepayment is given in connection with a conditional notice of termination or reduction
of the Commitment as contemplated by Section 2.08, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.08. No partial prepayment of
any Borrowing shall reduce the outstanding principal amount thereof to less than an amount that
would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section
2.02. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.
SECTION 2.11. Fees. (a) The Borrower agrees to pay to the Lender a commitment fee,
which shall accrue at the Applicable Rate on the average daily amount of the Available Commitment
of the Lender during the period from and including the Effective Date to but excluding the date on
which the Lender’s Commitment terminates. Accrued commitment fees shall be payable in arrears on
the last day of each March, June, September and December and on the date on which the Commitment
terminates, commencing on the first such date to occur after the date hereof. All commitment fees
shall be computed on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(b) The Borrower agrees to pay to the Lender a fee with respect to Letters of Credit, which
shall accrue at the same Applicable Rate used to determine the interest rate applicable to
Eurodollar Loans on the average daily amount of the Lender’s LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which the Lender’s Commitment terminates
and the date on which the Lender ceases to have any LC Exposure, as well as the Lender’s standard
fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Fees accrued through and including the last day of each March,
June, September and December shall be payable on the third Business Day following such last day,
commencing on the first such date to occur after the Effective Date; provided that all such
fees shall be payable on the date on which the Commitment terminates and any such fees accruing
after the date on which the Commitment terminates shall be payable on demand. Any other fees
payable to the Lender pursuant to this paragraph shall be payable within 10 days after demand. All
fees shall be computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
(c) All fees payable hereunder shall be paid on the dates due, in immediately available funds,
to the Lender. Fees paid shall not be refundable under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing shall bear
interest at the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.
17
(c) Notwithstanding the foregoing, during the occurrence and continuance of an Event of
Default, the Lender may, at its option, by notice to the Borrower, declare that (i) all Loans shall
bear interest at 2% plus the rate otherwise applicable to such Loans as provided in the preceding
paragraphs of this Section or (ii) in the case of any other amount outstanding hereunder, such
amount shall accrue at 2% plus the rate applicable to such fee or other obligation as provided
hereunder.
(d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and upon termination of the Commitment; provided that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the event of any
repayment or prepayment of any Loan (other than a prepayment of an ABR Loan prior to the end of the
Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable
on the date of such repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such
Loan shall be payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO
Rate shall be determined by the Lender, and such determination shall be conclusive absent manifest
error.
SECTION 2.13. Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurodollar Borrowing:
(a) the Lender determines (which determination shall be conclusive absent manifest
error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period; or
(b) the Lender determines the Adjusted LIBO Rate or the LIBO Rate, as applicable, for
such Interest Period will not adequately and fairly reflect the cost to the Lender of making
or maintaining its Loan for such Interest Period;
then the Lender shall give notice thereof to the Borrower by telephone or facsimile as promptly as
practicable thereafter and, until the Lender notifies the Borrower that the circumstances giving
rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion
of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a Eurodollar
Borrowing shall be ineffective, and (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing.
SECTION 2.14. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,
the Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on the Lender or the London interbank market any other condition affecting
this Agreement or Eurodollar 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 of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to the Lender of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by the Lender hereunder (whether of
principal, interest or otherwise), then the Borrower will pay to the Lender such additional amount
or amounts as will compensate the Lender for such additional costs incurred or reduction suffered.
(b) If the Lender determines that any Change in Law regarding capital requirements has or
would have the effect of reducing the rate of return on the Lender’s capital or on the capital of
the Lender’s holding company, as a consequence of this Agreement or the Loans made by, Letters of
Credit issued by the Lender to a level below that which the Lender or the Lender’s holding company
could have achieved but for such Change in Law (taking into consideration the Lender’s policies and
the policies of the Lender’s holding company with respect to capital adequacy),
18
then from time to
time the Borrower will pay to the Lender such additional amount or amounts as will compensate the
Lender or the Lender’s holding company for any such reduction suffered.
(c) A certificate of the Lender setting forth the amount or amounts necessary to compensate
the Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this
Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay the Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of the Lender to demand compensation pursuant to this Section
shall not constitute a waiver of the Lender’s right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender pursuant to this Section for any
increased costs or reductions incurred more than 180 days prior to the date that the Lender
notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of
the Lender’s intention to claim compensation therefor; provided further that, if
the Change in Law giving rise to such increased costs or reductions is retroactive, then the
180-day period referred to above shall be extended to include the period of retroactive effect
thereof.
SECTION 2.15. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto or (c) the failure to borrow,
convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section 2.08(c) and is
revoked in accordance therewith), then, in any such event, the Borrower shall compensate the Lender
for the loss, cost and expense attributable to such event. In the case of a Eurodollar Loan, such
loss, cost or expense to the Lender shall be deemed to include an amount determined by the Lender
to be the excess, if any, of (i) the amount of interest which would have accrued on the principal
amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for
the period that would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the interest rate which the
Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period from other banks in the eurodollar market. A certificate of the
Lender setting forth any amount or amounts that the Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay the Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without deduction for any Indemnified
Taxes or Other Taxes; provided that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Lender receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.
(c) The Borrower shall indemnify the Lender within 10 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the Lender on or with respect to
any payment by or on account of any obligation of the Borrower hereunder (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section)
and any penalties, interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by the Lender shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the Lender the original or a
certified copy of a receipt issued by such Governmental Authority evidencing such payment and a
copy of the return reporting such payment or other evidence of such payment reasonably satisfactory
to the Lender.
19
(e) If the Lender determines, in its sole discretion, that it has received a refund of any
Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which
the Borrower has paid additional amounts pursuant to this Section 2.16, it shall pay over such
refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts
paid, by the Borrower under this Section 2.16 with respect to the Taxes or Other Taxes giving rise
to such refund), net of all out-of-pocket expenses of the Lender and without interest (other than
any interest paid by the relevant Governmental Authority with respect to such refund); provided,
that the Borrower, upon the request of the Lender, agrees to repay the amount paid over to the
Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Lender in the event the Lender is required to repay such refund to such
Governmental Authority. This Section shall not be construed to require the Lender to make available
its tax returns (or any other information relating to its taxes which it deems confidential) to the
Borrower or any other Person.
SECTION 2.17. Payments Generally; Allocation of Proceeds. The Borrower shall make
each payment required to be made by it hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements, or of amounts payable under Section 2.14, 2.15 or 2.16, or
otherwise) prior to 11:00 a.m., New York time, on the date when due, in immediately available
funds, without set-off or counterclaim. Any amounts received after such time on any date may, in
the discretion of the Lender, be deemed to have been received on the next succeeding Business Day
for purposes of calculating interest thereon. All such payments shall be made to the Lender at its
offices at Xxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000, except that payments pursuant to Section
8.03 shall be made directly to the Persons entitled thereto. If any payment hereunder shall be
due on a day that is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall
be payable for the period of such extension. All payments hereunder shall be made in dollars.
(b) Any proceeds of Collateral or payments received by the Lender (i) not constituting a
specific payment of principal, interest, fees or other sum payable under the Loan Documents (which
shall be applied as specified by the Borrower), or (ii) after an Event of Default has occurred and
is continuing and the Lender so elects such funds shall be applied ratably first, to pay
any fees, indemnities, or expense reimbursements including amounts then due to the Lender from the
Borrower, second, to pay interest then due and payable on the Loans, third, to
prepay principal on the Loans and unreimbursed LC Disbursements in inverse order of maturity,
fourth, to pay an amount to the Lender equal to one hundred five percent (105%) of the
aggregate undrawn face amount of all outstanding Letters of Credit, to be held as cash collateral
for such Obligations, fifth, to payment of any amounts owing with respect to Banking
Services and Swap Obligations, and sixth, to the payment of any other Obligation due to the
Lender by the Borrower. Notwithstanding anything to the contrary contained in this Agreement,
unless so directed by the Borrower, or unless a Default is in existence, the Lender shall not apply
any payment which it receives to any Eurodollar Loan, except on the expiration date of the Interest
Period applicable to any such Eurodollar Loan. In any event, the Borrower shall pay any break
funding payment required in accordance with Section 2.15. The Lender shall have the continuing and
exclusive right to apply and reverse and reapply any and all proceeds and payments referred to in
clause (ii) above to any portion of the Obligations.
SECTION 2.18. Indemnity for Returned Payments. If after receipt of any payment which
is applied to the payment of all or any part of the Obligations, the Lender is for any reason
compelled to surrender such payment or proceeds to any Person because such payment or application
of proceeds is invalidated, declared fraudulent, set aside, determined to be void or voidable as a
preference, impermissible setoff, or a diversion of trust funds, or for any other reason, then the
Obligations or part thereof intended to be satisfied shall be revived and continued and this
Agreement shall continue in
full force as if such payment or proceeds had not been received by the Lender and the Borrower
shall be liable to pay to the Lender. The provisions of this Section 2.18 shall be and remain
effective notwithstanding any contrary action which may have been taken by the Lender in reliance
upon such payment or application of proceeds. The provisions of this Section 2.18 shall survive
the termination of this Agreement.
ARTICLE III
Representations and Warranties
Borrower represents and warrants to the Lender, and each other Loan Party, for itself only,
represents and warrants to the Lender that:
SECTION 3.01. Organization; Powers. Each of the Loan Parties and each of its
Subsidiaries is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite
20
power and authority to carry on its business as
now conducted and is qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions are within each Loan
Party’s corporate powers and have been duly authorized by all necessary corporate and, if required,
shareholder action. The Loan Documents to which each Loan Party is a party have been duly executed
and delivered by such Loan Party and constitute a legal, valid and binding obligation of such Loan
Party, enforceable 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 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in full force and effect
and except for filings necessary to perfect Liens created pursuant to the Loan Documents, (b) will
not violate any Requirement of Law applicable to any Loan Party or any of its Subsidiaries, (c)
will not violate or result in a default under any indenture, agreement or other instrument binding
upon any Loan Party or any of its Subsidiaries or its assets, or give rise to a right thereunder to
require any payment to be made by any Loan Party or any of its Subsidiaries, and (d) will not
result in the creation or imposition of any Lien on any asset of any Loan Party or any of its
Subsidiaries, except Liens created pursuant to the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Borrower has
heretofore furnished to the Lender its consolidated balance sheet and statements of income,
shareholders equity and cash flows (i) as of and for the fiscal year ended March 25, 2006, reported
on by Price Waterhouse Coopers LLP, independent public accountants, and (ii) as of and for the
fiscal quarter and the portion of the fiscal year ended September 23, 2006, certified by its chief
financial officer. Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Borrower and its consolidated
Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements referred to in clause
(ii) above.
(b) No event, change or condition has occurred that has had, or could reasonably be expected
to have, a Material Adverse Effect, since March 25, 2006.
SECTION 3.05. Properties. (a) As of the date of this Agreement, Schedule
3.05 sets forth the address of each parcel of real property that is owned or leased by each
Loan Party. Each of such leases and subleases is valid and enforceable in accordance with its
terms and is in full force and effect, and no material default by any party to any such lease or
sublease exists. Each of the Loan Parties and its Subsidiaries has good and indefeasible title to,
or valid leasehold interests in, all its real and personal property, free of all Liens other than
those permitted by Section 6.02.
(b) Each Loan Party and its Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property necessary to its business as
currently conducted, a correct and complete list of which, as of the date of this Agreement, is set
forth on Schedule 3.05, and the use thereof by the Loan
Parties and its Subsidiaries does not infringe in any material respect upon the rights of any other
Person, and the Loan Parties’ rights thereto are not subject to any licensing agreement or similar
arrangement.
SECTION 3.06. Litigation and Environmental Matters. (a) There are no actions, suits
or proceedings by or before any arbitrator or Governmental Authority pending against or, to the
knowledge of any Loan Party, threatened against or affecting the Loan Parties or any of their
Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination and
that, if adversely determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve this
Agreement or the Transactions.
(b) Except for the Disclosed Matters (i) no Loan Party nor any of its Subsidiaries has
received notice of any claim with respect to any Environmental Liability or knows of any basis for
any Environmental Liability and (ii) except with respect to any other matters that, individually or
in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, no Loan
Party nor any of its Subsidiaries (1) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any Environmental Law
or (2) has become subject to any Environmental Liability.
21
(c) Since the date of this Agreement, there has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, has resulted in, or materially increased the
likelihood of, a Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each Loan Party and its
Subsidiaries is in compliance with all Requirements of Law applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect. No Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. No Loan Party 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 3.09. Taxes. Each Loan Party and its Subsidiaries has timely filed or caused
to be filed all Tax returns and reports required to have been filed and has paid or caused to be
paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good
faith by appropriate proceedings and for which such Loan Party or such Subsidiary, as applicable,
has set aside on its books adequate reserves or (b) to the extent that the failure to do so could
not be expected to result in a Material Adverse Effect. No tax liens have been filed and no claims
are being asserted with respect to any such taxes.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11. Disclosure. The Borrower has disclosed to the Lender all agreements,
instruments and corporate or other restrictions to which it or any Subsidiary is subject, and all
other matters known to it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. None of the reports, financial statements, certificates or
other information furnished by or on behalf of any Loan Party to the Lender in connection with the
negotiation of this Agreement or any other Loan Document (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to state any material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial information,
the Borrower represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time delivered and, if such projected financial
information was delivered prior to the Effective Date, as of the Effective Date.
SECTION 3.12. Material Agreements. No Loan Party is in default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions contained in (i) any
material agreement to which it is a party or (ii) any agreement or instrument evidencing or
governing Indebtedness which, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.13. Solvency. (a) Immediately after the consummation of the Transactions
to occur on the Effective Date, (i) the fair value of the assets of each Loan Party, at a fair
valuation, will exceed its debts and liabilities, subordinated, contingent or otherwise, (ii) the
present fair saleable value of the property of each Loan Party will be greater than the amount that
will be required to pay the probable liability of its debts and other liabilities, subordinated,
contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii)
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 (iv) 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 after the Effective Date.
(b) No Loan Party intends to, or will permit any of its Subsidiaries to, and believes that it
or any of its Subsidiaries will, incur debts on a consolidated basis with all Loan Parties beyond
their collective ability to pay such debts as they mature, taking into account the timing of and
amounts of cash to be received by them or any such Subsidiary and the timing of the amounts of cash
to be payable on or in respect of their Indebtedness.
SECTION 3.14. Insurance. Schedule 3.14 sets forth a description of all
insurance maintained by or on behalf of the Loan Parties and the Subsidiaries as of the Effective
Date. As of the Effective Date, all premiums in respect of such insurance have been paid. The
Borrower believes that the insurance maintained by or on behalf of the Borrower and the
Subsidiaries is adequate.
22
SECTION 3.15. Capitalization and Subsidiaries. Schedule 3.15 sets forth (a)
a correct and complete list of the name and relationship to the Borrower of each and all of the
Borrower’s Subsidiaries, (b) a true and complete listing of each class of each of the Borrower’s
authorized Equity Interests, and all issued shares are validly issued, outstanding, fully paid and
non-assessable, (c) the type of entity of the Borrower and each of its Subsidiaries, and (d) the
current listing of all Domestic Subsidiaries. All of the issued and outstanding Equity Interests
owned by any Loan Party has been (to the extent such concepts are relevant with respect to such
ownership interests) duly authorized and issued and is fully paid and non-assessable.
SECTION 3.16. Security Interest in Collateral. The provisions of the Security
Agreement, this Agreement and the other Loan Documents create legal and valid Liens on all the
Collateral in which a security interest may be created under Article 9 of the UCC (“Article 9”) in
favor and for the benefit of the Lender; and such Liens constitute perfected and continuing Liens
on such Collateral, securing the Obligations, enforceable against the applicable Loan Party and all
third parties, and having priority over all other Liens, on any material portion of such Collateral
(such determination of materiality shall be made by Lender in its reasonable discretion), except in
the case of (a) Permitted Encumbrances and Liens permitted under Section 6.02, to the extent any
such Permitted Encumbrances and Liens would have priority over the Liens in favor of the Lender
pursuant to any applicable law or agreement, (b) Liens that can be perfected only by possession or
only by control, to the extent the Lender has not obtained or does not maintain possession or
control of such Collateral, (c) if a Lien can be perfected either by possession or by control and
also by filing a financing statement under Article 9, Lender will not have priority if the Lender
has not obtained or does not maintain possession or control of such Collateral and the UCC grants
priority to any third party having possession or control, (d) Liens that can only be perfected
under a certificate of title law, to the extent the Lender has not complied with the terms thereof,
(e) Liens on Collateral the existence of which the Borrower has properly disclosed in writing to
the Lender, if the Lender has determined not to take action that will result in either perfection
or priority of Lender’s security interest therein, provided Borrower has delivered to the Lender a
certificate dated as of the Closing Date under which the Borrower represents that there is no such
Collateral in existence on the Closing Date in excess of $100,000, (f) to the extent that Section
9-328 of the UCC grants priority to a third party over the Lender with respect to a Lien on
Investment Property and the Lender has not obtained a control agreement with respect thereto (g) a
Lien on a fixture, to the extent that Borrower has not verified whether an encumbrancer or owner of
real estate has a Lien that is prior to that of Lender and (h) Permitted Consignment Inventory.
Nothing contained herein shall be construed as limiting the Lender’s ability to require that the
Borrower take further action (including, without limitation, gaining possession, control or third
party consents) in order to create or perfect the Lender’s security interest in the Collateral or
to gain priority thereof in favor of the Lender in accordance with the Security Agreement.
SECTION 3.17. Labor Disputes. As of the Effective Date, there are no strikes,
lockouts or slowdowns against any Loan Party or any Subsidiary pending or, to the knowledge of the
Borrower, threatened. The hours worked by and payments made to employees of the Loan Parties and
the 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 any Loan
Party or any Subsidiary, or for which any claim may be made against any Loan Party or any
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 Loan Party or such Subsidiary.
SECTION 3.18. Affiliate Transactions. Except for transactions permitted under Section
6.09 or as set forth on Schedule 3.18, as of the date of this Agreement, there are no
existing or proposed agreements, arrangements, understandings, or transactions between any Loan
Party and any of the officers, members, managers, directors, shareholders, parents, other interest
holders, employees, or Affiliates (other than Subsidiaries) of any Loan Party or any members of
their respective immediate families, and none of the foregoing Persons are directly or indirectly
indebted to any Affiliate of any Loan Party.
SECTION 3.19. Common Enterprise. Each Loan Party expects to derive benefit (and its
board of directors or other governing body has determined that it may reasonably be expected to
derive benefit), directly and indirectly, from (i) successful operations of each of the other Loan
Parties and (ii) the credit extended by the Lenders to the Borrower hereunder, both in their
separate capacities and as members of the group of companies. Each Loan Party has determined that
execution, delivery, and performance of this Agreement and any other Loan Documents to be executed
by such Loan Party is within its purpose, will be of direct and indirect benefit to such Loan
Party, and is in its best interest.
23
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lender to make Loans and to
issue Letters of Credit hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 8.02):
(a) Credit Agreement and Loan Documents. The Lender (or its counsel) shall have
received (i) from each party hereto either (A) a counterpart of this Agreement signed on
behalf of such party or (B) written evidence satisfactory to the Lender (which may include
facsimile transmission of a signed signature page of this Agreement) that such party has
signed a counterpart of this Agreement and (ii) duly executed copies of the Loan Documents
and such other certificates, documents, instruments and agreements as the Lender shall
reasonably request in connection with the transactions contemplated by this Agreement and the
other Loan Documents, including all those documents and requirements listed in the Closing
Checklist, each in form and substance reasonably satisfactory to Lender.
(b) Financial Statements and Projections. The Lender shall have received (i)
audited consolidated financial statements of the Borrower for the 2006 and 2005 fiscal years,
(ii) unaudited interim consolidated financial statements of the Borrower for each fiscal
quarter ended after the date of the latest applicable financial statements delivered pursuant
to clause (i) of this paragraph as to which such financial statements are available, and such
financial statements shall not, in the reasonable judgment of the Lender, reflect any
material adverse change in the consolidated financial condition of Borrower, as reflected in
the financial statements or projections.
(c) Fees. The Lender shall have received all fees required to be paid, and all
expenses for which invoices have been presented (including the reasonable fees and expenses
of legal counsel), on or before the Effective Date. All such amounts will be paid with
proceeds of Loans made on the Effective Date and will be reflected in the funding
instructions given by the Borrower to the Lender on or before the Effective Date.
(d) Pledged Stock; Stock Powers; Pledged Notes. The Lender shall have received
(i) the certificates representing the shares of Equity Interests pledged pursuant to the
Security Agreement, together with an undated stock power for each such certificate executed
in blank by a duly authorized officer of the pledgor thereof and (ii) each promissory note
(if any) pledged to the Lender pursuant to the Security
Agreement endorsed (without recourse) in blank (or accompanied by an executed transfer
form in blank) by the pledgor thereof.
(e) Filings, Registrations and Recordings. Each document (including any Uniform
Commercial Code financing statement, Trademark or Copyright notice) required by the
Collateral Documents or under law or reasonably requested by the Lender to be filed,
registered or recorded in order to create in favor of the Lender, a perfected Lien on the
Collateral described therein, prior and superior in right to any other Person (other than
with respect to Liens expressly permitted by Section 6.02), shall be in proper form for
filing, registration or recordation.
(f) Other Documents. The Lender shall have received such other documents as the
Lender or its counsel may have reasonably requested and those items set forth on the Closing
Checklist.
The Lender shall notify the Borrower of the Effective Date, and such notice shall be conclusive and
binding. Notwithstanding the foregoing, the obligations of the Lender to make Loans and to issue
Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 9.02) at or prior to 2:00 p.m., New York time, on November
30, 2006 (and, in the event such conditions are not so satisfied or waived, the Commitments shall
terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of the Lender to make a Loan on the
occasion of any Borrowing, and to issue, amend, renew or extend any Letter of Credit, is subject to
the satisfaction of the following conditions:
24
(a) The representations and warranties of each Loan Party set forth in this Agreement
shall be true and correct on and as of the date of such Borrowing or the date of issuance,
amendment, renewal or extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default
shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by the Borrower on the date thereof as to the
matters specified in paragraphs (a) and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitment has expired or been terminated and the principal of and interest on each
Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit shall
have expired or terminated and all LC Disbursements shall have been reimbursed, Borrower agrees,
and each other Loan Party executing this Agreement covenants and agrees, (but only to the extent
that any of the following requires performance by such other Loan Party), with the Lender that:
SECTION 5.01. Financial Statements; Borrowing Base and Other Information. The
Borrower will furnish to the Lender:
(a) within 90 days after the end of each fiscal year of the Borrower, (i) its Annual
Report on Form 10-K filed with the SEC for such fiscal year or (ii) its audited consolidated
balance sheet and related statements of operations, shareholders’ equity and cash flows as of
the end of and for such year, setting forth in each case in comparative form the figures for
the previous fiscal year, all reported on by independent public accountants acceptable to the
Lender (without a “going concern” or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect that such
consolidated financial statements present fairly in all material respects the financial
condition and results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, accompanied by any
management letter prepared by said accountants;
(b) within 45 days after the end of each of the first three fiscal quarters of the
Borrower, either (i) its Quarterly Report on Form 10-Q filed with the SEC for such fiscal
quarter or (ii) its consolidated balance sheet and related statements of operations,
shareholders’ equity and cash flows as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case in comparative form the
figures for the corresponding period or periods of (or, in the case of the balance sheet, as
of the end of) the previous fiscal year, all certified by one of its Financial Officers as
presenting fairly 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 and the absence of
footnotes;
(c) concurrently with any delivery of financial statements under clause (a) or (b)
above, a certificate of a Financial Officer of the Borrower in substantially the form of
Exhibit B (i) certifying, in the case of the financial statements delivered under
clause (b), as presenting fairly 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 and
the absence of footnotes, (ii) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken or proposed to be
taken with respect thereto, (iii) setting forth reasonably detailed calculations
demonstrating compliance with Sections 6.12(a) and (b) and (iv) stating whether any change in
GAAP or in the application thereof has occurred since the date of the audited financial
statements referred to in Section 3.04 and, if any such change has occurred, specifying the
effect of such change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under clause (a) above, a
certificate of the accounting firm that reported on such financial statements stating whether
they obtained knowledge during
25
the course of their examination of such financial statements
of any Default (which certificate may be limited to the extent required by accounting rules
or guidelines);
(e) as soon as available, but in any event by the end of each fiscal year of the
Borrower, a copy of the plan and forecast (including a projected consolidated balance sheet,
income statement and funds flow statement) of the Borrower for each month of such fiscal year
(the “Projections”) in form reasonably satisfactory to the Lender;
(f) 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 Subsidiary with
the SEC, or any Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the Borrower to its
shareholders generally, as the case may be; and
(g) promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of the Borrower or any Subsidiary, or
compliance with the terms of this Agreement, as the Lender may reasonably request.
SECTION 5.02. Notices of Material Events. The Borrower will furnish to the Lender
prompt written notice of the following:
(a) the occurrence of any Default;
(b) receipt of any notice of any governmental investigation or any litigation commenced
or threatened against any Loan Party that (i) seeks damages in excess of $100,000.00, (ii)
seeks injunctive relief, (iii) is asserted or instituted against any Plan, its fiduciaries or
its assets, (iv) alleges criminal misconduct by any Loan Party, (v) alleges the violation of
any law regarding, or seeks remedies in connection with, any Environmental Laws; (vi)
contests any tax, fee, assessment, or other governmental charge in excess of $100,000.00, or
(vii) involves any product recall;
(c) the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in a Material Adverse
Effect;
(d) any Lien (other than Permitted Encumbrances) or claim made or asserted against any
of the Collateral, other than claims asserted in the ordinary course of business, which do
not in any one instance or the aggregate exceed $200,000;
(e) any loss, damage, or destruction to the Collateral, in one occurrence or a series of
occurrences, in the amount of $200,000.00 or more, whether or not covered by insurance;
(f) any and all default notices received under or with respect to any leased location or
public warehouse where a material amount of Collateral is located (which shall be delivered
within two Business Days after receipt thereof);
(g) all material amendments to the Borrower’s written distribution agreements, together
with a copy of each such amendment;
(h) the fact that a Loan Party has entered into a Swap Agreement or an amendment to a
Swap Agreement, together with copies of all agreements evidencing such Swap Agreement or
amendments thereto (which shall be delivered within two Business Days); and
(i) any other development that results in, or could reasonably be expected to result in,
a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer
or other executive officer of the Borrower setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. Borrower will, and will cause each
Domestic Subsidiary to, (a) do or cause to be done all things necessary to preserve, renew and keep
in full force and effect its
26
legal existence and the rights, qualifications, licenses, permits, franchises, governmental
authorizations, intellectual property rights, licenses and permits material to the conduct of the
business of Borrower and its Subsidiaries taken as a whole, and maintain all requisite authority to
conduct such business in each jurisdiction in which such business is conducted, to the extent
material to the business of the Borrower and its Subsidiaries, taken as a whole; provided
that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution
permitted under Section 6.03 and (b) carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently conducted.
SECTION 5.04. Payment of Obligations. Each Loan Party will, and will cause each
Subsidiary to, pay or discharge all Material Indebtedness and all other material liabilities and
obligations, including Taxes, for which it is obligated before the same shall become delinquent or
in default, except where (a) the validity or amount thereof is being contested in good faith by
appropriate proceedings, (b) such Loan Party or such Subsidiary has set aside on its books adequate
reserves with respect thereto in accordance with GAAP and (c) the failure to make payment pending
such contest could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties. Each Loan Party will, and will cause each
Subsidiary to, keep and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted.
SECTION 5.06. Books and Records; Inspection Rights. Each Loan Party will, and will
cause each Subsidiary to, (i) keep proper books of record and account in which full, true and
correct entries are made of all dealings and transactions in relation to its business and
activities and (ii) permit any representatives designated by the Lender (including employees of the
Lender or any consultants, accountants, lawyers and appraisers retained by the Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its
books and records, including environmental assessment reports and Phase I or Phase II studies, and
to discuss its affairs, finances and condition with its officers and independent accountants, all
at such reasonable times and as often as reasonably requested. The Loan Parties acknowledge that
the Lender, after exercising its rights of inspection, may prepare certain Reports pertaining to
the Loan Parties’ assets for internal use by the Lender.
SECTION 5.07. Compliance with Laws. Each Loan Party will, and will cause each
Subsidiary to, comply with all Requirements of Law applicable to it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds and Letters of Credit. The proceeds of the Loans will
be used only for refinancing of existing debt and for working capital and general corporate
purposes. No part of the proceeds of any Loan and no Letter of Credit will be used, whether
directly or indirectly, (i) for any purpose that entails a violation of any of the Regulations of
the Board, including Regulations T, U and X or (ii) to make any Acquisition other than Permitted
Acquisitions.
SECTION 5.09. Insurance . Each Loan Party will, and will cause each Subsidiary to,
maintain with financially sound and reputable carriers having a financial strength rating of at
least A+ by A.M. Best Company (a) insurance in such amounts (with no greater risk retention) and
against such risks (including (i) loss or damage by fire and loss in transit; (ii) theft, burglary,
pilferage, larceny, embezzlement, and other criminal activities; (iii) business interruption; (iv)
general liability and (v) and such other hazards, as is customarily maintained by companies of
established repute engaged in the same or similar businesses operating in the same or similar
locations and (b) all insurance required pursuant to the Collateral Documents. The Borrower will
furnish to the Lender, upon request of the Lender, information in reasonable detail as to the
insurance so maintained.
SECTION 5.10. Casualty and Condemnation. The Borrower (a) will furnish to the Lender
prompt written notice of any casualty or other insured damage to any material portion of the
Collateral or the commencement of any action or proceeding for the taking of any material portion
of the Collateral or interest therein under power of eminent domain or by condemnation or similar
proceeding and (b) will ensure that the Net Proceeds of any such event (whether in the form of
insurance proceeds, condemnation awards or otherwise) are collected and applied in accordance with
the applicable provisions of this Agreement and the Collateral Documents.
SECTION 5.11. Depository Banks. The Borrower and each Subsidiary will use their best
efforts within a reasonable period after the Closing Date to cause the Lender to be its principal
depository bank and maintain Lender as such thereafter, including for the maintenance of operating,
administrative, cash management, collection activity,
27
and other deposit accounts for the conduct of its business subject, however, to Lender’s ability to
provide such services on commercially reasonable terms.
SECTION 5.12. Additional Collateral; Further Assurances. (a) Subject to applicable
law, the Borrower and each Subsidiary that is a Loan Party shall, unless the Lender otherwise
consents, cause each of its Domestic Subsidiaries formed or acquired after the date of this
Agreement in accordance with the terms of this Agreement and each Subsidiary that acquires
sufficient assets to become a Domestic Subsidiary after the date of this Agreement to become a
Loan Party by executing a Loan Guaranty and Security Agreement in form and content reasonably
acceptable to Lender. Upon execution and delivery thereof, each such Person (i) shall
automatically become a Loan Guarantor hereunder and thereupon shall have all of the rights,
benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will grant
Liens to the Lender, in any property of such Loan Party which constitutes Collateral.
(b) The Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued
and outstanding Equity Interests of each of its domestic Subsidiaries and (ii) 65% (or such greater
percentage that, due to a change in applicable law after the date hereof, (1) could not reasonably
be expected to cause the undistributed earnings of such foreign Subsidiary as determined for U.S.
federal income tax purposes to be treated as a deemed dividend to such foreign Subsidiary’s U.S.
parent and (2) could not reasonably be expected to cause any material adverse tax consequences) of
the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg.
Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests not entitled to vote
(within the meaning of Treas. Reg. Section 1.956-2(c)(2) in each foreign Subsidiary directly owned
by the Borrower or any Domestic Subsidiary to be subject at all times to a first priority,
perfected Lien in favor of the Lender pursuant to the terms and conditions of the Loan Documents or
other security documents as the Lender shall reasonably request.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary to,
execute and deliver, or cause to be executed and delivered, to the Lender such documents,
agreements and instruments, and will take or cause to be taken such further actions (including the
filing and recording of financing statements, fixture filings and other documents and such other
actions or deliveries of the type required by Section 4.01, as applicable), which may be required
by law or which the Lender may, from time to time, reasonably request to carry out the terms and
conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of
the Liens against such Loan Party’s Collateral, created or intended to be created by the Collateral
Documents, all at the expense of the Loan Party which owns such Collateral.
(d) If any material assets (other than any real property or improvements thereto or any
interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the
Effective Date (other than assets constituting Collateral under the Security Agreement that become
subject to the Lien in favor of the Security Agreement upon acquisition thereof), the Borrower will
notify the Lender, and, if requested by the Lender, the Borrower will cause such assets to be
subjected to a Lien securing the Obligations and will take, and cause the Subsidiary Loan Parties
to take, such actions as shall be necessary or reasonably requested by the Lender to grant and
perfect such Liens, including actions described in paragraph (c) of this Section, all at the
expense of the Borrower.
ARTICLE VI
Negative Covenants
Until the Commitment has expired or terminated and the principal of and interest on each Loan
and all fees, expenses and other amounts payable under any Loan Document have been paid in full and
all Letters of Credit have expired or terminated and all LC Disbursements shall have been
reimbursed, the Borrower agrees, and each other Loan Party covenants and agrees (but only to the
extent that any of the following requires performance by such other Loan Party, with the Lender
that:
SECTION 6.01. Indebtedness. It will not, nor will it permit any Subsidiary to,
create, incur or suffer to exist any Indebtedness, except:
(a) the Obligations incurred by it;
(b) Indebtedness existing on the date hereof and set forth in Schedule 6.01 and
extensions, renewals and replacements of any such Indebtedness in accordance with clause (f)
hereof;
28
(c) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower
or any other Subsidiary, provided that (i) Indebtedness of any Subsidiary that is
not a Loan Party to the Borrower or to any Subsidiary that is a Loan Party shall be subject
to Section 6.04(e) and (ii) Indebtedness of the Borrower to any Subsidiary and Indebtedness
of any Subsidiary that is a Loan Party to any Subsidiary that is not a Loan Party shall be
subordinated to the Obligations on terms reasonably satisfactory to the Lender;
(d) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary
of Indebtedness of the Borrower or any other Subsidiary, provided that (i) the
Indebtedness so Guaranteed is permitted by this Section 6.01, (ii) Guarantees by the Borrower
or any Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is not a Loan
Party shall be subject to the provision to Section 6.04(f) and (iii) Guarantees permitted
under this clause (d) shall be subordinated to any Obligations of the applicable Subsidiary
on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(e) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets (whether or not constituting
purchase money Indebtedness), including Capital Lease Obligations and any Indebtedness
assumed in connection with the acquisition of any such assets or secured by a Lien on any
such assets prior to the acquisition thereof, and extensions, renewals and replacements of
any such Indebtedness in accordance with clause (f) hereof; provided that (i) such
Indebtedness is incurred prior to or within 90 days after such acquisition or the completion
of such construction or improvement and (ii) the aggregate principal amount of Indebtedness
permitted by this clause (e) shall not exceed $100,000 or when combined with the principal
amount of the Indebtedness permitted by clause (b) above, $200,000;
(f) Indebtedness which represents an extension, refinancing, or renewal of any of the
Indebtedness described in clauses (b) and (e) hereof; provided that, (i) the
principal amount or interest rate of such Indebtedness is not increased above the maximum
amount of such Indebtedness then or previously permitted hereunder, (ii) any Liens securing
such Indebtedness are not extended to any additional property of any Loan Party, (iii) no
Loan Party that is not originally obligated with respect to repayment of such Indebtedness is
required to become obligated with respect thereto, (iv) such extension, refinancing or
renewal does not result in a shortening of the average weighted maturity of the Indebtedness
so extended, refinanced or renewed, (v) the terms of any such extension, refinancing, or
renewal are not less favorable to the obligor thereunder than the original terms of such
Indebtedness and (iv) if the Indebtedness that is refinanced, renewed, or extended was
subordinated in right of payment to the Obligations, then the terms and conditions of the
refinancing, renewal, or extension Indebtedness must include subordination terms and
conditions that are at least as favorable to the Lender as those that were applicable to the
refinanced, renewed, or extended Indebtedness;
(g) Indebtedness owed to any person providing workers’ compensation, health, disability
or other employee benefits or property, casualty or liability insurance, pursuant to
reimbursement or indemnification obligations to such person, in each case incurred in the
ordinary course of business;
(h) Indebtedness of the Borrower or any Subsidiary in respect of performance bonds, bid
bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the
ordinary course of business;
SECTION 6.02. Liens. No Loan Party will, nor will it permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights
in respect of any thereof, except:
(a) Liens created pursuant to any Loan Document;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of the Borrower or any Subsidiary existing on the
date hereof and set forth in Schedule 6.02; provided that (i) such Lien shall
not apply to any other property or asset of the Borrower or Subsidiary and (ii) such Lien
shall secure only those obligations which it secures on the date hereof and extensions,
renewals and replacements thereof that do not increase the outstanding principal amount
thereof, above the maximum amount of such Indebtedness then or previously permitted
hereunder;
29
(d) Liens on fixed or capital assets acquired, constructed or improved by the Borrower
or any Subsidiary; provided that (i) such security interests secure Indebtedness
permitted by clause (e) of Section 6.01, (ii) such security interests and the Indebtedness
secured thereby are incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement, (iii) the Indebtedness secured thereby does
not exceed the cost of acquiring, constructing or improving such fixed or capital assets and
(iv) such security interests shall not apply to any other property or assets of the Borrower
or Subsidiary;
(e) Liens of a collecting bank arising in the ordinary course of business under Section
4-208 of the Uniform Commercial Code in effect in the relevant jurisdiction covering only the
items being collected upon;
(f) Liens arising out of sale and leaseback transactions permitted by Section 6.06; and
(g) Liens granted by a Subsidiary that is not a Loan Party in favor of the Borrower or
another Loan Party in respect of Indebtedness owed by such Subsidiary.
SECTION 6.03. Fundamental Changes. (a) No Loan Party will, nor will it permit any
Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge
into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Event of Default shall have occurred and be continuing
(i) any Person may merge into the Borrower in a transaction in which the surviving entity is the
Borrower, (ii) any Person may merge into any Subsidiary in a transaction in which the surviving
entity is a Subsidiary and, if any party to such merger is a Subsidiary that is a Loan Party, is or
becomes a Subsidiary that is Loan Party concurrently with such merger, and (iii) any Subsidiary
that is not a Loan Party may liquidate or dissolve if the Borrower determines in good faith that
such liquidation or dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lender; provided that any such merger involving a Person that is not
a wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also
permitted by Section 6.04.
(b) No Loan Party will, nor will it permit any of its Subsidiaries to, engage to any material
extent in any business other than businesses of the type conducted by the Borrower and its
Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto.
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions. No Loan
Party will, nor will it permit any Subsidiary to, purchase, hold or acquire (including pursuant to
any merger with any Person that was not a Loan Party and a wholly owned Subsidiary prior to such
merger) any capital stock, evidences of indebtedness or other securities (including any option,
warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or
advances to, Guarantee any obligations of, or make or permit to exist any investment or any other
interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of
transactions) any assets of any other Person constituting a business unit (whether through purchase
of assets, merger or otherwise), except:
(a) Permitted Investments, subject to control agreements in favor of the Lender or
otherwise subject to a perfected security interest in favor of the Lender;
(b) Permitted Acquisitions, subject to Lender’s receipt of any Loan Guarantees and
Security Agreements in favor of the Lender required pursuant to Section 5.12;
(c) investments in existence on the date of this Agreement and described in Schedule
6.04;
(d) investments by the Borrower and the Subsidiaries in Equity Interests in their
respective Subsidiaries, provided that (A) any such Equity Interests held by a Loan
Party shall be pledged pursuant to the Security Agreement (subject to the limitations
applicable to common stock of a foreign Subsidiary referred to in Section 5.12) and (B) the
aggregate amount of investments by Loan Parties in Subsidiaries that are not Loan Parties
(together with outstanding intercompany loans permitted under clause (B) to the proviso to
Section 6.04(e) and outstanding Guarantees permitted under the proviso to Section 6.04(f))
shall not exceed $100,000.00 at any time outstanding (in each case determined without regard
to any write-downs or write-offs);
(e) loans or advances made by the Borrower to any Subsidiary and made by any Subsidiary
to the Borrower or any other Subsidiary, provided that (A) any such loans and
advances made by a Loan Party shall be subject to the Security Agreement and if such are
evidenced by a promissory note, the same shall be
30
endorsed and delivered to the Lender and (B) the amount of such loans and advances made
by Loan Parties to Subsidiaries that are not Loan Parties (together with outstanding
investments permitted under clause (B) to the proviso to Section 6.04(d) and outstanding
Guarantees permitted under the proviso to Section 6.04(f)) shall not exceed $100,000.00 at
any time outstanding (in each case determined without regard to any write-downs or
write-offs);
(f) Guarantees constituting Indebtedness permitted by Section 6.01, provided
that the aggregate principal amount of Indebtedness of Subsidiaries that are not Loan Parties
that is Guaranteed by any Loan Party shall (together with outstanding investments permitted
under clause (B) to the proviso to Section 6.04(d) and outstanding intercompany loans
permitted under clause (B) to the proviso to Section 6.04(e)) shall not exceed $100,000.00 at
any time outstanding (in each case determined without regard to any write-downs or
write-offs);
(g) loans or advances made by a Loan Party to its employees on an arms-length basis in
the ordinary course of business consistent with past practices for travel and entertainment
expenses, relocation costs and similar purposes;
(h) investments in the form of Swap Agreements permitted by Section 6.07;
(i) investments of any Person existing at the time such Person becomes a Subsidiary of
the Borrower or consolidates or merges with the Borrower or any of the Subsidiaries
(including in connection with a Permitted Acquisition) so long as such investments were not
made in contemplation of such Person becoming a Subsidiary or of such merger;
(j) investments received in connection with the dispositions of assets permitted by
Section 6.05;
(k) investments constituting deposits described in clauses (c) and (d) of the definition
of the term “Permitted Encumbrances”; and
(l) capital stock or other securities with a maximum aggregate value or face amount not
exceeding $100,000 at any time, acquired in connection with the compromise, settlement or
collection of accounts receivable and provided there exists no Event of Default at such time.
SECTION 6.05. Asset Sales. No Loan Party will, nor will it permit any Subsidiary to,
sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it,
nor will the Borrower permit any Subsidiary to issue any additional Equity Interest in such
Subsidiary (other than to the Borrower or another Subsidiary in compliance with Section 6.04),
except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of
business and (ii) used, obsolete, worn out or surplus equipment or property in the ordinary
course of business;
(b) sales, transfers and dispositions to the Borrower or any Subsidiary,
provided that any such sales, transfers or dispositions involving a Subsidiary that
is not a Loan Party shall be made in compliance with Section 6.09;
(c) sales, transfers and dispositions of accounts receivable in connection with the
compromise, settlement or collection thereof;
(d) sales, transfers and dispositions of investments permitted Section 6.04;
(e) sale and leaseback transactions permitted by Section 6.06; and
(f) dispositions resulting from any casualty or other insured damage to, or any taking
under power of eminent domain or by condemnation or similar proceeding of, any property or
asset of the Borrower or any Subsidiary.
provided that all sales, transfers, leases and other dispositions permitted hereby (other
than those permitted by paragraphs (b) and (f) above) shall be made for fair value and for at least
75% cash consideration.
31
SECTION 6.06. Sale and Leaseback Transactions. No Loan Party will, nor will it
permit any Subsidiary to, enter into any arrangement, directly or indirectly, 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 that it intends to
use for substantially the same purpose or purposes as the property sold or transferred, except for
any such sale of any fixed or capital assets by the Borrower or any Subsidiary that is made for
cash consideration in an amount not less than the fair value of such fixed or capital asset and is
consummated within 90 days after the Borrower or such Subsidiary acquires or completes the
construction of such fixed or capital asset.
SECTION 6.07. Swap Agreements. No Loan Party will, nor will it permit any
Subsidiary to, enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or
mitigate risks to which the Borrower or any Subsidiary has actual exposure (other than those in
respect of Equity Interests of the Borrower or any of its Subsidiaries), and (b) Swap Agreements
entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating
rates, from one floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of the Borrower or any Subsidiary.
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness. (a) No Loan
Party will, nor will it permit any Subsidiary to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise)
to do so, except (i) the Borrower may declare and pay dividends with respect to its common stock
payable solely in additional shares of its common stock, and, with respect to its preferred stock,
payable solely in additional shares of such preferred stock or in shares of its common stock, (ii)
Subsidiaries may declare and pay dividends ratably with respect to their Equity Interests, (iii)
the Borrower may make Restricted Payments, during any fiscal year, pursuant to and in accordance
with stock option plans or other benefit plans for management or employees of the Borrower and its
Subsidiaries and (iv) the Borrower may purchase stock of the Borrower and pay Permitted Dividends
during any fiscal year up to an aggregate amount for all such purchases and payments of $1,000,000,
as long as no Default exists at the time of or would result from such payments. “Permitted
Dividends” as used herein shall be dividends in an amount not to exceed $500,000 in any fiscal
year.
(b) No Loan Party will, nor will it permit any Subsidiary to, make or agree to pay or make,
directly or indirectly, any payment or other distribution (whether in cash, securities or other
property) of or in respect of principal of or interest on any Indebtedness, or any payment or other
distribution (whether in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as and when
due in respect of any Indebtedness, other than payments in respect of the Subordinated
Indebtedness prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section 6.01; and
(iv) payment of secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such Indebtedness.
SECTION 6.09. Transactions with Affiliates. No Loan Party will, nor will it permit
any Subsidiary to, sell, lease or otherwise transfer any property or assets to, or purchase, lease
or otherwise acquire any property or assets from, or otherwise engage in any other transactions
with, any of its Affiliates, except (a) transactions that (i) are in the ordinary course of
business and (ii) are at prices and on terms and conditions not less favorable to the Borrower or
such Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties, (b)
transactions between or among the Borrower and any Subsidiary that is a Loan Party not involving
any other Affiliate, (c) any investment permitted by Sections 6.04(d) any Indebtedness permitted
under Section 6.01(e) any Restricted Payment permitted by Section 6.08, (f) loans or advances to
employees permitted under Section 6.04, (g) the payment of reasonable fees to directors of the
Borrower or any Subsidiary who are not employees of the Borrower or any Subsidiary, and
compensation and employee benefit arrangements paid to, and indemnities provided for the benefit
of, directors, officers, employees or former employees of the Borrower or its Subsidiaries in the
ordinary course of business and (h) any issuances of securities or other payments, awards or grants
in cash, securities or otherwise pursuant to, or the funding of, employment agreements, stock
options and stock ownership plans approved by the Borrower’s board of directors.
32
SECTION 6.10. Restrictive Agreements. No Loan Party will, nor will it permit any
Subsidiary to, directly or indirectly, enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (a) the ability of such Loan
Party or any of its Subsidiaries to create, incur or permit to exist any Lien upon any of its
property or assets, or (b) the ability of any Subsidiary to pay dividends or other distributions
with respect to any shares of its capital stock or to make or repay loans or advances to the
Borrower or any other Subsidiary or to Guarantee Indebtedness of the Borrower or any other
Subsidiary; provided that (i) the foregoing shall not apply to restrictions and conditions
imposed by law or by any Loan Document, (ii) the foregoing shall not apply to restrictions and
conditions existing on the date hereof identified on Schedule 6.10 (and shall not apply to
any extension or renewal of, or any amendment or modification that does not expand the scope of,
any such restriction or condition), (iii) the foregoing shall not apply to customary restrictions
and conditions contained in agreements relating to the sale of a Subsidiary pending such sale,
provided such restrictions and conditions apply only to the Subsidiary that is to be sold and such
sale is permitted hereunder, (iv) clause (a) of the foregoing shall not apply to restrictions or
conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if
such restrictions or conditions apply only to the property or assets securing such Indebtedness and
(v) clause (a) of the foregoing shall not apply to customary provisions in leases [and other
contracts] restricting the assignment thereof.
SECTION 6.11. Amendment of Material Documents. No Loan Party will, nor will it permit
any Subsidiary to, amend, modify or waive any of its rights under (a) agreement relating to any
Subordinated Indebtedness, (b) its certificate of incorporation, by-laws, operating, management or
partnership agreement or other organizational documents or (c) any written distribution agreement
of the Borrower to the extent any such amendment, modification or waiver would be adverse to the
Lender.
SECTION 6.12. Financial Covenants.
(a) Fixed Charge Coverage Ratio. The Borrower will not permit as of the end of each
fiscal quarter the Fixed Charge Coverage Ratio, determined for the period of four consecutive
fiscal quarters then ending to be less than 1.40 to 1.0.
(b) Leverage Ratio. The Borrower will not permit as of the end of each fiscal
quarter, the Leverage Ratio, (with Total Funded Debt measured at the end of such quarter and EBITDA
determined for the period of four consecutive fiscal quarters then ending), to be greater than 2.75
to 1.0.
ARTICLE VII
Events of Default
If any of the following events (“Events of Default”) shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article) payable under this
Agreement, when and as the same shall become due and payable, and such failure shall continue
unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or on behalf of any Loan Party
or any Subsidiary in or in connection with this Agreement or any Loan Document or any
amendment or modification thereof or waiver thereunder, or in any report, certificate,
financial statement or other document furnished pursuant to or in connection with this
Agreement or any Loan Document or any amendment or modification thereof or waiver thereunder,
shall prove to have been materially incorrect when made or deemed made; provided, however, if
any Event of Default under this Subsection (c) occurs on account of a misrepresentation made
in good faith under Section 3.16 hereof, the Borrower shall have 30 consecutive days from the
earlier of (i) the date the Borrower becomes aware of the facts forming the basis of the
Event of Default, or (ii) the date notice of such Event of Default shall have been made to
the Borrower by the Lender, in which to take the steps necessary to remedy the underlying
facts and render the representation or warranty true and correct;
(d) any Loan Party shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02(a), 5.03 (with respect to a Loan Party’s existence) or 5.08 or in
Article VI;
33
(e) any Loan Party shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement (other than those which constitute a default under another
Section of this Article), and such failure shall continue unremedied for a period of (i) 5
days after the earlier of such breach or notice thereof from the Lender if such breach
relates to terms or provisions of Section 5.01, 5.02 (other than Section 5.02(a)), 5.03
through 5.07, 5.09, 5.10 or 5.12 of this Agreement or (ii) 15 days after the earlier of such
breach or notice thereof from the Lender if such breach relates to terms or provisions of any
other Section of this Agreement;
(f) any Loan Party or any Subsidiary shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material Indebtedness, when
and as the same shall become due and payable, unless such failure is being contested in
compliance with Section 5.04;
(g) any event or condition occurs that results in any Material Indebtedness becoming due
prior to its scheduled maturity or that enables or permits (with or without the giving of
notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or
to require the prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity; provided that this clause (g) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of a Loan Party or
any Subsidiary of any Loan Party or its debts, or of a substantial part of its assets, under
any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for any Loan Party or any Subsidiary of any Loan Party or for
a substantial part of its assets, and, in any such case, 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;
(i) any Loan Party or any Subsidiary of any Loan Party shall (i) voluntarily commence
any proceeding or file any petition seeking liquidation, reorganization or other relief under
any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii)
apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for such Loan Party or Subsidiary of any Loan Party or for a
substantial part of its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general assignment for the
benefit of creditors or (vi) take any action for the purpose of effecting any of the
foregoing;
(j) any Loan Party or any Subsidiary of any Loan Party shall become unable, admit in
writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of
$500,000 shall be rendered against any Loan Party, and the same shall remain undischarged for
a period of 30 consecutive days during which execution shall not be effectively stayed or any
action shall be legally taken by a judgment creditor to attach or levy upon any assets with
an aggregate market value in excess of $200,000 of any Loan Party or to enforce any such
judgment or any Loan Party shall fail within 30 days to discharge one or more non-monetary
judgments or orders which, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect, which judgments or orders, in any such case, are not stayed
on appeal or otherwise being appropriately contested in good faith by proper proceedings
diligently pursued;
(l) an ERISA Event shall have occurred that, in the opinion of the Lender, when taken
together with all other ERISA Events that have occurred, could reasonably be expected to
result in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) the occurrence of any “default”, as defined in any Loan Document (other than this
Agreement) or the breach of any of the terms or provisions of any Loan Document (other than
this Agreement), which
34
default or breach continues beyond any period of grace therein provided, provided if such
default is on account of a default by a Loan Party other than the Borrower, that such default
also could reasonably be expected to have a Material Adverse Effect;
(o) the Loan Guaranty shall fail to remain in full force or effect or any action shall
be taken to discontinue or to assert the invalidity or unenforceability of the Loan Guaranty,
or any Loan Guarantor shall fail to comply with any of the terms or provisions of the Loan
Guaranty to which it is a party and such could reasonably be expected to have a Material
Adverse Effect, or any Loan Guarantor shall deny that it has any further liability under the
Loan Guaranty to which it is a party, or shall give notice to such effect;
(p) any Collateral Document shall for any reason fail to create a valid and perfected
first priority security interest in any Collateral appropriately described therein and
purported to be covered thereby, after any applicable cure period as set forth in subsection
(c) hereof, except as permitted by the terms of any Collateral Document, or any Collateral
Document shall fail to remain in full force or effect or any action shall be taken to
discontinue or to assert the invalidity or unenforceability of any Collateral Document, or
there shall exist a default under any Collateral Document beyond any applicable notice or
cure period, provided if such default is on account of a default by a Loan Party other than
the Borrower, that such default also could reasonably be expected to have a Material Adverse
Effect; or
(q) any material provision of any Loan Document for any reason ceases to be valid,
binding and enforceable in accordance with its terms (or any Loan Party shall challenge the
enforceability of any Loan Document or shall assert in writing, or engage in any action or
inaction based on any such assertion, that any provision of any of the Loan Documents has
ceased to be or otherwise is not valid, binding and enforceable in accordance with its
terms).
then, and in every such event (other than an event with respect to the Borrower described in clause
(h) or (i) of this Article), and at any time thereafter during the continuance of such event, the
Lender may, by notice to the Borrower, take either or both of the following actions, at the same or
different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may thereafter be declared
to be due and payable), and thereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and all fees and other obligations of the Borrower accrued
hereunder, shall become due and payable immediately, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower; and in case of any event with
respect to the Borrower described in clause (h) or (i) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower. Upon the occurrence and the continuance of
an Event of Default, the Lender may increase the rate of interest applicable to the Loans and other
Obligations as set forth in Section 2.12(c) of this Agreement and exercise any rights and remedies
provided to the Lender under the Loan Documents or at law or equity, including all remedies
provided under the UCC.
ARTICLE VIII
Miscellaneous
SECTION 8.01. Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and
other communications provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by facsimile, as follows:
(i) | if to any Loan Party, to the Borrower at: | |||
Transcat, Inc. | ||||
00 Xxxxxxx Xxxxx Xxxxx | ||||
Xxxxxxxxx, Xxx Xxxx 00000 | ||||
Attention: Xxxx X. Xxxxxx, Vice President Finance and Chief Financial Officer | ||||
Facsimile No: (000) 000-0000 |
35
(ii) | if to the Lender, to JPMorgan Chase Bank, N.A. at: | |||
JPMorgan Chase Bank, N.A. | ||||
Xxx Xxxxx Xxxxxx | ||||
Xxxxxxxxx, Xxx Xxxx 00000 | ||||
Attention: Xxxxxx Xxxxxxxxxxxx, Vice President | ||||
Facsimile No: (000) 000-0000 |
All such notices and other communications (i) sent by hand or overnight courier service, or mailed
by certified or registered mail, shall be deemed to have been given when received or (ii) sent by
facsimile, with appropriate confirmation of receipt, shall be deemed to have been given when sent,
provided that if not given during normal business hours for the recipient, shall be deemed
to have been given at the opening of business on the next Business Day for the recipient.
(b) Notices and other communications to the Lender hereunder may be delivered or furnished by
electronic communications (including e-mail and internet or intranet websites) pursuant to
procedures approved by the Lender; provided that the foregoing shall not apply to notices
pursuant to Article II or to compliance and no Event of Default certificates delivered pursuant to
Section 5.01(d) unless otherwise agreed by the Lender. The Lender or the Borrower (on behalf of
the Loan Parties) may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or communications. All such
notices and other communications (i) sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written acknowledgement),
provided that if not given during the normal business hours of the recipient, such notice
or communication shall be deemed to have been given at the opening of business on the next Business
Day for the recipient, and (ii) posted to an Internet or intranet website shall be deemed received
upon the deemed receipt by the intended recipient at its e-mail address as described in the
foregoing clause (b)(i) of notification that such notice or communication is available and
identifying the website address therefor.
(c) Any party hereto may change its address or facsimile number for notices and other
communications hereunder by notice to the other parties hereto.
SECTION 8.02. Waivers; Amendments. (a) No failure or delay by the Lender in
exercising any right or power 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 Lender
hereunder and under any other Loan Document are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of any Loan Document or
consent to any departure by any Loan Party therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Event of Default, regardless of whether the Lender may have had notice
or knowledge of such Event of Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may
be waived, amended or modified except (i) in the case of this Agreement, pursuant to an agreement
or agreements in writing entered into by the Borrower and the Lender, or (ii) in the case of any
other Loan Document, pursuant to an agreement or agreements in writing entered into by the Lender
and the Loan Party or Loan Parties that are parties thereto.
SECTION 8.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i)
all reasonable out-of-pocket expenses incurred by the Lender and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Lender (whether outside counsel or
the allocated costs of its internal legal department), in connection with the credit facilities
provided for herein, the preparation and administration of the Loan Documents or any amendments,
modifications or waivers of the provisions of the Loan Documents (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Lender in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket
expenses incurred by the Lender, including the fees, charges and disbursements of any counsel for
the Lender (whether outside counsel or the allocated costs of
36
its internal legal department), in connection with the enforcement, collection or protection of its
rights in connection with the Loan Documents, including its rights under this Section, or in
connection with the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of
such Loans or Letters of Credit. Expenses being reimbursed by the Borrower under this Section
include, without limiting the generality of the foregoing, costs and expenses incurred in
connection with the following, provided that Borrower shall be responsible for expenses under
subparagraphs I and II below only if incurred after the occurrence and during the continuance of a
Default:
(I) appraisals;
(II) field examinations and the preparation of Reports based on the fees charged by a
third party retained by the Lender or the internally allocated fees for each Person employed
by the Lender with respect to each field examination;
(III) lien searches;
(IV) taxes, fees and other charges for filing financing statements and continuations,
and other actions to perfect, protect, and continue the Lender’s Liens;
(V) sums paid or incurred to take any action required of any Loan Party under the Loan
Documents that such Loan Party fails to pay or take; and
(VI) forwarding loan proceeds, collecting checks and other items of payment, and
establishing and maintaining the accounts and lock boxes pursuant to separate agreements
between Borrower and Lender, and costs and expenses of preserving and protecting the
Collateral as provided in any Collateral Document.
All of the foregoing costs and expenses may be charged to the Borrower as Revolving Loans or to
another deposit account, all as described in Section 2.17(c).
(b) The Borrower shall indemnify the Lender, and each Related Party of the Lender(each such
Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any
and all losses, claims, damages, penalties, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of
the Loan Documents or any agreement or instrument contemplated thereby, the performance by the
parties hereto of their respective obligations thereunder or the consummation of the Transactions
or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by the Lender to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims, damages, penalties,
liabilities or related expenses are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful misconduct of such
Indemnitee.
(c) The relationship between any Loan Party on the one hand and the Lender on the other hand
shall be solely that of debtor and creditor. The Lender (i) shall not have any fiduciary
responsibilities to any Loan Party or (ii) does not undertake any responsibility to any Loan Party
to review or inform such Loan Party of any matter in connection with any phase of any Loan Party’s
business or operations. To the extent permitted by applicable law, no Loan Party shall assert, and
each hereby waives, any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out
of, in connection with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds
thereof.
(d) All amounts due under this Section shall be payable promptly after written demand
therefor.
SECTION 8.04. Successors and Assigns. . (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby.
37
Except as provided below, neither party may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of the other (which consent in the case of
the Borrower shall not be unreasonably withheld) (and any attempted assignment or transfer without
such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby and, to the extent expressly contemplated hereby, the Related Parties of
the Lender) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) The Lender may assign all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing to it ) without the
Borrower’s consent (i) to one or more assignees after the occurrence of an Event of Default or (ii)
to an Affiliate of the Lender at any time. Subject to notification of an assignment, the assignee
shall be a party hereto and, to the extent of the interest assigned, have the rights and
obligations of the Lender under this Agreement, and the Lender shall, to the extent of the interest
assigned, be released from its obligations under this Agreement (and, in the case of an assignment
covering all of the Lender’s rights and obligations under this Agreement, the Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections 2.13, 2.14, 2.15
and 8.03). Any assignment or transfer by the Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale
by the Lender of a participation in such rights and obligations in accordance with paragraph (c) of
this Section.
(c) The Lender may, without the consent of the Borrower, sell participations to one or more
banks or other entities (a “Participant”) up to 25% of the Lender’s rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans owing to it);
provided that (i) the Lender’s obligations under this Agreement shall remain unchanged,
(ii) the Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower shall continue to deal solely and directly with the Lender
in connection with the Lender’s rights and obligations under this Agreement. Any agreement or
instrument pursuant to which the Lender sells such a participation shall provide that the Lender
shall retain the sole right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement or instrument may
provide that the Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver that will increase the Participant’s participation interest, extend the time
of payment or maturity date of any payment, reduce any payment amount, change any rate of interest
or commitment or other fee, or release any collateral of guarantee for the Obligations Subject to
paragraph (d) of this Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.14 and 2.15 to the same extent as if it were the Lender and had acquired its
interest by assignment.
(d) A Participant shall not be entitled to receive any greater payment under Section 2.14 or
2.15 than the Lender would have been entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such Participant is made with the
Borrower’s prior written consent.
(e) The 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 the 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 the Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for the Lender as a party hereto.
SECTION 8.05. Survival. All covenants, agreements, representations and warranties
made by the Loan Parties in the Loan Documents and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or on its behalf and notwithstanding
that the Lender may have had notice or knowledge of any Event of Default or incorrect
representation or warranty at the time any credit is extended hereunder, 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 is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not expired or terminated. The provisions of
Sections 2.14, 2.15, 2.16 and 8.03 shall survive and remain in full force and effect regardless of
the consummation of the transactions contemplated hereby, the repayment of the Loans, the
expiration or termination of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.
38
SECTION 8.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement, the other Loan Documents and any separate letter agreements with respect
to fees payable to the Lender constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement
shall become effective when it shall have been executed by the Lender and when the Lender shall
have received counterparts hereof which, when taken together, bear the signatures of each of the
other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Delivery of an executed counterpart of a
signature page of this Agreement by facsimile shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.07. Severability. Any provision of any Loan Document held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions thereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 8.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, the Lender and each of its Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the Borrower against any
of and all the Obligations held by Lender, irrespective of whether or not Lender shall have made
any demand under the Loan Documents and although such obligations may be unmatured. The rights of
Lender under this Section are in addition to other rights and remedies (including other rights of
setoff) which Lender may have.
SECTION 8.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) The
Loan Documents (other than those containing a contrary express choice of law provision) shall be
governed by and construed in accordance with the laws of the State of New York, but giving effect
to federal laws applicable to national banks.
(b) Each Loan Party hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any U.S. Federal or New York State court sitting in
Rochester, New York in any action or proceeding arising out of or relating to any 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 or any other Loan Document shall
affect any right that the Lender, the Lender or any Lender may otherwise have to bring any action
or proceeding relating to this Agreement or any other Loan Document against any Loan Party or its
properties in the courts of any jurisdiction.
(c) Each Loan Party 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 any
other Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 8.01. Nothing in this Agreement or any other Loan Document will
affect the right of any party to this Agreement to serve process in any other manner permitted by
law.
SECTION 8.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE
39
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 8.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 8.12. Confidentiality. The Lender agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed (a) to its and its
Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and
other advisors (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to the extent required
by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other
party to this Agreement, (e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any permitted assignee of or Participant in, or any
prospective permitted assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Loan Parties and their obligations, (g) with the consent of
the Borrower or (h) to the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the Lender on a nonconfidential
basis from a source other than the Borrower. For the purposes of this Section,
“Information” means all information received from the Borrower relating to the Borrower or
its business, other than any such information that is available to the Lender on a nonconfidential
basis prior to disclosure by the Borrower. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied with its obligation to
do so if such Person has exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
SECTION 8.13. Nonreliance; Violation of Law. The Lender hereby represents that it is
not relying on or looking to any margin stock for the repayment of the Borrowings provided for
herein. Anything contained in this Agreement to the contrary notwithstanding, the Lender shall not
be obligated to extend credit to the Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.
SECTION 8.14. USA PATRIOT Act. The Lender is subject to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”) and hereby
notifies the Borrower that pursuant to the requirements of the Act, it is required to obtain,
verify and record information that identifies the Borrower, which information includes the name and
address of the Borrower and other information that will allow such Lender to identify the Borrower
in accordance with the Act.
SECTION 8.15. Disclosure. Each Loan Party hereby acknowledges and agrees that the
Lender and/or its Affiliates from time to time may hold investments in, make other loans to or have
other relationships with any of the Loan Parties and their respective Affiliates.
SECTION 8.16. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which are treated as interest on such Loan 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 in accordance
with applicable law, the rate of interest payable in respect of such Loan 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 but were not
payable as a result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans 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.
(Signature Page Follows)
40
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.
TRANSCAT, INC. | ||||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||||
Name: Xxxxxxx X. Xxxxxx | ||||||
Title: President and Chief Operating Officer | ||||||
JPMORGAN CHASE BANK, N.A. | ||||||
By: | /s/ Xxxxxx X. Xxxxxxxxxxxx | |||||
Name: Xxxxxx X. Xxxxxxxxxxxx | ||||||
Title: Vice President |
[Signature Page to Credit Agreement]