Exhibit 10.3
$75,000,000 REVOLVING CREDIT FACILITY
CREDIT AGREEMENT
by and among
COVANCE INC.
and
THE GUARANTORS PARTY HERETO,
and
THE BANKS PARTY HERETO
and
PNC BANK, NATIONAL ASSOCIATION, As Agent
Dated as of June 30, 2004
TABLE OF CONTENTS
SECTION PAGE
1. CERTAIN DEFINITIONS..................................................................1
1.1 CERTAIN DEFINITIONS...........................................................1
1.2 CONSTRUCTION.................................................................26
1.2.1. NUMBER; INCLUSION...................................................27
1.2.2. DETERMINATION.......................................................27
1.2.3. AGENT'S DISCRETION AND CONSENT......................................27
1.2.4. DOCUMENTS TAKEN AS A WHOLE..........................................27
1.2.5. HEADINGS............................................................27
1.2.6. IMPLIED REFERENCES TO THIS AGREEMENT................................27
1.2.7. PERSONS.............................................................27
1.2.8. MODIFICATIONS TO DOCUMENTS..........................................28
1.2.9. FROM, TO AND THROUGH................................................28
1.2.10. SHALL; WILL.........................................................28
1.3 ACCOUNTING PRINCIPLES........................................................28
2. REVOLVING CREDIT AND SWING LOAN FACILITIES..........................................29
2.1 REVOLVING CREDIT COMMITMENTS.................................................29
2.1.1. REVOLVING CREDIT LOANS..............................................29
2.2 SWING LOAN COMMITMENT........................................................29
2.2.1. SWING LOANS.........................................................29
2.3 NATURE OF BANKS' OBLIGATIONS WITH RESPECT TO REVOLVING CREDIT LOANS..........29
2.4 COMMITMENT FEES..............................................................30
2.5 REVOLVING CREDIT LOAN REQUESTS; SWING LOAN REQUESTS..........................30
2.5.1. REVOLVING CREDIT LOAN REQUESTS......................................30
2.5.2. SWING LOAN REQUESTS.................................................31
2.6 MAKING REVOLVING CREDIT LOANS AND SWING LOANS; REVOLVING CREDIT NOTES
AND SWING NOTES..............................................................31
2.6.1. MAKING REVOLVING CREDIT LOANS.......................................31
2.6.2. MAKING SWING LOANS..................................................31
2.7 SWING LOAN NOTE..............................................................31
2.8 USE OF PROCEEDS..............................................................32
2.9 BORROWINGS TO REPAY SWING LOANS..............................................32
2.10 LETTER OF CREDIT SUBFACILITY.................................................32
2.10.1. ISSUANCE OF LETTERS OF CREDIT.......................................32
2.10.2. LETTER OF CREDIT FEES...............................................33
2.10.3. DISBURSEMENTS, REIMBURSEMENT........................................33
2.10.4. REPAYMENT OF PARTICIPATION ADVANCES.................................34
2.10.5. DOCUMENTATION.......................................................35
-i-
2.10.6. DETERMINATIONS TO HONOR DRAWING REQUESTS............................35
2.10.7. NATURE OF PARTICIPATION AND REIMBURSEMENT OBLIGATIONS...............35
2.10.8. INDEMNITY...........................................................37
2.10.9. LIABILITY FOR ACTS AND OMISSIONS....................................37
2.11 UTILIZATION OF COMMITMENTS IN OPTIONAL CURRENCIES............................38
2.11.1. PERIODIC COMPUTATIONS OF DOLLAR EQUIVALENT AMOUNTS OF LOANS
AND LETTERS OF CREDIT OUTSTANDING...................................38
2.11.2. NOTICES FROM BANKS THAT OPTIONAL CURRENCIES ARE UNAVAILABLE TO
FUND NEW LOANS......................................................39
2.11.3. NOTICES FROM BANKS THAT OPTIONAL CURRENCIES ARE UNAVAILABLE TO
FUND RENEWALS OF THE EURO-RATE OPTION...............................39
2.11.4. EUROPEAN MONETARY UNION.............................................40
2.11.5. REQUESTS FOR ADDITIONAL OPTIONAL CURRENCIES.........................41
2.12 CURRENCY REPAYMENTS..........................................................41
2.13 OPTIONAL CURRENCY AMOUNTS....................................................42
2.14 RIGHT TO INCREASE REVOLVING CREDIT COMMITMENTS...............................42
3. [INTENTIONALLY OMITTED.]............................................................42
4. INTEREST RATES......................................................................42
4.1 INTEREST RATE OPTIONS........................................................42
4.1.1. REVOLVING CREDIT INTEREST RATE OPTIONS..............................43
4.1.2. RATE QUOTATIONS.....................................................43
4.2 INTEREST PERIODS.............................................................43
4.2.1. AMOUNT OF BORROWING TRANCHE.........................................44
4.2.2. RENEWALS............................................................44
4.3 INTEREST AFTER DEFAULT.......................................................44
4.3.1. LETTER OF CREDIT FEES, INTEREST RATE................................44
4.3.2. OTHER OBLIGATIONS...................................................44
4.3.3. ACKNOWLEDGMENT......................................................44
4.4 EURO-RATE UNASCERTAINABLE; ILLEGALITY; INCREASED COSTS; DEPOSITS NOT
AVAILABLE....................................................................44
4.4.1. UNASCERTAINABLE.....................................................44
4.4.2. ILLEGALITY; INCREASED COSTS; DEPOSITS NOT AVAILABLE.................45
4.4.3. AGENT'S AND BANK'S RIGHTS...........................................45
4.5 SELECTION OF INTEREST RATE OPTIONS...........................................46
5. PAYMENTS............................................................................46
5.1 PAYMENTS.....................................................................46
-ii-
5.2 PRO RATA TREATMENT OF BANKS..................................................47
5.3 INTEREST PAYMENT DATES.......................................................47
5.4 VOLUNTARY PREPAYMENTS, MANDATORY PREPAYMENTS.................................47
5.4.1. RIGHT TO PREPAY.....................................................47
5.4.2. REPLACEMENT OF A BANK...............................................48
5.4.3. CHANGE OF LENDING OFFICE............................................49
5.4.4. VOLUNTARY REDUCTION OF REVOLVING CREDIT COMMITMENTS.................49
5.4.5. APPLICATION AMONG INTEREST RATE OPTIONS.............................49
5.4.6. MANDATORY PREPAYMENT - CURRENCY FLUCTUATIONS........................50
5.5 ADDITIONAL COMPENSATION IN CERTAIN CIRCUMSTANCES.............................50
5.5.1. INCREASED COSTS OR REDUCED RETURN RESULTING FROM TAXES,
RESERVES, CAPITAL ADEQUACY REQUIREMENTS, EXPENSES, ETC..............50
5.5.2. INDEMNITY...........................................................51
5.6 INTERBANK MARKET PRESUMPTION.................................................51
5.7 TAXES........................................................................52
5.7.1. NO DEDUCTIONS.......................................................52
5.7.2. STAMP TAXES.........................................................52
5.7.3. INDEMNIFICATION FOR TAXES PAID BY A BANK............................52
5.7.4. CERTIFICATE.........................................................53
5.7.5. EXCEPTION FOR CERTAIN TAXES AND OTHER TAXES.........................53
5.7.6. REFUND..............................................................53
5.7.7. SURVIVAL............................................................54
5.8 NOTES........................................................................54
5.9 SETTLEMENT DATE PROCEDURES...................................................54
5.10 JUDGMENT CURRENCY............................................................54
5.10.1. CURRENCY CONVERSION PROCEDURES FOR JUDGMENTS........................54
5.10.2. INDEMNITY IN CERTAIN EVENTS.........................................55
6. REPRESENTATIONS AND WARRANTIES......................................................55
6.1 REPRESENTATIONS AND WARRANTIES...............................................55
6.1.1. ORGANIZATION AND QUALIFICATION......................................55
6.1.2. [INTENTIONALLY OMITTED.]............................................55
6.1.3. SUBSIDIARIES........................................................55
6.1.4. POWER AND AUTHORITY.................................................56
6.1.5. VALIDITY AND BINDING EFFECT.........................................56
6.1.6. NO CONFLICT.........................................................56
6.1.7. LITIGATION..........................................................56
6.1.8. TITLE TO PROPERTIES.................................................57
6.1.9. FINANCIAL STATEMENTS................................................57
6.1.10. USE OF PROCEEDS; MARGIN STOCK; SECTION 20 SUBSIDIARIES..............57
-iii-
6.1.11. FULL DISCLOSURE.....................................................58
6.1.12. TAXES...............................................................58
6.1.13. CONSENTS AND APPROVALS..............................................58
6.1.14. NO EVENT OF DEFAULT; COMPLIANCE WITH INSTRUMENTS....................59
6.1.15. PATENTS, TRADEMARKS, COPYRIGHTS, LICENSES, ETC......................59
6.1.16. INSURANCE...........................................................59
6.1.17. COMPLIANCE WITH LAWS................................................59
6.1.18. [Intentionally Omitted].............................................59
6.1.19. INVESTMENT COMPANIES; REGULATED ENTITIES............................59
6.1.20. PLANS AND BENEFIT ARRANGEMENTS......................................60
6.1.21. EMPLOYMENT MATTERS..................................................60
6.1.22. ENVIRONMENTAL AND SAFETY MATTERS....................................61
6.1.23. SENIOR DEBT STATUS..................................................61
6.1.24. ANTI-TERRORISM LAWS.................................................61
6.1.25. SOLVENCY............................................................62
6.1.26. SECURITY INTERESTS..................................................63
6.1.27. STATUS OF THE PLEDGED COLLATERAL....................................63
6.2 CONTINUATION OF REPRESENTATIONS..............................................63
6.3 UPDATES TO SCHEDULES.........................................................63
7. CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT.............................64
7.1 FIRST LOANS AND LETTERS OF CREDIT............................................64
7.1.1. OFFICER'S CERTIFICATE...............................................64
7.1.2. SECRETARY'S CERTIFICATE.............................................64
7.1.3. DELIVERY OF LOAN DOCUMENTS..........................................65
7.1.4. OPINION OF COUNSEL..................................................65
7.1.5. LEGAL DETAILS.......................................................65
7.1.6. PAYMENT OF FEES.....................................................65
7.1.7. CONSENTS............................................................65
7.1.8. OFFICER'S CERTIFICATE REGARDING MACS; SOLVENCY......................65
7.1.9. NO VIOLATION OF LAWS................................................66
7.1.10. NO ACTIONS OR PROCEEDINGS...........................................66
7.1.11. CERTAIN FINANCIAL CONDITIONS........................................66
7.1.12. LIEN SEARCHES.......................................................66
7.1.13. FILING RECEIPTS.....................................................67
7.2 EACH ADDITIONAL LOAN OR LETTER OF CREDIT.....................................67
8. COVENANTS...........................................................................67
8.1 AFFIRMATIVE COVENANTS........................................................67
-iv-
8.1.1. PRESERVATION OF EXISTENCE, ETC......................................67
8.1.2. PAYMENT OF LIABILITIES, INCLUDING TAXES, ETC........................67
8.1.3. MAINTENANCE OF INSURANCE............................................68
8.1.4. MAINTENANCE OF PROPERTIES AND LEASES................................68
8.1.5. MAINTENANCE OF PATENTS, TRADEMARKS, ETC.............................68
8.1.6. VISITATION RIGHTS...................................................68
8.1.7. KEEPING OF RECORDS AND BOOKS OF ACCOUNT.............................69
8.1.8. PLANS AND BENEFIT ARRANGEMENTS......................................69
8.1.9. COMPLIANCE WITH LAWS................................................69
8.1.10. USE OF PROCEEDS.....................................................69
8.1.11. [INTENTIONALLY OMITTED].............................................70
8.1.12. TAX SHELTER REGULATIONS.............................................70
8.1.13. ANTI-TERRORISM LAWS.................................................70
8.1.14. FURTHER ASSURANCES..................................................70
8.2 NEGATIVE COVENANTS...........................................................70
8.2.1. INDEBTEDNESS........................................................71
8.2.2. LIENS...............................................................72
8.2.3. GUARANTIES..........................................................72
8.2.4. LOANS AND INVESTMENTS...............................................72
8.2.5. [INTENTIONALLY OMITTED].............................................73
8.2.6. LIQUIDATIONS, MERGERS, CONSOLIDATIONS, ACQUISITIONS.................73
8.2.7. DISPOSITIONS OF ASSETS OR SUBSIDIARIES..............................74
8.2.8. [INTENTIONALLY OMITTED].............................................75
8.2.9. SUBSIDIARIES, PARTNERSHIPS AND JOINT VENTURES.......................75
8.2.10. CONTINUATION OF OR CHANGE IN BUSINESS...............................76
8.2.11. PLANS AND BENEFIT ARRANGEMENTS......................................76
8.2.12. FISCAL YEAR.........................................................77
8.2.13. CHANGES IN ORGANIZATIONAL DOCUMENTS.................................77
8.2.14. [INTENTIONALLY OMITTED].............................................77
8.2.15. MAXIMUM LEVERAGE RATIO..............................................77
8.2.16. MINIMUM INTEREST COVERAGE RATIO.....................................77
8.2.17. MINIMUM NET WORTH...................................................77
8.3 REPORTING REQUIREMENTS.......................................................77
8.3.1. QUARTERLY FINANCIAL STATEMENTS......................................77
8.3.2. ANNUAL FINANCIAL STATEMENTS.........................................78
8.3.3. CERTIFICATE OF THE BORROWER.........................................78
8.3.4. NOTICE OF DEFAULT...................................................79
8.3.5. NOTICE OF LITIGATION................................................79
8.3.6. AGREEMENTS REGARDING PLEDGED COLLATERAL.............................79
8.3.7. BUDGETS, FORECASTS, OTHER REPORTS AND INFORMATION...................79
-v-
8.3.8. TAX SHELTER PROVISIONS..............................................80
8.3.9. NOTICES REGARDING PLANS AND BENEFIT ARRANGEMENTS....................80
9. DEFAULT.............................................................................82
9.1 EVENTS OF DEFAULT............................................................82
9.1.1. PAYMENTS UNDER LOAN DOCUMENTS.......................................82
9.1.2. BREACH OF WARRANTY..................................................82
9.1.3. BREACH OF NEGATIVE COVENANTS OR VISITATION RIGHTS...................82
9.1.4. BREACH OF OTHER COVENANTS...........................................82
9.1.5. DEFAULTS IN OTHER AGREEMENTS OR INDEBTEDNESS........................82
9.1.6. FINAL JUDGMENTS OR ORDERS...........................................83
9.1.7. LOAN DOCUMENT UNENFORCEABLE.........................................83
9.1.8. UNINSURED LOSSES; PROCEEDINGS AGAINST ASSETS........................83
9.1.9. NOTICE OF LIEN OR ASSESSMENT........................................83
9.1.10. INSOLVENCY..........................................................83
9.1.11. EVENTS RELATING TO PLANS AND BENEFIT ARRANGEMENTS...................84
9.1.12. CESSATION OF BUSINESS...............................................84
9.1.13. CHANGE OF CONTROL...................................................84
9.1.14. INVOLUNTARY PROCEEDINGS.............................................84
9.1.15. VOLUNTARY PROCEEDINGS...............................................85
9.2 CONSEQUENCES OF EVENT OF DEFAULT.............................................85
9.2.1. EVENTS OF DEFAULT OTHER THAN BANKRUPTCY, INSOLVENCY OR
REORGANIZATION PROCEEDINGS..........................................85
9.2.2. BANKRUPTCY, INSOLVENCY OR REORGANIZATION PROCEEDINGS................85
9.2.3. SET-OFF.............................................................86
9.2.4. SUITS, ACTIONS, PROCEEDINGS.........................................86
9.2.5. APPLICATION OF PROCEEDS; COLLATERAL SHARING.........................86
9.2.6. OTHER RIGHTS AND REMEDIES...........................................88
9.2.7. NOTICE OF SALE......................................................88
10. THE AGENT...........................................................................88
10.1 APPOINTMENT..................................................................88
10.2 DELEGATION OF DUTIES.........................................................88
10.3 NATURE OF DUTIES; INDEPENDENT CREDIT INVESTIGATION...........................88
10.4 ACTIONS IN DISCRETION OF AGENT; INSTRUCTIONS FROM THE BANKS..................89
10.5 REIMBURSEMENT AND INDEMNIFICATION OF AGENT BY THE BORROWER...................89
10.6 EXCULPATORY PROVISIONS; LIMITATION OF LIABILITY..............................90
10.7 REIMBURSEMENT AND INDEMNIFICATION OF AGENT BY BANKS..........................91
10.8 RELIANCE BY AGENT............................................................91
-vi-
10.9 NOTICE OF DEFAULT............................................................92
10.10 NOTICES. ....................................................................92
10.11 BANKS IN THEIR INDIVIDUAL CAPACITIES; AGENTS IN ITS INDIVIDUAL CAPACITY......92
10.12 HOLDERS OF NOTES.............................................................92
10.13 EQUALIZATION OF BANKS........................................................93
10.14 SUCCESSOR AGENT..............................................................93
10.15 AGENT'S FEE..................................................................94
10.16 AVAILABILITY OF FUNDS........................................................94
10.17 CALCULATIONS.................................................................94
10.18 BENEFICIARIES................................................................94
10.19 NO RELIANCE ON AGENT'S CUSTOMER IDENTIFICATION PROGRAM.......................95
10.20 CERTAIN RELEASES OF PLEDGED COLLATERAL.......................................95
11. MISCELLANEOUS.......................................................................95
11.1 MODIFICATIONS, AMENDMENTS OR WAIVERS.........................................95
11.1.1. INCREASE OF COMMITMENT; EXTENSION OF EXPIRATION DATE................95
11.1.2. EXTENSION OF PAYMENT; REDUCTION OF PRINCIPAL INTEREST OR FEES;
MODIFICATION OF TERMS OF PAYMENT....................................96
11.1.3. RELEASE OF COLLATERAL OR GUARANTOR..................................96
11.1.4. MISCELLANEOUS.......................................................96
11.2 NO IMPLIED WAIVERS; CUMULATIVE REMEDIES; WRITING REQUIRED....................96
11.3 REIMBURSEMENT AND INDEMNIFICATION OF BANKS BY THE BORROWER; TAXES............96
11.4 HOLIDAYS.....................................................................97
11.5 FUNDING BY BRANCH, SUBSIDIARY OR AFFILIATE...................................98
11.5.1. NOTIONAL FUNDING....................................................98
11.5.2. ACTUAL FUNDING......................................................98
11.6 NOTICES; LENDING OFFICES.....................................................98
11.7 SEVERABILITY.................................................................99
11.8 GOVERNING LAW...............................................................100
11.9 PRIOR UNDERSTANDING.........................................................100
11.10 DURATION; SURVIVAL..........................................................100
11.11 SUCCESSORS AND ASSIGNS......................................................100
11.12 CONFIDENTIALITY.............................................................102
11.12.1. GENERAL............................................................102
11.12.2. SHARING INFORMATION WITH AFFILIATES OF THE BANKS...................103
11.13 COUNTERPARTS................................................................103
11.14 AGENT'S OR BANK'S CONSENT...................................................103
11.15 EXCEPTIONS..................................................................103
11.16 CONSENT TO FORUM; WAIVER OF JURY TRIAL......................................103
11.17 CERTIFICATIONS FROM LENDERS AND PARTICIPANTS................................104
-vii-
11.17.1. TAX WITHHOLDING CLAUSE.............................................104
11.17.2. USA PATRIOT ACT....................................................105
11.18 JOINDER OF GUARANTORS.......................................................105
-viii-
CREDIT AGREEMENT
THIS
CREDIT AGREEMENT is dated as of June 30, 2004 and is made by and among
COVANCE INC., a Delaware corporation (the "Borrower"), each of the GUARANTORS
(as hereinafter defined), the BANKS (as hereinafter defined), and PNC BANK,
NATIONAL ASSOCIATION, in its capacity as agent for the Banks under this
Agreement (hereinafter referred to in such capacity as the "Agent").
WITNESSETH:
WHEREAS, the Borrower has requested the Banks to provide a multicurrency
revolving credit facility to the Borrower in an aggregate principal amount not
to exceed $75,000,000; and
WHEREAS, the revolving credit shall be used for general corporate purposes
of the Borrower; and
WHEREAS, the Banks are willing to provide such credit upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, covenant and agree as follows:
1. CERTAIN DEFINITIONS
1.1 CERTAIN DEFINITIONS.
In addition to words and terms defined elsewhere in this Agreement, the
following words and terms shall have the following meanings, respectively,
unless the context hereof clearly requires otherwise:
ADDITIONAL BANK shall have the meaning assigned to such term in
Section 11.11 [Successors and Assigns].
AFFILIATE as to any Person shall mean any other Person which directly
or indirectly controls, is controlled by, or is under common control with such
Person. Control, as used in this definition, shall mean the possession, directly
or indirectly, of the power to: (i) direct or cause the direction of the
management or policies of a Person, whether through the ownership of voting
securities, by contract or otherwise, including the power to elect a majority of
the directors or trustees of a corporation or trust, as the case may be, or (ii)
vote 15% or more of the securities having ordinary voting power for the election
of directors (or persons performing similar functions) of such Person.
Notwithstanding the foregoing: (i) the Borrower and its Subsidiaries shall not
be Affiliates of each other, (ii) neither the Borrower nor any of its
Subsidiaries shall be an Affiliate of the Agent or any Banks, and (iii) so long
as Borrower and its Subsidiaries own in the aggregate less than 23% of the
voting capital stock of BioImaging
Technologies, Inc. ("BTI"), BTI shall not be an Affiliate of the Borrower or any
Subsidiary of the Borrower.
AGENT shall mean PNC Bank, National Association, and its successors
and assigns.
AGENT'S FEE shall have the meaning assigned to that term in Section
10.15.
AGENT'S LETTER shall have the meaning assigned to that term in Section
10.15.
AGREEMENT shall mean this
Credit Agreement, as the same may be
supplemented or amended from time to time, including all schedules and exhibits.
ANNUAL STATEMENTS shall have the meaning assigned to that term in
Section 6.1.9(i).
ANTI-TERRORISM LAWS shall mean any Laws relating to terrorism or money
laundering, including Executive Order No. 13224, the USA Patriot Act, the Laws
comprising or implementing the Bank Secrecy Act, and the Laws administered by
the United States Treasury Department's Office of Foreign Asset Control (as any
of the foregoing Laws may from time to time be amended, renewed, extended, or
replaced).
APPLICABLE COMMITMENT FEE RATE shall mean the percentage rate per
annum at the indicated level of Leverage Ratio then in effect as set forth in
the pricing grid on SCHEDULE 1.1(A) below the heading "Commitment Fee." The
Applicable Commitment Fee Rate shall be computed in accordance with the
parameters set forth on SCHEDULE 1.1(A).
APPLICABLE LETTER OF CREDIT FEE shall mean the percentage rate per
annum at the indicated level of Leverage Ratio then in effect as set forth in
the pricing grid on SCHEDULE 1.1(A) below the heading "Letter of Credit Fee".
The Applicable Letter of Credit Fee shall be computed in accordance with the
parameters set forth on SCHEDULE 1.1(A).
APPLICABLE MARGIN shall mean, as applicable:
(i) the percentage rate spread at the indicated level of Leverage
Ratio then in effect as set forth in the pricing grid on SCHEDULE 1.1(A) below
the heading "Revolving Credit Base Rate Spread", and
(ii) the percentage rate spread at the indicated level of Leverage
Ratio then in effect as set forth in the pricing grid on SCHEDULE 1.1(A) below
the heading "Revolving Credit Euro-Rate Spread".
The Applicable Margin shall be computed in accordance with the
parameters set forth on SCHEDULE 1.1(A).
2
ASSIGNMENT AND ASSUMPTION AGREEMENT shall mean an Assignment and
Assumption Agreement by and among a Purchasing Bank, a Transferor Bank and the
Agent, as Agent and on behalf of the remaining Banks, substantially in the form
of EXHIBIT 1.1(A).
AUTHORIZED OFFICER shall mean those individuals, designated by written
notice to the Agent from the Borrower, authorized to execute notices, reports
and other documents on behalf of the Loan Parties required hereunder. The
Borrower may amend such list of individuals from time to time by giving written
notice of such amendment to the Agent.
BANK JOINDER shall have the meaning assigned to such term in Section
11.11 [Successors and Assigns].
BANK-PROVIDED HEDGE shall mean any Hedge which is provided by any Bank
and with respect to which the Agent confirms meets the following requirements:
such Hedge (i) is documented in a standard International Swap Dealer Association
Agreement, (ii) provides for the method of calculating the reimbursable amount
of the provider's credit exposure in a reasonable and customary manner, and
(iii) is entered into for hedging (rather than speculative) purposes. The
liabilities of the Loan Parties to the provider of any Bank-Provided Hedge (the
"Hedge Liabilities") shall be "Obligations" hereunder, guaranteed obligations
under the Guaranty Agreement and otherwise treated as Obligations for purposes
of each of the other Loan Documents. The Liens securing the Hedge Liabilities
shall be pari passu with the Liens securing all other Obligations under this
Agreement and the other Loan Documents.
BANKS shall mean the financial institutions named on SCHEDULE 1.1(B)
and their respective successors and assigns as permitted hereunder, each of
which is referred to herein as a Bank.
BASE NET WORTH shall mean the sum of $451,184,800, plus 50% of
consolidated net income of the Borrower and its Subsidiaries for each fiscal
quarter in which net income was earned (as opposed to a net loss) during the
period from January 1, 2004 through the date of determination.
BASE RATE shall mean the greater of (i) the interest rate per annum
announced from time to time by the Agent at its Principal Office as its then
prime rate, which rate may not be the lowest rate then being charged commercial
borrowers by the Agent, or (ii) the Federal Funds Open Rate plus 1/2% per annum.
BASE RATE OPTION shall mean the option of the Borrower to have
Revolving Credit Loans bear interest at the rate and under the terms and
conditions set forth in Section 4.1.1(i).
BENEFIT ARRANGEMENT shall mean at any time an "employee benefit
plan," within the meaning of Section 3(3) of ERISA, which is neither a Plan nor
a Multiemployer Plan and which is maintained, sponsored or otherwise contributed
to by any member of the ERISA Group.
3
BENEFIT PLANS shall mean (a) the Covance 401(k) Savings Plan, (b) the
Employee Stock Purchase Plan of Covance, Inc., (c) the 2002 Employee Equity
Participation Plan of the Borrower, (d) the 2002 Employee Stock Option Plan of
the Borrower, (e) the Stock Option Plan for Non-Employee Directors of the
Borrower, (f) the Restricted Stock Plan for Non-Employee Directors of the
Borrower, (g) the Deferred Stock Unit Plan for Non-Employee Members of the Board
of Directors of the Borrower, (h) any other "pension plan" (as defined in
Section 3(2) of ERISA) of the Borrower or any member of the ERISA Group, any of
the Guarantors or any Subsidiary of any of the Loan Parties, existing as of the
date of this Agreement or hereafter, or any trust created thereunder, and (i)
any other benefit plan, whether or not treated as such under Section 3(2) or any
other Section of ERISA, existing as of the date of this Agreement or hereafter
created, with respect to which any capital stock, debt or similar interest or
instrument or security interest or instrument, whether or not treated as such
under applicable Law, of the Borrower, any member of the ERISA Group, any of the
Guarantors or any Subsidiary of any of the Loan Parties is an investment,
distribution, benefit or award option or plan feature for any individual,
including, but not limited to, any benefit plan similar to a plan described in
(a) through (g) above, or any trust created under any benefit plan described in
this clause (i).
BLOCKED PERSON shall have the meaning assigned to such term in Section
6.1.24.2.
B OF A/GLENBOROUGH LETTER OF CREDIT shall mean the letter of credit
issued by Bank of America, letter of credit number 3047094, in an undrawn amount
as of the Closing Date of $700,000, for the benefit of Glenborough Properties,
L.P. It is expressly understood that such letter of credit is not a "Letter of
Credit" issued under this Agreement.
BORROWER shall mean
Covance Inc., a corporation organized and existing
under the laws of the State of Delaware.
BORROWING DATE shall mean, with respect to any Loan, the date for the
making thereof or the renewal or conversion thereof at or to the same or a
different Interest Rate Option, which shall be a Business Day.
BORROWING TRANCHE shall mean specified portions of Loans outstanding
as follows: (i) any Loans to which a Euro-Rate Option applies which become
subject to the same Interest Rate Option under the same Loan Request by the
Borrower and which have the same Interest Period and which are denominated
either in Dollars or in the same Optional Currency shall constitute one
Borrowing Tranche, and (ii) all Loans to which a Base Rate Option applies shall
constitute one Borrowing Tranche.
BUSINESS DAY shall mean any day other than a Saturday or Sunday or a
legal holiday on which commercial banks are authorized or required to be closed
for business in Pittsburgh,
Pennsylvania and (i) if the applicable Business Day
relates to any Loan to which the Euro-Rate Option applies, such day must also be
a day on which dealings are carried on in the London interbank market, (ii) with
respect to advances or payments of Loans or any other matters relating to Loans
denominated in an Optional Currency, such day also shall be a day on which
dealings in deposits in the relevant Optional Currency are carried on in the
applicable interbank
4
market, and (iii) with respect to advances or payments of Loans denominated in
an Optional Currency, such day shall also be a day on which all applicable banks
into which Loan proceeds may be deposited are open for business and foreign
exchange markets are open for business in the principal financial center of the
country of such currency.
CAPITAL LEASE shall mean the lease of any assets which lease would be
a capital lease as determined in accordance with GAAP.
CASH POOLING OBLIGATIONS shall mean those ordinary course obligations
of certain Foreign Subsidiaries under treasury management cash pooling
agreements with various financial institutions as in effect on the Closing Date
or arrangements substantially similar thereto, as any of the foregoing may be
renewed, replaced or extended from time to time.
CLOSING DATE shall mean the Business Day on which the first Loan shall
be made, which shall be June 30, 2004.
COMMERCIAL LETTER OF CREDIT shall mean any letter of credit which is a
commercial letter of credit issued in respect of the purchase of goods or
services by one or more of the Loan Parties in the ordinary course of their
business.
COMMITMENT shall mean as to any Bank of its Revolving Credit
Commitment and, in the case of the Agent, its Swing Loan Commitment, and
COMMITMENTS shall mean the aggregate of the Revolving Credit Commitments and
Swing Loan Commitment of all of the Banks.
COMMITMENT FEE shall have the meaning assigned to that term in
Section 2.4.
COMPLIANCE CERTIFICATE shall have the meaning assigned to such term in
Section 8.3.3.
COMPUTATION DATE shall have the meaning assigned to such term in
Section 2.11.1.
CONSOLIDATED EBIT shall mean, for any period of determination, with
respect to the Borrower and its Subsidiaries as determined in accordance with
GAAP on a consolidated basis, the sum of (a) Consolidated Net Income for such
period (excluding the effect of any extraordinary or other non-recurring gains
or losses outside of the ordinary course of business), PLUS (b) an amount which,
in the determination of Consolidated Net Income for such period, has been
deducted for (i) Consolidated Interest Expense for such period and (ii) total
Federal, state, foreign or other income taxes for such period, all as determined
in accordance with GAAP.
CONSOLIDATED EBITDA shall mean, for any period of determination, with
respect to the Borrower and its Subsidiaries as determined in accordance with
GAAP on a consolidated basis, an amount equal to (a) Consolidated EBIT minus an
amount which, in the determination of Consolidated Net Income for such period,
has been included for all non-cash
5
credits for such period, plus (b) an amount which, in the determination of
Consolidated Net Income for such period, has been deducted for all depreciation,
amortization and other non-cash charges for such period, all as determined in
accordance with GAAP.
CONSOLIDATED INTEREST EXPENSE for any period of determination shall
mean interest expense (net of interest income, if any) of the Borrower and its
Subsidiaries for such period determined and consolidated in accordance with
GAAP.
CONSOLIDATED NET INCOME shall mean, for any period of determination,
the net income after taxes for such period of the Borrower and its Subsidiaries
as determined on a consolidated basis in accordance with GAAP.
CONSOLIDATED NET WORTH shall mean as of any date of determination
total stockholders' equity of the Borrower and its Subsidiaries as of such date
determined and consolidated in accordance with GAAP.
CONSOLIDATED SUBSIDIARY shall mean each Person (excluding therefrom
each Excluded Subsidiary) which is a Subsidiary of the Borrower.
CONTAMINATION shall mean the presence or release or threat of release
of Regulated Substances in, on, under or migrating to or from the Property,
which pursuant to Environmental Laws requires notification or reporting to an
Official Body, or which pursuant to Environmental Laws requires the performance
of a Remedial Action or which otherwise constitutes a violation of Environmental
Laws.
DOLLAR, DOLLARS, U.S. DOLLARS and the symbol $ shall mean lawful money
of the United States of America.
DOLLAR EQUIVALENT shall mean, with respect to any amount of any
currency, the Equivalent Amount of such currency expressed in Dollars.
DOLLAR EQUIVALENT REVOLVING FACILITY USAGE shall mean at any time the
sum of the Dollar Equivalent amount of Revolving Credit Loans then outstanding,
the Dollar Equivalent of Swing Loans then outstanding and the Dollar Equivalent
amount of Letters of Credit Outstanding.
DOMESTIC SUBSIDIARY shall mean any Subsidiary of the Borrower that is
incorporated or organized under the laws of the United States of America.
DRAWING DATE shall have the meaning assigned to that term in Section
2.10.3.2.
ENVIRONMENTAL COMPLAINT shall mean (i) any written notice of
non-compliance or violation, order or citation relating in any way to any
Environmental Law, Required Environmental Permit, Contamination or Regulated
Substances; (ii) civil, criminal, administrative or regulatory investigation of
which the Borrower or any Subsidiary of the Borrower has knowledge instituted by
an Official Body relating in any way to any Environmental
6
Law, Environmental Permit, Contamination or Regulated Substance; (iii) any
administrative, regulatory or judicial action, suit, claim or proceeding
instituted by any Person or Official Body or any written notice of liability or
potential liability by any Person or Official Body, in either instance, setting
forth a cause of action for personal injury (including but not limited to
death), property damage, natural resource damage, contribution or indemnity
associated with the performance of Remedial Actions, liens or encumbrances
attached to, recorded or levied against a Property for the costs associated with
the performance of Remedial Actions, civil or administrative penalties, criminal
fines or penalties, or declaratory or equitable relief arising under any
Environmental Laws; or (iv) any written order, notice of violation, citation,
subpoena, request for information or other written notice or demand of any type
issued by an Official Body arising out of or in response to a violation of any
Environmental Laws relating to any Property, any Loan Party or any Subsidiary of
any Loan Party.
ENVIRONMENTAL LAWS shall mean all federal, territorial, tribal, state,
local and foreign Laws (including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. SECTIONS 9601
et seq., the Resource Conservation and Recovery Act, 42 U.S.C. SECTION 6901 et
seq., the Hazardous Materials Transportation Act, 49 U.S.C. SECTION 1801 et
seq., the Toxic Substances Control Act, 15 U.S.C. SECTION 2601 et seq., the
Federal Water Pollution Control Act, 33 U.S.C. SECTIONS 1251 et seq., the
Federal Safe Drinking Water Act, 42 U.S.C. SECTIONS 300f-300j, the Federal Air
Pollution Control Act, 42 U.S.C. SECTION 7401 et seq., the Oil Pollution Act, 33
U.S.C. SECTION 2701 et seq., the Federal Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C. SECTIONS 136 to 136y, Atomic Energy Act, 42 U.S.C. SECTION 2011 et
seq., the Energy Reorganization Act of 1974 (88 Stat. 1244), the Nuclear Waste
Policy Act 42 U.S.C. SECTION 10101 et seq., the Low-Level Radioactive Waste
Policy Amendments Act of 1985 (99 Stat. 1842)) each as amended, and any
regulations promulgated or any equivalent state or local Law, and any amendments
thereto) and any consent decrees, settlement agreements, judgments, orders,
directives, policies or programs issued by or entered into with an Official Body
pertaining or relating to: (i) pollution or pollution control; (ii) protection
of human health from exposure to Regulated Substances; (iii) protection of the
environment and/or natural resources; (iv) the presence, use, management,
generation, manufacture, processing, extraction, treatment, recycling, refining,
reclamation, labeling, sale, transport, storage, collection, distribution,
disposal or release or threat of release of Regulated Substances; (v) the
presence of Contamination; and (vi) the protection of endangered or threatened
species.
EQUIVALENT AMOUNT shall mean, at any date, as determined by Agent
(which determination shall be conclusive absent manifest error), (i) with
respect to an amount which is to be denominated in Dollars:
(A) as to any portion of such amount denominated in an Optional
Currency, the amount of Dollars converted from the amount of each relevant
Optional Currency at the rate at which such Optional Currency may be exchanged
into Dollars, as set forth at approximately 11:00 a.m., London or such other
applicable time, on such date by reference to the Bloomberg Financial Markets
system for such Optional Currency (or other authoritative source selected by the
Agent in its sole discretion) or, in the event of the unavailability of any such
source, the exchange rate shall instead be the spot rate of exchange of the
Agent in the market where its foreign currency exchange operations in respect of
such Optional Currency are then
7
being conducted, at or about 11:00 a.m. at the place of such market, on such
date for the purchase of Dollars for delivery two Business Days later; provided
that if at the time of any such determination, for any reason, no such spot rate
is being quoted, the Agent may use any reasonable method it deems appropriate to
determine such rate, and such determination shall be conclusive absent manifest
error, plus:
(B) as to any portion of such amount already denominated in Dollars,
the amount thereof at such time; and
(ii) with respect to an amount which is to be denominated in an
Optional Currency;
(A) as to any portion of such amount denominated in Dollars, the
amount of such Optional Currency converted from the relevant amount of Dollars
at the rate at which Dollars may be exchanged into such Optional Currency, as
set forth at approximately 11:00 a.m., London or such other applicable time, on
such date by reference to the Bloomberg Financial Markets system for such
Optional Currency (or other authoritative source selected by the Agent in its
sole discretion) or, in the event of the unavailability of any such source, the
exchange rate shall instead be the spot rate of exchange of the Agent in the
market where its foreign currency exchange operations in respect of such
Optional Currency are then being conducted, at or about 11:00 a.m. at the place
of such market, on such date for the purchase of such Optional Currency for
delivery two Business Days later; provided that if at the time of any such
determination, for any reason, no such spot rate is being quoted, the Agent may
use any reasonable method it deems appropriate to determine such rate, and such
determination shall be conclusive absent manifest error , plus
(B) as to any portion of such amount already denominated in such
Optional Currency, the amount thereof as of such time.
ERISA shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended or supplemented from time to time, and any successor
statute of similar import, and the rules and regulations thereunder, as from
time to time in effect.
ERISA GROUP shall mean, at any time, the Borrower and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control and all other entities which, together with
the Borrower, are treated as a single employer under Section 414 of the Internal
Revenue Code.
EURO-RATE shall mean the following:
(A) with respect to Dollar Loans comprising any Borrowing Tranche to
which the Euro-Rate Option applies for any Interest Period, the interest rate
per annum determined by the Agent by dividing (the resulting quotient rounded
upwards, if necessary, to the nearest 1/100th of 1% per annum) (i) the rate of
interest determined by the Agent in accordance with its usual procedures (which
determination shall be conclusive absent manifest error) to be the average of
the London interbank offered rates for U.S. Dollars quoted by the British
Bankers'
8
Association as set forth on Moneyline Telerate service) (or appropriate
successor or, if the British Bankers' Association or its successor ceases to
provide such quotes, a comparable replacement determined by the Agent) display
page 3750 (or such other display page on the Moneyline Telerate service as may
replace display page 3750) two (2) Business Days prior to the first day of such
Interest Period for an amount comparable to such Borrowing Tranche and having a
borrowing date and a maturity comparable to such Interest Period by (ii) a
number equal to 1.00 minus the Euro-Rate Reserve Percentage. Such Euro-Rate may
also be expressed by the following formula:
Euro-Rate = Average of London interbank offered rates quoted
by BBA or appropriate successor as shown on
Moneyline Telerate service display page 3750
--------------------------------------------
1.00 - Euro-Rate Reserve Percentage
The Euro-Rate shall be adjusted with respect to any Loan to which the Euro-Rate
Option applies that is outstanding on the effective date of any change in the
Euro-Rate Reserve Percentage as of such effective date. The Agent shall give
prompt notice to the Borrower of the Euro-Rate as determined or adjusted in
accordance herewith, which determination shall be conclusive absent manifest
error.
(B) with respect to Optional Currency Loans comprising any Borrowing
Tranche to which the Euro-Rate Option applies for any Interest Period, the
interest rate per annum determined by Agent by dividing (i) the rate of interest
per annum determined by Agent in accordance with its usual procedures (which
determination shall be conclusive absent manifest error) to be the rate of
interest per annum for deposits in the relevant Optional Currency which appears
on the relevant Telerate Page (or, if no such quotation is available on such
Telerate Page, on the appropriate Reuters Screen) at approximately 9:00 a.m.,
Pittsburgh time, two (2) Business Days prior to the first day of such Interest
Period for delivery on the first day of such Interest Period for a period, and
in an amount, comparable to such Interest Period and principal amount of such
Borrowing Tranche ("LIBO RATE") by (ii) a number equal to 1.00 minus the
Euro-Rate Reserve Percentage. Such Euro-Rate may also be expressed by the
following formula:
LIBO Rate
Euro-Rate =
-----------------------------------------
1 - Euro-Rate Reserve Percentage
The Euro-Rate shall be adjusted with respect to any Euro-Rate Option outstanding
on the effective date of any change in the Euro-Rate Reserve Percentage as of
such effective date. The Agent shall give prompt notice to the Borrower of the
Euro-Rate as determined or adjusted in accordance herewith, which determination
shall be conclusive absent manifest error. The Euro-Rate for any Loans shall be
based upon the Euro-Rate for the currency in which such Loans are requested.
9
EURO-RATE OPTION shall mean the option of the Borrower to have
Revolving Credit Loans bear interest at the rate and under the terms and
conditions set forth in Section 4.1.1(ii).
EURO-RATE RESERVE PERCENTAGE shall mean as of any day the maximum
percentage in effect on such day: (i) as prescribed by the Board of Governors of
the Federal Reserve System (or any successor) for determining the reserve
requirements (including supplemental, marginal and emergency reserve
requirements) with respect to eurocurrency funding (currently referred to as
"Eurocurrency Liabilities"); and (ii) to be maintained by a Bank as required for
reserve liquidity, special deposit, or a similar purpose by any governmental or
monetary authority of any country or political subdivision thereof (including
any central bank), against (A) any category of liabilities that includes
deposits by reference to which a Euro-Rate is to be determined, or (B) any
category of extension of credit or other assets that includes Loans or Borrowing
Tranches to which a Euro-Rate applies.
EVENT OF DEFAULT shall mean any of the events described in Section 9.1
and referred to therein as an "Event of Default."
EXCLUDED SUBSIDIARY shall mean any Person in which any Loan Party or
any Subsidiary of any Loan Party has made an Investment permitted by Section
8.2.4(v) and which Person, as provided in the definition of Subsidiary, the Loan
Parties shall have elected to not treat as a Subsidiary for purposes of the Loan
Documents.
EXECUTIVE ORDER NO. 13224 shall mean Executive Order No. 13224 on
Terrorist Financing, effective September 24, 2001, as the same has been, or
shall hereafter be, renewed, extended, amended or replaced.
EXISTING LETTER OF CREDIT shall mean the Letter of Credit issued at
the request of the Borrower, by PNC Bank, on or about June 23, 2004, for the
benefit of the State of Wisconsin Department of Health and Family Services, in
the face amount of $750,000.
EXPIRATION DATE shall mean, with respect to the Revolving Credit
Commitments, June 30, 2009.
FEDERAL FUNDS EFFECTIVE RATE for any day shall mean the rate per annum
(based on a year of 360 days and actual days elapsed and rounded upward to the
nearest 1/100 of 1%) announced by the Federal Reserve Bank of New York (or any
successor) on such day as being the weighted average of the rates on overnight
federal funds transactions arranged by federal funds brokers on the previous
trading day, as computed and announced by such Federal Reserve Bank (or any
successor) in substantially the same manner as such Federal Reserve Bank
computes and announces the weighted average it refers to as the "Federal Funds
Effective Rate" as of the date of this Agreement; PROVIDED, if such Federal
Reserve Bank (or its successor) does not announce such rate on any day, the
"Federal Funds Effective Rate" for such day shall be the Federal Funds Effective
Rate for the last day on which such rate was announced.
10
FEDERAL FUNDS OPEN RATE. The rate per annum determined by the Agent in
accordance with its usual procedures (which determination shall be conclusive
absent manifest error) to be the "open" rate for federal funds transactions as
of the opening of business for federal funds transactions among members of the
Federal Reserve System arranged by federal funds brokers on such day, as quoted
by Xxxxxx Guybutler, any successor entity thereto, or any other broker selected
by the Bank, as set forth on the applicable Telerate display page; provided,
however; that if such day is not a Business Day, the Federal Funds Open Rate for
such day shall be the "open" rate on the immediately preceding Business Day, or
if no such rate shall be quoted by a Federal funds broker at such time, such
other rate as determined by the Agent in accordance with its usual procedures.
FIRST TIER FOREIGN SUBSIDIARY shall mean, at any date of
determination, each Foreign Subsidiary in which any one or more of the Borrower
and/or any of its Domestic Subsidiaries owns more than 50%, in the aggregate, of
the Voting Stock of such Foreign Subsidiary.
FOREIGN SUBSIDIARY shall mean any Subsidiary of the Borrower which is
not a Domestic Subsidiary.
GAAP shall mean generally accepted accounting principles as are in
effect in the United States from time to time, subject to the provisions of
Section 1.3, and applied on a consistent basis both as to classification of
items and amounts.
GLENBOROUGH LETTER OF CREDIT shall mean the Letter of Credit, in the
face amount of $700,000, and with a maximum maturity of twenty-four months from
the date of issuance, issued on behalf of the Loan Parties for the benefit of
Glenborough Properties, L.P., which Letter of Credit is intended to replace the
B of A/Glenborough Letter of Credit.
GOVERNMENTAL ACTS shall have the meaning assigned to that term in
Section 2.10.8.
GUARANTOR shall mean each of the parties to this Agreement which is
designated as a "Guarantor" on the signature page hereof and each other Person
which joins this Agreement as a Guarantor after the date hereof pursuant to
Section 11.18.
GUARANTOR JOINDER shall mean a joinder by a Person as a Guarantor
under this Agreement, the Guaranty Agreement and the other Loan Documents in the
form of EXHIBIT 1.1(G)(1).
GUARANTY of any Person shall mean any obligation of such Person
guaranteeing or in effect guaranteeing any liability or obligation of any other
Person in any manner, whether directly or indirectly, including any agreement to
indemnify or hold harmless any other Person, any performance bond or other
suretyship arrangement and any other form of assurance against loss, except
endorsement of negotiable or other instruments for deposit or collection in the
ordinary course of business.
11
GUARANTY AGREEMENT shall mean the Guaranty and Suretyship Agreement in
substantially the form of EXHIBIT 1.1(G)(2) executed and delivered by each of
the Guarantors to the Agent for the benefit of the Banks.
HEDGE shall mean an interest rate or currency swap, collar, cap,
adjustable strike cap, adjustable strike corridor or similar agreements entered
into by the Loan Parties or their Subsidiaries in the ordinary course of
business and not for speculative purpose, in order to provide protection to, or
minimize the impact upon, the Borrower, the Guarantor and/or their Subsidiaries
of increasing floating rates of interest applicable to Indebtedness or
fluctuations in exchange rates, as the case may be.
HISTORICAL STATEMENTS shall have the meaning assigned to that term in
Section 6.1.9(i).
INDEBTEDNESS shall mean, as to any Person at any time, any and all
indebtedness, obligations or liabilities (whether matured or unmatured,
liquidated or unliquidated, direct or indirect, absolute or contingent, or joint
or several) of such Person for or in respect of: (i) borrowed money, (ii)
amounts raised under or liabilities in respect of any note purchase or
acceptance credit facility, (iii) reimbursement obligations (contingent or
otherwise) under any letter of credit, (iv) net reimbursement obligations
(contingent or otherwise) under any currency swap agreement, interest rate swap,
cap, collar or floor agreement or other interest rate management device, (v) any
other transaction (including forward sale or purchase agreements, capitalized
leases and conditional sales agreements) having the commercial effect of a
borrowing of money entered into by such Person to finance its operations or
capital requirements (but not including trade payables and accrued expenses
incurred in the ordinary course of business), or (vi) any Guaranty of
Indebtedness for borrowed money.
INELIGIBLE SECURITY shall mean any security which may not be
underwritten or dealt in by member banks of the Federal Reserve System under
Section 16 of the Banking Act of 1933 (12 U.S.C. Section 24, Seventh), as
amended.
INSOLVENCY PROCEEDING shall mean, with respect to any Person, (a) a
case, action or proceeding with respect to such Person (i) before any court or
any other Official Body under any bankruptcy, insolvency, reorganization or
other similar Law now or hereafter in effect, or (ii) for the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator, conservator
(or similar official) of any Loan Party or otherwise relating to the
liquidation, dissolution, winding-up or relief of such Person, or (b) any
general assignment for the benefit of creditors, composition, marshaling of
assets for creditors, or other, similar arrangement in respect of such Person's
creditors generally or any substantial portion of its creditors; undertaken
under any Law.
INTERCOMPANY INDEBTEDNESS shall mean, as of any date of determination,
Indebtedness payable by the Borrower to any Consolidated Subsidiary or by any
Consolidated Subsidiary to either the Borrower or any other Consolidated
Subsidiary. It is expressly agreed that Intercompany Indebtedness shall not
include any Indebtedness payable by the Borrower or any Consolidated Subsidiary
to any Excluded Subsidiary.
12
INTEREST COVERAGE RATIO shall mean the ratio of the amounts under the
following clauses (a) and (b): (a) Consolidated EBITDA (as the numerator) to (b)
Consolidated Interest Expense (as the denominator). For purposes of calculating
the Interest Coverage Ratio, Consolidated EBITDA and Consolidated Interest
Expense shall be determined as of the end of each fiscal quarter of the Borrower
for the four fiscal quarters then ended.
INTEREST PERIOD shall mean the period of time selected by the Borrower
in connection with (and to apply to) any election permitted hereunder by the
Borrower to have Revolving Credit Loans bear interest under the Euro-Rate
Option. Subject to the last sentence of this definition such period shall be (i)
one, two, three or six Months if Borrower selects the Euro-Rate Option with
respect to Loans in Dollars, and (ii) one, two, three or six Months with respect
to Loans in an Optional Currency. Such Interest Period shall commence on the
effective date of such Interest Rate Option, which shall be (i) the Borrowing
Date if the Borrower is requesting new Loans, or (ii) the date of renewal of or
conversion to the Euro-Rate Option if the Borrower is renewing or converting to
the Euro-Rate Option applicable to outstanding Loans. Notwithstanding the second
sentence hereof: (A) any Interest Period which would otherwise end on a date
which is not a Business Day shall be extended to the next succeeding Business
Day unless such Business Day falls in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day, and (B) the
Borrower shall not select, convert to or renew an Interest Period for any
portion of the Loans that would end after the Expiration Date.
INTEREST RATE OPTION shall mean any Euro-Rate Option or Base Rate
Option.
INTERIM STATEMENTS shall have the meaning assigned to that term in
Section 6.1.9(i).
INTERNAL REVENUE CODE shall mean the Internal Revenue Code of 1986, as
the same may be amended or supplemented from time to time, and any successor
statute of similar import, and the rules and regulations thereunder, as from
time to time in effect.
INVESTMENTS shall mean collectively all of the following with respect
to any Person: (i) investments or contributions by any of the Loan Parties or
their Subsidiaries directly or indirectly in or to the capital of or other
payments to (except in connection with transactions for the sale of goods or
services for fair value in the ordinary course of business) such Person, (ii)
loans or advances by any of the Loan Parties or their Subsidiaries to such
Person, (iii) guaranties by any Loan Party or any Subsidiary of any Loan Party
directly or indirectly of the obligations of such Person, (iv) other credit
enhancements of any Loan Party or any Subsidiary of any Loan Party to or for the
benefit of such Person, or (v) if such Loan Party or any Subsidiary of any Loan
Party is liable as a matter of law for the obligations of such Person,
obligations, contingent or otherwise, of such Person. If the nature of an
Investment is tangible property then the amount of such Investment shall be
determined by valuing such property at fair value in accordance with the past
practice of the Loan Parties and such fair values shall be satisfactory to the
Agent, in its reasonable discretion.
13
LAW shall mean any law (including common law), constitution, statute,
treaty, regulation, rule, ordinance, opinion, release, ruling, order,
injunction, writ, decree, bond, judgment, authorization or approval, lien or
award of or settlement agreement with any Official Body.
LETTER OF CREDIT shall have the meaning assigned to that term in
Section 2.10.1.
LETTER OF CREDIT BORROWING shall have the meaning assigned to such
term in Section 2.10.3.4.
LETTER OF CREDIT FEE shall have the meaning assigned to that term in
Section 2.10.2.
LETTERS OF CREDIT OUTSTANDING shall mean at any time the sum of (i)
the aggregate undrawn face amount of outstanding Letters of Credit and (ii) the
aggregate amount of all unpaid and outstanding Reimbursement Obligations and
Letter of Credit Borrowings.
LEVERAGE RATIO shall mean the ratio of the amounts under the following
clauses (a) and (b): (a) Total Debt (as the numerator) to (b) Consolidated
EBITDA (as the denominator). For purposes of calculating the Leverage Ratio (and
unless otherwise expressly stated in this Agreement), Total Debt shall be
determined as of the end of each fiscal quarter of the Borrower and Consolidated
EBITDA shall be determined as of the end of each fiscal quarter of the Borrower
for the four fiscal quarters then ended.
LIEN shall mean any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
whatsoever, whether voluntarily or involuntarily given, including any
conditional sale or title retention arrangement, and any assignment, deposit
arrangement or lease intended as, or having the effect of, security and any
filed financing statement or other notice of any of the foregoing (whether or
not a lien or other encumbrance is created or exists at the time of the filing).
LOAN DOCUMENTS shall mean this Agreement, the Agent's Letter, the
Guaranty Agreement, the Pledge Agreement, the Subsidiary Pledge Agreement, the
Notes and any other instruments, certificates or documents delivered or
contemplated to be delivered hereunder or thereunder or in connection herewith
or therewith, as the same may be supplemented or amended from time to time in
accordance herewith or therewith, and LOAN DOCUMENT shall mean any of the Loan
Documents.
LOAN PARTIES shall mean the Borrower and the Guarantors.
LOAN REQUEST shall mean a request for a Revolving Credit Loan or a
request to select, convert to or renew a Base Rate Option or Euro-Rate Option
with respect to an outstanding Revolving Credit Loan in accordance with Section
2.5 and 4.1.
LOANS shall mean collectively and LOAN shall mean separately all
Revolving Credit Loans and, Swing Loans, or any Revolving Credit Loan or Swing
Loan.
14
MATERIAL ADVERSE CHANGE shall mean any set of circumstances or events
which (a) has or could reasonably be expected to have any material adverse
effect whatsoever upon the validity or enforceability of this Agreement or any
other Loan Document, (b) is or could reasonably be expected to be material and
adverse to the business, properties, assets, financial condition, results of
operations or (as to Section 7.1.8 only) prospects of the Loan Parties taken as
a whole, (c) impairs materially or could reasonably be expected to impair
materially the ability of the Loan Parties taken as a whole to duly and
punctually pay or perform its Indebtedness, or (d) impairs materially or could
reasonably be expected to impair materially the ability of the Agent or any of
the Banks, to the extent permitted, to enforce their legal remedies pursuant to
this Agreement or any other Loan Document.
MATERIAL ADVERSE EFFECT shall mean any set of circumstances or events
which has a material adverse effect on (a) the business, properties, operations,
assets, financial condition or results of operations of the Loan Parties taken
as a whole, or (b) the validity or enforceability of this Agreement or any of
the other Loan Documents or the rights or remedies of the Agent or the Banks
hereunder or thereunder.
MATERIAL DOMESTIC SUBSIDIARY shall mean any Domestic Subsidiary of the
Borrower that is also a Material Subsidiary.
MATERIAL FIRST TIER FOREIGN SUBSIDIARY shall mean a First Tier Foreign
Subsidiary that is also a Material Subsidiary.
MATERIAL SUBSIDIARY shall mean, as of any date of determination, any
Domestic Subsidiary or any Foreign Subsidiary that, together with its
Subsidiaries on a consolidated basis, (a) owns assets (excluding assets that
pursuant to GAAP principles of consolidation would be eliminated from the
consolidated balance sheet of the Borrower as of such date of determination) on
such date of determination equal to at least ten percent (10%) of the total
assets of the Borrower and its Subsidiaries on a consolidated basis on such date
of determination or (b) generated revenues (excluding revenues that pursuant to
GAAP principles of consolidation would be eliminated from the consolidated
income statement of the Borrower as of such date of determination) for the
twelve month period ending on such date of determination equal to at least ten
percent (10%) of the total revenues of the Borrower and its Subsidiaries on a
consolidated basis for such period.
MONTH, with respect to an Interest Period under the Euro-Rate Option,
shall mean the interval between the days in consecutive calendar months
numerically corresponding to the first day of such Interest Period. If any
Euro-Rate Interest Period begins on a day of a calendar month for which there is
no numerically corresponding day in the month in which such Interest Period is
to end, the final month of such Interest Period shall be deemed to end on the
last Business Day of such final month.
MOODY'S shall mean Xxxxx'x Investors Service, Inc. and its successors
or assigns in the business of such company in the rating of securities.
15
MULTIEMPLOYER PLAN shall mean any employee benefit plan which is a
"multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA and to
which the Borrower or any member of the ERISA Group is then making or accruing
an obligation to make contributions or, within the preceding five Plan years,
has made or had an obligation to make such contributions.
MULTIPLE EMPLOYER PLAN shall mean a Plan which has two or more
contributing sponsors (including the Borrower or any member of the ERISA Group)
at least two of whom are not under common control, as such a plan is described
in Sections 4063 and 4064 of ERISA.
NOTES shall mean the Revolving Credit Notes and the Swing Note, if
any.
NOTICES shall have the meaning assigned to that term in Section 11.6.
OBLIGATION shall mean any obligation or liability of any of the Loan
Parties to the Agent or any of the Banks, howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent, now or hereafter
existing, or due or to become due, under or in connection with this Agreement,
the Notes, the Letters of Credit, the Agent's Letter or any other Loan Document.
Obligations shall include the liabilities to any Bank under any Bank-Provided
Hedge but shall not include the liabilities to other Persons under any other
Hedge. So long as Bank of America is a Bank, Obligations shall include the
liabilities and reimbursement obligations of the Loan Parties to Bank of America
in respect of the B of A/Glenborough Letter of Credit.
OFFICIAL BODY shall mean any national, federal, state, local or other
government or political subdivision or any agency, authority, board, bureau,
central bank, commission, department or instrumentality of either, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
OPTIONAL CURRENCY shall mean any of the following currencies: British
Pounds Sterling, Japanese Yen, Swiss Francs, and the Euro and any other currency
approved by Agent and all of the Banks pursuant to Section 2.11.5.
OPTIONAL CURRENCY LOAN PROCESSING FEES shall have the meaning assigned
to such term in Section 10.15.
ORIGINAL CURRENCY shall have the meaning assigned to such term in
Section 5.10.1.
OTHER CURRENCY shall have the meaning assigned to such term in Section
5.10.1.
OVERNIGHT RATE shall mean for any day with respect to any Loans in an
Optional Currency, the rate of interest per annum as determined by the Agent at
which overnight deposits in such currency, in an amount approximately equal to
the amount with respect to which
16
such rate is being determined, would be offered for such day in the applicable
offshore interbank market.
PARTICIPATION ADVANCE shall mean, with respect to any Bank, such
Bank's payment in respect of its participation in a Letter of Credit Borrowing
according to its Ratable Share pursuant to Section 2.10.4.
PBGC shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA or any successor.
PERMITTED ACQUISITIONS shall have the meaning assigned to such term in
Section 8.2.6.
PERMITTED INVESTMENTS shall mean:
(a) securities issued or directly and fully guaranteed or insured by
the United States of America or any agency or instrumentality thereof (provided
that the full faith and credit of the United States of America is pledged in
support thereof) having maturities of not more than twelve months from the date
of acquisition,
(b) U.S. dollar denominated time and demand deposits and certificates
of deposit of (i) any Bank, (ii) any domestic commercial bank having capital and
surplus in excess of $500,000,000 or (iii) any bank whose short-term commercial
paper rating from S&P is at least A-1 or the equivalent thereof or from Xxxxx'x
is at least P-1 or the equivalent thereof (any such bank being an "Approved
Bank"), in each case with maturities of not more than 270 days from the date of
acquisition,
(c) commercial paper and variable or fixed rate notes issued by any
Approved Bank (or by the parent company thereof) or any variable rate notes
issued by, or guaranteed by, any domestic corporation rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or
better by Moody's and maturing within six months of the date of acquisition,
(d) repurchase agreements with a bank or trust company (including any
of the Banks) or securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the United
States of America in which the Borrower shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations,
(e) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, rated A-1 (or the equivalent thereof)
or better from S&P or rated P-1 (or the equivalent thereof) or better from
Moody's,
17
(f) Euro time deposits having a maturity of less than one year
purchased from any Bank directly (whether or not such deposit is with such Bank
or any other Bank hereunder),
(g) investments in portfolios comprised of securities rated A-1 (or
the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or
better by Moody's and having a total average maturity not to exceed 24 months,
(h) cash on hand and in bank accounts, and
(i) investments, classified in accordance with GAAP as current assets,
in money market investment programs registered under the Investment Company Act
of 1940, as amended, which are administered by financial institutions having
capital of at least $500,000,000 and the portfolios of which are limited to
investments of the character described in the foregoing subdivisions (a) through
(h).
PERMITTED LIENS shall mean:
(i) Liens for taxes, assessments, or similar charges, incurred in the
ordinary course of business and which are not yet due and payable;
(ii) Pledges or deposits made in the ordinary course of business to
secure payment of workmen's compensation, or to participate in any fund in
connection with workmen's compensation, unemployment insurance, old-age pensions
or other social security programs;
(iii) Liens of mechanics, materialmen, warehousemen, carriers, or
other like Liens, securing obligations incurred in the ordinary course of
business that are not yet due and payable and Liens of landlords securing
obligations to pay lease payments that are not yet due and payable or in
default;
(iv) Good-faith pledges or deposits made in the ordinary course of
business to secure performance of bids, tenders, contracts (other than for the
repayment of borrowed money) or leases, not in excess of the aggregate amount
due thereunder, or to secure statutory obligations; or surety, appeal,
indemnity, performance bonds, other similar bonds or obligations of a like
nature required in the ordinary course of business;
(v) Encumbrances consisting of rights-of-way, zoning restrictions,
easements or other similar encumbrances, charges or restrictions on the use of
real property or other minor defects or irregularities in title so long as all
of the foregoing: (w) are incurred in the ordinary course of business, (x) are
not in the aggregate substantial in amount, (y) do not materially impair the use
of such property or the value thereof, and (z) none of which is violated in any
material respect by existing or proposed structures or land use;
(vi) Liens, security interests and mortgages in favor of the Agent for
the benefit of the Banks securing the Obligations including liabilities under
any Bank-Provided
18
Hedge and, so long as Bank of America is a Bank, liabilities existing under the
B of A/Glenborough Letter of Credit;
(vii) Any Lien existing on the date of this Agreement and described on
SCHEDULE 1.1(P), PROVIDED that the principal amount secured thereby is not
hereafter increased, and no additional assets become subject to such Lien;
(viii) Purchase Money Security Interests, PROVIDED that the aggregate
amount of loans and deferred payments secured by such Purchase Money Security
Interests shall not exceed $30,000,000 (excluding for the purpose of this
computation any loans or deferred payments secured by Liens described on
SCHEDULE 1.1(P));
(ix) Judgment Liens that would not otherwise constitute an Event of
Default;
(x) The Liens set forth in items (1) through (3) below of this clause
(x) so long as such Liens are in accordance with the applicable requirements of
such items set forth below and so long as (i) neither the aggregate outstanding
principal amount of the Indebtedness secured thereby, nor (ii) the aggregate
fair market value (determined as of the date such Lien is incurred) of the
assets subject thereto exceeds in the aggregate for the Borrower and its
Subsidiaries the amount of Indebtedness permitted by Section 8.2.1(viii):
(1) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; PROVIDED that (x) such
Liens and the Indebtedness secured thereby are incurred prior to or
within 90 days after such acquisition or the completion of such
construction or improvement, (y) the Indebtedness secured thereby does
not exceed the cost (excluding transaction costs) of acquiring,
constructing or improving such fixed or capital assets and (z) such
Liens shall not encumber any property or assets of the Borrower or any
of its Subsidiaries other than the property financed by such
Indebtedness;
(2) Any Lien existing on any assets or Person prior to the time,
as part of a Permitted Acquisition, such assets are acquired by the
Borrower or a Subsidiary of the Borrower or such Person is acquired
and becomes a Subsidiary of the Borrower; PROVIDED that (x) such Lien
is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary of the Borrower, as
the case may be, (y) such Lien shall not apply to any other property
or assets of the Borrower or any Subsidiary of the Borrower, and (z)
such Lien shall secure only those obligations which it secures on the
date of such acquisition or the date such Person becomes a Subsidiary
of the Borrower, as the case may be, and extensions, renewals,
refinancings and replacements thereof that do not increase the
outstanding principal amount thereof; and
(3) other Liens on assets of the Borrower or any of its
Subsidiaries not otherwise specified in this definition of Permitted
Liens;
19
(xii) Liens arising by virtue of any statutory or common law provision
relating to banker's liens, rights of setoff or similar rights as to deposit
accounts or other funds maintained, in either case, in the ordinary course of
business with a creditor depository institution;
(xiii) Any interest or title of a lessor or sublessor under any lease
or sublease entered into by the Borrower or any Subsidiary of the Borrower in
the ordinary course of its business and covering only the assets so leased or
subleased; and leases or subleases granted to others, in the ordinary course of
the Borrower's or its Subsidiaries' business, not interfering in any material
respect with the business of the Borrower or any of its Subsidiaries;
(xiv) Liens, in the ordinary course of the Borrower's or its
Subsidiaries' business, in favor of customs and revenue authorities as a matter
of law to secure payment of custom duties;
(xv) Liens securing the Cash Pooling Obligations so long as such Liens
are on assets of Foreign Subsidiaries on deposit in accounts with financial
institutions providing such Cash Pooling Obligations to such Foreign
Subsidiaries;
(xvi) Liens incurred in the ordinary course of business of the Loan
Parties and their Subsidiaries on assets of the Loan Parties and their
Subsidiaries, which Liens secure surety, appeal, indemnity, performance or other
similar bonds or obligations of a like nature required in the ordinary course of
business of the Loan Parties and their Subsidiaries so long as the aggregate net
book value of the assets of the Loan Parties and their Subsidiaries secured by
all Liens permitted by this clause (xvi) does not exceed $20,000,000; and
(xvii) The following, (A) if the validity or amount thereof is being
contested in good faith by appropriate and lawful proceedings diligently
conducted so long as levy and execution thereon have been stayed and continue to
be stayed or (B) if a final judgment is entered and such judgment is discharged
within thirty (30) days of entry, and in either case they do not affect the
Pledged Collateral or in the aggregate materially impair the ability of any Loan
Party to perform its Obligations hereunder or under the other Loan Documents:
(1) Claims or Liens for taxes, assessments or charges due and
payable and subject to interest or penalty, PROVIDED that the
applicable Loan Party maintains such reserves or other appropriate
provisions as shall be required by GAAP and pays all such taxes,
assessments or charges forthwith upon the commencement of proceedings
to foreclose any such Lien;
(2) Claims, Liens or encumbrances upon, and defects of title to,
personal property (other than the Pledged Collateral), including any
attachment of personal property or other legal process prior to
adjudication of a dispute on the merits; or
(3) Claims or Liens of mechanics, materialmen, warehousemen,
carriers, landlords or other statutory nonconsensual Liens.
20
PERSON shall mean any individual, corporation, partnership, limited
liability company, association, joint-stock company, trust, unincorporated
organization, joint venture, government or political subdivision or agency
thereof, or any other entity.
PLAN shall mean at any time an employee pension benefit plan
(including a Multiple Employer Plan, but not a Multiemployer Plan) which is
covered by Title IV of ERISA or is subject to the minimum funding standards
under Section 412 of the Internal Revenue Code and either (i) is maintained by
any member of the ERISA Group for employees of any member of the ERISA Group or
(ii) has at any time within the preceding five years been maintained by any
entity which was at such time a member of the ERISA Group for employees of any
entity which was at such time a member of the ERISA Group.
PLEDGE AGREEMENT shall mean the Pledge Agreement in substantially the
form of EXHIBIT 1.1(P) executed and delivered by the Borrower to the Agent.
PLEDGED COLLATERAL shall mean the shares of common stock and other
property owned by certain of the Loan Parties in which security interests are to
be granted under the Pledge Agreement.
PNC BANK shall mean PNC Bank, National Association, its successors and
assigns.
POTENTIAL DEFAULT shall mean any event or condition which with notice
or passage of time, or any combination of the foregoing, would constitute an
Event of Default.
PRINCIPAL OFFICE shall mean the main banking office of the Agent in
Pittsburgh,
Pennsylvania.
PRIOR SECURITY INTEREST shall mean a valid and enforceable perfected
first-priority security interest under the Uniform Commercial Code and under all
other applicable Law in the Pledged Collateral which is subject only to Liens
for taxes not yet due and payable to the extent such prospective tax payments
are given priority by statute.
PROHIBITED TRANSACTION shall mean any prohibited transaction as
defined in Section 4975 of the Internal Revenue Code or Section 406 of ERISA for
which neither an individual nor a class exemption has been issued by the United
States Department of Labor PROVIDED, HOWEVER, that a Prohibited Transaction
shall not include any transaction exempt from Section 4975 of the Internal
Revenue Code by reason of the applicability of Section 4975(d) thereof or any
transaction exempt from Section 406 of ERISA by reason of the applicability of
Section 408 thereof.
PROPERTY shall mean all real property, both owned and leased, of any
Loan Party or Subsidiary of a Loan Party.
PURCHASE MONEY SECURITY INTEREST shall mean Liens upon tangible
personal property securing loans to any Loan Party or Subsidiary of a Loan Party
or deferred payments by such Loan Party or Subsidiary for the purchase of such
tangible personal property.
21
PURCHASING BANK shall mean a Bank which becomes a party to this
Agreement by executing an Assignment and Assumption Agreement.
RATABLE SHARE shall mean the proportion that a Bank's Commitment
(excluding the Swing Loan Commitment) bears to the Commitments (excluding the
Swing Loan Commitments) of all of the Banks.
REGULATED SUBSTANCES shall mean, without limitation, any substance,
material or waste, regardless of its form or nature, defined under Environmental
Laws as a "hazardous substance," "pollutant," "pollution," "contaminant,"
"hazardous or toxic substance," "extremely hazardous substance," "toxic
chemical," "toxic substance," "toxic waste," "hazardous waste," "special
handling waste," "industrial waste," "residual waste," "solid waste," "municipal
waste," "mixed waste," "pesticide," "infectious waste," "chemotherapeutic
waste," "medical waste," or "regulated substance" or any other material,
substance or waste, regardless of its form or nature, which is regulated,
controlled or governed by Environmental Laws due to its radioactive, ignitable,
corrosive, reactive, explosive, toxic, carcinogenic or infectious properties or
nature, or which otherwise is regulated, controlled or governed by any
applicable Environmental Law, including without limitation, petroleum and
petroleum products (including crude oil and any fractions thereof), natural gas,
synthetic gas and any mixtures thereof, asbestos, urea formaldehyde,
polychlorinated biphenlys, mercury, radon and radioactive material.
REGULATION U shall mean Regulation U, T, or X as promulgated by the
Board of Governors of the Federal Reserve System, as amended from time to time.
REIMBURSEMENT OBLIGATION shall have the meaning assigned to such term
in Section 2.10.3.2.
REMEDIAL ACTION shall mean any investigation, identification,
preliminary assessment, characterization, delineation, feasibility study,
cleanup, corrective action, removal, remediation, risk assessment, fate and
transport analysis, in-situ treatment, containment, operation and maintenance or
management in-place, control, abatement or other response actions to Regulated
Substances and any closure and post-closure measures associated therewith.
REPORTABLE EVENT shall mean a reportable event described in Section
4043 of ERISA and regulations thereunder with respect to a Plan or Multiemployer
Plan, unless notice to the PBGC has been waived under the following subsections
of PBGC Regulation Subsection 4043: .23, .24 and .32.
REQUIRED BANKS shall mean
(A) if there are no Loans, Reimbursement Obligations or Letter of
Credit Borrowings outstanding, Required Banks shall mean Banks whose Commitments
(excluding the Swing Loan Commitments) aggregate at least 51% of the Commitments
of all of the Banks, or
(B) if there are Loans, Reimbursement Obligations, or Letter of Credit
Borrowings outstanding, Required Banks shall mean:
22
(i) prior to a termination of the Commitments hereunder pursuant to
Section 9.2.1 or 9.2.2, any Bank or group of Banks if the sum of the Loans
(excluding the Swing Loans), Reimbursement Obligations and Letter of Credit
Borrowings of such Banks then outstanding aggregates at least 51% of the total
principal amount of all of the Loans (excluding the Swing Loans), Reimbursement
Obligations and Letter of Credit Borrowings then outstanding.
(ii) after a termination of the Commitments hereunder pursuant to
Section 9.2.1 or 9.2.2, any Bank or group of Banks if the sum of the Loans,
Reimbursement Obligations and Letter of Credit Borrowings of such Banks then
outstanding aggregates at least 51% of the total principal amount of all of the
Loans, Reimbursement Obligations and Letter of Credit Borrowings then
outstanding.
Reimbursement Obligations and Letter of Credit Borrowings shall be deemed, for
purposes of this definition, to be in favor of the Agent and not a participating
Bank if such Bank has not made its Participation Advance in respect thereof and
shall be deemed to be in favor of such Bank to the extent of its Participation
Advance if it has made its Participation Advance in respect thereof.
REQUIRED ENVIRONMENTAL PERMITS shall mean all permits, licenses, bonds
or other forms of financial assurances, consents, registrations, identification
numbers, approvals or authorizations required under Environmental Laws to own,
occupy or maintain the Property or which otherwise are required for the
operations and business activities of the Borrower or Guarantors or for the
performance of a Remedial Action.
REQUIRED SHARE shall have the meaning assigned to such term in Section
5.9.
REVOLVING CREDIT COMMITMENT shall mean, as to any Bank at any time,
the amount initially set forth opposite its name on SCHEDULE 1.1(B) in the
column labeled "Amount of Commitment for Revolving Credit Loans," and thereafter
on Schedule I to the most recent Assignment and Assumption Agreement, and
REVOLVING CREDIT COMMITMENTS shall mean the aggregate Revolving Credit
Commitments of all of the Banks.
REVOLVING CREDIT LOANS shall mean collectively and REVOLVING CREDIT
LOAN shall mean separately all Revolving Credit Loans or any Revolving Credit
Loan made by the Banks or one of the Banks to the Borrower pursuant to Section
2.1 or 2.10.3.
REVOLVING CREDIT NOTE shall mean collectively all the Revolving Credit
Notes of the Borrower in the form of EXHIBIT 1.1(R) evidencing the Revolving
Credit Loans to such Bank, together with all amendments, extensions, renewals,
replacements, refinancings or refundings thereof in whole or in part and
REVOLVING CREDIT NOTE shall mean any of them separately.
SAFETY COMPLAINTS shall mean any (i) written notice of non-compliance
or violation, citation or order relating in any way to any Safety Law; (ii)
civil, criminal,
23
administrative or regulatory investigation, or judicial action, suit, claim or
proceeding instituted by an Official Body relating in any way to any Safety Law;
(iii) civil, criminal, administrative or regulatory or judicial action, suit,
claim or proceeding instituted by any Official Body for civil or administrative
penalties, criminal fines or penalties, or declaratory or equitable relief
arising under any Safety Laws; or (iv) subpoena, request for information or
other written notice or demand of any type issued by an Official Body pursuant
to any Safety Laws.
SAFETY LAWS shall mean the Occupational Safety and Health Act, 29
U.S.C. SECTION 651 et seq., as amended, and any regulations promulgated
thereunder or any equivalent or other foreign, territorial, provincial state or
local Law, each as amended, and any regulations promulgated thereunder,
pertaining or relating to the protection of employees from exposure to Regulated
Substances or hazardous conditions in the workplace (but excluding workers
compensation and wage and hour laws).
SEC shall mean the Securities and Exchange Commission or any
governmental agencies substituted therefor.
SECTION 20 SUBSIDIARY shall mean the Subsidiary of the bank holding
company controlling any Bank, which Subsidiary has been granted authority by the
Federal Reserve Board to underwrite and deal in certain Ineligible Securities.
SETTLEMENT DATE shall mean the date (occurring no less than once each
calendar week) selected from time to time by the Agent on which the Agent elects
to effect settlement pursuant to Section 5.9.
SOLVENT shall mean, with respect to any Person on a particular date,
that on such date (i) the fair value of the property of such Person is greater
than the total amount of liabilities, including, without limitation, contingent
liabilities, of such Person, (ii) the present fair saleable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (iii) such Person is able to pay its debts and other liabilities,
contingent obligations and other commitments as they mature in the normal course
of business, (iv) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature, and (v) such Person is not engaged in business or
a transaction, and is not about to engage in business or a transaction, for
which such Person's property would constitute unreasonably small capital after
giving due consideration to the prevailing practice in the industry in which
such Person is engaged. In computing the amount of contingent liabilities at any
time, it is intended that such liabilities will be computed at the amount which,
in light of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.
STANDARD & POOR'S OR S&P shall mean Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc.
STANDBY LETTER OF CREDIT shall mean a Letter of Credit issued to
support obligations of one or more of the Loan Parties, contingent or otherwise,
which finance the
24
working capital and business needs of the Loan Parties incurred in the ordinary
course of business, but excluding any letter of credit under which the stated
amount of such letter of credit increases automatically over time.
SUBSIDIARY of any Person at any time shall mean (i) any corporation or
trust of which 50% or more (by number of shares or number of votes) of the
outstanding capital stock or shares of beneficial interest normally entitled to
vote for the election of one or more directors or trustees (regardless of any
contingency which does or may suspend or dilute the voting rights) is at such
time owned directly or indirectly by such Person or one or more of such Person's
Subsidiaries, (ii) any partnership of which such Person is a general partner or
of which 50% or more of the partnership interests is at the time directly or
indirectly owned by such Person or one or more of such Person's Subsidiaries,
(iii) any limited liability company of which such Person is a member or of which
50% or more of the limited liability company interests is at the time directly
or indirectly owned by such Person or one or more of such Person's Subsidiaries
or (iv) any corporation, trust, partnership, limited liability company or other
entity which is controlled by such Person or one or more of such Person's
Subsidiaries. It is expressly agreed that, notwithstanding the foregoing
definition of Subsidiary, the Loan Parties, upon written notice to the Agent and
the Banks, may elect that any Person in which any Loan Party or any Subsidiary
of any Loan Party has made an Investment permitted by Section 8.2.4(v) shall not
be treated as a Subsidiary for all purposes of the Loan Documents (including,
without limitation, for purposes of the representations, warranties, covenants
and defaults thereof) and in the event of such election, it is expressly agreed
that the assets, liabilities, equity, net worth and results of operations of
such Person subject to such election shall be excluded from the determination of
the financial covenants set forth in Sections 8.2.15 [Maximum Leverage Ratio]
through 8.2.17 [Minimum Net Worth], any other financial covenant (pro-forma or
otherwise) set forth in the Loan Documents and for purposes of determining the
Applicable Margin.
SUBSIDIARY PLEDGE AGREEMENT shall mean the Pledge Agreement in
substantially the form of EXHIBIT 1.1(S)(1) executed and delivered, by each
Guarantor which owns Pledged Collateral, to the Agent.
SUBSIDIARY SHARES shall mean all issued and outstanding capital stock,
partnership interests, limited liability company member interests or other
equity interests of each Material Domestic Subsidiary and of each Material First
Tier Foreign Subsidiary.
SWING LOAN COMMITMENT shall mean PNC Bank's commitment to make Swing
Loans to the Borrower pursuant to Section 2.2.1 hereof in an aggregate principal
amount up to $10,000,000.
SWING LOAN NOTE shall mean the Swing Loan Note of the Borrower in the
form of EXHIBIT 1.1(S)(2) evidencing the Swing Loans, together with all
amendments, extensions, renewals, replacements, refinancings or refundings
thereof in whole or in part.
SWING LOAN REQUEST shall mean a request for Swing Loans made in
accordance with Section 2.5.2 hereof.
25
SWING LOANS shall mean collectively and SWING LOAN shall mean
separately all Swing Loans or any Swing Loan made by PNC Bank to the Borrower
pursuant to Section 2.2.1 hereof.
TOTAL DEBT shall mean, as of any date of determination, the amount
under the following clause (a) less the amount under the following clause (b):
(a) as of the date of determination the aggregate amount for the
Borrower and its Subsidiaries (determined without duplication) of Indebtedness,
less
(b) the sum of (i) as of the date of determination the aggregate
amount for the Borrower and its Subsidiaries (determined without duplication) of
account deficits arising from Cash Pooling Obligations, which account deficits
do not result in overdrafts, plus (ii) as of the date of determination the
aggregate amount for the Borrower and its Subsidiaries (determined without
duplication) of Intercompany Indebtedness (it being expressly understood that
any Indebtedness payable by the Borrower or any Consolidated Subsidiary to any
Excluded Subsidiary shall not be included as Intercompany Indebtedness).
TRANSFEROR BANK shall mean the selling Bank pursuant to an Assignment
and Assumption Agreement.
TREASURY REGULATIONS shall mean the regulations promulgated under the
Internal Revenue Code of the U.S.
UNIFORM COMMERCIAL CODE shall have the meaning assigned to that term
in Section 6.1.26 [Security Interests].
U.S. means the United States of America.
USA PATRIOT ACT shall mean the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, Public Law 107-56, as the same has been, or shall hereafter be, renewed,
extended, amended or replaced.
VOTING STOCK of a corporation, limited liability company or
partnership means, at any time, all classes of the capital stock, equivalent
ownership interests or other voting securities of such Person then outstanding
and ordinarily entitled to vote in the election of directors (or similar
governing authority).
1.2 CONSTRUCTION.
Unless the context of this Agreement otherwise clearly requires, the
following rules of construction shall apply to this Agreement and each of the
other Loan Documents:
26
1.2.1. NUMBER; INCLUSION.
references to the plural include the singular, the plural, the
part and the whole; "or" has the inclusive meaning represented by the phrase
"and/or," and "including" has the meaning represented by the phrase "including
without limitation";
1.2.2. DETERMINATION.
references to "determination" of or by the Agent or the Banks
shall be deemed to include good-faith estimates by the Agent or the Banks (in
the case of quantitative determinations) and good-faith beliefs by the Agent or
the Banks (in the case of qualitative determinations) and such determination
shall be conclusive absent manifest error;
1.2.3. AGENT'S DISCRETION AND CONSENT.
whenever the Agent or the Banks are granted the right herein
to act in its or their sole discretion or to grant or withhold consent such
right shall be exercised in good faith;
1.2.4. DOCUMENTS TAKEN AS A WHOLE.
the words "hereof," "herein," "hereunder," "hereto" and
similar terms in this Agreement or any other Loan Document refer to this
Agreement or such other Loan Document as a whole and not to any particular
provision of this Agreement or such other Loan Document;
1.2.5. HEADINGS.
the section and other headings contained in this Agreement or
such other Loan Document and the Table of Contents (if any), preceding this
Agreement or such other Loan Document are for reference purposes only and shall
not control or affect the construction of this Agreement or such other Loan
Document or the interpretation thereof in any respect;
1.2.6. IMPLIED REFERENCES TO THIS AGREEMENT.
article, section, subsection, clause, schedule and exhibit
references are to this Agreement or other Loan Document, as the case may be,
unless otherwise specified;
1.2.7. PERSONS.
reference to any Person includes such Person's successors and
assigns but, if applicable, only if such successors and assigns are permitted by
this Agreement or such other Loan Document, as the case may be, and reference to
a Person in a particular capacity excludes such Person in any other capacity;
27
1.2.8. MODIFICATIONS TO DOCUMENTS.
reference to any agreement (including this Agreement and any
other Loan Document together with the schedules and exhibits hereto or thereto),
document or instrument means such agreement, document or instrument as amended,
modified, replaced, substituted for, superseded or restated;
1.2.9. FROM, TO AND THROUGH.
relative to the determination of any period of time, "from"
means "from and including," "to" means "to but excluding," and "through" means
"through and including"; and
1.2.10. SHALL; WILL.
references to "shall" and "will" are intended to have the
same meaning.
1.3 ACCOUNTING PRINCIPLES.
Except as otherwise provided in this Agreement, all computations and
determinations as to accounting or financial matters and all financial
statements to be delivered pursuant to this Agreement shall be made and prepared
in accordance with GAAP (including principles of consolidation where
appropriate), and all accounting or financial terms shall have the meanings
ascribed to such terms by GAAP; PROVIDED, HOWEVER, that all accounting terms
used in Section 8.2 [Negative Covenants] (and all defined terms used in the
definition of any accounting term used in Section 8.2 shall have the meaning
given to such terms (and defined terms) under GAAP as in effect on the date
hereof applied on a basis consistent with those used in preparing the Annual
Statements referred to in Section 6.1.9((i)) [Historical Statements]. In the
event of any change after the date hereof in GAAP, and if such change would
result in the inability to determine compliance with the financial covenants set
forth in Section 8.2 based upon the Borrower's regularly prepared financial
statements by reason of the preceding sentence, then the parties hereto agree to
endeavor, in good faith, to agree upon an amendment to this Agreement that would
adjust such financial covenants in a manner that would not affect the substance
thereof, but would allow compliance therewith to be determined in accordance
with the Borrower's financial statements at that time, PROVIDED, HOWEVER, if (a)
the Borrower shall object to determining such compliance on such basis at the
time of delivery of such financial statements due to any change in GAAP or the
rules promulgated with respect thereto or (b) either the Agent or the Required
Banks shall so object in writing within 60 days after delivery of such financial
statements (or after the Banks have been informed of the changes in GAAP
affecting such financial statements, if later), then for the period following
such objection, unless otherwise agreed by the Borrower and the Required Banks,
such calculations shall be made on a basis consistent with the most recent
financial statements delivered by the Borrower to the Banks as to which no such
objection shall have been made.
28
2. REVOLVING CREDIT AND SWING LOAN FACILITIES
2.1 REVOLVING CREDIT COMMITMENTS.
2.1.1. REVOLVING CREDIT LOANS.
Subject to the terms and conditions hereof and relying upon
the representations and warranties herein set forth, each Bank severally agrees
to make Revolving Credit Loans in either Dollars or one or more Optional
Currencies to the Borrower at any time or from time to time on or after the date
hereof to the Expiration Date provided that (i) after giving effect to each such
Loan the aggregate Dollar Equivalent amount of Loans from such Bank shall not
exceed such Bank's Revolving Credit Commitment minus such Bank's Ratable Share
of the Dollar Equivalent amount of Letters of Credit Outstanding and further
minus such Bank's Ratable Share of outstanding Swing Loans, and (ii) no Loan to
which the Base Rate Option applies shall be made in an Optional Currency, and
PROVIDED, FURTHER that the Dollar Equivalent Revolving Facility Usage at any
time shall not exceed the Revolving Credit Commitments of all the Banks. Within
such limits of time and amount and subject to the other provisions of this
Agreement, the Borrower may borrow, repay and reborrow pursuant to this Section
2.1.
2.2 SWING LOAN COMMITMENT.
2.2.1. SWING LOANS.
Subject to the terms and conditions hereof and relying upon
the representations and warranties herein set forth, and in order to facilitate
loans and repayments between Settlement Dates, PNC Bank may, at its option,
cancelable at any time for any reason whatsoever, make swing loans (the "Swing
Loans") to the Borrower at any time or from time to time after the date hereof
to, but not including, the Expiration Date, in an aggregate principal amount up
to but not in excess of $10,000,000 (the "Swing Loan Commitment"), PROVIDED that
the Dollar Equivalent Revolving Facility Usage at any time, shall not exceed the
Revolving Credit Commitments of all the Banks. Within such limits of time and
amount and subject to the other provisions of this Agreement, the Borrower may
borrow, repay and reborrow pursuant to this Section 2.2.1.
2.3 NATURE OF BANKS' OBLIGATIONS WITH RESPECT TO REVOLVING CREDIT LOANS.
Each Bank shall be obligated to participate in each request for Revolving
Credit Loans pursuant to Section 2.5 [Revolving Credit Loan Requests] in
accordance with its Ratable Share. The aggregate Dollar Equivalent amount of
each Bank's Revolving Credit Loans outstanding hereunder to the Borrower at any
time shall never exceed its Revolving Credit Commitment minus its Ratable Share
of the Dollar Equivalent amount of Letters of Credit Outstanding, subject to
Section 5.4.6 [Mandatory Prepayment-Currency Fluctuations]. The obligations of
each Bank hereunder are several. The failure of any Bank to perform its
obligations hereunder shall not affect the Obligations of the Borrower to any
other party nor shall any other party be liable for the failure of such Bank to
perform its obligations hereunder. The
29
Banks shall have no obligation to make Revolving Credit Loans hereunder on or
after the Expiration Date.
2.4 COMMITMENT FEES.
Accruing from the date hereof until the Expiration Date, the Borrower
agrees to pay to the Agent in Dollars for the account of each Bank, as
consideration for such Bank's Revolving Credit Commitment hereunder, a
nonrefundable commitment fee (the "Commitment Fee") equal to the Applicable
Commitment Fee Rate (computed on the basis of a year of 360 days, as the case
may be, and actual days elapsed) on the average daily difference between the
amount of (i) such Bank's Revolving Credit Commitment as the same may be
constituted from time to time (for purposes of this computation, PNC Bank's
Swing Loans shall be deemed to be borrowed amounts under its Revolving Credit
Commitment) and the (ii) the sum of such Bank's Revolving Credit Loans
outstanding plus its Ratable Share of Letters of Credit Outstanding. All
Commitment Fees shall be payable in arrears on the first day of each July,
October, January and April after the date hereof and on the Expiration Date or
upon acceleration of the Loans.
2.5 REVOLVING CREDIT LOAN REQUESTS; SWING LOAN REQUESTS.
2.5.1. REVOLVING CREDIT LOAN REQUESTS.
Except as otherwise provided herein, the Borrower may from
time to time prior to the Expiration Date request the Banks to make Revolving
Credit Loans, or renew or convert the Interest Rate Option applicable to
existing Revolving Credit Loans pursuant to Section 4.2 [Interest Periods], by
delivering to the Agent, not later than 11:00 a.m., Pittsburgh time, (i) three
(3) Business Days prior to the proposed Borrowing Date with respect to the
making of Revolving Credit Loans in Dollars to which the Euro-Rate Option
applies or the date of conversion to or the renewal of the Euro-Rate Option for
any such Loans and four (4) Business Days prior to the proposed Borrowing Date
with respect to the making of Revolving Credit Loans in an Optional Currency or
the date of conversion to or renewal of the Euro-Rate Option for Revolving
Credit Loans in an Optional Currency; and (ii) one (1) Business Day prior to
either the proposed Borrowing Date with respect to the making of a Revolving
Credit Loan to which the Base Rate Option applies or the last day of the
preceding Interest Period with respect to the conversion to the Base Rate Option
for any Loan, of a duly completed Loan Request therefor substantially in the
form of EXHIBIT 2.5.1. Each Loan Request shall be irrevocable and shall specify
(i) the proposed Borrowing Date; (ii) the aggregate amount of the proposed Loans
(expressed in the currency in which such Loans shall be funded if such Loans
shall be funded in an Optional Currency) comprising each Borrowing Tranche, the
Dollar Equivalent amount of which shall be in integral multiples of $1,000,000
and not less than $5,000,000 for each Borrowing Tranche to which the Euro-Rate
Option applies and in integral multiples of $100,000 and not less than the
lesser of $500,000 or the maximum amount available for Borrowing Tranches to
which the Base Rate Option applies; (iii) whether the Euro-Rate Option or Base
Rate Option shall apply to the proposed Loans comprising the applicable
Borrowing Tranche; (iv) the currency in which such Loans shall be funded if the
Borrower is electing the Euro-Rate Option; and (v) in the case of a Borrowing
Tranche to which the Euro-Rate Option applies, an appropriate Interest Period
for the Loans comprising such Borrowing Tranche.
30
2.5.2. SWING LOAN REQUESTS.
Except as otherwise provided herein, the Borrower may from
time to time prior to the Expiration Date request PNC Bank to make Swing Loans
by delivery to PNC Bank not later than noon Pittsburgh time on the proposed
Borrowing Date of a duly completed request therefor substantially in the form of
EXHIBIT 2.5.2 hereto (each, a "Swing Loan Request"). Each Swing Loan Request
shall be irrevocable and shall specify the proposed Borrowing Date and the
principal amount of such Swing Loan, which shall be in integral multiples of
$500,000 and not less than $1,000,000.
2.6 MAKING REVOLVING CREDIT LOANS AND SWING LOANS; REVOLVING CREDIT NOTES
AND SWING NOTES.
2.6.1. MAKING REVOLVING CREDIT LOANS.
The Agent shall, promptly after receipt by it of a Loan
Request pursuant to Section 2.5 [Revolving Credit Loan Requests], notify the
Banks of its receipt of such Loan Request specifying: (i) the proposed Borrowing
Date and the time and method of disbursement of the Revolving Credit Loans
requested thereby; (ii) the amount and type of each such Revolving Credit Loan
and the applicable Interest Period (if any); and (iii) the apportionment among
the Banks of such Revolving Credit Loans as determined by the Agent in
accordance with Section 2.3 [Nature of Banks' Obligations]. Each Bank shall
remit the principal amount of each Revolving Credit Loan to the Agent such that
the Agent is able to, and the Agent shall, to the extent the Banks have made
funds available to it for such purpose and subject to Section 7.2 [Each
Additional Loan], fund such Revolving Credit Loans to the Borrower in U.S.
Dollars and immediately available funds at the Principal Office prior to 2:00
p.m., Pittsburgh time, on the applicable Borrowing Date, PROVIDED that if any
Bank fails to remit such funds to the Agent in a timely manner, the Agent may
elect in its sole discretion to fund with its own funds the Revolving Credit
Loans of such Bank on such Borrowing Date, and such Bank shall be subject to the
repayment obligation in Section 10.16 [Availability of Funds].
2.6.2. MAKING SWING LOANS.
So long as PNC Bank elects to make Swing Loans, PNC Bank
shall, after receipt by it of a Swing Loan Request pursuant to Section 2.5.2,
fund such Swing Loan to the Borrower in U.S. Dollars and immediately available
funds at the Principal Office prior to two o'clock p.m. Pittsburgh time on the
Borrowing Date.
2.7 SWING LOAN NOTE.
The obligation of the Borrower to repay the unpaid principal amount of the
Swing Loans made to it by PNC Bank together with interest thereon shall be
evidenced by a demand promissory note of the Borrower dated the Closing Date in
substantially the form attached hereto as EXHIBIT 1.1(S)(2) payable to the order
of PNC Bank in a face amount equal to the Swing Loan Commitment.
31
2.8 USE OF PROCEEDS.
The proceeds of the Revolving Credit Loans shall be used for general
corporate purposes of the Borrower and in accordance with Section 8.1.10 [Use of
Proceeds]; provided, however, that none of the Commitments or the Loans shall be
used for currency speculation or similar purposes.
2.9 BORROWINGS TO REPAY SWING LOANS.
PNC may, at its option, exercisable at any time for any reason whatsoever,
demand repayment of the Swing Loans, and each Bank shall make a Revolving Credit
Loan in an amount equal to such Bank's Ratable Share of the aggregate principal
amount of the outstanding Swing Loans, plus, if PNC so requests, accrued
interest thereon, PROVIDED that no Bank shall be obligated in any event to make
Revolving Credit Loans in excess of its Revolving Credit Commitment. Revolving
Credit Loans made pursuant to the preceding sentence shall bear interest at the
Base Rate Option and shall be deemed to have been properly requested in
accordance with Section 2.5.1 without regard to any of the requirements of that
provision. PNC shall provide notice to the Banks that such Revolving Credit
Loans are to be made under this Section 2.9 and of the apportionment among the
Banks, and the Banks shall be unconditionally obligated to fund such Revolving
Credit Loans (whether or not the conditions specified in Section 2.5.1 are then
satisfied) by the time PNC so requests, which shall not be earlier than 3:00
p.m. Pittsburgh time on the Business Day next after the date the Banks receive
such notice from PNC.
2.10 LETTER OF CREDIT SUBFACILITY.
2.10.1. ISSUANCE OF LETTERS OF CREDIT.
Borrower may request the issuance of a letter of credit (each
a "Letter of Credit") on behalf of itself or another Loan Party by delivering or
having such other Loan Party deliver to the Agent a completed application and
agreement for letters of credit in such form as the Agent may specify from time
to time by no later than 11:00 a.m., Pittsburgh time, at least three (3)
Business Days, or such shorter period as may be agreed to by the Agent, in
advance of the proposed date of issuance. Each Letter of Credit shall be a
Standby Letter of Credit (and may not be a Commercial Letter of Credit) and may
be denominated in either Dollars or an Optional Currency. Subject to the terms
and conditions hereof and in reliance on the agreements of the other Banks set
forth in this Section 2.10, the Agent or any of the Agent's Affiliates will
issue a Letter of Credit provided that each Letter of Credit shall (A) have a
maximum maturity of twenty four (24) months from the date of issuance in the
case of the Glenborough Letter of Credit and, in the case of each other Letter
of Credit, shall have a maximum maturity of twelve (12) months from the date of
issuance, (B) in no event expire later than ten (10) Business Days prior to the
Expiration Date and providing that in no event shall (i) the Dollar Equivalent
amount of Letters of Credit Outstanding exceed, at any one time, $15,000,000 or
(ii) the Dollar Equivalent Revolving Facility Usage exceed, at any one time, the
Revolving Credit Commitments and (C) in no event be amended to increase the
amount thereof following the issuance thereof unless the conditions set forth in
Section 7.2 have been satisfied as
32
of the date of such amendment (treating such date the same as the date of
issuance of a Letter of Credit). It is expressly agreed that the Existing Letter
of Credit shall be deemed to be a Letter of Credit for all purposes of this
Agreement and each other Loan Document.
2.10.2. LETTER OF CREDIT FEES.
The Borrower shall pay in Dollars (i) to the Agent for the
ratable account of the Banks a fee (the "Letter of Credit Fee") equal to the
Applicable Letter of Credit Fee per annum, and (ii) to the Agent for its own
account a fronting fee equal to 1/8% per annum (computed on the basis of a year
of 360 days and actual days elapsed), which fees shall be computed on the daily
average Dollar Equivalent amount of Letters of Credit Outstanding and shall be
payable quarterly in arrears commencing with the first day of each January,
April, July and October following issuance of each Letter of Credit and on the
Expiration Date. The Borrower shall also pay to the Agent in Dollars for the
Agent's sole account the Agent's then in effect customary fees and
administrative expenses payable with respect to the Letters of Credit as the
Agent may generally charge or incur from time to time in connection with the
issuance, maintenance, modification (if any), assignment or transfer (if any),
negotiation, and administration of Letters of Credit.
2.10.3. DISBURSEMENTS, REIMBURSEMENT.
2.10.3.1 Immediately upon the Issuance of each Letter of
Credit, each Bank shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Agent a participation in such Letter of Credit and
each drawing thereunder in an amount equal to such Bank's Ratable Share of the
maximum amount available to be drawn under such Letter of Credit and the amount
of such drawing, respectively.
2.10.3.2 In the event of any request for a drawing under a
Letter of Credit by the beneficiary or transferee thereof, the Agent will
promptly notify the Borrower. Provided that it shall have received such notice,
the Borrower shall reimburse (such obligation to reimburse the Agent shall
sometimes be referred to as a "Reimbursement Obligation") the Agent in Dollars
prior to 12:00 noon, Pittsburgh time on each date that an amount is paid by the
Agent under any Letter of Credit (each such date, an "Drawing Date") in an
amount equal to the Dollar Equivalent amount so paid by the Agent. In the event
the Borrower fails to reimburse the Agent for the full Dollar Equivalent amount
of any drawing under any Letter of Credit by 12:00 noon, Pittsburgh time, on the
Drawing Date, the Agent will promptly notify each Bank thereof, and the Borrower
shall be deemed to have requested that Revolving Credit Loans be made by the
Banks in Dollars under the Base Rate Option to be disbursed on the Drawing Date
under such Letter of Credit, subject to the amount of the unutilized portion of
the Revolving Credit Commitment and subject to the conditions set forth in
Section 7.2 [Each Additional Loan] other than any notice requirements. Any
notice given by the Agent pursuant to this Section 2.10.3.2 may be oral if
immediately confirmed in writing; provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such
notice.
33
2.10.3.3 Each Bank shall upon any notice pursuant to Section
2.10.3.2 make available to the Agent an amount in Dollars in immediately
available funds equal to its Ratable Share of the Dollar Equivalent amount of
the drawing, whereupon the participating Banks shall (subject to Section
2.10.3.4) each be deemed to have made a Revolving Credit Loan in Dollars under
the Base Rate Option to the Borrower in that amount. If any Bank so notified
fails to make available in Dollars to the Agent for the account of the Agent the
amount of such Bank's Ratable Share of such Dollar Equivalent amount by no later
than 2:00 p.m., Pittsburgh time on the Drawing Date, then interest shall accrue
on such Bank's obligation to make such payment, from the Drawing Date to the
date on which such Bank makes such payment (i) at a rate per annum equal to the
Federal Funds Effective Rate during the first three days following the Drawing
Date and (ii) at a rate per annum equal to the rate applicable to Loans under
the Base Rate Option on and after the fourth day following the Drawing Date. The
Agent will promptly give notice of the occurrence of the Drawing Date, but
failure of the Agent to give any such notice on the Drawing Date or in
sufficient time to enable any Bank to effect such payment on such date shall not
relieve such Bank from its obligation under this Section 2.10.3.3.
2.10.3.4 With respect to any unreimbursed drawing that is
not converted into Revolving Credit Loans under the Base Rate Option to the
Borrower in whole or in part as contemplated by Section 2.10.3.2, because of the
Borrower's failure to satisfy the conditions set forth in Section 7.2 [Each
Additional Loan] other than any notice requirements or for any other reason, the
Borrower shall be deemed to have incurred from the Agent a borrowing (each a
"Letter of Credit Borrowing") in Dollars in the Dollar Equivalent amount of such
drawing. Such Letter of Credit Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the rate per annum
applicable to the Revolving Credit Loans under the Base Rate Option. Each Bank's
payment to the Agent pursuant to Section 2.10.3.3 shall be deemed to be a
payment in respect of its participation in such Letter of Credit Borrowing and
shall constitute a "Participation Advance" from such Bank in satisfaction of its
participation obligation under this Section 2.10.3.
2.10.4. REPAYMENT OF PARTICIPATION ADVANCES.
2.10.4.1 Upon (and only upon) receipt by the Agent for its
account of immediately available funds from the Borrower (i) in reimbursement of
any payment made by the Agent under the Letter of Credit with respect to which
any Bank has made a Participation Advance to the Agent, or (ii) in payment of
interest on such a payment made by the Agent under such a Letter of Credit, the
Agent will pay to each Bank, in the same funds as those received by the Agent,
the amount of such Bank's Ratable Share of such funds, except the Agent shall
retain the amount of the Ratable Share of such funds of any Bank that did not
make a Participation Advance in respect of such payment by Agent.
2.10.4.2 If the Agent is required at any time to return to
any Loan Party, or to a trustee, receiver, liquidator, custodian, or any
official in any Insolvency Proceeding, any portion of the payments made by any
Loan Party to the Agent pursuant to Section 2.10.4.1 in reimbursement of a
payment made under the Letter of Credit or interest or fee thereon, each Bank
shall, on demand of the Agent, forthwith return to the Agent the amount of its
Ratable Share of any amounts so returned by the Agent plus interest thereon from
the date such
34
demand is made to the date such amounts are returned by such Bank
to the Agent, at a rate per annum equal to the Federal Funds Effective Rate in
effect from time to time.
2.10.5. DOCUMENTATION.
Each Loan Party agrees to be bound by the terms of the Agent's
application and agreement for letters of credit and the Agent's written
regulations and customary practices relating to letters of credit, though such
interpretation may be different from such Loan Party's own. In the event of a
conflict between such application or agreement and this Agreement, this
Agreement shall govern. It is understood and agreed that, except in the case of
gross negligence or willful misconduct, the Agent shall not be liable for any
error, negligence and/or mistakes, whether of omission or commission, in
following any Loan Party's instructions or those contained in the Letters of
Credit or any modifications, amendments or supplements thereto.
2.10.6. DETERMINATIONS TO HONOR DRAWING REQUESTS.
In determining whether to honor any request for drawing under
any Letter of Credit by the beneficiary thereof, the Agent shall be responsible
only to determine that the documents and certificates required to be delivered
under such Letter of Credit have been delivered and that they comply on their
face with the requirements of such Letter of Credit.
2.10.7. NATURE OF PARTICIPATION AND REIMBURSEMENT OBLIGATIONS.
Each Bank's obligation in accordance with this Agreement to
make the Revolving Credit Loans or Participation Advances, as contemplated by
Section 2.10.3, as a result of a drawing under a Letter of Credit, and the
Obligations of the Borrower to reimburse the Agent upon a draw under a Letter of
Credit, shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Section 2.10 under all
circumstances, including the following circumstances:
(i) any set-off, counterclaim, recoupment, defense or other
right which such Bank may have against the Agent or any of its Affiliates, the
Borrower or any other Person for any reason whatsoever;
(ii) the failure of any Loan Party or any other Person to
comply, in connection with a Letter of Credit Borrowing, with the conditions set
forth in Section 2.1 [Revolving Credit Commitments], 2.5 [Revolving Credit Loan
Requests], 2.5.2 [Making Revolving Credit Loans] or 7.2 [Each Additional Loan]
or as otherwise set forth in this Agreement for the making of a Revolving Credit
Loan, it being acknowledged that such conditions are not required for the making
of a Letter of Credit Borrowing and the obligation of the Banks to make
Participation Advances under Section 2.10.3;
(iii) any lack of validity or enforceability of any Letter
of Credit;
35
(iv) any claim of breach of warranty that might be made by
any Loan Party or any Bank against any beneficiary of a Letter of Credit, or the
existence of any claim, set-off, recoupment, counterclaim, crossclaim, defense
or other right which any Loan Party or any Bank may have at any time against a
beneficiary, successor beneficiary any transferee or assignee of any Letter of
Credit or the proceeds thereof (or any Persons for whom any such transferee may
be acting), the Agent or its Affiliates or any Bank or any other Person or,
whether in connection with this Agreement, the transactions contemplated herein
or any unrelated transaction (including any underlying transaction between any
Loan Party or Subsidiaries of a Loan Party and the beneficiary for which any
Letter of Credit was procured);
(v) the lack of power or authority of any signer of (or any
defect in or forgery of any signature or endorsement on) or the form of or lack
of validity, sufficiency, accuracy, enforceability or genuineness of any draft,
demand, instrument, certificate or other document presented under or in
connection with any Letter of Credit, or any fraud or alleged fraud in
connection with any Letter of Credit, or the transport of any property or
provisions of services relating to a Letter of Credit, in each case even if the
Agent or any of the Agent's Affiliates has been notified thereof;
(vi) payment by the Agent or any of its Affiliates under any
Letter of Credit against presentation of a demand, draft or certificate or other
document which does not comply with the terms of such Letter of Credit;
(vii) the solvency of, or any acts of omissions by, any
beneficiary of any Letter of Credit, or any other Person having a role in any
transaction or obligation relating to a Letter of Credit, or the existence,
nature, quality, quantity, condition, value or other characteristic of any
property or services relating to a Letter of Credit;
(viii) any failure by the Agent or any of Agent's Affiliates
to issue any Letter of Credit in the form requested by any Loan Party, unless
the Agent has received written notice from such Loan Party of such failure
within three Business Days after the Agent shall have furnished such Loan Party
a copy of such Letter of Credit and such error is material and no drawing has
been made thereon prior to receipt of such notice;
(ix) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or prospects of any Loan
Party or Subsidiaries of a Loan Party;
(x) any breach of this Agreement or any other Loan Document
by any party thereto;
(xi) the occurrence or continuance of an Insolvency
Proceeding with respect to any Loan Party;
(xii) the fact that an Event of Default or a Potential
Default shall have occurred and be continuing;
36
(xiii) the fact that the Expiration Date shall have passed
or this Agreement or the Commitments hereunder shall have been terminated; and
(xiv) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing.
2.10.8. INDEMNITY.
In addition to amounts payable as provided in Section 10.5
[Reimbursement of Agent by Borrower, Etc.], the Borrower hereby agrees to
protect, indemnify, pay and save harmless the Agent and any of Agent's
Affiliates that has issued a Letter of Credit from and against any and all
claims, demands, liabilities, damages, taxes, penalties, interest, judgments,
losses, costs, charges and expenses (including reasonable fees, expenses and
disbursements of counsel and allocated costs of internal counsel) which the
Agent or any of Agent's Affiliates may incur or be subject to as a consequence,
direct or indirect, of the issuance of any Letter of Credit, other than as a
result of (A) the gross negligence, bad faith, or willful misconduct of the
Agent as determined by a final judgment of a court of competent jurisdiction or
(B) the wrongful dishonor by the Agent or any of Agent's Affiliates of a proper
demand for payment made under any Letter of Credit, except if such dishonor
resulted from any act or omission, whether rightful or wrongful, of any present
or future de jure or de facto government or governmental authority (all such
acts or omissions herein called "Governmental Acts").
2.10.9. LIABILITY FOR ACTS AND OMISSIONS.
As between any Loan Party and the Agent, or the Agent's
Affiliates, such Loan Party assumes all risks of the acts and omissions of, or
misuse of the Letters of Credit by, the respective beneficiaries of such Letters
of Credit. In furtherance and not in limitation of the foregoing, the Agent
shall not be responsible for any of the following including any losses or
damages to any Loan Party or other Person or property relating therefrom: (i)
the form, validity, sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the application for an
issuance of any such Letter of Credit, even if it should in fact prove to be in
any or all respects invalid, insufficient, inaccurate, fraudulent or forged
(even if the Agent or the Agent's Affiliates shall have been notified thereof);
(ii) the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) the failure of the beneficiary
of any such Letter of Credit, or any other party to which such Letter of Credit
may be transferred, to comply fully with any conditions required in order to
draw upon such Letter of Credit or any other claim of any Loan Party against any
beneficiary of such Letter of Credit, or any such transferee, or any dispute
between or among any Loan Party and any beneficiary of any Letter of Credit or
any such transferee; (iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (v) errors in interpretation of
technical terms; (vi) any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any such Letter of Credit or
of the proceeds thereof; (vii) the misapplication by the beneficiary of any such
Letter of Credit of the proceeds of any drawing under such Letter of Credit; or
(viii) any
37
consequences arising from causes beyond the control of the Agent or the Agent's
Affiliates, as applicable, including any Governmental Acts, and none of the
above shall affect or impair, or prevent the vesting of, any of the Agent's or
the Agent's Affiliates rights or powers hereunder. Nothing in the preceding
sentence shall relieve the Agent from liability for the Agent's bad faith, gross
negligence or willful misconduct in connection with actions or omissions
described in such clauses (i) through (viii) of such sentence. In no event shall
the Agent or the Agent's Affiliates be liable to any Loan Party for any
indirect, consequential, incidental, punitive, exemplary or special damages or
expenses (including without limitation attorneys' fees), or for any damages
resulting from any change in the value of any property relating to a Letter of
Credit.
Without limiting the generality of the foregoing, the Agent
and each of its Affiliates (i) may rely on any oral or other communication
believed in good faith by the Agent or such Affiliate to have been authorized or
given by or on behalf of the applicant for a Letter of Credit, (ii) may honor
any presentation if the documents presented appear on their face substantially
to comply with the terms and conditions of the relevant Letter of Credit; (iii)
may honor a previously dishonored presentation under a Letter of Credit, whether
such dishonor was pursuant to a court order, to settle or compromise any claim
of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to
the same extent as if such presentation had initially been honored, together
with any interest paid by the Agent or its Affiliate; (iv) may honor any drawing
that is payable upon presentation of a statement advising negotiation or
payment, upon receipt of such statement (even if such statement indicates that a
draft or other document is being delivered separately), and shall not be liable
for any failure of any such draft or other document to arrive, or to conform in
any way with the relevant Letter of Credit; (v) may pay any paying or
negotiating bank claiming that it rightfully honored under the laws or practices
of the place where such bank is located; and (vi) may settle or adjust any claim
or demand made on the Agent or its Affiliate in any way related to any order
issued at the applicant's request to an air carrier, a letter of guarantee or of
indemnity issued to a carrier or any similar document (each an "Order") and
honor any drawing in connection with any Letter of Credit that is the subject to
such Order, notwithstanding that any drafts or other documents presented in
connection with such Letter of Credit fail to conform in any way with such
Letter of Credit.
In furtherance and extension and not in limitation of the
specific provisions set forth above, any action taken or omitted by the Agent or
the Agent's Affiliates under or in connection with the Letters of Credit issued
by it or any documents and certificates delivered thereunder, if taken or
omitted in good faith, shall not put the Agent or the Agent's Affiliates under
any resulting liability to the Borrower or any Bank.
2.11 UTILIZATION OF COMMITMENTS IN OPTIONAL CURRENCIES.
2.11.1. PERIODIC COMPUTATIONS OF DOLLAR EQUIVALENT AMOUNTS OF LOANS
AND LETTERS OF CREDIT OUTSTANDING.
The Agent will determine the Dollar Equivalent amount of (i)
proposed Revolving Credit Loans or Letters of Credit to be denominated in an
Optional Currency as of the requested Borrowing Date or date of issuance, as the
case may be, and
38
(ii) outstanding Revolving Credit Loans denominated in an Optional Currency as
of the end of each Interest Period (each such date under clauses (i) and (ii), a
"COMPUTATION DATE").
2.11.2. NOTICES FROM BANKS THAT OPTIONAL CURRENCIES ARE UNAVAILABLE TO
FUND NEW LOANS.
The Banks shall be under no obligation to make the Revolving
Credit Loans requested by the Borrower which are denominated in an Optional
Currency if any Bank notifies the Agent by 5:00 p.m. (Pittsburgh time) four (4)
Business Days prior to the Borrowing Date for such Revolving Credit Loans that
such Bank cannot provide its share of such Revolving Credit Loans in such
Optional Currency due to the introduction of, or any change in, any applicable
Law or any change in the interpretation or administration thereof by any
Official Body charged with the administration or interpretation thereof, or
compliance by such Bank (or any of its lending offices) with any request or
directive (whether or not having the force of Law) of any such Official Body
which would make it unlawful or impossible for such Bank (or any of its lending
offices) to honor its obligations to make a Loan in an Optional Currency. In the
event the Agent timely receives a notice from a Bank pursuant to the preceding
sentence, the Agent will notify the Borrower no later than 12:00 noon
(Pittsburgh time) three (3) Business Days prior to the Borrowing Date for such
Revolving Credit Loans that the Optional Currency is not then available for such
Revolving Credit Loans, and the Agent shall promptly thereafter notify the Banks
of the same. If the Borrower receives a notice described in the preceding
sentence, the Borrower may, by notice to the Agent not later than 5:00 p.m.
(Pittsburgh time) three (3) Business Days prior to the Borrowing Date for such
Revolving Credit Loans, withdraw the Loan Request for such Revolving Credit
Loans. If the Borrower withdraws such Loan Request, the Agent will promptly
notify each Bank of the same and the Banks shall not make such Revolving Credit
Loans. If the Borrower does not withdraw such Loan Request before such time, (i)
the Borrower shall be deemed to have requested that the Revolving Credit Loans
referred to in its Loan Request shall be made in Dollars in an amount equal to
the Dollar Equivalent amount of such Revolving Credit Loans and shall bear
interest under the Base Rate Option, and (ii) the Agent shall promptly deliver a
notice to each Bank stating: (A) that such Revolving Credit Loans shall be made
in Dollars and shall bear interest under the Base Rate Option, (B) the aggregate
amount of such Revolving Credit Loans, and (C) such Bank's Ratable Share of such
Revolving Credit Loans.
2.11.3. NOTICES FROM BANKS THAT OPTIONAL CURRENCIES ARE UNAVAILABLE TO
FUND RENEWALS OF THE EURO-RATE OPTION.
If the Borrower delivers a Loan Request requesting that the
Banks renew the Euro-Rate Option with respect to an outstanding Borrowing
Tranche of Revolving Credit Loans denominated in an Optional Currency, the Banks
shall be under no obligation to renew such Euro-Rate Option if any Bank delivers
to the Agent a notice by 5:00 p.m. (Pittsburgh time) four (4) Business Days
prior to effective date of such renewal that such Bank cannot continue to
provide Revolving Credit Loans in such Optional Currency due to the introduction
of, or any change in, any applicable Law or any change in the interpretation or
administration thereof by any Official Body charged with the administration or
interpretation thereof, or compliance by such Bank (or any of its lending
offices with) any request or directive (whether or
39
not having the force of Law) of any such Official Body which would make it
unlawful or impossible for such Bank (or any of its lending offices) to honor
its obligations to make a Loan in an Optional Currency. In the event the Agent
timely receives a notice from a Bank pursuant to the preceding sentence, the
Agent will notify the Borrower no later than 12:00 noon (Pittsburgh time) three
(3) Business Days prior to the renewal date that the renewal of such Revolving
Credit Loans in such Optional Currency is not then available, and the Agent
shall promptly thereafter notify the Banks of the same. If the Agent shall have
so notified the Borrower that any such continuation of Optional Currency Loans
is not then available, any notice of renewal with respect thereto shall be
deemed withdrawn, and such Optional Currency Loans shall be redenominated into
Loans in Dollars subject to the Base Rate Option with effect from the last day
of the Interest Period with respect to any such Optional Currency Loans. The
Agent will promptly notify the Borrower and the Banks of any such
redenomination, and in such notice, the Agent will state the aggregate Dollar
Equivalent amount of the redenominated Optional Currency Loans as of the
Computation Date with respect thereto and such Bank's Ratable Share thereof.
2.11.4. EUROPEAN MONETARY UNION.
2.11.4.1 PAYMENTS IN EUROS UNDER CERTAIN CIRCUMSTANCES.
If, as a result of the implementation of the European monetary
union, (i) any Optional Currency ceases to be lawful currency of the nation
issuing the same and is replaced by a European common currency (the "Euro") or
(ii) any Optional Currency and the Euro are at the same time recognized by any
governmental authority of the nation issuing such currency as lawful currency of
such nation and the Agent or the Required Banks shall so request in a notice
delivered to the Borrower, then any amount payable hereunder by any part hereto
in such Optional Currency shall instead by payable in the Euro and the amount so
payable shall be determined by translating the amount payable in such Optional
Currency to the Euro at the exchange rate recognized by the European Central
Bank for the purpose of implementing the European monetary union (and the
provisions governing payments in Optional Currencies in this Agreement shall
apply to such payment in the Euro as if such payment in the Euro were a payment
in an Optional Currency). Prior to the occurrence of the event or events
described in clause (i) or (ii) of the preceding sentence, each amount payable
hereunder in any Optional Currency will, except as otherwise provided herein,
continue to be payable only in that currency.
2.11.4.2 ADDITIONAL COMPENSATION UNDER CERTAIN
CIRCUMSTANCES.
The Borrower agrees, at the request of any Bank to compensate
such Bank for any loss, cost, expense or reduction in return that such Bank
shall reasonably determine shall be incurred or sustained by such Bank as a
result of the implementation of European monetary union and that would not have
been incurred or sustained but for the transactions provided for herein. A
certificate of any Bank setting forth such Bank's determination of the amount or
amounts necessary to compensate such Bank shall be delivered to the Borrower and
shall be conclusive absent manifest error so long as such determination is made
40
on a reasonable basis. The Borrower shall pay such Bank the amount shown as due
on any such certificate within ten (10) days after receipt thereof.
2.11.4.3 AMENDMENT TO THIS AGREEMENT.
The parties hereto agree, at the time of or at any time
following the implementation of European monetary union, to use reasonable
efforts to enter into an agreement amending this Agreement in order to reflect
the implementation of such monetary union, to permit (if feasible) the Euro to
qualify as an Optional Currency under the terms and conditions of the definition
of such term and to place the parties hereto in the position with respect to the
settlement of payments of the Euro as they would have been with respect to the
settlement of the Optional Currencies it replaced.
2.11.5. REQUESTS FOR ADDITIONAL OPTIONAL CURRENCIES.
The Borrower may deliver to the Agent a written request that
Revolving Credit Loans hereunder also be permitted to be made in any other
lawful currency (other than Dollars), in addition to the currencies specified in
the definition of "Optional Currency" herein provided that such currency must be
freely traded in the offshore interbank foreign exchange markets, freely
transferable, freely convertible into Dollars and available to the Banks in the
applicable interbank market. The Agent will promptly notify the Banks of any
such request promptly after the Agent receives such request. The Agent and each
Bank may grant or accept such request in their sole discretion. The Agent will
promptly notify the Borrower of the acceptance or rejection by the Agent and
each of the Banks of the Borrower's request. The requested currency shall be
approved as an Optional Currency hereunder only if the Agent and all of the
Banks approve of the Borrower's request.
2.12 CURRENCY REPAYMENTS.
Notwithstanding anything contained herein to the contrary, the
entire amount of principal of and interest on any Loan made in an Optional
Currency (including the Euro as provided in Section 2.11.4) shall be repaid in
the same Optional Currency in which such Loan was made, provided, however, that
if it is impossible or illegal for Borrower to effect payment of a Loan in the
Optional Currency in which such Loan was made, or if Borrower defaults in its
obligations to do so, the Required Banks may at their option permit such payment
to be made (i) at and to a different location, subsidiary, affiliate or
correspondent of Agent, or (ii) in the Equivalent Amount of Dollars or (iii) in
an Equivalent Amount of such other currency (freely convertible into Dollars) as
the Required Banks may solely at their option designate. Upon any events
described in (i) through (iii) of the preceding sentence, Borrower shall make
such payment and Borrower agrees to hold each Bank harmless from and against any
loss incurred by any Bank arising from the cost to such Bank of any premium, any
costs of exchange, the cost of hedging and covering the Optional Currency in
which such Loan was originally made, and from any change in the value of
Dollars, or such other currency, in relation to the Optional Currency that was
due and owing. Such loss shall be calculated for the period commencing with the
first day of the Interest Period for such Loan and continuing through the date
of payment
41
thereof. Without prejudice to the survival of any other agreement of Borrower
hereunder, Borrower's obligations under this Section 2.12 shall survive
termination of this Agreement.
2.13 OPTIONAL CURRENCY AMOUNTS.
Notwithstanding anything contained herein to the contrary,
Agent may, with respect to notices by Borrower for Loans in an Optional Currency
(including the Euro as provided in Section 2.11.4) or voluntary prepayments of
less than the full amount of an Optional Currency (or the Euro) Borrowing
Tranche, engage in reasonable rounding of the Optional Currency (or the Euro)
amounts requested to be loaned or repaid; and, in such event, Agent shall
promptly notify Borrower and the Banks of such rounded amounts and Borrower's
request or notice shall thereby be deemed to reflect such rounded amounts.
2.14 RIGHT TO INCREASE REVOLVING CREDIT COMMITMENTS.
Provided that there is no Event of Default or Potential
Default, if the Borrower wishes to increase the Revolving Credit Commitments,
the Borrower shall notify the Agent thereof, provided that any such increase
shall be in a minimum of $10,000,000 and the aggregate of all such increases in
the Revolving Credit Commitments shall not exceed $50,000,000 from and after the
Closing Date. Each Bank shall have the right at any time within thirty (30) days
following such notice to increase its respective Revolving Credit Commitment so
as to provide such added commitment pro rata in accordance with such Bank's
Ratable Share, and any portion of such requested increase that is not provided
by any Bank shall: (i) first be available to the other Banks pro rata in
accordance with their Ratable Share, (ii) next be available to the other Banks
in such a manner as the Borrower, the Agent and those Banks shall agree, and
(iii) thereafter, to the extent not provided by the Banks, to any additional
bank proposed by the Borrower, which is approved by the Agent (which approval
shall not be unreasonably withheld) and that becomes a party to this Agreement
pursuant to Section 11.11 [Successors and Assigns]. In the event of any such
increase in the aggregate Revolving Credit Commitments effected pursuant to the
terms of this subsection 2.14, new Revolving Credit Notes shall, to the extent
necessary, be executed and delivered by the Borrower in exchange for the
surrender of the existing Revolving Credit Notes.
3. [INTENTIONALLY OMITTED.]
4. INTEREST RATES
4.1 INTEREST RATE OPTIONS.
The Borrower shall pay interest in respect of the outstanding unpaid
principal amount of the Revolving Credit Loans as selected by it from the Base
Rate Option or Euro-Rate Option set forth below applicable to the Revolving
Credit Loans, it being understood that, subject to the provisions of this
Agreement, the Borrower may select different Interest Rate Options and different
Interest Periods to apply simultaneously to the Revolving Credit Loans
comprising different Borrowing Tranches and may convert to or renew one or more
Interest Rate Options
42
with respect to all or any portion of the Revolving Credit Loans comprising any
Borrowing Tranche, PROVIDED that there shall not be at any one time outstanding
more than eight (8) Borrowing Tranches in the aggregate among all of the
Revolving Credit Loans, and PROVIDED FURTHER that Swing Loans shall bear
interest at such rate, based upon the Base Rate, determined by PNC Bank. If at
any time the designated rate applicable to any Loan made by any Bank exceeds
such Bank's highest lawful rate, the rate of interest on such Bank's Loan shall
be limited to such Bank's highest lawful rate. Interest on the principal amount
of each Loan made in an Optional Currency (or the Euro as provided in Section
2.11.4, shall be paid by the Borrower in such Optional Currency (or the Euro).
4.1.1. REVOLVING CREDIT INTEREST RATE OPTIONS.
The Borrower shall have the right to select from the following
Interest Rate Options applicable to the Revolving Credit Loans (subject to the
provisions above regarding Swing Loans), except that no Loan to which a Base
Rate shall apply may be made in an Optional Currency:
(i) REVOLVING CREDIT BASE RATE OPTION: A fluctuating rate per
annum (computed on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed) equal to the Base Rate plus the Applicable Margin, such
interest rate to change automatically from time to time effective as of the
effective date of each change in the Base Rate; or
(ii) REVOLVING CREDIT EURO-RATE OPTION: A rate per annum (computed
on the basis of a year of 360 days and actual days elapsed, provided that, for
Loans made in an Optional Currency for which a 365-day basis is the only market
practice available to the Agent, such rate shall be calculated on the basis of a
year of 365 days, for the actual days) equal to the Euro-Rate plus the
Applicable Margin.
4.1.2. RATE QUOTATIONS.
The Borrower may call the Agent on or before the date on which
a Loan Request is to be delivered to receive an indication of the interest rates
and the applicable currency exchange rates then in effect, but it is
acknowledged that such projection shall not be binding on the Agent or the Banks
nor affect the rate of interest or the calculation of Equivalent Amounts which
thereafter are actually in effect when the election is made.
4.2 INTEREST PERIODS.
At any time when the Borrower shall select, convert to or renew a Euro-Rate
Option, the Borrower shall notify the Agent thereof by delivering a Loan Request
no later than 11:00 a.m. (Pittsburgh time) at least four (4) Business Days prior
to the effective date of such Interest Rate Option, with respect to an Optional
Currency Loan, and three (3) Business Days prior to the effective date of such
Interest Rate Option with respect to a Dollar Loan. The notice shall specify an
Interest Period during which such Interest Rate Option shall apply.
43
Notwithstanding the preceding sentence, the following provisions shall apply to
any selection of, renewal of, or conversion to a Euro-Rate Option:
4.2.1. AMOUNT OF BORROWING TRANCHE.
the Dollar Equivalent amount of each Borrowing Tranche of Euro-Rate
Loans shall be in integral multiples of $1,000,000 and not less than $5,000,000;
and
4.2.2. RENEWALS.
in the case of the renewal of a Euro-Rate Option at the end of an
Interest Period, the first day of the new Interest Period shall be the last day
of the preceding Interest Period, without duplication in payment of interest for
such day.
4.3 INTEREST AFTER DEFAULT.
To the extent permitted by Law, upon the occurrence of an Event of Default
and until such time such Event of Default shall have been cured or waived:
4.3.1. LETTER OF CREDIT FEES, INTEREST RATE.
the Letter of Credit Fees and the rate of interest for each
Loan otherwise applicable pursuant to Section 2.10.2 [Letter of Credit Fees] or
Section 4.1 [Interest Rate Options], respectively, shall be increased by 2.0%
per annum; and
4.3.2. OTHER OBLIGATIONS.
each other Obligation hereunder if not paid when due shall bear
interest at a rate per annum equal to the sum of the rate of interest applicable
under the Rate Option plus an additional two percent (2%) per annum from the
time such Obligation becomes due and payable and until it is paid in full.
4.3.3. ACKNOWLEDGMENT.
The Borrower acknowledges that the increase in rates referred
to in this Section 4.3 reflects, among other things, the fact that such Loans or
other amounts have become a substantially greater risk given their default
status and that the Banks are entitled to additional compensation for such risk;
and all such interest shall be payable by Borrower upon demand by Agent.
4.4 EURO-RATE UNASCERTAINABLE; ILLEGALITY; INCREASED COSTS; DEPOSITS NOT
AVAILABLE.
4.4.1. UNASCERTAINABLE.
If on any date on which a Euro-Rate would otherwise be
determined, the Agent shall have determined that:
44
(i) adequate and reasonable means do not exist for
ascertaining such Euro-Rate, or
(ii) a contingency has occurred which materially and
adversely affects the London interbank eurodollar market relating to the
Euro-Rate, the Agent shall have the rights specified in Section 4.4.3.
4.4.2. ILLEGALITY; INCREASED COSTS; DEPOSITS NOT AVAILABLE.
If at any time any Bank shall have determined that:
(i) the making, maintenance or funding of any Loan to which
a Euro-Rate Option applies has been made impracticable or unlawful by compliance
by such Bank in good faith with the adoption of any change in any Law or any
interpretation or application thereof occurring after the Closing Date by any
Official Body or with any request or directive of any such Official Body
(whether or not having the force of Law), or
(ii) such Euro-Rate Option will not adequately and fairly
reflect the cost to such Bank of the establishment or maintenance of any such
Loan, or
(iii) after making all reasonable efforts, deposits of the
relevant amount in Dollars or in the Optional Currency (as applicable) for the
relevant Interest Period for a Loan, or to banks generally, to which a Euro-Rate
Option applies, respectively, are not available to such Bank with respect to
such Loan, or to banks generally, in the interbank eurodollar market,
then the Agent shall have the rights specified in Section 4.4.3.
4.4.3. AGENT'S AND BANK'S RIGHTS.
In the case of any event specified in Section 4.4.1 above, the
Agent shall promptly so notify the Banks and the Borrower thereof, and in the
case of an event specified in Section 4.4.2 above, such Bank shall promptly so
notify the Agent and endorse a certificate to such notice as to the specific
circumstances of such notice, and the Agent shall promptly send copies of such
notice and certificate to the other Banks and the Borrower. Upon such date as
shall be specified in such notice (which shall not be earlier than the date such
notice is given), the obligation of (A) the Banks, in the case of such notice
given by the Agent, or (B) such Bank, in the case of such notice given by such
Bank, to allow the Borrower to select, convert to or renew a Euro-Rate Option or
select an Optional Currency (as applicable) shall be suspended until the Agent
shall have later notified the Borrower, or such Bank shall have later notified
the Agent, of the Agent's or such Bank's, as the case may be, determination that
the circumstances giving rise to such previous determination no longer exist. If
at any time the Agent makes a determination under Section 4.4.1 and the Borrower
has previously notified the Agent of its selection of, conversion to or renewal
of a Euro-Rate Option and such Interest Rate Option has not yet gone into
effect, such notification shall be deemed to provide for the selection of,
conversion to or renewal of the Base Rate Option otherwise available with
respect to such Loans. If any Bank notifies the Agent of a determination under
Section 4.4.2, the Borrower shall, subject to the
45
Borrower's indemnification Obligations under Section 5.5.2 [Indemnity], as to
any Loan of the Bank to which a Euro-Rate Option applies, on the date specified
in such notice either (i) as applicable, convert such Loan to the Base Rate
Option otherwise available with respect to such Loan or select a different
Optional Currency or Dollars, or (ii) prepay such Loan in accordance with
Section 5.4 [Voluntary Prepayments]. Absent due notice from the Borrower of
conversion or prepayment, such Loan shall automatically be converted to the Base
Rate Option otherwise available with respect to such Loan upon such specified
date.
4.5 SELECTION OF INTEREST RATE OPTIONS.
If the Borrower fails to select a new Interest Period or Optional
Currency to apply to any Borrowing Tranche of Loans under the Euro-Rate Option
at the expiration of an existing Interest Period applicable to such Borrowing
Tranche in accordance with the provisions of Section 4.2 [Interest Periods], the
Borrower shall be deemed to have converted such Borrowing Tranche to the Base
Rate Option or to a Dollar Loan, as applicable, commencing upon the last day of
the existing Interest Period.
5. PAYMENTS
5.1 PAYMENTS.
All payments and prepayments to be made in respect of principal, interest,
Commitment Fees, Letter of Credit Fees, Agent's Fee, Optional Currency Loan
Processing Fees, or other fees or amounts due from the Borrower hereunder shall
be payable prior to 11:00 a.m., Pittsburgh time, on the date when due without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived by the Borrower, and without set-off, counterclaim or other
deduction of any nature, and an action therefor shall immediately accrue. Such
payments shall be made to the Agent at the Principal Office for the account of
PNC Bank with respect to the Swing Loans and for the ratable accounts of the
Banks with respect to the Revolving Credit Loans, in U.S. Dollars except that
payment of principal or interest shall be made in the currency in which such
Loan was made, and in immediately available funds, and the Agent shall promptly
distribute such amounts to the Banks in immediately available funds, PROVIDED
that in the event payments are received by 11:00 a.m., Pittsburgh time, by the
Agent with respect to the Loans and such payments are not distributed to the
Banks on the same day received by the Agent, the Agent shall pay the Banks the
Federal Funds Effective Rate in the case of Loans or other amounts due in
Dollars, or the Overnight Rate in the case of Loans or other amounts due in an
Optional Currency, with respect to the amount of such payments for each day held
by the Agent and not distributed to the Banks. The Agent's and each Bank's
statement of account, ledger or other relevant record shall, in the absence of
manifest error, be conclusive as the statement of the amount of principal of and
interest on the Loans and other amounts owing under this Agreement (including
the Equivalent Amounts of the applicable currencies where such computations are
required) and shall be deemed an "account stated."
46
5.2 PRO RATA TREATMENT OF BANKS.
Each borrowing of Revolving Credit Loans shall be allocated to each Bank
according to its Ratable Share, and each selection of, conversion to or renewal
of any Interest Rate Option applicable to Revolving Credit Loans and each
payment or prepayment by the Borrower with respect to principal or interest on
the Revolving Credit Loans or Commitment Fees, Letter of Credit Fees, or other
fees (except for the Agent's Fee or the Optional Currency Loan Processing Fee)
or amounts due from the Borrower hereunder to the Banks with respect to the
Revolving Credit Loans, shall (except as provided in Section 4.4.3 [Agent's and
Bank's Rights] in the case of an event specified in Section 4.4 [Euro-Rate
Unascertainable; Etc.], 5.4.2 [Replacement of a Bank] or 5.5 [Additional
Compensation in Certain Circumstances]) be made in proportion to the applicable
Revolving Credit Loans outstanding from each Bank and, if no such Loans are then
outstanding, in proportion to the Ratable Share of each Bank. Notwithstanding
any of the foregoing, each borrowing or payment or prepayment by the Borrower of
principal, interest, fees or other amounts from the Borrower with respect to
Swing Loans shall be made by or to PNC Bank according to Section 2.
5.3 INTEREST PAYMENT DATES.
Interest on Loans to which the Base Rate Option applies shall be due and
payable in arrears on the first day of each January, April, July and October
after the date hereof and on the Expiration Date or upon acceleration of the
Loans. Interest on Loans to which the Euro-Rate Option applies shall be due and
payable in the currency in which such Loan was made on the last day of each
Interest Period for those Loans and, if such Interest Period is longer than
three (3) Months, also on the 90th day of such Interest Period. Interest on
mandatory prepayments of principal under Section 5.4.6 [Mandatory
Prepayment-Currency Fluctuation] shall be made in the currency in which such
Loan was made and shall be due on the date such mandatory prepayment is due.
Interest on the principal amount of each Loan or other monetary Obligation shall
be due and payable in the currency in which such Loan was made on demand after
such principal amount or other monetary Obligation becomes due and payable
(whether on the stated maturity date, upon acceleration or otherwise).
5.4 VOLUNTARY PREPAYMENTS, MANDATORY PREPAYMENTS.
5.4.1. RIGHT TO PREPAY.
The Borrower shall have the right at its option from time to
time to prepay the Revolving Credit Loans in whole or part without premium or
penalty (except as provided in Section 5.4.2 below or in Section 5.5 [Additional
Compensation in Certain Circumstances]) in the currency in which such Loan was
made:
(i) at any time with respect to any Revolving Credit Loan to
which the Base Rate Option applies,
(ii) on the last day of the applicable Interest Period with
respect to Revolving Credit Loans to which a Euro-Rate Option applies,
47
(iii) on the date specified in a notice by any Bank pursuant
to Section 4.4 [Euro-Rate Unascertainable, Etc.] with respect to any Revolving
Credit Loan to which a Euro-Rate Option applies.
Whenever the Borrower desires to prepay any part of the Revolving
Credit Loans, it shall provide a prepayment notice to the Agent by 1:00 p.m. (at
least three (3) Business Days prior to the date of prepayment of the Revolving
Credit Loans made in Dollars to which the Euro-Rate Option applies, four (4)
Business Days prior to the date of prepayment of the Revolving Credit Loans made
in an Optional Currency and at least one (1) Business Day prior to the date of
prepayment of the Revolving Credit Loans to which the Base Rate Option applies)
or no later than 1:00 p.m., Pittsburgh time, on the date of prepayment of Swing
Loans, setting forth the following information:
(x) the date, which shall be a Business Day, on which the proposed
prepayment is to be made;
(y) a statement indicating the application of the prepayment between
the Swing Loans and Revolving Credit Loans; and
(z) the total principal amount and currency of such prepayment, the
Dollar Equivalent amount of which shall not be less than $1,000,000 for any
Swing Loan (or integral multiples of $500,000) or not less than $5,000,000
(or integral multiples of $1,000,000) for any Revolving Credit Loan subject
to the Euro-Rate Option, or not less than $500,000 (or integral multiples
of $100,000) for any Revolving Credit Loan subject to the Base Rate Option.
All prepayment notices shall be irrevocable. The principal amount of
the Revolving Credit Loans for which a prepayment notice is given, together with
interest on such principal amount except with respect to Revolving Credit Loans
to which the Base Rate Option applies, shall be due and payable on the date
specified in such prepayment notice as the date on which the proposed prepayment
is to be made in the currency in which such Loan was made. Except as provided in
Section 4.4.3 [Agent's and Bank's rights], if the Borrower prepays a Revolving
Credit Loan but fails to specify the applicable Borrowing Tranche which the
Borrower is prepaying, the prepayment shall be applied (i) first to Revolving
Credit Loans to which the Base Rate Option applies, then to Dollar Revolving
Credit Loans to which the Euro-Rate Option applies, and then to Optional
Currency Loans. Any prepayment hereunder shall be subject to the Borrower's
Obligation to indemnify the Banks under Section 5.5.2 [Indemnity].
5.4.2. REPLACEMENT OF A BANK.
In the event any Bank (i) gives notice under Section 4.4
[Euro-Rate Unascertainable, Etc.] or Section 5.5.1 [Increased Costs, Etc.], (ii)
does not fund Revolving Credit Loans because the making of such Loans would
contravene any Law applicable to such Bank, or (iii) becomes subject to the
control of an Official Body (other than normal and customary supervision), then
the Borrower shall have the right at its option, with the consent of the Agent,
which shall not be unreasonably withheld, to prepay the Loans of such Bank in
whole,
48
together with all interest accrued thereon, and terminate such Bank's Commitment
within ninety (90) days after (x) receipt of such Bank's notice under Section
4.4 [Euro-Rate Unascertainable, Etc.] or 5.5.1 [Increased Costs, Etc.], (y) the
date such Bank has failed to fund Revolving Credit Loans because the making of
such Loans would contravene Law applicable to such Bank, or (z) the date such
Bank became subject to the control of an Official Body, as applicable; PROVIDED
that the Borrower shall also pay to such Bank at the time of such prepayment any
amounts required under Section 5.5 [Additional Compensation in Certain
Circumstances] and any accrued interest due on such amount and any related fees;
PROVIDED, however, that the Commitment, Revolving Credit Loan of such Bank shall
be provided by one or more of the remaining Banks or a replacement bank
acceptable to the Agent; PROVIDED, further, the remaining Banks shall have no
obligation hereunder to increase their Commitments. Notwithstanding the
foregoing, the Agent may only be replaced subject to the requirements of Section
10.14 [Successor Agent] and PROVIDED that all Letters of Credit have expired or
been terminated or replaced.
5.4.3. CHANGE OF LENDING OFFICE.
Each Bank agrees that upon the occurrence of any event giving
rise to increased costs or other special payments under Section 4.4.2
[Illegality, Etc.] or 5.5.1 [Increased Costs, Etc.] with respect to such Bank,
it will if requested by the Borrower, use reasonable efforts (subject to overall
policy considerations of such Bank) to designate another Lending Office any
Loans or Letters of Credit affected by such event, PROVIDED that such
designation is made on such terms that such Bank and its Lending Office suffer
no economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of such Section. Nothing
in this Section 5.4.3 shall affect or postpone any of the Obligations of the
Borrower or any other Loan Party or the rights of the Agent or any Bank provided
in this Agreement.
5.4.4. VOLUNTARY REDUCTION OF REVOLVING CREDIT COMMITMENTS.
The Borrower shall have the right, upon not less than three (3)
Business Days' written irrevocable notice to the Agent provided no later than
11:00 a.m. on the date such notice is provided, to terminate the Revolving
Credit Commitments or, from time to time, to reduce the amount of the Revolving
Credit Commitments, which notice shall specify the date and amount of any such
reduction and otherwise be substantially in the form of EXHIBIT 5.4.4 (a
"Commitment Reduction Notice"). Any such reduction shall be in a minimum amount
equal to $1,000,000 or an integral multiple thereof, provided, that the
Revolving Credit Commitments may not be reduced below the aggregate principal
amount of all Dollar Equivalent Revolving Facility Usage. Each reduction of
Revolving Credit Commitments shall ratably reduce the Revolving Credit
Commitments of the Banks.
5.4.5. APPLICATION AMONG INTEREST RATE OPTIONS.
All prepayments pursuant to this Section 5.4 shall first be
applied among the Interest Rate Options to the principal amount of the Loans
subject to the Base Rate Option, then to Dollar Loans subject to a Euro-Rate
Option and then to Optional Currency Loans. In accordance with Section 5.5.2
[Indemnity], the Borrower shall indemnify the Banks for any
49
loss or expense, including loss of margin, incurred with respect to any such
prepayments applied against Loans subject to a Euro-Rate Option on any day other
than the last day of the applicable Interest Period.
5.4.6. MANDATORY PREPAYMENT - CURRENCY FLUCTUATIONS.
If on any Computation Date the Dollar Equivalent Revolving
Facility Usage is equal to or greater than 100% of the Commitments as a result
of a change in exchange rates between one (1) or more Optional Currencies and
Dollars, then the Agent shall notify the Borrower of the same. The Borrower
shall pay or prepay the Loans (subject to Borrower's indemnity obligations under
Sections 5.4 and 5.5) within one (1) Business Day after receiving such notice
such that the Dollar Equivalent Revolving Facility Usage shall not exceed the
aggregate Commitments after giving effect to such payments or prepayments.
5.5 ADDITIONAL COMPENSATION IN CERTAIN CIRCUMSTANCES.
5.5.1. INCREASED COSTS OR REDUCED RETURN RESULTING FROM TAXES,
RESERVES, CAPITAL ADEQUACY REQUIREMENTS, EXPENSES, ETC.
If the adoption of any Law, guideline or interpretation or any
change in any Law, guideline or interpretation or application thereof (in each
case occurring after the date hereof or, in the case of an assignment or
transfer, after the date of such assignment or transfer) by any Official Body
charged with the interpretation or administration thereof or compliance with any
request or directive (whether or not having the force of Law) of any central
bank or other Official Body:
(i) subjects any Bank to any tax or changes the basis of
taxation with respect to this Agreement, the Loans or payments by the Borrower
of principal, interest, Commitment Fees, or other amounts due from the Borrower
hereunder or under the Notes (except for taxes on, or measured by, the overall
net income of such Bank),
(ii) imposes, modifies or deems applicable any reserve,
special deposit or similar requirement against credits or commitments to extend
credit extended by, or assets (funded or contingent) of, deposits with or for
the account of, or other acquisitions of funds by, any Bank, or any Lending
Office of any Bank, or
(iii) imposes, modifies or deems applicable any capital
adequacy or similar requirement (A) against assets (funded or contingent) of, or
letters of credit, other credits or commitments to extend credit extended by,
any Bank, or (B) otherwise applicable to the obligations of any Bank or any
Lending Office of any Bank under this Agreement,
and the result of any of the foregoing is to increase the cost to, reduce the
income receivable by, or impose any expense (including loss of margin) upon any
Bank or its Lending Office with respect to this Agreement, the Notes or the
making, maintenance or funding of any part of the Loans (or, in the case of any
capital adequacy or similar requirement, to have the effect of reducing the rate
of return on any Bank's capital, taking into consideration such Bank's customary
policies with respect to capital adequacy) by an amount which such Bank in its
reasonable
50
discretion deems to be material, such Bank shall from time to time notify the
Borrower and the Agent of the amount reasonably determined in good faith (using
any averaging and attribution methods employed in good faith) by such Bank to be
necessary to compensate such Bank for such increase in cost, reduction of
income, additional expense or reduced rate of return. Such notice shall set
forth in reasonable detail the basis for such determination. Such amount shall
be due and payable by the Borrower to such Bank ten (10) Business Days after
such notice is given.
5.5.2. INDEMNITY.
In addition to the compensation required by Section 5.5.1
[Increased Costs, Etc.], the Borrower shall indemnify each Bank against all
liabilities, losses or expenses (including loss of margin, any loss or expense
incurred in liquidating or employing deposits from third parties and any loss or
expense incurred in connection with funds acquired by a Bank to fund or maintain
Loans subject to a Euro-Rate Option) which such Bank sustains or incurs as a
consequence of any
(i) payment, prepayment, conversion or renewal of any Loan
to which a Euro-Rate Option applies on a day other than the last day of the
corresponding Interest Period (whether or not such payment or prepayment is
mandatory, voluntary or automatic and whether or not such payment or prepayment
is then due),
(ii) attempt by the Borrower to revoke (expressly, by later
inconsistent notices or otherwise) in whole or part any Loan Requests under
Section 2.5 [Revolving Credit Loan Requests] or Section 4.2 [Interest Periods]
or notice relating to prepayments under Section 5.4 [Voluntary Prepayments] or
any Swing Loan Requests under Section 2.5.2 [Swing Loan Requests] or any
requests under Section 2.11 [Right to Increase Revolving Credit Commitments] or
any request under Section 5.4.4 [Voluntary Reduction of Revolving Credit
Commitments],
(iii) default by the Borrower in the performance or
observance of any covenant or condition contained in this Agreement or any other
Loan Document, including any failure of the Borrower to pay when due (by
acceleration or otherwise) any principal of or interest on the Loans, Commitment
Fee or any other amount due hereunder.
If any Bank sustains or incurs any such loss or expense, it
shall from time to time notify the Borrower of the amount determined in good
faith by such Bank (which determination may include such assumptions,
allocations of costs and expenses and averaging or attribution methods as such
Bank shall deem reasonable) to be necessary to indemnify such Bank for such loss
or expense. Such notice shall set forth in reasonable detail the basis for such
determination. Such amount shall be due and payable by the Borrower to such Bank
ten (10) Business Days after such notice is given.
5.6 INTERBANK MARKET PRESUMPTION.
For all purposes of this Agreement and each Note with respect
to any aspects of the Euro-Rate, any Loan under the Euro-Rate Option or any
Optional Currency,
51
each Bank and Agent shall be presumed to have obtained rates, funding,
currencies, deposits, and the like in the applicable interbank market regardless
whether it did so or not; and, each Bank's and Agent's determination of amounts
payable under, and actions required or authorized by, Sections 4.4 and 5.5 shall
be calculated, at each Bank's and Agent's option, as though each Bank and Agent
funded each Borrowing Tranche of Loans under the Euro-Rate Option through the
purchase of deposits of the types and maturities corresponding to the deposits
used as a reference in accordance with the terms hereof in determining the
Euro-Rate applicable to such Loans, whether in fact that is the case.
5.7 TAXES.
5.7.1. NO DEDUCTIONS.
All payments made by Borrower hereunder and under each Note
shall be made free and clear of and without deduction for any present or future
taxes, levies, imposts, deductions, charges, or withholdings, and all
liabilities with respect thereto, excluding taxes imposed on or measured by the
net income of any Bank and all income and franchise taxes applicable to any Bank
(all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings, and liabilities being hereinafter referred to as "TAXES"). If
Borrower shall be required by Law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note, (i) the sum payable shall be increased
as may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 5.7.1) each
Bank receives an amount equal to the sum it would have received had no such
deductions been made, (ii) Borrower shall make such deductions and (iii)
Borrower shall timely pay the full amount deducted to the relevant tax authority
or other authority in accordance with applicable Law.
5.7.2. STAMP TAXES.
In addition, Borrower agrees to pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges, or similar
levies which arise from any payment made hereunder or from the execution,
delivery, or registration of, or otherwise with respect to, this Agreement or
any Note, excluding taxes imposed on, or measured by, the net income of any Bank
and all income and franchise taxes applicable to any Bank (hereinafter referred
to as "Other Taxes").
5.7.3. INDEMNIFICATION FOR TAXES PAID BY A BANK.
Borrower shall indemnify each Bank for the full amount of Taxes
or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this Section 5.7.3) paid by any
Bank and any liability (including penalties, interest, and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be made within 30 days
from the date a Bank makes written demand therefor.
52
5.7.4. CERTIFICATE.
Within 30 days after the date of any payment of any Taxes by
Borrower, Borrower shall furnish to each Bank, at its address referred to
herein, the original or a certified copy of a receipt evidencing payment
thereof. If no Taxes are payable in respect of any payment by Borrower, such
Borrower shall, if so requested by a Bank, provide a certificate of an officer
of Borrower to that effect.
5.7.5. EXCEPTION FOR CERTAIN TAXES AND OTHER TAXES
The Borrower shall not be required to pay any additional
amounts to any Bank in respect of Taxes or Other Taxes if the obligation to pay
such additional amounts would not have arisen but for (i) such Bank being
treated as a "conduit entity" within the meaning of section 1.881-3 of the
Treasury Regulations (or any successor provision thereto) but only if the
"financing entity" (within the meaning of the same Treasury Regulations) is
"related to" such Bank (also within the meaning of the same Treasury
Regulations), or (ii) a failure of such Bank to comply with the provisions of
section 11.17.1 hereof relating to the time and manner for furnishing
Withholding Certificates (including, without limitation, any such failure caused
by such Bank's inability to qualify for a total exemption or reduced rate of
withholding due to an event, factor or circumstance within the reasonable
control of such Bank), provided that this clause (ii) shall not apply in the
event any such failure is caused by a change in applicable treaty, law, or
regulation, or a change in official position regarding the application or
interpretation thereof, in each case after the date hereof (and, in the case of
an assignment or transfer, the date thereof).
5.7.6. REFUND.
If the Agent or any Bank determines, in its reasonable
discretion, that it has received a refund or credit in respect 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 5.7,
it shall as promptly as reasonably possible pay over such refund or credit to
the Borrower (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section 5.7 with respect to the Taxes
or Other Taxes giving rise to such refund or credit), net of all out-of-pocket
expenses of the Agent or such Bank and without interest (other than any interest
paid by the relevant Official Body with respect to such refund or credit);
PROVIDED, that the Borrower, upon the request of the Agent or such Bank, agrees
to repay the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant Official Body) to the Agent or such Bank
in the event the Agent or such Bank is required to repay such refund to such
Official Body. This paragraph shall not be construed to require the Agent or any
Bank 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.
53
5.7.7. SURVIVAL.
Without prejudice to the survival of any other agreement of
Borrower hereunder, the agreements and obligations of Borrower contained in
Sections 5.7.1 through 5.7.7 shall survive the payment in full of principal and
interest hereunder and under any instrument delivered hereunder.
5.8 NOTES.
Upon the request of any Bank, the Revolving Credit Loans made by such Bank
may be evidenced by a Revolving Credit Note, dated the Closing Date and in an
amount equal to the Revolving Credit Commitment of such Bank, in the form of
EXHIBIT 1.1(R).
5.9 SETTLEMENT DATE PROCEDURES.
In order to minimize the transfer of funds between the Banks and the Agent,
the Borrower may borrow, repay and reborrow Swing Loans and PNC Bank may make
Swing Loans as provided in Section 2.2.1 hereof. On any Business Day, the Agent
may notify each Bank of its Ratable Share of the total of the Revolving Credit
Loans and the Swing Loans (each a "Required Share"). Prior to 2:30 p.m.
(Pittsburgh time) on the date of such notice, each Bank shall pay to the Agent
the amount equal to the difference between its Required Share and its Revolving
Credit Loans, and the Agent shall pay to each Bank its Ratable Share of all
payments made by the Borrower to the Agent with respect to the Revolving Credit
Loans. The Agent shall also effect settlement in accordance with the foregoing
sentence on the proposed Borrowing Dates for Revolving Credit Loans, on any date
where payments of principal of any Loan is required to be paid by any Loan Party
hereunder, and may at its option (and in consultation with the Borrower) effect
settlement on any other Business Day. These settlement procedures are
established solely as a matter of administrative convenience, and nothing
contained in this Section 5.9 shall relieve the Banks of their obligations to
fund Revolving Credit Loans on dates other than a Settlement Date pursuant to
Section 2.9. The Agent may at any time at its option for any reason whatsoever
require each Bank to pay immediately to the Agent such Bank's Ratable Share of
the outstanding Revolving Credit Loans and each Bank may at any time require the
Agent to pay immediately to such Bank its Ratable Share of all payments made by
the Borrower to the Agent with respect to the Revolving Credit Loans.
5.10 JUDGMENT CURRENCY.
5.10.1. CURRENCY CONVERSION PROCEDURES FOR JUDGMENTS.
If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder or under a Note in any currency (the
"Original Currency") into another currency (the "Other Currency"), the parties
hereby agree, to the fullest extent permitted by Law, that the rate of exchange
used shall be that at which in accordance with normal banking procedures each
Bank could purchase the Original Currency with the Other Currency after any
premium and costs of exchange on the Business Day preceding that on which final
judgment is given.
54
5.10.2. INDEMNITY IN CERTAIN EVENTS.
The obligation of Borrower in respect of any sum due from
Borrower to any Bank hereunder shall, notwithstanding any judgment in an Other
Currency, whether pursuant to a judgment or otherwise, be discharged only to the
extent that, on the Business Day following receipt by any Bank of any sum
adjudged to be so due in such Other Currency, such Bank may in accordance with
normal banking procedures purchase the Original Currency with such Other
Currency. If the amount of the Original Currency so purchased is less than the
sum originally due to such Bank in the Original Currency, Borrower agrees, as a
separate obligation and notwithstanding any such judgment or payment, to
indemnify such Bank against such loss.
6. REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES.
The Loan Parties, jointly and severally, represent and warrant to the Agent
and each of the Banks as follows:
6.1.1. ORGANIZATION AND QUALIFICATION.
Each Loan Party and each Subsidiary of each Loan Party is a
corporation, partnership or limited liability company duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization. Each Loan Party and each Subsidiary of each Loan Party has the
lawful power to own or lease its properties and to engage in the business it
presently conducts or proposes to conduct. Each Loan Party and each Subsidiary
of each Loan Party is duly licensed or qualified and in good standing in each
jurisdiction where the property owned or leased by it or the nature of the
business transacted by it or both makes such licensing or qualification
necessary, except in jurisdictions where the failure to be so qualified or in
good standing would not reasonably be expected to result in a Material Adverse
Effect.
6.1.2. [INTENTIONALLY OMITTED.]
6.1.3. SUBSIDIARIES.
As of the Closing Date, SCHEDULE 6.1.3 states the name of each
of the Borrower's Subsidiaries, its jurisdiction of incorporation, and whether
it is a Material Domestic Subsidiary or a Material First Tier Foreign
Subsidiary. SCHEDULE 6.1.3 also states as of the Closing Date for each Material
First Tier Foreign Subsidiary its authorized capital stock, its issued and
outstanding shares and the owners thereof if it is a corporation, its
outstanding partnership interests and owners thereof if it is a partnership and
its outstanding limited liability company interests, interests assigned to
managers thereof and the voting rights associated therewith if it is a limited
liability company. The Borrower and each Subsidiary of the Borrower has valid
title to all of the Subsidiary Shares it purports to own, free and clear in each
case of any Lien. All Subsidiary Shares have been validly issued, and all
Subsidiary Shares are fully paid and nonassessable. All capital contributions
and other consideration required to be made or paid
55
in connection with the issuance of the Subsidiary Shares have been made or paid,
as the case may be. As of the Closing Date, there are no options, warrants or
other rights outstanding to purchase any such Subsidiary Shares except as
indicated on SCHEDULE 6.1.3.
6.1.4. POWER AND AUTHORITY.
Each Loan Party has full power to enter into, execute, deliver
and carry out this Agreement and the other Loan Documents to which it is a
party, to incur the Indebtedness contemplated by the Loan Documents and to
perform its Obligations under the Loan Documents to which it is a party, and all
such actions have been duly authorized by all necessary proceedings on its part.
6.1.5. VALIDITY AND BINDING EFFECT.
This Agreement has been duly and validly executed and
delivered by each Loan Party, and each other Loan Document which any Loan Party
is required to execute and deliver on or after the date hereof will have been
duly executed and delivered by such Loan Party on the required date of delivery
of such Loan Document. This Agreement and each other Loan Document constitutes,
or will constitute, legal, valid and binding obligations of each Loan Party
which is or will be a party thereto on and after its date of delivery thereof,
enforceable against such Loan Party in accordance with its terms, except to the
extent that enforceability of any of such Loan Document may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforceability of creditors' rights generally or limiting the
right of specific performance.
6.1.6. NO CONFLICT.
Neither the execution and delivery of this Agreement or the
other Loan Documents by any Loan Party nor the consummation of the transactions
herein or therein contemplated or compliance with the terms and provisions
hereof or thereof by any of them will conflict with, constitute a default under
or result in any breach of (i) the terms and conditions of the certificate of
incorporation, bylaws, certificate of limited partnership, partnership
agreement, certificate of formation, limited liability company agreement or
other organizational documents of any Loan Party or (ii) any Law or any material
agreement or instrument or order, writ, judgment, injunction or decree to which
any Loan Party or any of its Subsidiaries is a party or by which it or any of
its Subsidiaries is bound or to which it is subject, or result in the creation
or enforcement of any Lien, charge or encumbrance whatsoever upon any property
(now or hereafter acquired) of any Loan Party or any of its Subsidiaries (other
than Liens granted under the Loan Documents), unless such conflict, default or
breach would not be reasonably expected to result in any Material Adverse
Effect.
6.1.7. LITIGATION.
There are no actions, suits, proceedings or investigations
pending or, to the knowledge of any Loan Party, threatened against such Loan
Party or any Subsidiary of such Loan Party at law or equity before any Official
Body which individually or in the aggregate
56
would reasonably be expected to result in any Material Adverse Effect. None of
the Loan Parties or any Subsidiaries of any Loan Party is in violation of any
order, writ, injunction or any decree of any Official Body which would
reasonably be expected to result in any Material Adverse Effect.
6.1.8. TITLE TO PROPERTIES.
Each Loan Party and each Subsidiary of each Loan Party has
title to or valid leasehold interest in or other valid rights to use all
properties, assets and other rights which it purports to own or lease or which
are reflected as owned or leased on its books and records, except for such
property where the failure to maintain such title or interest, individually or
in the aggregate, would not reasonably be expected to result in a Material
Adverse Effect, and none of such property is subject to any Lien, except
Permitted Liens.
6.1.9. FINANCIAL STATEMENTS.
(i) HISTORICAL STATEMENTS. The Borrower has delivered to the
Agent copies of its audited consolidated year-end financial statements for and
as of the end of the fiscal year ended December 31, 2003 (the "Annual
Statements"). In addition, the Borrower has delivered to the Agent copies of its
unaudited consolidated interim financial statements for the fiscal year to date
and as of the end of the fiscal quarter ended March 31, 2004 (the "Interim
Statements") (the Annual and Interim Statements being collectively referred to
as the "Historical Statements"). The Historical Statements fairly represent the
consolidated financial condition of the Borrower and its Subsidiaries as of
their dates and the results of operations for the fiscal periods then ended and
have been prepared in accordance with GAAP, subject (in the case of the Interim
Statements) to normal year-end audit adjustments.
(ii) NO MATERIAL ADVERSE CHANGE. Since December 31, 2003, no
Material Adverse Change has occurred.
6.1.10. USE OF PROCEEDS; MARGIN STOCK; SECTION 20 SUBSIDIARIES.
6.1.10.1 GENERAL.
The Loan Parties intend to use the proceeds of the Loans in
accordance with Sections 2.7 and 8.1.10.
6.1.10.2 MARGIN STOCK.
None of the Loan Parties or any Subsidiaries of any Loan
Party engages or intends to engage principally, or as one of its important
activities, in the business of extending credit for the purpose, immediately,
incidentally or ultimately, of purchasing or carrying margin stock (within the
meaning of Regulation U). No part of the proceeds of any Loan has been or will
be used, immediately, incidentally or ultimately, to purchase or carry any
margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin stock or to refund Indebtedness originally incurred for such
purpose, or for any purpose which entails a violation of or which is
inconsistent with the provisions of the regulations of the Board
57
of Governors of the Federal Reserve System. None of the Loan Parties or any
Subsidiary of any Loan Party holds or intends to hold margin stock in such
amounts that more than 25% of the reasonable value of the assets of any Loan
Party or Subsidiary of any Loan Party are or will be represented by margin
stock.
6.1.10.3 SECTION 20 SUBSIDIARIES.
The Loan Parties do not intend to use and shall not use any
portion of the proceeds of the Loans, directly or indirectly, to purchase during
the underwriting period, or for thirty (30) days thereafter, Ineligible
Securities being underwritten by a Section 20 Subsidiary.
6.1.11. FULL DISCLOSURE.
Neither this Agreement nor any other Loan Document, nor any
certificate, statement, agreement or other documents furnished by the Borrower
to the Agent or any Bank in connection herewith or therewith, when taken as a
whole, contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained herein and
therein, in light of the circumstances under which they were made, not
misleading. As of the Closing Date there is no fact known to any Loan Party
which would reasonably be expected to have a Material Adverse Effect that has
not been set forth in this Agreement or in the certificates, statements,
agreements or other documents furnished in writing to the Agent and the Banks
prior to or at the date hereof in connection with the transactions contemplated
hereby.
6.1.12. TAXES.
All federal, state, local and other tax returns required to
have been filed with respect to each Loan Party and each Subsidiary of each Loan
Party have been filed, and payment or adequate provision has been made for the
payment of all taxes, fees, assessments and other governmental charges which
have or may become due pursuant to said returns or to assessments received,
except to the extent that such taxes, fees, assessments and other charges are
being contested in good faith by appropriate proceedings diligently conducted
and for which such reserves or other appropriate provisions, if any, as shall be
required by GAAP shall have been made. There are no agreements or waivers
extending the statutory period of limitations applicable to any federal income
tax return of any Loan Party or Subsidiary of any Loan Party for any period.
6.1.13. CONSENTS AND APPROVALS.
No consent, approval, exemption, order or authorization of, or
a registration or filing with, any Official Body or any other Person is required
by any Law or any agreement in connection with the execution, delivery and
carrying out of this Agreement and the other Loan Documents by any Loan Party,
except for those which shall have been obtained or made on or prior to the
Closing Date.
58
6.1.14. NO EVENT OF DEFAULT; COMPLIANCE WITH INSTRUMENTS.
As of the Closing Date after giving effect to the borrowings
or other extensions of credit to be made on the Closing Date under or pursuant
to the Loan Documents, no Event of Default or Potential Default exists. None of
the Loan Parties or any Subsidiaries of any Loan Party is in violation of (i)
any term of its certificate of incorporation, bylaws, certificate of limited
partnership, partnership agreement, certificate of formation, limited liability
company agreement or other organizational documents or (ii) any material
agreement or instrument to which it is a party or by which it or any of its
properties may be subject or bound where such violation would reasonably be
expected to constitute a Material Adverse Effect.
6.1.15. PATENTS, TRADEMARKS, COPYRIGHTS, LICENSES, ETC.
Each Loan Party and each Subsidiary of each Loan Party owns or
possesses all the material patents, trademarks, service marks, trade names,
copyrights, licenses, registrations, franchises, permits and rights necessary to
own and operate its properties and to carry on its business as presently
conducted and planned to be conducted by such Loan Party or Subsidiary, without
known possible, alleged or actual conflict with the rights of others which would
reasonably be expected to result in a Material Adverse Effect.
6.1.16. INSURANCE.
The policies and bonds applicable to the Loan Parties and
their Subsidiaries provide adequate coverage from reputable and financially
sound insurers in amounts sufficient to insure the assets and risks of the Loan
Parties and their Subsidiaries taken as a whole in accordance with prudent
business practice in the industry of the Loan Parties and their Subsidiaries.
6.1.17. COMPLIANCE WITH LAWS.
The Loan Parties and their Subsidiaries are in compliance with
all applicable Laws (other than Environmental Laws which are specifically
addressed in Section 6.1.22 [Environmental and Safety Matters]) in all
jurisdictions in which any Loan Party or Subsidiary of any Loan Party is
presently or will be doing business except where the failure to do so would not
reasonably be expected to constitute a Material Adverse Effect.
6.1.18. [Intentionally Omitted]
6.1.19. INVESTMENT COMPANIES; REGULATED ENTITIES.
None of the Loan Parties or any Subsidiaries of any Loan Party
is an "investment company" registered or required to be registered under the
Investment Company Act of 1940 or under the "control" of an "investment company"
as such terms are defined in the Investment Company Act of 1940 and shall not
become such an "investment company" or under such "control." None of the Loan
Parties or any Subsidiaries of any Loan Party is subject to any other Federal or
state statute or regulation limiting its ability to incur Indebtedness for
borrowed money.
59
6.1.20. PLANS AND BENEFIT ARRANGEMENTS.
(i) The Borrower and each other member of the ERISA Group
are in compliance in all respects with any applicable provisions of ERISA with
respect to all Benefit Arrangements, Plans and Multiemployer Plans. There has
been no Prohibited Transaction with respect to any Benefit Arrangement or any
Plan or, to the best knowledge of the Borrower, with respect to any
Multiemployer Plan or Multiple Employer Plan, which could result in any
liability of the Borrower or any other member of the ERISA Group. The Borrower
and all other members of the ERISA Group have made when due any and all payments
required to be made under any agreement relating to a Multiemployer Plan or a
Multiple Employer Plan or any Law pertaining thereto. With respect to each Plan
and Multiemployer Plan, the Borrower and each other member of the ERISA Group
(i) have fulfilled in all respects their obligations under the minimum funding
standards of ERISA, (ii) have not incurred any liability to the PBGC, and (iii)
have not had asserted against them any penalty for failure to fulfill the
minimum funding requirements of ERISA. All Plans, Benefit Arrangements and
Multiemployer Plans have been administered in accordance with their terms and
applicable Law.
(ii) No event requiring notice to the PBGC under Section
302(f)(4)(A) of ERISA has occurred or is reasonably expected to occur with
respect to any Plan, and no amendment with respect to which security is required
under Section 307 of ERISA has been made or is reasonably expected to be made to
any Plan.
(iii) Neither the Borrower nor any other member of the ERISA
Group has incurred or reasonably expects to incur any withdrawal liability under
ERISA to any Multiemployer Plan or Multiple Employer Plan. Neither the Borrower
nor any other member of the ERISA Group has been notified by any Multiemployer
Plan or Multiple Employer Plan that such Multiemployer Plan or Multiple Employer
Plan has been terminated within the meaning of Title IV of ERISA and, to the
best knowledge of the Borrower, no Multiemployer Plan or Multiple Employer Plan
is reasonably expected to be reorganized or terminated, within the meaning of
Title IV of ERISA.
(iv) Notwithstanding any provision of this Agreement to the
contrary, no representation or warranty contained in this Section 6.1.20 shall
apply with respect to any act or omission described in this Section 6.1.20 that,
as of the applicable date described in Section 6.1.20 hereof, would not
reasonably be expected to cause a Material Adverse Effect. In addition, to the
extent that a Benefit Arrangement, Multiemployer Plan or a Plan is described in
Section 4(b) of ERISA, any representation and warranty contained in this Section
6.1.20 shall be deemed to have been made at the applicable time in accordance
with the best knowledge of Borrower.
6.1.21. EMPLOYMENT MATTERS.
Each of the Loan Parties and each of their Subsidiaries is in
compliance with all applicable federal, state and local labor and employment
Laws including those related to equal employment opportunity and affirmative
action, labor relations, minimum wage, overtime, child labor, medical insurance
continuation, worker adjustment and relocation
60
notices, immigration controls and worker and unemployment compensation, where
the failure to comply would reasonably be expected to result in a Material
Adverse Effect. There are no outstanding grievances, arbitration awards or
appeals arising therefrom or current or threatened strikes, picketing,
handbilling or other work stoppages or slowdowns at facilities of any of the
Loan Parties or any of their Subsidiaries which in any case would reasonably be
expected to result in a Material Adverse Effect.
6.1.22. ENVIRONMENTAL AND SAFETY MATTERS.
The Loan Parties and their Subsidiaries are in compliance with all
applicable Environmental Laws and all applicable Safety Laws except where the
failure to do so would not be reasonably be expected to constitute a Material
Adverse Effect. The Loan Parties and their Subsidiaries have all Required
Environmental Permits and are in compliance with all such Required Environmental
Permits, except where the failure to do so would not be reasonably expected to
constitute a Material Adverse Effect, all such Required Environmental Permits
are in full force and effect and none of the Loan Parties has received any
written notice from an Official Body that such Official Body has or intends to
suspend or revoke, whether in whole or in part, any such Required Environmental
Permit. None of the Loan Parties or any Subsidiaries of any Loan Party has
received any Environmental Complaint, none of the Loan Parties has any reason to
believe that an Environmental Complaint might be received, and there are no
pending or, to any Loan Party's knowledge, threatened Environmental Complaints
relating to any Loan Party or Subsidiary of any Loan Party or, to any Loan
Party's knowledge, any prior owner, operator or occupant of any of the
Properties pertaining to, or arising out of, any Contamination, Remedial Actions
or violations of Environmental Laws or Required Environmental Permits. None of
the Loan Parties or any Subsidiaries of any Loan Party has received any Safety
Complaint, none of the Loan Parties has any reason to believe that a Safety
Complaint might be received and there are no pending or, to any Loan Party's
knowledge, threatened Safety Complaints relating to any Loan Party or Subsidiary
of any Loan Party.
6.1.23. SENIOR DEBT STATUS.
The Obligations of each Loan Party under this Agreement, the
Guaranty Agreement and each of the other Loan Documents to which it is a party
do rank and will rank at least PARI PASSU in priority of payment with all other
Indebtedness of such Loan Party except Indebtedness of such Loan Party to the
extent secured by Permitted Liens. There is no Lien upon or with respect to any
of the properties or income of any Loan Party or Subsidiary of any Loan Party
which secures indebtedness or other obligations of any Person except for
Permitted Liens.
6.1.24. ANTI-TERRORISM LAWS.
6.1.24.1 GENERAL.
None of the Loan Parties nor any of their Subsidiaries nor to
the best knowledge of the Loan Parties no Affiliate of any Loan Party, is in
violation of any Anti-Terrorism Law or engages in or conspires to engage in any
transaction that evades or avoids, or
61
has the purpose of evading or avoiding, or attempts to violate, any of the
prohibitions set forth in any Anti-Terrorism Law, except where such violation is
not reasonably likely to constitute a Material Adverse Effect or expose the
Agent or any Bank to liability.
6.1.24.2 EXECUTIVE ORDER NO. 13224.
None of the Loan Parties, nor or any Affiliate of any Loan
Party, or their respective agents acting or benefiting in any capacity in
connection with the Loans, Letters of Credit or other transactions hereunder, is
any of the following (each a "Blocked Person"):
(i) a Person that is listed in the annex to, or is otherwise
subject to the provisions of, the Executive Order No. 13224;
(ii) a Person owned or controlled by, or acting for or on
behalf of, any Person that is listed in the annex to, or is otherwise subject to
the provisions of, the Executive Order No. 13224;
(iii) a Person or entity with which any Bank is prohibited
from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law;
(iv) a Person or entity that commits, threatens or conspires
to commit or supports "terrorism" as defined in the Executive Order No. 13224;
(v) a Person or entity that is named as a "specially
designated national" on the most current list published by the U.S. Treasury
Department Office of Foreign Asset Control at its official website or any
replacement website or other replacement official publication of such list, or
(vi) a person or entity who is affiliated or associated with
a person or entity listed above.
No Loan Party or to the knowledge of any Loan Party, any of
its agents acting in any capacity in connection with the Loans, Letters of
Credit or other transactions hereunder (i) conducts any business or engages in
making or receiving any contribution of funds, goods or services to or for the
benefit of any Blocked Person, or (ii) deals in, or otherwise engages in any
transaction relating to, any property or interests in property blocked pursuant
to the Executive Order No. 13224.
6.1.25. SOLVENCY.
The Loan Parties, taken as a whole, are Solvent after giving
effect to the transactions contemplated by the Loan Documents and the incurrence
of all Indebtedness and all other Obligations.
62
6.1.26. SECURITY INTERESTS.
The Liens and security interests granted to the Bank pursuant
to the Pledge Agreement in the Pledged Collateral constitute and will continue
to constitute Prior Security Interests under the Uniform Commercial Code as in
effect in each applicable jurisdiction (the "Uniform Commercial Code") or other
applicable Law entitled to all the rights, benefits and priorities provided by
the Uniform Commercial Code or such Law. Upon the filing of financing statements
relating to said security interests in each office and in each jurisdiction
where required in order to perfect the security interests described above,
taking possession of any stock certificates or other certificates evidencing the
Pledged Collateral, all such action as is necessary or advisable to establish
such rights of the Bank will have been taken, and there will be upon execution
and delivery of the Pledge Agreement, such filings and such taking of
possession, no necessity for any further action in order to preserve, protect
and continue such rights, except the filing of continuation statements with
respect to such financing statements within six months prior to each five-year
anniversary of the filing of such financing statements. All filing fees and
other expenses in connection with each such action have been or will be paid by
the Borrower.
6.1.27. STATUS OF THE PLEDGED COLLATERAL.
All the Subsidiary Shares, Partnership Interests or LLC
Interests included in the Pledged Collateral to be pledged pursuant to the
Pledge Agreement are or will be upon issuance validly issued and nonassessable
and owned beneficially and of record by the pledgor free and clear of any Lien
or restriction on transfer, except as otherwise provided by the Pledge Agreement
and except as the right of the Bank to dispose of the Shares, Partnership
Interests or LLC Interests may be limited by the Securities Act of 1933, as
amended, and the regulations promulgated by the Securities and Exchange
Commission thereunder and by applicable state securities laws.
6.2 CONTINUATION OF REPRESENTATIONS.
The Loan Parties make the representations and warranties in this Section 6
on the date hereof and on the Closing Date and each date thereafter on which a
Loan is made or a Letter of Credit is issued as provided in and subject to
Sections 7.1 and 7.2.
6.3 UPDATES TO SCHEDULES.
Should any of the information or disclosures provided on any of the
Schedules attached hereto become outdated or incorrect in any material respect,
the Borrower shall promptly provide the Agent in writing with such revisions or
updates to such Schedule as may be necessary or appropriate to update or correct
same; PROVIDED, however, that no Schedule shall be deemed to have been amended,
modified or superseded by any such correction or update, nor shall any breach of
warranty or representation resulting from the inaccuracy or incompleteness of
any such Schedule be deemed to have been cured thereby, unless and until the
Required Banks, in their sole and absolute discretion, shall have accepted in
writing such revisions or updates to such Schedule.
63
7. CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT
The obligation of each Bank to make Loans and of the Agent to issue Letters
of Credit hereunder is subject to the performance by each of the Loan Parties of
its Obligations to be performed hereunder at or prior to the making of any such
Loans or issuance of such Letters of Credit and to the satisfaction of the
following further conditions:
7.1 FIRST LOANS AND LETTERS OF CREDIT.
On the Closing Date:
7.1.1. OFFICER'S CERTIFICATE.
The representations and warranties of each of the Loan Parties
contained in Section 6 and in each of the other Loan Documents shall be true and
accurate on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of such date (except
representations and warranties which relate solely to an earlier date or time,
which representations and warranties shall be true and correct on and as of the
specific dates or times referred to therein), and each of the Loan Parties shall
have performed and complied with all covenants and conditions hereof and
thereof, no Event of Default or Potential Default shall have occurred and be
continuing or shall exist; and there shall be delivered to the Agent for the
benefit of each Bank a certificate of each of the Loan Parties, dated the
Closing Date and signed by the Chief Executive Officer, President or Chief
Financial Officer of each of the Loan Parties, to each such effect.
7.1.2. SECRETARY'S CERTIFICATE.
There shall be delivered to the Agent for the benefit of each
Bank a certificate dated the Closing Date and signed by the Secretary or an
Assistant Secretary of each of the Loan Parties, certifying as appropriate as
to:
(i) all action taken by each Loan Party in connection with
this Agreement and the other Loan Documents;
(ii) the names of the officer or officers authorized to sign
this Agreement and the other Loan Documents and the true signatures of such
officer or officers and specifying the Authorized Officers permitted to act on
behalf of each Loan Party for purposes of this Agreement and the true signatures
of such officers, on which the Agent and each Bank may conclusively rely; and
(iii) copies of its organizational documents, including its
certificate of incorporation, bylaws, certificate of limited partnership,
partnership agreement, certificate of formation, and limited liability company
agreement as in effect on the Closing Date certified (on a date no more than ten
(10) days prior to the Closing Date) by the appropriate state official where
such documents are filed in a state office together with certificates from the
appropriate state officials as to the continued existence and good standing of
each Loan Party in
64
each state where organized, where significant assets are located or where
significant business is being conducted.
7.1.3. DELIVERY OF LOAN DOCUMENTS.
The Guaranty Agreement, this Agreement, the Pledge Agreement,
the Subsidiary Pledge Agreement and the Notes shall have been duly executed and
delivered to the Agent for the benefit of the Banks.
7.1.4. OPINION OF COUNSEL.
There shall be delivered to the Agent for the benefit of each
Bank a written opinion of Xxxxx Xxxxxxx Xxxxxxx Israels LLP, counsel for the
Loan Parties (who may rely on the opinions of such other counsel as may be
acceptable to the Agent), dated the Closing Date and in form and substance
satisfactory to the Agent and its counsel:
(i) as to the matters set forth in EXHIBIT 7.1.4; and
(ii) as to such other matters incident to the transactions
contemplated herein as the Agent may reasonably request.
7.1.5. LEGAL DETAILS.
All legal details and proceedings in connection with the
transactions contemplated by this Agreement and the other Loan Documents shall
be in form and substance satisfactory to the Agent and counsel for the Agent,
and the Agent shall have received all such other counterpart originals or
certified or other copies of such documents and proceedings in connection with
such transactions, in form and substance satisfactory to the Agent and said
counsel, as the Agent or said counsel may reasonably request.
7.1.6. PAYMENT OF FEES.
The Borrower shall have paid or caused to be paid to the Agent
for itself and for the account of the Banks to the extent not previously paid
the fees accrued through the Closing Date and the costs and expenses for which
the Agent and the Banks are entitled to be reimbursed.
7.1.7. CONSENTS.
All material consents required to effectuate the transactions
contemplated hereby shall have been obtained.
7.1.8. OFFICER'S CERTIFICATE REGARDING MACS; SOLVENCY.
Since December 31, 2003 no Material Adverse Change shall have
occurred. After giving effect to the consummation of the transactions under the
Loan Documents and the incurrence of all Indebtedness and all other Obligations,
each Borrower and each other
65
Loan Party, respectively, is Solvent. There shall have been delivered to the
Agent for the benefit of each Bank a certificate dated the Closing Date and
signed by the Chief Financial Officer of each Loan Party as to each matter which
is the subject of this Section 7.1.8.
7.1.9. NO VIOLATION OF LAWS.
The making of the Loans and the issuance of the Letters of
Credit shall not contravene any Law applicable to any Loan Party or any of the
Banks.
7.1.10. NO ACTIONS OR PROCEEDINGS.
No action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or proposed before any court,
governmental agency or legislative body to enjoin, restrain or prohibit, or to
obtain damages in respect of, this Agreement, the other Loan Documents or the
consummation of the transactions contemplated hereby or thereby or which, in the
Agent's sole discretion, would make it inadvisable to consummate the
transactions contemplated by this Agreement or any of the other Loan Documents.
7.1.11. CERTAIN FINANCIAL CONDITIONS.
The Borrower shall have delivered to the Agent and each Bank a
certificate in form and substance satisfactory to the Required Banks, dated as
of the Closing Date, signed by an Authorized Officer, together with supporting
accounting and financial information satisfactory to the Required Banks, which
certifies as to and sets forth the Leverage Ratio as of the Closing Date, which
ratio shall not be greater than 2.5 to 1.0.
For purposes of calculating the Leverage Ratio:
(a) Total Debt shall be determined as of the Closing Date
after giving effect to the Loans to be made and the Letters of Credit to be
issued on the Closing Date; and
(b) Consolidated EBITDA shall mean the Consolidated EBITDA of
the Loan Parties and their Subsidiaries determined as of March 31, 2004 for the
four fiscal quarters then ended.
7.1.12. LIEN SEARCHES.
The Agent shall have received searches under the Uniform
Commercial Code, lien, tax lien, and judgment searches against each Loan Party
and each Subsidiary of each Loan Party, in each case as reasonably required by
the Agent, in the jurisdiction of each such Person's formation and in each other
jurisdiction where each such Person conducts business or owns or operates
material assets and the results of such searches shall be satisfactory in form,
scope and substance to the Agent.
66
7.1.13. FILING RECEIPTS.
The Agent shall have received copies of all filing receipts
and acknowledgments issued by any governmental authority to evidence any
recordation or filing necessary to perfect the Lien of the Banks on the Pledged
Collateral or other satisfactory evidence of such recordation and filing.
7.2 EACH ADDITIONAL LOAN OR LETTER OF CREDIT.
At the time of making any Loans or issuing any Letters of Credit other than
Loans made or Letters of Credit issued on the Closing Date and after giving
effect to the proposed extensions of credit: the representations and warranties
of the Loan Parties contained in Section 6 and in the other Loan Documents shall
be true on and as of the date of such additional Loan or Letter of Credit with
the same effect as though such representations and warranties had been made on
and as of such date (except representations and warranties which expressly
relate solely to an earlier date or time, which representations and warranties
shall be true and correct on and as of the specific dates or times referred to
therein) and the Loan Parties shall have performed and complied with all
covenants and conditions hereof; no Event of Default or Potential Default shall
have occurred and be continuing or shall exist; the making of the Loans or
issuance of such Letter of Credit shall not contravene any Law applicable to any
Loan Party or Subsidiary of any Loan Party or any of the Banks; and the Borrower
shall have delivered to the Agent a duly executed and completed Loan Request or
application for a Letter of Credit as the case may be.
8. COVENANTS
8.1 AFFIRMATIVE COVENANTS.
The Loan Parties, jointly and severally, covenant and agree that until
payment in full of the Loans, Reimbursement Obligations and Letter of Credit
Borrowings, and interest thereon, expiration or termination of all Letters of
Credit, satisfaction of all of the Loan Parties' other Obligations under the
Loan Documents and termination of the Commitments, the Loan Parties shall comply
at all times with the following affirmative covenants:
8.1.1. PRESERVATION OF EXISTENCE, ETC.
Each Loan Party shall, and shall cause each of its
Subsidiaries to, maintain its legal existence as a corporation, limited
partnership or limited liability company and its license or qualification and
good standing in each jurisdiction in which its ownership or lease of property
or the nature of its business makes such license or qualification necessary,
except as otherwise expressly permitted in Section 8.2.6 [Liquidations, Mergers,
Etc.].
8.1.2. PAYMENT OF LIABILITIES, INCLUDING TAXES, ETC.
Each Loan Party shall, and shall cause each of its
Subsidiaries to, duly pay and discharge all liabilities to which it is subject
or which are asserted against it,
67
promptly as and when the same shall become due and payable, including all taxes,
assessments and governmental charges upon it or any of its properties, assets,
income or profits, prior to the date on which penalties attach thereto, except
to the extent that such liabilities, including taxes, assessments or charges,
are being contested in good faith and by appropriate and lawful proceedings
diligently conducted and for which such reserve or other appropriate provisions,
if any, as shall be required by GAAP shall have been made, but only to the
extent that failure to discharge any such liabilities would not be reasonably
expected to result in a Material Adverse Effect.
8.1.3. MAINTENANCE OF INSURANCE.
Each Loan Party shall, and shall cause each of its
Subsidiaries to, insure its properties and assets against loss or damage by fire
and such other insurable hazards as such assets are commonly insured (including
fire, extended coverage, property damage, workers' compensation, public
liability and business interruption insurance) and against other risks
(including errors and omissions) in such amounts as similar properties and
assets are insured by prudent companies in similar circumstances carrying on
similar businesses, and with reputable and financially sound insurers, including
self-insurance to the extent customary.
8.1.4. MAINTENANCE OF PROPERTIES AND LEASES.
Each Loan Party shall, and shall cause each of its
Subsidiaries to, maintain in good repair, working order and condition (ordinary
wear and tear excepted) in accordance with the general practice of other
businesses of similar character and size, all of those properties useful or
necessary to its business, and from time to time, such Loan Party will make or
cause to be made all appropriate repairs, renewals or replacements thereof.
8.1.5. MAINTENANCE OF PATENTS, TRADEMARKS, ETC.
Each Loan Party shall, and shall cause each of its
Subsidiaries to, maintain in full force and effect all patents, trademarks,
service marks, trade names, copyrights, licenses, franchises, permits and other
authorizations necessary for the ownership and operation of its properties and
business if the failure so to maintain the same would reasonably be expected to
constitute a Material Adverse Effect.
8.1.6. VISITATION RIGHTS.
Upon reasonable prior notice to the Borrower and the Agent and
during normal business hours and in a manner that will not interfere with its
business operations, each Loan Party shall, and shall cause each of its
Subsidiaries to, permit any of the officers or authorized employees or
representatives of the Agent or any of the Banks to visit and inspect any of its
properties and to examine and make excerpts from its books and records and
discuss its business affairs, finances and accounts with its officers, all in
such detail and at such times and as often as any of the Banks may reasonably
request. In the event any Bank desires to conduct an audit of any Loan Party,
such Bank shall make a reasonable effort to conduct such audit contemporaneously
with any audit to be performed by the Agent.
68
8.1.7. KEEPING OF RECORDS AND BOOKS OF ACCOUNT.
The Borrower shall, and shall cause each Subsidiary of the
Borrower to, maintain and keep proper books of record and account which enable
the Borrower and its Subsidiaries to issue financial statements in accordance
with GAAP and as otherwise required by applicable Laws of any Official Body
having jurisdiction over the Borrower or any Subsidiary of the Borrower, and in
which full, true and correct entries shall be made in all material respects of
all its dealings and business and financial affairs.
8.1.8. PLANS AND BENEFIT ARRANGEMENTS.
The Borrower shall, and shall cause each other member of the
ERISA Group to, comply with ERISA, the Internal Revenue Code and other
applicable Laws applicable to Plans and Benefit Arrangements except where the
failure to do so, alone or in conjunction with any other failure, would not
reasonably be expected to result in a Material Adverse Effect. Without limiting
the generality of the foregoing, the Borrower shall cause all of its Plans and
all Plans maintained by any member of the ERISA Group to be funded in accordance
with the minimum funding requirements of ERISA and shall make, and cause each
member of the ERISA Group to make, in a timely manner, all contributions due to
Plans, Benefit Arrangements and Multiemployer Plans, except where the failure to
do so, alone or in conjunction with any other failure, would not reasonably be
expected to result in a Material Adverse Effect.
8.1.9. COMPLIANCE WITH LAWS.
Each Loan Party shall, and shall cause each of its
Subsidiaries to, comply with all applicable Laws, including all Environmental
Laws and all Safety Laws, in all respects, PROVIDED that it shall not be deemed
to be a violation of this Section 8.1.9 if any failure to comply with any Law
would not result in fines, penalties, Remedial Actions, costs, other similar
liabilities or injunctive relief which in the aggregate would not reasonably be
expected to constitute a Material Adverse Effect. Without limiting the
generality of the foregoing, each Loan Party shall, and shall cause each of its
Subsidiaries to, obtain, maintain, renew and comply with all Environmental
Permits applicable to their respective operations and activities, provided that
it shall not be deemed to be a violation of this Section 8.1.9 if any failure to
do so would not result in cease and desist orders or fines, penalties or other
similar liabilities or injunctive relief which in the aggregate would not
reasonably be expected to constitute a Material Adverse Effect.
8.1.10. USE OF PROCEEDS.
The Loan Parties will use the Letters of Credit and the
proceeds of the Loans only for general corporate purposes of the Borrower and
for working capital of the Borrower. The Loan Parties shall not use the Letters
of Credit or the proceeds of the Loans for any purposes which contravenes any
applicable Law or any provision hereof.
69
8.1.11. [INTENTIONALLY OMITTED]
8.1.12. TAX SHELTER REGULATIONS.
None of the Loan Parties intends to treat the Loans and/or
Letters of Credit and related transactions as being a "reportable transaction"
(within the meaning of Treasury Regulation Section 1.6011-4). In the event any
of the Loan Parties determines to take any action inconsistent with such
intention, the Borrower will promptly (1) notify the Agent thereof, and (2)
deliver to the Agent a duly completed copy of IRS Form 8886 or any successor
form. If the Borrower so notifies the Agent, the Borrower acknowledges that one
or more of the Banks may treat its Loans and/or Letters of Credit as part of a
transaction that is subject to Treasury Regulation Section 301.6112-1, and such
Bank or Banks, as applicable, will maintain the lists and other records required
by such Treasury Regulation.
8.1.13. ANTI-TERRORISM LAWS.
The Loan Parties and their respective Affiliates and agents
shall not (i) conduct any business or engage in any transaction or dealing with
any Blocked Person, including the making or receiving any contribution of funds,
goods or services to or for the benefit of any Blocked Person, (ii) deal in, or
otherwise engage in any transaction relating to, any property or interests in
property blocked pursuant to the Executive Order No. 13224; or (iii) engage in
or conspire to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions
set forth in the Executive Order No. 13224, the USA Patriot Act or any other
Anti-Terrorism Law, except where the failure to do so is not reasonably likely
to constitute a Material Adverse Effect or expose the Agent or any Bank to
liability. The Borrower shall deliver to Banks any certification or other
evidence reasonably requested from time to time by any Bank in its sole
discretion, confirming Borrower's compliance with this Section 8.1.13.
8.1.14. FURTHER ASSURANCES.
Each Loan Party shall, from time to time, at its expense,
faithfully preserve and protect the Bank's Lien on and Prior Security Interest
in the Pledged Collateral as a continuing first priority perfected Liens and
shall do such other acts and things as the Agent in its sole discretion may deem
necessary or advisable from time to time in order to preserve, perfect and
protect the Liens granted under the Loan Documents and to exercise and enforce
its rights and remedies thereunder with respect to the Pledged Collateral.
8.2 NEGATIVE COVENANTS.
The Loan Parties, jointly and severally, covenant and agree that until
payment in full of the Loans, Reimbursement Obligations and Letter of Credit
Borrowings and interest thereon, expiration or termination of all Letters of
Credit, satisfaction of all of the Loan Parties' other Obligations hereunder and
termination of the Commitments, the Loan Parties shall comply with the following
negative covenants:
70
8.2.1. INDEBTEDNESS.
Each of the Loan Parties shall not, and shall not permit any
of its Subsidiaries to, at any time create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness under the Loan Documents;
(ii) Existing Indebtedness as set forth on SCHEDULE 8.2.1
(including any extensions, renewals, refinancings or replacements thereof,
PROVIDED there is no increase in the amount thereof or other significant change
in the terms thereof unless otherwise specified on SCHEDULE 8.2.1);
(iii) Indebtedness secured by Purchase Money Security
Interests or Indebtedness in respect of Capital Leases, so long as the
Indebtedness permitted by this clause (iii) does not exceed in the aggregate at
any time outstanding $30,000,000;
(iv) Indebtedness of a Loan Party or a Subsidiary of a Loan
Party to any Loan Party or to any Subsidiary of a Loan Party;
(v) Any Bank-Provided Hedge or other Hedge approved by the
Agent;
(vi) Other unsecured Indebtedness so long as (i) after
giving effect thereto the Loan Parties are in compliance with Section 8.2.15
[Maximum Leverage Ratio] (with, for purposes of determining such pro-forma
compliance with the Leverage Ratio: (a) Consolidated EBITDA determined as of the
fiscal quarter most recently ended for which financial statements in accordance
with Sections 8.3.1 or 8.3.2, as the case may be, and the related compliance
certificate in accordance with Section 8.3.3 have been delivered to the Agent,
and (b) Total Debt determined as of the date of incurrence or issuance of the
Indebtedness proposed to be incurred after giving effect thereto), (ii) the
covenants and events of default included in the agreements, instruments and
other documents evidencing such Indebtedness shall be no more restrictive than
the terms of the
Credit Agreement, and (iii) no portion of the principal amount
thereof shall amortize or otherwise be payable, repurchased, redeemed or
defeased prior to the date which is one hundred (100) days after the Expiration
Date;
(vii) Indebtedness of the Borrower or any of its
Subsidiaries arising from the honoring by a financial institution of a check,
draft or similar instrument drawn against insufficient funds in the ordinary
course of business;
(viii) Indebtedness secured by Liens permitted by clause (x)
of the definition of Permitted Liens, so long as the aggregate amount of such
Indebtedness of the Borrower and its Subsidiaries outstanding at any time does
not exceed twenty percent (20%) of Consolidated Net Worth;
(ix) Indebtedness in respect of Cash Pooling Obligations;
and
71
(x) any Guaranty permitted by Section 8.2.3 [Guaranties].
8.2.2. LIENS.
Each of the Loan Parties shall not, and shall not permit any
of its Subsidiaries to, at any time create, incur, assume or suffer to exist any
Lien on any of its property or assets, tangible or intangible, now owned or
hereafter acquired, or agree or become liable to do so, except Permitted Liens.
8.2.3. GUARANTIES.
Each of the Loan Parties shall not, and shall not permit any
of its Subsidiaries to, at any time, directly or indirectly, become or be liable
in respect of any Guaranty, or assume, guarantee, become surety for, endorse or
otherwise agree, become or remain directly or contingently liable upon or with
respect to any obligation or liability of any other Person, except for (i)
Guaranties of Indebtedness of the Loan Parties permitted hereunder, (ii) any
Guaranty issued in connection with or related to the business of the Loan
Parties and their Subsidiaries, providing for indemnification or holding
harmless another Person, (iii) any Guaranty issued in connection with or related
to the business of the Loan Parties and their Subsidiaries, to assure the
payment or performance of ordinary course obligations of any Loan Party or any
Subsidiary of any Loan Party, or (iv) any Guaranty in the ordinary course of
business of the Cash Pooling Obligations.
8.2.4. LOANS AND INVESTMENTS.
Each of the Loan Parties shall not, and shall not permit any
of its Subsidiaries to, at any time make or suffer to remain outstanding any
loan or advance to, or purchase, acquire or own any stock, bonds, notes or
securities of, or any partnership interest (whether general or limited) or
limited liability company interest in, or any other investment or interest in,
or make any capital contribution to, any other Person, or agree, become or
remain liable to do any of the foregoing, except:
(i) trade credit extended on usual and customary terms in
the ordinary course of business;
(ii) advances to employees to meet expenses incurred by such
employees in the ordinary course of business;
(iii) Permitted Investments;
(iv) loans, advances and investments in other Loan Parties
or in Subsidiaries;
(v) Investments by the Loan Parties and their Subsidiaries
in any Person (other than a Loan Party or any Subsidiary) so long as (y) the
Person in which the Investment is made is engaged in a line of business
permitted by Section 8.2.10
72
[Continuation of or Change in Business], and (z) after giving effect to each
Investment in any Person, no Potential Default or Event of Default shall exist
or be continuing;
(vi) so long as after giving effect thereto no Potential
Default or Event of Default shall exist or be continuing, any transaction,
event, agreement or liability to perform described in the first paragraph of
this Section 8.2.4 (i.e. such first paragraph being the paragraph immediately
before item (i) of this Section 8.2.4) that directly involves any Benefit Plans;
(vii) any acquisition constituting a Permitted Acquisition
which is consummated in accordance with Section 8.2.6 [Liquidations, Mergers,
Consolidations, Acquisitions];
(viii) those Investments set forth on SCHEDULE 8.2.4;
(ix) any consideration received in the form of property,
equity interests, securities, notes or otherwise in connection with any
disposition of assets permitted by Section 8.2.7 [Dispositions of Assets or
Subsidiaries]; and
(x) any repurchase by the Borrower or any Subsidiary of the
Borrower of capital stock which has been issued by such repurchaser thereof so
long as after giving effect thereto no Potential Default or Event of Default
shall exist or be continuing.
8.2.5. [INTENTIONALLY OMITTED].
8.2.6. LIQUIDATIONS, MERGERS, CONSOLIDATIONS, ACQUISITIONS.
Each of the Loan Parties shall not, and shall not permit any
of its Subsidiaries to, dissolve, liquidate or wind-up its affairs, or become a
party to any merger or consolidation, or acquire by purchase, lease or otherwise
all or substantially all of the assets or capital stock of any other Person,
PROVIDED that
(1) any Loan Party may consolidate or merge into another Loan
Party, provided, however, in the case of any merger or consolidation involving
the Borrower, the Borrower shall be the survivor thereof;
(2) any Domestic Subsidiary of the Borrower may consolidate or
merge into another Domestic Subsidiary of the Borrower and any Foreign
Subsidiary of the Borrower may consolidate or merge into the Borrower or any
other Subsidiary of the Borrower, so long as in the case of any consolidation or
merger involving any Loan Party, such Loan Party shall be the survivor thereof;
(3) any Subsidiary which is not a Material Subsidiary may
dissolve, liquidate or wind-up its affairs; and
(4) any Loan Party or any Subsidiary of any Loan Party may
acquire, whether by purchase or by merger, (A) all of the ownership interests of
another Person
73
or (B) substantially all of assets of another Person or of a business or
division of another Person (each an "Permitted Acquisition"), PROVIDED that each
of the following requirements is met:
(i) if the Loan Parties are acquiring the ownership
interests in such Person, such Person, if a Material Domestic Subsidiary, shall
execute a Guarantor Joinder and join this Agreement as a Guarantor pursuant to
Section 11.18 [Joinder of Guarantors] on or before the date of such Permitted
Acquisition and if the Loan Parties are acquiring the ownership interests of a
Material First Tier Foreign Subsidiary, then 65% of such equity interests shall
be pledged to the Agent for the benefit of the Banks on a first priority
perfected basis pursuant to a Pledge Agreement on the date of such Permitted
Acquisition;
(ii) the Loan Parties, such Person and its owners, as
applicable, shall comply with Section 11.18 [Joinder of Guarantors] on or before
the date of such Permitted Acquisition;
(iii) the board of directors or other equivalent governing
body of such Person shall have approved such Permitted Acquisition and, if the
Loan Parties shall use any portion of the Loans to fund such Permitted
Acquisition, the Loan Parties also shall have delivered to the Agent written
evidence of the approval of the board of directors (or equivalent body) of such
Person for such Permitted Acquisition;
(iv) the business acquired, or the business conducted by the
Person whose ownership interests are being acquired, as applicable, shall be
permitted by Section 8.2.10 [Continuation of or Change in Business];
(v) no Potential Default or Event of Default shall exist
immediately prior to and after giving effect to such Permitted Acquisition;
(vi) the Borrower shall demonstrate that it shall be in
compliance with the covenants contained in Sections 8.2.15 [Maximum Leverage
Ratio], 8.2.16 [Minimum Interest Coverage Ratio] and 8.2.17 [Minimum Net Worth]
after giving effect to such Permitted Acquisition (including in such computation
Indebtedness or other liabilities assumed or incurred in connection with such
Permitted Acquisition, combining the stockholders equity (or similar equity) of
the Person to be acquired with Consolidated Net Worth, but excluding income
earned or expenses incurred by the Person, business or assets to be acquired
prior to the date of such Permitted Acquisition), by delivering on or before the
date of such Permitted Acquisition a certificate in the form of EXHIBIT 8.2.6
evidencing such compliance; and
(vii) if requested by the Agent, the Loan Parties shall
deliver to the Agent copies of any material agreements entered into or proposed
to be entered into by such Loan Parties in connection with such Permitted
Acquisition, together with such other information about such Person or its
assets as any Loan Party may reasonably require.
8.2.7. DISPOSITIONS OF ASSETS OR SUBSIDIARIES.
Each of the Loan Parties shall not, and shall not permit any
of its Subsidiaries to, sell, convey, assign, lease, abandon or otherwise
transfer or dispose of,
74
voluntarily or involuntarily, any of its properties or assets, tangible or
intangible (including sale, assignment, discount or other disposition of
accounts, contract rights, chattel paper, equipment or general intangibles with
or without recourse or of capital stock, shares of beneficial interest,
partnership interests or limited liability company interests of a Subsidiary of
such Loan Party), except:
(i) transactions involving the sale of inventory in the
ordinary course of business;
(ii) any sale, transfer or lease of assets in the ordinary
course of business which are obsolete or no longer necessary or required in the
conduct of such Loan Party's or such Subsidiary's business;
(iii) any sale, transfer or lease of assets by any wholly
owned Subsidiary of a Loan Party to another Loan Party;
(iv) any sale, transfer or lease of assets by any Loan Party
(other than the Borrower) to any other Loan Party;
(v) any sale, transfer or lease of assets constituting an
Investment permitted under Section 8.2.4(v);
(vi) any sale, transfer or lease of assets in the ordinary
course of business which are replaced by substitute assets acquired or leased
within the ordinary course of business;
(vii) any sale, transfer or lease of assets, other than
those specifically excepted pursuant to clauses (i) through (vi) above, provided
that (i) at the time of any disposition, no Event of Default shall exist or
shall result from such disposition, and (ii) the aggregate net book value of all
assets so sold by the Loan Parties and their Subsidiaries shall not exceed in
any fiscal year 25% or the Consolidated Net Worth of the Loan Parties and their
Subsidiaries;
(viii) any sale, transfer or lease of any Investment set
forth on Schedule 8.2.4; or
(ix) any sale, transfer or lease of assets, other than those
specifically excepted pursuant to clauses (i) through (viii) above, which is
approved by the Required Banks.
8.2.8. [INTENTIONALLY OMITTED].
8.2.9. SUBSIDIARIES, PARTNERSHIPS AND JOINT VENTURES.
Each of the Loan Parties shall not, and shall not permit any
of its Subsidiaries to, own or create directly or indirectly any Subsidiary
other than (i) any Material Domestic Subsidiary which has joined this Agreement
as a Guarantor on the Closing Date; (ii)
75
any Material Domestic Subsidiary formed after the Closing Date which joins this
Agreement as a Guarantor pursuant to Section 11.18 [Joinder of Guarantors],
(iii) any Material First Tier Foreign Subsidiary existing on the Closing Date so
long as 65% of the equity interests of such Material First Tier Foreign
Subsidiary have been pledged to the Agent for the benefit of the Agent and the
Banks on a first priority perfected basis, (iv) any Material First Tier Foreign
Subsidiary formed or acquired after the Closing Date so long as 65% of the
equity interests of such Material First Tier Foreign Subsidiary have been
pledged to the Agent for the benefit of the Agent and the Banks on a first
priority perfected basis and otherwise in accordance with the requirements of
Section 11.18 [Joinder of Guarantors], and (v) any other Subsidiary which is not
the subject of the immediately preceding clauses (i) through (iv) of this
Section 8.2.9. Each of the Loan Parties and their Subsidiaries shall not become
or agree to (1) become a general or limited partner in any general or limited
partnership, except that the Loan Parties or their Subsidiaries may be general
or limited partners in other Loan Parties and in Subsidiaries of other Loan
Parties or in any Person in which an Investment is made as permitted by Sections
8.2.4(v), (vi), (vii), (viii) or (ix), (2) become a member or manager of, or
hold a limited liability company interest in, a limited liability company,
except that the Loan Parties or their Subsidiaries may be members or managers
of, or hold limited liability company interests in, other Loan Parties and in
Subsidiaries of other Loan Parties or in any Person in which an Investment is
made as permitted by Sections 8.2.4(v), (vi), (vii), (viii) or (ix), or (3)
become a joint venturer or hold a joint venture interest in any joint venture,
except that the Loan Parties or their Subsidiaries may hold a joint venture
interest in any Person in which an Investment is made as permitted by Sections
8.2.4(v), (vi), (vii), (viii) or (ix).
8.2.10. CONTINUATION OF OR CHANGE IN BUSINESS.
Each of the Loan Parties shall not, and shall not permit any
of its Subsidiaries to, engage in any business other than: (i) the businesses in
which the Borrower (whether directly or through one or more of its Subsidiaries)
engages in on the Closing Date, (ii) similar or related businesses (including,
without limitation, similar or related businesses that serve the industries
which purchase or use goods manufactured or processed or services rendered by,
any business in which the Borrower is then permitted to engage (whether directly
or through one or more of its Subsidiaries), pursuant to this Section 8.2.10, or
(iii) businesses incidental to the foregoing.
8.2.11. PLANS AND BENEFIT ARRANGEMENTS.
Each of the Loan Parties shall not, and shall not permit any
of its Subsidiaries to, engage in a Prohibited Transaction with any Plan,
Benefit Arrangement or Multiemployer Plan which, alone or in conjunction with
any other circumstances or set of circumstances, would result in liability under
ERISA or otherwise violate ERISA, except where any such transaction, liability
or violation, alone or in conjunction with any other circumstances or set of
circumstances, would not reasonably be expected to result in a Material Adverse
Effect.
76
8.2.12. FISCAL YEAR.
The Borrower shall not, and shall not permit any Subsidiary of
the Borrower to, change its fiscal year from the twelve-month period beginning
January 1 and ending December 31.
8.2.13. CHANGES IN ORGANIZATIONAL DOCUMENTS.
The Borrower shall not amend in any respect its certificate of
incorporation (including any provisions or resolutions relating to capital
stock), by-laws, or other organizational documents without obtaining the prior
written consent of the Required Banks in the event any such amendment would be
adverse in any material respect to the Banks.
8.2.14. [INTENTIONALLY OMITTED]
8.2.15. MAXIMUM LEVERAGE RATIO.
The Loan Parties shall not at any time permit the Leverage
Ratio calculated as of the end of each fiscal quarter to exceed 2.50 to 1.00.
8.2.16. MINIMUM INTEREST COVERAGE RATIO.
The Loan Parties shall not permit the Interest Coverage Ratio
calculated as of the end of each fiscal quarter to be less than 3.00 to 1.00.
8.2.17. MINIMUM NET WORTH.
The Borrower shall not at any time permit Consolidated Net
Worth to be less than Base Net Worth.
8.3 REPORTING REQUIREMENTS.
The Loan Parties, jointly and severally, covenant and agree that until
payment in full of the Loans, Reimbursement Obligations and Letter of Credit
Borrowings and interest thereon, expiration or termination of all Letters of
Credit, satisfaction of all of the Loan Parties' other Obligations hereunder and
under the other Loan Documents and termination of the Commitments, the Loan
Parties will furnish or cause to be furnished to the Agent and each of the
Banks:
8.3.1. QUARTERLY FINANCIAL STATEMENTS.
As soon as available and in any event within forty-five (45)
calendar days after the end of each of the first three fiscal quarters in each
fiscal year, financial statements of the Borrower, consisting of a consolidated
balance sheet as of the end of such fiscal quarter and related consolidated
statements of income, stockholders' equity and cash flows for the fiscal quarter
then ended and the fiscal year through that date, all in reasonable detail and
certified (subject to normal year-end audit adjustments) by the Chief Executive
Officer, President
77
or Chief Financial Officer of the Borrower as having been prepared in accordance
with GAAP, consistently applied, and setting forth in comparative form the
respective financial statements for the corresponding date and period in the
previous fiscal year. The Loan Parties will be deemed to have complied with the
delivery requirements of this Section 8.3.1 if within forty-five (45) days after
the end of their fiscal quarter, the Borrower delivers to the Agent and each of
the Banks a copy of its Form 10-Q as filed with the SEC and the financial
statements contained therein meets the requirements described in this Section.
8.3.2. ANNUAL FINANCIAL STATEMENTS.
As soon as available and in any event within ninety (90) days
after the end of each fiscal year of the Borrower, financial statements of the
Borrower consisting of a consolidated balance sheet as of the end of such fiscal
year, and related consolidated statements of income, stockholders' equity and
cash flows for the fiscal year then ended, all in reasonable detail and setting
forth in comparative form the financial statements as of the end of and for the
preceding fiscal year, and certified by independent certified public accountants
of nationally or regionally recognized standing reasonably satisfactory to the
Agent. The certificate or report of accountants shall be free of qualifications
(other than any consistency qualification that may result from a change in the
method used to prepare the financial statements as to which such accountants
concur) and shall not indicate the occurrence or existence of any event,
condition or contingency which would materially impair the prospect of payment
or performance of any covenant, agreement or duty of any Loan Party under any of
the Loan Documents. The Loan Parties will be deemed to have complied with the
delivery requirements of this Section 8.3.2 if within ninety (90) days after the
end of their fiscal year, the Borrower delivers to the Agent and each of the
Banks a copy of its Annual Report and Form 10-K as filed with the SEC and the
financial statements and certification of public accountants contained therein
meets the requirements described in this Section.
8.3.3. CERTIFICATE OF THE BORROWER.
Concurrently with the financial statements of the Borrower
furnished to the Agent and to the Banks pursuant to Sections 8.3.1 [Quarterly
Financial Statements] and 8.3.2 [Annual Financial Statements], a certificate
(each a Compliance Certificate) of the Borrower signed by the Chief Executive
Officer, President or Chief Financial Officer of the Borrower, in the form of
EXHIBIT 8.3.3, to the effect that (i) except as described pursuant to Section
8.3.4 [Notice of Default] the representations and warranties of the Borrower
contained in Section 6 and in the other Loan Documents are true on and as of the
date of such certificate with the same effect as though such representations and
warranties had been made on and as of such date (except representations and
warranties which expressly relate solely to an earlier date or time) and the
Loan Parties have performed and complied with all covenants and conditions
hereof, (ii) no Event of Default or Potential Default exists and is continuing
on the date of such certificate (iii) containing calculations in sufficient
detail to demonstrate compliance as of the date of such financial statements
with all financial covenants contained in Section 8.2 [Negative Covenants], (iv)
listing each First Tier Foreign Subsidiary and each Domestic Subsidiary formed
or acquired during the fiscal quarter or fiscal year, as the case may be,
covered by such Compliance Certificate and also indicating whether such
Subsidiary is a Material
78
Subsidiary, (v) listing each Person in which an Investment has been made during
such fiscal quarter or fiscal year, with respect to which Person, as provided
herein in the definition of Subsidiary, the Loan Parties have elected that such
Person shall not be a Subsidiary, and (vi) setting forth a list of any
dispositions, transfers or sales of any asset or related assets during such
fiscal quarter or fiscal year if the net book value of the assets so disposed,
transferred or sold equals or exceeds 10% of Consolidated Net Worth as of such
quarter end or fiscal year end.
8.3.4. NOTICE OF DEFAULT.
Promptly after any officer of any Loan Party has learned of
the occurrence of an Event of Default or Potential Default, a certificate signed
by the Chief Executive Officer, President or Chief Financial Officer of such
Loan Party setting forth the details of such Event of Default or Potential
Default and the action which the such Loan Party proposes to take with respect
thereto.
8.3.5. NOTICE OF LITIGATION.
Promptly after the commencement thereof, notice of all
actions, suits, proceedings or investigations before or by any Official Body or
any other Person against any Loan Party or Subsidiary of any Loan Party, which
relate to any of the Pledged Collateral or which if adversely determined would
reasonably be expected to constitute a Material Adverse Effect.
8.3.6. AGREEMENTS REGARDING PLEDGED COLLATERAL.
Upon the request of the Agent, the Loan Parties shall provide
to the Agent a list of the shareholder agreements, partnership agreements,
operating agreements or other similar agreements applicable to the Pledged
Collateral, together with a true and complete copy of each such agreement.
8.3.7. BUDGETS, FORECASTS, OTHER REPORTS AND INFORMATION.
Promptly upon their becoming available to the Borrower:
(i) the annual budget (including a detailed budget of
revenue and expenses) and any forecasts or projections of the Borrower, to be
supplied prior to commencement of the fiscal year to which any of the foregoing
may be applicable,
(ii) any reports including management letters submitted to
the Borrower by independent accountants in connection with any annual, interim
or special audit,
(iii) any reports, notices or proxy statements generally
distributed by the Borrower to its stockholders on a date no later than the date
supplied to such stockholders,
79
(iv) regular or periodic reports, including Forms 10-K,
10-Q and 8-K, registration statements and prospectuses, filed by the Borrower
with the SEC,
(v) a copy of any order, which is material and adverse to
the Borrower or any Subsidiary of the Borrower, in any proceeding to which the
Borrower or any of its Subsidiaries is a party issued by any Official Body, and
(vi) such other reports and information as any of the Banks
may from time to time reasonably request. The Borrower shall also notify the
Banks promptly of the enactment or adoption of any Law which may result in a
Material Adverse Effect.
8.3.8. TAX SHELTER PROVISIONS.
Promptly after any of the Loan Parties determines that it
intends to treat any of the Loans, Letters of Credit or related transactions as
being a "reportable transaction" as provided in Section 8.1.12 [Tax Shelter
Regulations]
(1) a written notice of such intention to the Agent; and
(2) a duly completed copy of IRS Form 8886 or any
successor form.
8.3.9. NOTICES REGARDING PLANS AND BENEFIT ARRANGEMENTS.
8.3.9.1 CERTAIN EVENTS.
Promptly upon becoming aware of the occurrence thereof, notice
(including the nature of the event and, when known, any action taken or
threatened by the Internal Revenue Service or the PBGC with respect thereto) of:
(i) any Reportable Event with respect to the Borrower or any
other member of the ERISA Group (regardless of whether the obligation to report
said Reportable Event to the PBGC has been waived),
(ii) any Prohibited Transaction which could subject the
Borrower or any other member of the ERISA Group to a civil penalty assessed
pursuant to Section 502(i) of ERISA or a tax imposed by Section 4975 of the
Internal Revenue Code in connection with any Plan, any Benefit Arrangement or
any trust created thereunder,
(iii) any assertion of material withdrawal liability with
respect to any Multiemployer Plan,
(iv) any partial or complete withdrawal from a Multiemployer
Plan by the Borrower or any other member of the ERISA Group under Title IV of
80
ERISA (or assertion thereof), where such withdrawal is likely to result in
material withdrawal liability,
(v) any cessation of operations (by the Borrower or any
other member of the ERISA Group) at a facility in the circumstances described in
Section 4062(e) of ERISA,
(vi) withdrawal by the Borrower or any other member of the
ERISA Group from a Multiple Employer Plan,
(vii) a failure by the Borrower or any other member of the
ERISA Group to make a payment to a Plan required to avoid imposition of a Lien
under Section 302(f) of ERISA,
(viii) the adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to Section 307 of ERISA, or
(ix) any change in the actuarial assumptions or funding
methods used for any Plan, where the effect of such change is to materially
increase or materially reduce the unfunded benefit liability or obligation to
make periodic contributions.
8.3.9.2 NOTICES OF INVOLUNTARY TERMINATION AND ANNUAL
REPORTS.
Promptly after receipt thereof, copies of (a) all notices
received by the Borrower or any other member of the ERISA Group of the PBGC's
intent to terminate any Plan administered or maintained by the Borrower or any
member of the ERISA Group, or to have a trustee appointed to administer any such
Plan; and (b) at the request of the Agent or any Bank each annual report (IRS
Form 5500 series) and all accompanying schedules, the most recent actuarial
reports, the most recent financial information concerning the financial status
of each Plan administered or maintained by the Borrower or any other member of
the ERISA Group, and schedules showing the amounts contributed to each such Plan
by or on behalf of the Borrower or any other member of the ERISA Group in which
any of their personnel participate or from which such personnel may derive a
benefit, and each Schedule B (Actuarial Information) to the annual report filed
by the Borrower or any other member of the ERISA Group with the Internal Revenue
Service with respect to each such Plan.
8.3.9.3 NOTICE OF VOLUNTARY TERMINATION.
Promptly upon the filing thereof, copies of any Form 5310, or any
successor or equivalent form to Form 5310, filed with the PBGC in connection
with the termination of any Plan.
81
9. DEFAULT
9.1 EVENTS OF DEFAULT.
An Event of Default shall mean the occurrence or existence of any one
or more of the following events or conditions (whatever the reason therefor and
whether voluntary, involuntary or effected by operation of Law):
9.1.1. PAYMENTS UNDER LOAN DOCUMENTS.
The Borrower shall fail to pay (i) any principal of any Loan
(including scheduled installments, mandatory prepayments or the payment due at
maturity), Reimbursement Obligation or Letter of Credit Borrowing when such
principal is due hereunder or (ii) any interest on any Loan , Reimbursement
Obligation or Letter of Credit Borrowing or any other amount owing hereunder or
under the other Loan Documents within three (3) Business Days after such
interest or other amount becomes due in accordance with the terms hereof or
thereof;
9.1.2. BREACH OF WARRANTY.
Any representation or warranty made at any time by any of
the Loan Parties herein or by any of the Loan Parties in any other Loan
Document, or in any certificate, other instrument or statement furnished
pursuant to the provisions hereof or thereof, shall prove to have been false or
misleading in any material respect as of the time it was made or furnished;
9.1.3. BREACH OF NEGATIVE COVENANTS OR VISITATION RIGHTS.
Any of the Loan Parties shall default in the observance or
performance of any covenant contained in Section 8.1.6 [Visitation Rights] or
Section 8.2 [Negative Covenants];
9.1.4. BREACH OF OTHER COVENANTS.
Any of the Loan Parties shall default in the observance or
performance of any other covenant, condition or provision hereof or of any other
Loan Document and such default shall continue unremedied for a period of thirty
(30) days after any officer of any Loan Party becomes aware of the occurrence
thereof (such grace period to be applicable only in the event such default can
be remedied by corrective action of the Loan Parties as determined by the Agent
in its reasonable discretion);
9.1.5. DEFAULTS IN OTHER AGREEMENTS OR INDEBTEDNESS.
A default or event of default shall occur at any time under
the terms of any other agreement involving borrowed money or the extension of
credit or any other Indebtedness under which any Loan Party or Material
Subsidiary of any Loan Party may be obligated as a borrower or guarantor in
excess of $30,000,000 in the aggregate, and such breach,
82
default or event of default consists of the failure to pay (beyond any period of
grace permitted with respect thereto, whether waived or not) any indebtedness
when due (whether at stated maturity, by acceleration or otherwise) or if such
breach or default permits or causes the acceleration of any indebtedness
(whether or not such right shall have been waived) or the termination of any
commitment to lend;
9.1.6. FINAL JUDGMENTS OR ORDERS.
Any final judgments or orders for the payment of money in
excess of $30,000,000 in the aggregate (to the extent not paid or covered by
insurance from a reputable carrier who has not previously denied coverage) shall
be entered against any Loan Party by a court having jurisdiction in the
premises, which judgment is not discharged, vacated, bonded or stayed pending
appeal within a period of thirty (30) days from the date of entry;
9.1.7. LOAN DOCUMENT UNENFORCEABLE.
Any material provision of the Loan Documents shall cease to
be legal, valid and binding agreements enforceable against the party executing
the same or such party's successors and assigns (as permitted under the Loan
Documents) in accordance with the respective terms thereof or shall in any way
be terminated (except in accordance with its terms) or become or be declared
ineffective or inoperative or shall in any way be challenged or contested or
cease to give or provide the respective Liens, security interests, rights,
titles, interests, remedies, powers or privileges intended to be created
thereby;
9.1.8. UNINSURED LOSSES; PROCEEDINGS AGAINST ASSETS.
Any material portion of the Loan Parties' or any of their
Material Subsidiaries' assets are attached, seized, levied upon or subjected to
a writ or distress warrant; or such come within the possession of any receiver,
trustee, custodian or assignee for the benefit of creditors and the same is not
cured within thirty (30) days thereafter;
9.1.9. NOTICE OF LIEN OR ASSESSMENT.
A notice of Lien or assessment in excess of $30,000,000
which is not a Permitted Lien is filed of record with respect to all or any part
of any of the Loan Parties' or any of their Material Subsidiaries' assets by the
United States, or any department, agency or instrumentality thereof, or by any
state, county, municipal or other governmental agency, including the PBGC, or
any taxes or debts owing at any time or times hereafter to any one of these
becomes payable and the same is not paid within thirty (30) days after the same
becomes payable;
9.1.10. INSOLVENCY.
Any Loan Party or any Material Subsidiary of a Loan Party
ceases to be Solvent or admits in writing its inability to pay its debts as they
mature;
83
9.1.11. EVENTS RELATING TO PLANS AND BENEFIT ARRANGEMENTS.
Any of the following occurs: (i) any Reportable Event, which
the Agent determines in good faith constitutes grounds for the termination of
any Plan by the PBGC or the appointment of a trustee to administer or liquidate
any Plan, shall have occurred and be continuing; (ii) proceedings shall have
been instituted or other action taken to terminate any Plan, or a termination
notice shall have been filed with respect to any Plan; (iii) a trustee shall be
appointed to administer or liquidate any Plan; (iv) the PBGC shall give notice
of its intent to institute proceedings to terminate any Plan or Plans or to
appoint a trustee to administer or liquidate any Plan; and, in the case of the
occurrence of (i), (ii), (iii) or (iv) above, the Required Banks determine in
good faith that the amount of the Borrower's liability is likely to exceed 10%
of its Consolidated Net Worth; (v) the Borrower or any member of the ERISA Group
shall fail to make any contributions when due to a Plan or a Multiemployer Plan;
(vi) the Borrower or any other member of the ERISA Group shall make any
amendment to a Plan with respect to which security is required under Section 307
of ERISA; (vii) the Borrower or any other member of the ERISA Group shall
withdraw completely or partially from a Multiemployer Plan; (viii) the Borrower
or any other member of the ERISA Group shall withdraw (or shall be deemed under
Section 4062(e) of ERISA to withdraw) from a Multiple Employer Plan; or (ix) any
applicable Law is adopted, changed or interpreted by any Official Body with
respect to or otherwise affecting one or more Plans, Multiemployer Plans or
Benefit Arrangements and, with respect to any of the events specified in (v),
(vi), (vii), (viii) or (ix), the Required Banks determine in good faith that any
such occurrence would be reasonably likely to materially and adversely affect
the total enterprise represented by the Borrower and the other members of the
ERISA Group;
9.1.12. CESSATION OF BUSINESS.
Any Loan Party or any Material Subsidiary of a Loan Party
ceases to conduct its business as contemplated, except as expressly permitted
under Section 8.2.6 [Liquidations, Mergers, Etc.] or 8.2.7 [Disposition of
Assets], or any Loan Party or any Material Subsidiary of a Loan Party is
enjoined, restrained or in any way prevented by court order from conducting all
or any material part of its business and such injunction, restraint or other
preventive order is not dismissed within thirty (30) days after the entry
thereof;
9.1.13. CHANGE OF CONTROL.
Any person or group of persons (within the meaning of Sections
13(d) or 14(a) of the Securities Exchange Act of 1934, as amended) shall have
acquired beneficial ownership of (within the meaning of Rule 13d-3 promulgated
by the SEC under said Act) 30% or more of the voting capital stock of the
Borrower;
9.1.14. INVOLUNTARY PROCEEDINGS.
A proceeding shall have been instituted in a court having
jurisdiction in the premises seeking a decree or order for relief in respect of
any Loan Party or any Material Subsidiary of a Loan Party in an involuntary case
under any applicable bankruptcy, insolvency, reorganization or other similar law
now or hereafter in effect, or for the appointment
84
of a receiver, liquidator, assignee, custodian, trustee, sequestrator,
conservator (or similar official) of any Loan Party or any Material Subsidiary
of a Loan Party for any substantial part of its property, or for the winding-up
or liquidation of its affairs, and such proceeding shall remain undismissed or
unstayed and in effect for a period of sixty (60) consecutive days or such court
shall enter a decree or order granting any of the relief sought in such
proceeding; or
9.1.15. VOLUNTARY PROCEEDINGS.
Any Loan Party or any Material Subsidiary of a Loan Party
shall commence a voluntary case under any applicable bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, shall consent to
the entry of an order for relief in an involuntary case under any such law, or
shall consent to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator, conservator (or other similar
official) of itself or for any substantial part of its property or shall make a
general assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due, or shall take any action in furtherance of any of
the foregoing.
9.2 CONSEQUENCES OF EVENT OF DEFAULT.
9.2.1. EVENTS OF DEFAULT OTHER THAN BANKRUPTCY, INSOLVENCY OR
REORGANIZATION PROCEEDINGS.
If an Event of Default specified under Sections 9.1.1 through
9.1.13 shall occur and be continuing, the Banks and the Agent shall be under no
further obligation to make Revolving Credit Loans or issue Letters of Credit, as
the case may be, and the Agent may, and upon the request of the Required Banks,
shall by written notice to the Borrower, take one or both of the following
actions: (i) terminate the Commitments and thereupon the Commitments shall be
terminated and of no further force and effect, or (ii) declare the unpaid
principal amount of the Revolving Credit Loans then outstanding and all interest
accrued thereon, any unpaid fees and all other Indebtedness of the Borrower to
the Banks hereunder and thereunder to be forthwith due and payable, and the same
shall thereupon become and be immediately due and payable to the Agent for the
benefit of each Bank without presentment, demand, protest or any other notice of
any kind, all of which are hereby expressly waived, and (ii) require the
Borrower to, and the Borrower shall thereupon, deposit in a non-interest-bearing
account with the Agent, as cash collateral for its Obligations under the Loan
Documents, an amount equal to the maximum amount currently or at any time
thereafter available to be drawn on all outstanding Letters of Credit, and the
Borrower hereby pledges to the Agent and the Banks, and grants to the Agent and
the Banks a security interest in, all such cash as security for such
Obligations. Upon the curing of all existing Events of Default to the
satisfaction of the Required Banks, the Agent shall return such cash collateral
to the Borrower; and
9.2.2. BANKRUPTCY, INSOLVENCY OR REORGANIZATION PROCEEDINGS.
If an Event of Default specified under Section 9.1.14
[Involuntary Proceedings] or 9.1.15 [Voluntary Proceedings] shall occur, the
Commitments shall automatically terminate and be of no further force and effect,
the Banks shall be under no further
85
obligations to make Revolving Credit Loans hereunder, PNC Bank shall be under no
further obligation to make Swing Loans hereunder and the unpaid principal amount
of the Loans then outstanding and all interest accrued thereon, any unpaid fees
and all other Indebtedness of the Borrower to the Banks hereunder and thereunder
shall be immediately due and payable, without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived; and
9.2.3. SET-OFF.
If an Event of Default shall occur and be continuing, any Bank to
whom any Obligation is owed by any Loan Party hereunder or under any other Loan
Document or any participant of such Bank which has agreed in writing to be bound
by the provisions of Section 10.13 [Equalization of Banks] and any branch,
Subsidiary or Affiliate of such Bank or participant anywhere in the world shall
have the right, in addition to all other rights and remedies available to it,
without notice to such Loan Party, to set-off against and apply to the then
unpaid balance of all the Loans and all other Obligations of the Borrower and
the other Loan Parties hereunder or under any other Loan Document any debt owing
to, and any other funds held in any manner for the account of, the Borrower or
such other Loan Party by such Bank or participant or by such branch, Subsidiary
or Affiliate, including all funds in all deposit accounts (whether time or
demand, general or special, provisionally credited or finally credited, or
otherwise) now or hereafter maintained by the Borrower or such other Loan Party
for its own account (but not including funds held in custodian or trust
accounts) with such Bank or participant or such branch, Subsidiary or Affiliate.
Such right shall exist whether or not any Bank or the Agent shall have made any
demand under this Agreement or any other Loan Document, whether or not such debt
owing to or funds held for the account of the Borrower or such other Loan Party
is or are matured or unmatured and regardless of the existence or adequacy of
any Guaranty, any Pledged Collateral or any other security, right or remedy
available to any Bank or the Agent; and
9.2.4. SUITS, ACTIONS, PROCEEDINGS.
If an Event of Default shall occur and be continuing, and
whether or not the Agent shall have accelerated the maturity of the Loans
pursuant to any of the foregoing provisions of this Section 9.2, the Agent or
any Bank, if owed any amount with respect to the Loans, may proceed to protect
and enforce its rights by suit in equity, action at law and/or other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in this Agreement or the other Loan Documents, including as permitted
by applicable Law the obtaining of the EX PARTE appointment of a receiver, and,
if such amount shall have become due, by declaration or otherwise, proceed to
enforce the payment thereof or any other legal or equitable right of the Agent
or such Bank; and
9.2.5. APPLICATION OF PROCEEDS; COLLATERAL SHARING.
9.2.5.1 APPLICATION OF PROCEEDS.
From and after the date on which the Agent has taken any
action pursuant to this Section 9.2 and until all Obligations of the Loan
Parties have been paid in full,
86
any and all proceeds received by the Agent from any sale or other disposition of
the Pledged Collateral, or any part thereof, or the exercise of any remedy by
the Agent, shall be applied as follows:
(i) first, to reimburse the Agent and the Banks for
out-of-pocket costs, expenses and disbursements, including reasonable attorneys'
and paralegals' fees and legal expenses, incurred by the Agent or the Banks in
connection with realizing on the Pledged Collateral or collection of any
Obligations of any of the Loan Parties under any of the Loan Documents,
including advances made by the Agent or the Banks for the reasonable
maintenance, preservation, protection or enforcement of, or realization upon,
the Pledged Collateral, including advances for taxes, insurance, repairs and the
like and reasonable expenses incurred to sell or otherwise realize on, or
prepare for sale or other realization on, any of the Pledged Collateral.
(ii) second, to the repayment of all Indebtedness then due
and unpaid of the Loan Parties to the Banks incurred under this Agreement or any
of the other Loan Documents or a Bank-Provided Hedge or the B of A/Glenborough
Letter of Credit (but only if Bank of America is a Bank hereunder), whether of
principal, interest, fees, expenses or otherwise, in such manner as the Agent
may determine in its discretion; and
(iii) the balance, if any, as required by Law.
9.2.5.2 COLLATERAL SHARING.
All Liens granted under any Loan Document (the "Collateral
Documents") shall secure ratably and on a pari passu basis (i) the Obligations
in favor of the Agent and the Banks hereunder, (ii) the Obligations incurred by
any of the Loan Parties in favor of any Bank which provides a Bank-Provided
Hedge (the "IRH Provider"), and (iii) the Obligations incurred by any of the
Loan Parties in favor of Bank of America (but only if it is a Bank hereunder)
("Bank of America") under the B of A/Glenborough Letter of Credit. The Agent
under the Collateral Documents shall be deemed to serve as the collateral agent
(the "Collateral Agent") for the IRH Provider, Bank of America (but only if it
is a Bank hereunder and only as it relates to Obligations incurred by the Loan
Parties in favor of Bank of America under the B of A/Glenborough Letter of
Credit) and the Banks hereunder, provided that the Collateral Agent shall comply
with the instructions and directions of the Agent (or the Banks under this
Agreement to the extent that this Agreement or any other Loan Documents empowers
the Banks to direct the Agent), as to all matters relating to the collateral
under the Collateral Documents, including the maintenance and disposition
thereof. No IRH Provider (except in its capacity as a Bank hereunder) shall be
entitled or have the power to direct or instruct the Collateral Agent on any
such matters or to control or direct in any manner the maintenance or
disposition of the collateral under the Collateral Documents. Bank of America
(except in its capacity as a Bank hereunder) shall not be entitled or have the
power to direct or instruct the Collateral Agent on any such matters or to
control or direct in any manner the maintenance or disposition of the collateral
under the Collateral Documents.
87
9.2.6. OTHER RIGHTS AND REMEDIES.
In addition to all of the rights and remedies contained in
this Agreement or in any of the other Loan Documents, the Agent shall have all
of the rights and remedies under the Uniform Commercial Code or other applicable
Law, all of which rights and remedies shall be cumulative and non-exclusive, to
the extent permitted by Law. The Agent may, and upon the request of the Required
Banks shall, exercise all post-default rights granted to the Agent and the Banks
under the Loan Documents or applicable Law.
9.2.7. NOTICE OF SALE.
Any notice required to be given by the Agent or any Bank of a
sale, lease, or other disposition of the Pledged Collateral or any other
intended action by the Agent or any Bank, if given ten (10) days prior to such
proposed action, shall constitute commercially reasonable and fair notice
thereof to the Loan Parties.
10. THE AGENT
10.1 APPOINTMENT.
Each Bank hereby irrevocably designates, appoints and authorizes PNC Bank
to act as Agent for such Bank under this Agreement and to execute and deliver or
accept on behalf of each of the Banks the other Loan Documents. Each Bank hereby
irrevocably authorizes, the Agent to take such action on its behalf under the
provisions of this Agreement and the other Loan Documents and any other
instruments and agreements referred to herein, and to exercise such powers and
to perform such duties hereunder as are specifically delegated to or required of
the Agent by the terms hereof, together with such powers as are reasonably
incidental thereto. PNC Bank agrees to act as the Agent on behalf of the Banks
to the extent provided in this Agreement.
10.2 DELEGATION OF DUTIES.
The Agent may perform any of its duties hereunder by or through agents or
employees (PROVIDED such delegation does not constitute a relinquishment of its
duties as Agent) and, subject to Sections 10.5 [Reimbursement of Agent by
Borrower, Etc.] and 10.6 [Exculpatory Provisions, Etc.], shall be entitled to
engage and pay for the advice or services of any attorneys, accountants or other
experts concerning all matters pertaining to its duties hereunder and to rely
upon any advice so obtained.
10.3 NATURE OF DUTIES; INDEPENDENT CREDIT INVESTIGATION.
The Agent shall have no duties or responsibilities except those expressly
set forth in this Agreement and no implied covenants, functions,
responsibilities, duties, obligations, or liabilities shall be read into this
Agreement or otherwise exist. The duties of the Agent shall be mechanical and
administrative in nature; the Agent shall not have by reason of this Agreement a
fiduciary or trust relationship in respect of any Bank; and nothing in this
Agreement, expressed or implied, is intended to or shall be so construed as to
impose upon the Agent any obligations in
88
respect of this Agreement except as expressly set forth herein. Without
limiting the generality of the foregoing, the use of the term "agent" in this
Agreement with reference to the Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable Law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties. Each Bank expressly acknowledges (i) that the
Agent has not made any representations or warranties to it and that no act by
the Agent hereafter taken, including any review of the affairs of any of the
Loan Parties, shall be deemed to constitute any representation or warranty by
the Agent to any Bank; (ii) that it has made and will continue to make, without
reliance upon the Agent, its own independent investigation of the financial
condition and affairs and its own appraisal of the creditworthiness of each of
the Loan Parties in connection with this Agreement and the making and
continuance of the Loans hereunder; and (iii) except as expressly provided
herein, that the Agent shall have no duty or responsibility, either initially or
on a continuing basis, to provide any Bank with any credit or other information
with respect thereto, whether coming into its possession before the making of
any Loan or at any time or times thereafter.
10.4 ACTIONS IN DISCRETION OF AGENT; INSTRUCTIONS FROM THE BANKS.
The Agent agrees, upon the written request of the Required Banks, to take
or refrain from taking any action of the type specified as being within the
Agent's rights, powers or discretion herein, PROVIDED that the Agent shall not
be required to take any action which exposes the Agent to personal liability or
which is contrary to this Agreement or any other Loan Document or applicable
Law. In the absence of a request by the Required Banks, the Agent shall have
authority, in its sole discretion, to take or not to take any such action,
unless this Agreement specifically requires the consent of the Required Banks or
all of the Banks. Any action taken or failure to act pursuant to such
instructions or discretion shall be binding on the Banks, subject to Section
10.6 [Exculpatory Provisions, Etc.]. Subject to the provisions of Section 10.6,
no Bank shall have any right of action whatsoever against the Agent as a result
of the Agent acting or refraining from acting hereunder in accordance with the
instructions of the Required Banks, or in the absence of such instructions, in
the absolute discretion of the Agent.
10.5 REIMBURSEMENT AND INDEMNIFICATION OF AGENT BY THE BORROWER.
The Borrower unconditionally agrees to pay or reimburse the Agent and hold
the Agent harmless against (a) liability for the payment of all reasonable
out-of-pocket costs, expenses and disbursements, including reasonable fees and
expenses of counsel (including, without duplication of legal work of outside
counsel, the allocated costs of staff counsel), appraisers and environmental
consultants, incurred by the Agent (i) in connection with the development,
negotiation, preparation, printing, execution, administration, syndication,
interpretation and performance of this Agreement and the other Loan Documents,
(ii) relating to any requested amendments, waivers or consents pursuant to the
provisions hereof, (iii) in connection with the enforcement of this Agreement or
any other Loan Document or collection of amounts due hereunder or thereunder or
the proof and allowability of any claim arising under this Agreement or any
other Loan Document, whether in bankruptcy or receivership proceedings or
otherwise, (iv) in any workout or restructuring or in connection with the
protection, preservation,
89
exercise or enforcement of any of the terms hereof or of any rights hereunder or
under any other Loan Document or in connection with any foreclosure, collection
or bankruptcy proceedings, and (v) in connection with any Environmental
Complaint threatened or asserted against the Agent or the Lenders in any way
relating to or arising out of this Agreement or any other Loan Documents
(including, without limitation, the protection, preservation, exercise or
enforcement of any of the terms hereof or of any rights hereunder or under any
other Loan Document or in connection with any foreclosure, collection or
bankruptcy proceedings or in any workout or restructuring) and (b) all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Agent, in its capacity as such,
in any way relating to or arising out of (i) this Agreement or any other Loan
Documents or any action taken or omitted by the Agent hereunder or thereunder
and (ii) any Environmental Complaint in any way relating to or arising out of
this Agreement or any other Loan Documents or any action taken or omitted by the
Agent hereunder or thereunder, PROVIDED that the Borrower shall not be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements if the same results
from the Agent's bad faith, gross negligence or willful misconduct, or if the
Borrower was not given notice of the subject claim and the opportunity to
participate in the defense thereof, at its expense (except that the Borrower
shall remain liable to the extent such failure to give notice does not result in
a loss to the Borrower), or if the same results from a compromise or settlement
agreement entered into without the consent of the Borrower, which shall not be
unreasonably withheld. In addition, the Borrower agrees to reimburse and pay all
reasonable out-of-pocket expenses of the Agent's regular employees and agents
engaged periodically to perform audits of the Loan Parties' books, records and
business properties.
10.6 EXCULPATORY PROVISIONS; LIMITATION OF LIABILITY.
Neither the Agent nor any of its directors, officers, employees, agents,
attorneys or Affiliates shall (a) be liable to any Bank for any action taken or
omitted to be taken by it or them hereunder, or in connection herewith including
pursuant to any Loan Document, unless caused by its or their own bad faith,
gross negligence or willful misconduct, (b) be responsible in any manner to any
of the Banks for the effectiveness, enforceability, genuineness, validity or the
due execution of this Agreement or any other Loan Documents or for any recital,
representation, warranty, document, certificate, report or statement herein or
made or furnished under or in connection with this Agreement or any other Loan
Documents, or (c) be under any obligation to any of the Banks to ascertain or to
inquire as to the performance or observance of any of the terms, covenants or
conditions hereof or thereof on the part of the Loan Parties, or the financial
condition of the Loan Parties, or the existence or possible existence of any
Event of Default or Potential Default. No claim may be made by any of the Loan
Parties, any Bank, the Agent or any of their respective Subsidiaries against the
Agent, any Bank or any of their respective directors, officers, employees,
agents, attorneys or Affiliates, or any of them, for any special, indirect or
consequential damages or, to the fullest extent permitted by Law, for any
punitive damages in respect of any claim or cause of action (whether based on
contract, tort, statutory liability, or any other ground) based on, arising out
of or related to any Loan Document or the transactions contemplated hereby or
any act, omission or event occurring in connection therewith, including the
negotiation, documentation, administration or collection of the Loans, and each
of the Loan
90
Parties, (for itself and on behalf of each of its Subsidiaries), the
Agent and each Bank hereby waive, releases and agree never to xxx upon any claim
for any such damages, whether such claim now exists or hereafter arises and
whether or not it is now known or suspected to exist in its favor. Each Bank
agrees that, except for notices, reports and other documents expressly required
to be furnished to the Banks by the Agent hereunder or given to the Agent for
the account of or with copies for the Banks, the Agent and each of its
directors, officers, employees, agents, attorneys or Affiliates shall not have
any duty or responsibility to provide any Bank with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of the Loan Parties which may come
into the possession of the Agent or any of its directors, officers, employees,
agents, attorneys or Affiliates.
10.7 REIMBURSEMENT AND INDEMNIFICATION OF AGENT BY BANKS.
Each Bank agrees to reimburse and indemnify the Agent (to the extent not
reimbursed by the Borrower and without limiting the Obligation of the Borrower
to do so) in proportion to its Ratable Share from and against all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements, including attorneys' fees and disbursements
(including the allocated reasonable costs of staff counsel), and costs of
appraisers and environmental consultants, of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against the Agent, in its capacity as
such, in any way relating to or arising out of this Agreement or any other Loan
Documents or any action taken or omitted by the Agent hereunder or thereunder,
PROVIDED that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements (a) if the same results from the Agent's gross
negligence or willful misconduct, or (b) if such Bank was not given notice of
the subject claim and the opportunity to participate in the defense thereof, at
its expense (except that such Bank shall remain liable to the extent such
failure to give notice does not result in a loss to the Bank), or (c) if the
same results from a compromise and settlement agreement entered into without the
consent of such Bank, which shall not be unreasonably withheld. In addition,
each Bank agrees promptly upon demand to reimburse the Agent (to the extent not
reimbursed by the Borrower and without limiting the Obligation of the Borrower
to do so) in proportion to its Ratable Share for all amounts due and payable by
the Borrower to the Agent in connection with the Agent's periodic audit of the
Loan Parties' books, records and business properties.
10.8 RELIANCE BY AGENT.
The Agent shall be entitled to rely upon any writing, telegram, telex or
teletype message, resolution, notice, consent, certificate, letter, cablegram,
statement, order or other document or conversation by telephone or otherwise
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons, and upon the advice and opinions of counsel and
other professional advisers selected by the Agent. The Agent shall be fully
justified in failing or refusing to take any action hereunder unless it shall
first be indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
91
10.9 NOTICE OF DEFAULT.
The Agent shall not be deemed to have knowledge or notice of the occurrence
of any Potential Default or Event of Default unless the Agent has received
written notice from a Bank or the Borrower referring to this Agreement,
describing such Potential Default or Event of Default and stating that such
notice is a "notice of default".
10.10 NOTICES.
The Agent shall promptly send to each Bank a copy of all notices received
from the Borrower pursuant to the provisions of this Agreement or the other Loan
Documents promptly upon receipt thereof. The Agent shall promptly notify the
Borrower and the other Banks of each change in the Base Rate and the effective
date thereof.
10.11 BANKS IN THEIR INDIVIDUAL CAPACITIES; AGENTS IN ITS INDIVIDUAL
CAPACITY.
With respect to its Revolving Credit Commitment and the Revolving Credit
Loans made by it and any other rights and powers given to it as a Bank hereunder
or under any of the other Loan Documents, the Agent shall have the same rights
and powers hereunder as any other Bank and may exercise the same as though it
were not the Agent, and the term "Bank" and "Banks" shall, unless the context
otherwise indicates, include the Agent in its individual capacity. PNC Bank and
its Affiliates and each of the Banks and their respective Affiliates may,
without liability to account, except as prohibited herein, make loans to, issue
letters of credit for the account of, acquire equity interests in, accept
deposits from, discount drafts for, act as trustee under indentures of, and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with, the Loan Parties and their Affiliates, in the case of
the Agent, as though it were not acting as Agent hereunder and in the case of
each Bank, as though such Bank were not a Bank hereunder, in each case without
notice to or consent of the other Banks. The Banks acknowledge that, pursuant to
such activities, the Agent or its Affiliates may (i) receive information
regarding the Loan Parties or any of their Subsidiaries or Affiliates (including
information that may be subject to confidentiality obligations in favor of the
Loan Parties or such Subsidiary or Affiliate) and acknowledge that the Agent
shall be under no obligation to provide such information to them, and (ii)
accept fees and other consideration from the Loan Parties for services in
connection with this Agreement and otherwise without having to account for the
same to the Banks.
10.12 HOLDERS OF NOTES.
The Agent may deem and treat any payee of any Note as the owner thereof for
all purposes hereof unless and until written notice of the assignment or
transfer thereof shall have been filed with the Agent. Any request, authority or
consent of any Person who at the time of making such request or giving such
authority or consent is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee or assignee of such Note or of any Note or
Notes issued in exchange therefor.
92
10.13 EQUALIZATION OF BANKS.
The Banks and the holders of any participations in any Commitments or Loans
or other rights or obligations of a Bank hereunder agree among themselves that,
with respect to all amounts received by any Bank or any such holder for
application on any Obligation hereunder or under any such participation, whether
received by voluntary payment, by realization upon security, by the exercise of
the right of set-off or banker's lien, by counterclaim or by any other non-pro
rata source, equitable adjustment will be made in the manner stated in the
following sentence so that, in effect, all such excess amounts will be shared
ratably among the Banks and such holders in proportion to their interests in
payments on the Loans, except as otherwise provided in Section 4.4.3 [Agent's
and Bank's Rights], 5.4.2 [Replacement of a Bank] or 5.5 [Additional
Compensation in Certain Circumstances]. The Banks or any such holder receiving
any such amount shall purchase for cash from each of the other Banks an interest
in such Bank's Loans in such amount as shall result in a ratable participation
by the Banks and each such holder in the aggregate unpaid amount of the Loans,
PROVIDED that if all or any portion of such excess amount is thereafter
recovered from the Bank or the holder making such purchase, such purchase shall
be rescinded and the purchase price restored to the extent of such recovery,
together with interest or other amounts, if any, required by law (including
court order) to be paid by the Bank or the holder making such purchase.
10.14 SUCCESSOR AGENT.
The Agent (i) may resign as Agent or (ii) shall resign if such resignation
is requested by the Required Banks (if the Agent is a Bank, the Agent's Loans
and its Commitment shall be considered in determining whether the Required Banks
have requested such resignation) or required by Section 5.4.2 [Replacement of a
Bank], in either case of (i) or (ii) by giving not less than thirty (30) days'
prior written notice to the Borrower. If the Agent shall resign under this
Agreement, then either (a) the Required Banks shall appoint from among the Banks
a successor agent for the Banks, subject to the consent of the Borrower, such
consent not to be unreasonably withheld or delayed, or (b) if a successor agent
shall not be so appointed and approved within the thirty (30) day period
following the Agent's notice to the Banks of its resignation, then the Agent
shall appoint, with the consent of the Borrower, such consent not to be
unreasonably withheld or delayed, a successor agent who shall serve as Agent
until such time as the Required Banks appoint and the Borrower consents to the
appointment of a successor agent. Upon its appointment pursuant to either clause
(a) or (b) above, such successor agent shall succeed to the rights, powers and
duties of the Agent, and the term "Agent" shall mean such successor agent,
effective upon its appointment, and the former Agent's rights, powers and duties
as Agent shall be terminated without any other or further act or deed on the
part of such former Agent or any of the parties to this Agreement. After the
resignation of any Agent hereunder, the provisions of this Section 10 shall
inure to the benefit of such former Agent and such former Agent shall not by
reason of such resignation be deemed to be released from liability for any
actions taken or not taken by it while it was an Agent under this Agreement.
93
10.15 AGENT'S FEE.
The Borrower shall pay to the Agent a nonrefundable fee (the "Optional
Currency Loan Processing Fee") in connection with processing Revolving Credit
Loans denominated in any Optional currency and a nonrefundable fee (the "Agent's
Fee") under the terms of a letter (the "Agent's Letter") between the Borrower
and Agent, as amended from time to time.
10.16 AVAILABILITY OF FUNDS.
The Agent may assume that each Bank has made or will make the proceeds of a
Revolving Credit Loan available to the Agent in the applicable currency unless
the Agent shall have been notified by such Bank on or before the later of (1)
the close of Business on the Business Day preceding the Borrowing Date with
respect to such Loan or two (2) hours before the time on which the Agent
actually funds the proceeds of such Loan to the Borrower (whether using its own
funds pursuant to this Section 10.16 or using proceeds deposited with the Agent
by the Banks and whether such funding occurs before or after the time on which
Banks are required to deposit the proceeds of such Loan with the Agent). The
Agent may, in reliance upon such assumption (but shall not be required to), make
available to the Borrower a corresponding amount in the applicable currency. If
such corresponding amount is not in fact made available to the Agent by such
Bank in the applicable currency, the Agent shall be entitled to recover such
amount on demand from such Bank (or, if such Bank fails to pay such amount
forthwith upon such demand from the Borrower) together with interest thereon, in
respect of each day during the period commencing on the date such amount was
made available to the Borrower and ending on the date the Agent recovers such
amount, at a rate per annum equal to (i) the Federal Funds Effective Rate during
the first three (3) days after such interest shall begin to accrue and (ii) the
applicable interest rate in respect of such Loan after the end of such three-day
period.
10.17 CALCULATIONS.
In the absence of gross negligence or willful misconduct, the Agent shall
not be liable for any error in computing the amount payable to any Bank whether
in respect of the Loans, fees or any other amounts due to the Banks under this
Agreement. In the event an error in computing any amount payable to any Bank is
made, the Agent, the Borrower and each affected Bank shall, forthwith upon
discovery of such error, make such adjustments as shall be required to correct
such error, and any compensation therefor will be calculated at the Federal
Funds Effective Rate or the Overnight Rate if such computation relates to a Loan
made in an Optional Currency.
10.18 BENEFICIARIES.
Except as expressly provided herein, the provisions of this Section 10 are
solely for the benefit of the Agent and the Banks, and the Loan Parties shall
not have any rights to rely on or enforce any of the provisions hereof. In
performing its functions and duties under this Agreement, the Agent shall act
solely as agent of the Banks and does not assume and shall not be deemed to have
assumed any obligation toward or relationship of agency or trust with or for any
of the Loan Parties.
94
10.19 NO RELIANCE ON AGENT'S CUSTOMER IDENTIFICATION PROGRAM.
Each Bank acknowledges and agrees that neither such Bank, nor any of its
Affiliates, participants or assignees, may rely on the Agent to carry out such
Bank's, Affiliate's, participant's or assignee's customer identification
program, or other obligations required or imposed under or pursuant to the USA
Patriot Act or the regulations thereunder, including the regulations contained
in 31 CFR 103.121 (as hereafter amended or replaced, the "CIP Regulations"), or
any other Anti-Terrorism Law, including any programs involving any of the
following items relating to or in connection with any of the Loan Parties, their
Affiliates or their agents, the Loan Documents or the transactions hereunder or
contemplated hereby: (1) any identity verification procedures, (2) any
recordkeeping, (3) comparisons with government lists, (4) customer notices or
(5) other procedures required under the CIP Regulations or such other Laws.
10.20 CERTAIN RELEASES OF PLEDGED COLLATERAL.
It is expressly agreed by each Bank, that upon the written request of the
Borrower (accompanied by such certificates and other documentation as the Agent
may reasonably request) the Agent on behalf of the Banks and without any consent
or action by any Bank, may, so long as no Event of Default exists after giving
effect thereto, release any portion of the Pledged Collateral in connection with
any sale, transfer, lease, disposition, merger or other transaction permitted by
this Agreement; provided, however, that the provisions set forth in this Section
10.20 apply only to releases of portions of the Pledged Collateral where this
Agreement does not otherwise expressly provide for the consent or approval of
all Banks. (By way of example, the provisions of this Section 10.20 would not
apply to any release of all or substantially all of the Pledged Collateral,
which release, in accordance with Section 11.1.3 [Release of Collateral or
Guarantor], would require the consent of all of the Banks).
11. MISCELLANEOUS
11.1 MODIFICATIONS, AMENDMENTS OR WAIVERS.
With the written consent of the Required Banks, the Agent, acting on behalf
of all the Banks, and the Borrower, on behalf of the Loan Parties, may from time
to time enter into written agreements amending or changing any provision of this
Agreement or any other Loan Document or the rights of the Banks or the Loan
Parties hereunder or thereunder, or may grant written waivers or consents to a
departure from the due performance of the Obligations of the Loan Parties
hereunder or thereunder. Any such agreement, waiver or consent made with such
written consent shall be effective to bind all the Banks and the Loan Parties;
PROVIDED, that, no such agreement, waiver or consent may be made which will:
11.1.1. INCREASE OF COMMITMENT; EXTENSION OF EXPIRATION DATE.
Without the written consent of the Required Banks and the Bank
effected thereby increase the amount of the Revolving Credit Commitment of such
Bank hereunder or without the written consent of all Banks extend the Expiration
Date;
95
11.1.2. EXTENSION OF PAYMENT; REDUCTION OF PRINCIPAL INTEREST OR FEES;
MODIFICATION OF TERMS OF PAYMENT.
Without the written consent of all Banks, whether or not any
Loans are outstanding, extend the time for payment of principal or interest of
any Loan (excluding the due date of any mandatory prepayment of a Loan or any
mandatory Commitment reduction in connection with such a mandatory prepayment
hereunder except for mandatory reductions of the Commitments on the Expiration
Date), the Commitment Fee or any other fee payable to any Bank, or reduce the
principal amount of or the rate of interest borne by any Loan or reduce the
Commitment Fee or any other fee payable to any Bank, or any other fee payable to
any Bank;
11.1.3. RELEASE OF COLLATERAL OR GUARANTOR.
Without the written consent of all Banks, release all or
substantially all of the Pledged Collateral, release any Guarantor from its
Obligations under the Guaranty Agreement or release any other security for any
of the Loan Parties' Obligations; or
11.1.4. MISCELLANEOUS.
Without the written consent of all Banks, amend Section 5.2 [Pro
Rata Treatment of Banks], 10.6 [Exculpatory Provisions, Etc.] or 10.13
[Equalization of Banks] or this Section 11.1, alter any provision regarding the
pro rata treatment of the Banks, change the definition of Required Banks, or
change any requirement providing for the Banks or the Required Banks to
authorize the taking of any action hereunder;
PROVIDED, further, that no agreement, waiver or consent which would modify the
interests, rights or obligations of the Agent in its capacity as Agent or as the
issuer of Letters of Credit shall be effective without the written consent of
the Agent.
11.2 NO IMPLIED WAIVERS; CUMULATIVE REMEDIES; WRITING REQUIRED.
No course of dealing and no delay or failure of the Agent or any Bank in
exercising any right, power, remedy or privilege under this Agreement or any
other Loan Document shall affect any other or future exercise thereof or operate
as a waiver thereof, nor shall any single or partial exercise thereof or any
abandonment or discontinuance of steps to enforce such a right, power, remedy or
privilege preclude any further exercise thereof or of any other right, power,
remedy or privilege. The rights and remedies of the Agent and the Banks under
this Agreement and any other Loan Documents are cumulative and not exclusive of
any rights or remedies which they would otherwise have. Any waiver, permit,
consent or approval of any kind or character on the part of any Bank of any
breach or default under this Agreement or any such waiver of any provision or
condition of this Agreement must be in writing and shall be effective only to
the extent specifically set forth in such writing.
11.3 REIMBURSEMENT AND INDEMNIFICATION OF BANKS BY THE BORROWER; TAXES.
The Borrower agrees unconditionally upon demand to pay or reimburse to each
Bank (other than the Agent, as to which the Borrower's Obligations are set forth
in Section 10.5
96
[Reimbursement of Agent By Borrower, Etc.]) and to save such Bank harmless
against (i) liability for the payment of all reasonable out-of-pocket costs,
expenses and disbursements (including fees and expenses of counsel (including
allocated costs of staff counsel) for each Bank except with respect to (a) and
(b) below), incurred by such Bank (a) in connection with the administration and
interpretation of this Agreement, and other instruments and documents to be
delivered hereunder, (b) relating to any amendments, waivers or consents
pursuant to the provisions hereof, (c) in connection with the enforcement of
this Agreement or any other Loan Document, or collection of amounts due
hereunder or thereunder or the proof and allowability of any claim arising under
this Agreement or any other Loan Document, whether in bankruptcy or receivership
proceedings or otherwise, (d) in any workout or restructuring or in connection
with the protection, preservation, exercise or enforcement of any of the terms
hereof or of any rights hereunder or under any other Loan Document or in
connection with any foreclosure, collection or bankruptcy proceedings, and (e)
in connection with any Environmental Complaint threatened or asserted against
the Bank in any way relating to or arising out of this Agreement or any other
Loan Documents (including, without limitation, the protection, preservation,
exercise or enforcement of any of the terms hereof or of any rights hereunder or
under any other Loan Document or in connection with any foreclosure, collection
or bankruptcy proceedings or in any workout or restructuring), or (ii) all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against such Bank, in its capacity as such,
in any way relating to or arising out of (y) this Agreement or any other Loan
Documents or any action taken or omitted by such Bank hereunder or thereunder
and (z) any Environmental Complaint in any way relating to or arising out of
this Agreement or any other Loan Documents or any action taken or omitted by
such Bank hereunder or thereunder, PROVIDED that the Borrower shall not be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements (A) if
the same results from such Bank's gross negligence or willful misconduct, or (B)
if the Borrower was not given notice of the subject claim and the opportunity to
participate in the defense thereof, at its expense (except that the Borrower
shall remain liable to the extent such failure to give notice does not result in
a loss to the Borrower), or (C) if the same results from a compromise or
settlement agreement entered into without the consent of the Borrower, which
shall not be unreasonably withheld. The Banks will attempt to minimize the fees
and expenses of legal counsel for the Banks which are subject to reimbursement
by the Borrower hereunder by considering the usage of one law firm to represent
the Banks and the Agent if appropriate under the circumstances. The Borrower
agrees unconditionally to pay all stamp, document, transfer, recording or filing
taxes or fees and similar impositions now or hereafter determined by the Agent
or any Bank to be payable in connection with this Agreement or any other Loan
Document, and the Borrower agrees unconditionally to save the Agent and the
Banks harmless from and against any and all present or future claims,
liabilities or losses with respect to or resulting from any omission to pay or
delay in paying any such taxes, fees or impositions.
11.4 HOLIDAYS.
Whenever payment of a Loan to be made or taken hereunder shall be due on a
day which is not a Business Day such payment shall be due on the next Business
Day (except as provided in Section 4.2 [Interest Periods] with respect to
Interest Periods under the Euro-Rate
97
Option) and such extension of time shall be included in computing interest and
fees, except that the Loans shall be due on the Business Day preceding the
Expiration Date if the Expiration Date is not a Business Day. Whenever any
payment or action to be made or taken hereunder (other than payment of the
Loans) shall be stated to be due on a day which is not a Business Day, such
payment or action shall be made or taken on the next following Business Day, and
such extension of time shall not be included in computing interest or fees, if
any, in connection with such payment or action.
11.5 FUNDING BY BRANCH, SUBSIDIARY OR AFFILIATE.
11.5.1. NOTIONAL FUNDING.
Each Bank shall have the right from time to time, without notice
to the Borrower, to deem any branch, Subsidiary or Affiliate (which for the
purposes of this Section 11.5 shall mean any corporation or association which is
directly or indirectly controlled by or is under direct or indirect common
control with any corporation or association which directly or indirectly
controls such Bank) of such Bank to have made, maintained or funded any Loan to
which the Euro-Rate Option applies at any time, PROVIDED that immediately
following (on the assumption that a payment were then due from the Borrower to
such other office), and as a result of such change, the Borrower would not be
under any greater financial obligation pursuant to Section 5.5 [Additional
Compensation in Certain Circumstances] than it would have been in the absence of
such change. Notional funding offices may be selected by each Bank without
regard to such Bank's actual methods of making, maintaining or funding the Loans
or any sources of funding actually used by or available to such Bank.
11.5.2. ACTUAL FUNDING.
Each Bank shall have the right from time to time to make or
maintain any Loan by arranging for a branch, Subsidiary or Affiliate of such
Bank to make or maintain such Loan subject to the last sentence of this Section
11.5.2. If any Bank causes a branch, Subsidiary or Affiliate to make or maintain
any part of the Loans hereunder, all terms and conditions of this Agreement
shall, except where the context clearly requires otherwise, be applicable to
such part of the Loans to the same extent as if such Loans were made or
maintained by such Bank, but in no event shall any Bank's use of such a branch,
Subsidiary or Affiliate to make or maintain any part of the Loans hereunder
cause such Bank or such branch, Subsidiary or Affiliate to incur any cost or
expenses payable by the Borrower hereunder or require the Borrower to pay any
other compensation to any Bank (including any expenses incurred or payable
pursuant to Section 5.5 [Additional Compensation in Certain Circumstances])
which would otherwise not be incurred.
11.6 NOTICES; LENDING OFFICES.
Any notice, request, demand, direction or other communication (for purposes
of this Section 11.6 only, a "Notice") to be given to or made upon any party
hereto under any provision of this Agreement shall be given or made by telephone
or in writing (which includes means of electronic transmission (i.e., "e-mail")
or facsimile transmission or by setting forth such
98
Notice on a site on the World Wide Web (a "Website Posting") if Notice of such
Website Posting (including the information necessary to access such site) has
previously been delivered to the applicable parties hereto by another means set
forth in this Section 11.6) in accordance with this Section 11.6. Any such
Notice must be delivered to the applicable parties hereto at the addresses and
numbers set forth under their respective names on Schedule 1.1(B) hereof or in
accordance with any subsequent unrevoked Notice from any such party that is
given in accordance with this Section 11.6. Any Notice shall be effective:
(i) In the case of hand-delivery, when delivered;
(ii) If given by mail, four days after such Notice is deposited
with the United States Postal Service, with first-class postage prepaid, return
receipt requested;
(iii) In the case of a telephonic Notice, when a party is
contacted by telephone, if delivery of such telephonic Notice is confirmed no
later than the next Business Day by hand delivery, a facsimile or electronic
transmission, a Website Posting or overnight courier delivery of a confirmatory
notice (received at or before noon on such next Business Day);
(iv) In the case of a facsimile transmission, when sent to the
applicable party's facsimile machine's telephone number if the party sending
such Notice receives confirmation of the delivery thereof from its own facsimile
machine;
(v) In the case of electronic transmission, when actually
received;
(vi) In the case of a Website Posting, upon delivery of a Notice
of such posting (including the information necessary to access such web site) by
another means set forth in this Section 11.6; and
(vii) If given by any other means (including by overnight
courier), when actually received.
Any Bank giving a Notice to a Loan Party shall concurrently send a copy thereof
to the Agent, and the Agent shall promptly notify the other Banks of its receipt
of such Notice. SCHEDULE 1.1(B) lists the Lending Offices of each Bank. Each
Bank may change its Lending Office by written notice to the other parties
hereto.
11.7 SEVERABILITY.
The provisions of this Agreement are intended to be severable. If any
provision of this Agreement shall be held invalid or unenforceable in whole or
in part in any jurisdiction, such provision shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without in any
manner affecting the validity or enforceability thereof in any other
jurisdiction or the remaining provisions hereof in any jurisdiction.
99
11.8 GOVERNING LAW.
Each Letter of Credit and Section 2.10 [Letter of Credit Subfacility] shall
be subject to the Uniform Customs and Practice for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500, as the same
may be revised or amended from time to time, and to the extent not inconsistent
therewith, the internal laws of the Commonwealth of
Pennsylvania without regard
to its conflict of laws principles, and the balance of this Agreement shall be
deemed to be a contract under the Laws of the Commonwealth of
Pennsylvania and
for all purposes shall be governed by and construed and enforced in accordance
with the internal laws of the Commonwealth of
Pennsylvania without regard to its
conflict of laws principles.
11.9 PRIOR UNDERSTANDING.
This Agreement and the other Loan Documents supersede all prior
understandings and agreements, whether written or oral, between the parties
hereto and thereto relating to the transactions provided for herein and therein,
including any prior confidentiality agreements and commitments.
11.10 DURATION; SURVIVAL.
All representations and warranties of the Loan Parties contained herein or
made in connection herewith shall survive the making of Loans and issuance of
Letters of Credit and shall not be waived by the execution and delivery of this
Agreement, any investigation by the Agent or the Banks, the making of Loans,
issuance of Letters of Credit, or payment in full of the Loans. All covenants
and agreements of the Loan Parties contained in Sections 8.1 [Affirmative
Covenants], 8.2 [Negative Covenants] and 8.3 [Reporting Requirements] herein
shall continue in full force and effect from and after the date hereof so long
as the Borrower may borrow or request Letters of Credit hereunder and until
termination of the Commitments and payment in full of the Loans and expiration
or termination of all Letters of Credit. All covenants and agreements of the
Borrower contained herein relating to the payment of principal, interest,
premiums, additional compensation or expenses and indemnification, including
those set forth in Section 5 [Payments] and Sections 10.5 [Reimbursement of
Agent by Borrower, Etc.], 10.7 [Reimbursement of Agent by Banks, Etc.] and 11.3
[Reimbursement of Banks by Borrower; Etc.], shall survive payment in full of the
Loans, expiration or termination of the Letters of Credit and termination of the
Commitments.
11.11 SUCCESSORS AND ASSIGNS.
(i) This Agreement shall be binding upon and shall inure to the benefit of
the Banks, the Agent, the Loan Parties and their respective successors and
assigns, except that none of the Loan Parties may assign or transfer any of its
rights and Obligations hereunder or any interest herein. Each Bank may, at its
own cost, make assignments of or sell participations in all or any part of its
Revolving Credit Commitments and the Loans made by it to one or more banks or
other entities, subject to the consent of the Borrower and the Agent with
respect to any assignee, such consent not to be unreasonably withheld or
delayed,
100
provided that (1) no consent of the Borrower shall be required (A) if an Event
of Default exists and is continuing, or (B) in the case of an assignment by a
Bank to an Affiliate of such Bank, and (2) any assignment by a Bank to a Person
other than an Affiliate of such Bank may not be made in amounts less than the
lesser of $5,000,000 or the amount of the assigning Bank's Commitment. In the
case of an assignment, upon receipt by the Agent of the Assignment and
Assumption Agreement, the assignee shall have, to the extent of such assignment
(unless otherwise provided therein), the same rights, benefits and obligations
as it would have if it had been a signatory Bank hereunder, the Commitments
shall be adjusted accordingly, and upon surrender of any Revolving Credit Note
subject to such assignment, the Borrower shall execute and deliver a new
Revolving Credit Note to the assignee in an amount equal to the amount of the
Revolving Credit Commitment assumed by it and a new Revolving Credit Note or
Term Note to the assigning Bank, in an amount equal to the Revolving Credit
Commitment retained by it hereunder. Any Bank which assigns any or all of its
Commitment or Loans to a Person other than an Affiliate of such Bank shall pay
to the Agent a service fee in the amount of $3,500 for each assignment. In the
case of a participation, the participant shall only have the rights specified in
Section 9.2.3 [Set-off] (the participant's rights against such Bank in respect
of such participation to be those set forth in the agreement executed by such
Bank in favor of the participant relating thereto and not to include any voting
rights except with respect to changes of the type referenced in Sections 11.1.1
[Increase of Commitment, Etc.], 11.1.2 [Extension of Payment, Etc.], or 11.1.3
[Release of Collateral or Guarantor]), all of such Bank's obligations under this
Agreement or any other Loan Document shall remain unchanged, and all amounts
payable by any Loan Party hereunder or thereunder shall be determined as if such
Bank had not sold such participation.
(ii) Any assignee or participant which is not incorporated under the Laws
of the United States of America or a state thereof shall deliver to the Borrower
and the Agent the form of certificate described in Section 11.17.1 [Tax
Withholding Clause] relating to federal income tax withholding. Each Bank may
furnish any publicly available information concerning any Loan Party or its
Subsidiaries and any other information concerning any Loan Party or its
Subsidiaries in the possession of such Bank from time to time to assignees and
participants (including prospective assignees or participants), PROVIDED that
such assignees and participants agree to be bound by the provisions of Section
11.12 [Confidentiality].
(iii) Notwithstanding any other provision in this Agreement, any Bank may
at any time pledge or grant a security interest in all or any portion of its
rights under this Agreement, its Note and the other Loan Documents to any
Federal Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury
Regulation 31 CFR Section 203.14 without notice to or consent of the Borrower or
the Agent. No such pledge or grant of a security interest shall release the
transferor Bank of its obligations hereunder or under any other Loan Document.
(iv) A bank which is to become a party to this Agreement pursuant to
Section 2.14 hereof or otherwise (each an "Additional Bank') shall execute and
deliver to Agent a Bank Joinder to this Agreement in substantially the form
attached hereto as EXHIBIT 1.1(B). Upon execution and delivery of a Bank
Joinder, such Additional Bank shall be a party hereto and a Bank under each of
the Loan Documents for all purposes, except
101
that such Additional Bank shall not participate in any Revolving Credit Loans to
which the Euro-Rate Option applies which are outstanding on the effective date
of such Bank Joinder. If Borrower should renew after the effective date of such
Bank Joinder the Euro-Rate Option with respect to Revolving Credit Loans
existing on such date, Borrower shall be deemed to repay the applicable
Revolving Credit Loans on the renewal date and then reborrow a similar amount on
such date so that the Additional Bank shall participate in such Revolving Credit
Loans after such renewal date. SCHEDULE 1.1(B) shall be automatically amended
and restated on the date of such Bank Joinder to revise the information
contained therein as appropriate to reflect the information on the attachment to
such Bank Joinder. Simultaneously with the execution and delivery of such Bank
Joinder, Borrower shall execute a Revolving Credit Note, and deliver it to such
Additional Bank together with originals of such other documents described in
Section 7.1 hereof as such Additional Bank may reasonably require.
11.12 CONFIDENTIALITY.
11.12.1. GENERAL.
The Agent and the Banks each agree to keep confidential all
information obtained from any Loan Party or its Subsidiaries which is nonpublic
and confidential or proprietary in nature (including any information the
Borrower specifically designates as confidential), except as provided below, and
to use such information only in connection with their respective capacities
under this Agreement and for the purposes contemplated hereby. The Agent and the
Banks shall be permitted to disclose such information (i) to outside legal
counsel, accountants and other professional advisors who need to know such
information in connection with the administration and enforcement of this
Agreement, subject to agreement of such Persons to maintain the confidentiality,
(ii) to assignees and participants as contemplated by Section 11.11 [Successors
and Assigns], and prospective assignees and participants, (iii) to the extent
requested by any bank regulatory authority or, with notice to the Borrower, as
otherwise required by applicable Law or by any subpoena or similar legal
process, or in connection with any investigation or proceeding arising out of
the transactions contemplated by this Agreement, (iv) if it becomes publicly
available other than as a result of a breach of this Agreement or becomes
available from a source not known to be subject to confidentiality restrictions,
or (v) if the Borrower shall have consented to such disclosure. Notwithstanding
anything herein to the contrary, the information subject to this Section 11.12.1
shall not include, and the Agent and each Bank may disclose without limitation
of any kind, any information with respect to the "tax treatment" and "tax
structure" (in each case, within the meaning of Treasury Regulation Section
1.6011-4) of the transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to the Agent or
such Bank relating to such tax treatment and tax structure; PROVIDED that with
respect to any document or similar item that in either case contains information
concerning the tax treatment or tax structure of the transaction as well as
other information, this sentence shall only apply to such portions of the
document or similar item that relate to the tax treatment or tax structure of
the Loans, Letters of Credit and transactions contemplated hereby.
102
11.12.2. SHARING INFORMATION WITH AFFILIATES OF THE BANKS.
Each Loan Party acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to
the Borrower or one or more of its Affiliates (in connection with this Agreement
or otherwise) by any Bank or by one or more Subsidiaries or Affiliates of such
Bank and each of the Loan Parties hereby authorizes each Bank to share any
information delivered to such Bank by such Loan Party and its Subsidiaries
pursuant to this Agreement, or in connection with the decision of such Bank to
enter into this Agreement, to any such Subsidiary or Affiliate of such Bank, it
being understood that any such Subsidiary or affiliate of any Bank receiving
such information shall be bound by the provisions of Section 11.12.1 as if it
were a Bank hereunder. Such Authorization shall survive the repayment of the
Loans and other Obligations and the termination of the Commitments.
11.13 COUNTERPARTS.
This Agreement may be executed by different parties hereto on any number of
separate counterparts, each of which, when so executed and delivered, shall be
an original, and all such counterparts shall together constitute one and the
same instrument.
11.14 AGENT'S OR BANK'S CONSENT.
Whenever the Agent's or any Bank's consent is required to be obtained under
this Agreement or any of the other Loan Documents as a condition to any action,
inaction, condition or event, the Agent and each Bank shall be authorized to
give or withhold such consent in its sole and absolute discretion and to
condition its consent upon the giving of additional collateral, the payment of
money or any other matter.
11.15 EXCEPTIONS.
The representations, warranties and covenants contained herein shall be
independent of each other, and no exception to any representation, warranty or
covenant shall be deemed to be an exception to any other representation,
warranty or covenant contained herein unless expressly provided, nor shall any
such exceptions be deemed to permit any action or omission that would be in
contravention of applicable Law.
11.16 CONSENT TO FORUM; WAIVER OF JURY TRIAL.
EACH LOAN PARTY HEREBY IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY AND THE UNITED
STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
PENNSYLVANIA, AND WAIVES
PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH
SERVICE OF PROCESS BE MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED TO SUCH LOAN
PARTY AT THE ADDRESSES PROVIDED FOR IN SECTION 11.6 [NOTICES] AND SERVICE SO
MADE SHALL BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT THEREOF. EACH LOAN
PARTY WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED
AGAINST IT AS
103
PROVIDED HEREIN AND AGREES NOT TO ASSERT ANY DEFENSE BASED ON LACK
OF JURISDICTION OR VENUE. EACH LOAN PARTY, THE AGENT AND THE BANKS HEREBY WAIVE
TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND
ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY
COLLATERAL TO THE FULL EXTENT PERMITTED BY LAW.
11.17 CERTIFICATIONS FROM LENDERS AND PARTICIPANTS.
11.17.1. TAX WITHHOLDING CLAUSE.
Each Bank or assignee or participant of a Bank that is not
incorporated under the Laws of the United States of America or a state thereof
(and, upon the written request of the Agent, each other Bank or assignee or
participant of a Bank) agrees that it will deliver to each of the Borrower and
the Agent two (2) duly completed appropriate valid Withholding Certificates (as
defined under SECTION 1.1441-1(c)(16) of the Income Tax Regulations (the
"Regulations")) certifying its status (i.e. U.S. or foreign person) and, if
appropriate, making a claim of reduced, or exemption from, U.S. withholding tax
on the basis of an income tax treaty or an exemption provided by the Internal
Revenue Code. The term "Withholding Certificate" means a Form W-9; a Form
W-8BEN; a Form W-8ECI; a Form W-8IMY and the related statements and
certifications as required under SECTION 1.1441-1(e)(2) and/or (3) of the
Regulations; a statement described in SECTION 1.871-14(c)(2)(v) of the
Regulations; or any other certificates under the Internal Revenue Code or
Regulations that certify or establish the status of a payee or beneficial owner
as a U.S. or foreign person. Each Bank, assignee or participant required to
deliver to the Borrower and the Agent a Withholding Certificate pursuant to the
preceding sentence shall deliver such valid Withholding Certificate as follows:
(A) each Bank which is a party hereto on the Closing Date shall deliver such
valid Withholding Certificate at least five (5) Business Days prior to the first
date on which any interest or fees are payable by the Borrower hereunder for the
account of such Bank; (B) each assignee or participant shall deliver such valid
Withholding Certificate at least five (5) Business Days before the effective
date of such assignment or participation (unless the Agent in its sole
discretion shall permit such assignee or participant to deliver such valid
Withholding Certificate less than five (5) Business Days before such date in
which case it shall be due on the date specified by the Agent). Each Bank,
assignee or participant which so delivers a valid Withholding Certificate
further undertakes to deliver to each of the Borrower and the Agent two (2)
additional copies of such Withholding Certificate (or a successor form) on or
before the date that such Withholding Certificate expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent
Withholding Certificate so delivered by it, and such amendments thereto or
extensions or renewals thereof as may be reasonably requested by the Borrower or
the Agent or as may be required by United States federal tax law.
Notwithstanding anything to the contrary, in the event that any Bank, assignee
or participant in any Bank fails to provide a Withholding Certificate on which
the Borrower and the Agent can reasonably rely, the Agent shall withhold U.S.
federal income taxes at the applicable rate prescribed under the Internal
Revenue Code and Regulations or any applicable treaty, taking into account any
Withholding Certificates on which it is entitled to rely, and shall have no
liability to any Bank for any amounts so withheld. In the event that a
Withholding Certificate is delivered to the Borrower or Agent by any Bank,
assignee or participant as to which the
104
Borrower or Agent, as the case may be, believe may not be valid, complete or
appropriate, the Borrower or Agent shall consult with such Bank, assignee, or
participant before declining to rely on such Withholding Certificate and shall
accept any reasonable attempt by the party delivering the Withholding
Certificate to correct any deficiencies in it. Notwithstanding the submission of
a Withholding Certificate claiming a reduced rate of or exemption from U.S.
withholding tax, the Agent shall be entitled to withhold United States federal
income taxes at the full applicable statutory withholding rate (30% as of the
date of this Agreement) if in its reasonable judgment it is required to do so
under the due diligence requirements imposed upon a withholding agent under
SECTION 1.1441-7(b) of the Regulations. Further, the Agent is indemnified under
SECTION 1.1461-1(e) of the Regulations against any claims and demands of any
Bank or assignee or participant of a Bank for the amount of any tax it deducts
and withholds in accordance with regulations under SECTION 1441 of the Internal
Revenue Code.
11.17.2. USA PATRIOT ACT.
Each Bank or assignee or participant of a Bank that is not
incorporated under the Laws of the United States of America or a state thereof
(and is not excepted from the certification requirement contained in Section 313
of the USA Patriot Act and the applicable regulations because it is both (i) an
affiliate of a depository institution or foreign bank that maintains a physical
presence in the United states or foreign county, and (ii) subject to supervision
by a banking authority regulating such affiliated depository institution or
foreign bank) shall deliver to the Agent the certification, or, if applicable,
recertification, certifying that such Bank is not a "shell" and certifying to
other matters as required by Section 313 of the USA Patriot Act and the
applicable regulations: (1) within 10 days after the Closing Date, and (2) as
such other times as are required under the USA Patriot Act.
11.18 JOINDER OF GUARANTORS.
Any Material Domestic Subsidiary of the Borrower which is required to join
this Agreement as a Guarantor pursuant to Section 8.2.9 [Subsidiaries,
Partnerships and Joint Ventures] shall execute and deliver to the Agent (i) a
Guarantor Joinder in substantially the form attached hereto as EXHIBIT 1.1(G)(1)
pursuant to which it shall join as a Guarantor each of the documents to which
the Guarantors are parties; (ii) documents in the forms described in Section 7.1
[First Loans] modified as appropriate to relate to such Material Domestic
Subsidiary, and (iii) documents necessary to grant and perfect Prior Security
Interests in all Pledged Collateral held by such Material Domestic Subsidiary.
The Loan Parties shall deliver such Guarantor Joinder and related documents to
the Agent within five (5) Business Days after the date of the filing of such
Material Domestic Subsidiary's articles of incorporation if the Material
Domestic Subsidiary is a corporation, the date of the filing of its certificate
of limited partnership if it is a limited partnership or the date of its
organization if it is an entity other than a limited partnership or corporation.
105
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed this Agreement as of the day and year first above
written.
ATTEST:
COVANCE INC.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx X'Xxxxx Sharp
--------------------------------------- -----------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxxx X'Xxxxx Sharp
Title: Assistant Secretary Title: Assistant Treasurer
ATTEST: CJB INC.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------- -----------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Secretary Title: President
ATTEST: COVANCE CENTRAL LABORATORY
SERVICES INC.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx X'Xxxxx Sharp
--------------------------------------- -----------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxxx X'Xxxxx Sharp
Title: Assistant Secretary Title: Assistant Treasurer
ATTEST: COVANCE CENTRAL LABORATORY
SERVICES LIMITED PARTNERSHIP
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx X'Xxxxx Sharp
--------------------------------------- -----------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxxx X'Xxxxx Sharp
Title: Assistant Secretary Title: Assistant Treasurer
ATTEST: COVANCE PRECLINICAL
CORPORATION
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------- -------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Secretary Title: Senior Vice President
ATTEST: COVANCE LABORATORIES INC.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx X'Xxxxx Sharp
--------------------------------------- --------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxxx X'Xxxxx Sharp
Title: Assistant Secretary Title: Assistant Treasurer
PNC BANK, NATIONAL ASSOCIATION,
Individually and as an agent
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ Chimie T. Pemba
-----------------------------
Name: Chimie T. Pemba
Title: Assistant Vice President
BARCLAYS BANK PLC
By: /s/ Xxxxxxxx Xxxx
-----------------------------
Name: Xxxxxxxx Xxxx
Title: Director
XX XXXXXX XXXXX BANK
By: /s/ Xxxx F.X. Xxxxx
-----------------------------
Name: Xxxx F.X. Xxxxx
Title: Senior Vice President
NATIONAL CITY BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Assistant Vice President
FLEET NATIONAL BANK, a Bank of
America company
By: /s/ Xxxxx X. Barquil
-----------------------------
Name: Xxxxx X. Barquil
Title: Senior Vice President
ABN AMRO BANK N.V.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
ABN AMRO BANK N.V.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
SCHEDULE 1.1(A)
PRICING GRID
REVOLVING CREDIT REVOLVING CREDIT
BASE RATE EURO-RATE LETTER OF CREDIT
LEVERAGE COMMITMENT SPREAD SPREAD FEE
LEVEL RATIO FEE
----------- -------------------------- ------------ ---------------- ---------------- ----------------
LESS THAN OR EQUAL TO 1.0 .15% 0% .75% .75%
TO 1.0
I
GREATER THAN 1.0 TO 1.0 OR
LESS THAN OR EQUAL TO 1.50 .20% 0% 1.00% 1.00%
II TO 1.0
GREATER THAN 1.50 TO 1.0
BUT LESS THAN OR EQUAL TO .25% 0% 1.25% 1.25%
III 2.0 TO 1.0
GREATER THAN 2.0 TO 1.0 .30% .25% 1.50% 1.50%
IV
For purposes of determining the Applicable Margin, the Applicable Commitment Fee
Rate and the Applicable Letter of Credit Fee:
(A) The Applicable Margin, the Applicable Commitment Fee Rate,
and the Applicable Letter of Credit Fee shall be determined on the Closing Date
based on the Leverage Ratio computed on such date pursuant to that certificate
delivered pursuant to Section 7.1.11 [Certain Financial Conditions] hereof.
(B) The Applicable Commitment Fee Rate and the Applicable
Letter of Credit Fee shall be recomputed as of the end of each fiscal quarter
based on the Leverage Ratio as of such quarter end. The Applicable Margin shall
be recomputed as of the end of each fiscal quarter based on the Leverage Ratio
as of such quarter end. Any increase or decrease in the Applicable Margin, the
Applicable Commitment Fee Rate, or the Applicable Letter of Credit Fee computed
as of a quarter end shall be effective: (i) in the case of all Loans (other than
those described in the immediately following clause (ii) of this sentence), on
the date on which the Compliance Certificate and corresponding financial
statements evidencing such computation are due to be delivered under Section
8.3.3 [Certificate of the Borrower] (the "Reset Date"), and (ii) in the case of
each Borrowing Tranche of Loans made in an Optional Currency which Borrowing
Tranche is subject to an Interest Period the last day of which expires after the
current Reset Date, then as of the day following the last day of such Interest
Period; provided, however, that if the Borrower has failed to deliver, or caused
to be delivered, such Compliance Certificate and corresponding financial
statements on or before the date such delivery is due as required, as the case
may be, under Section 8.3.1 [Quarterly Financial Statements] or Section 8.3.2
[Annual Financial Statements] (the "Delivery Date"), then the Leverage Ratio
shall be deemed, solely for the purposes of determining the Applicable Margin,
the Applicable Commitment Fee Rate, and the Applicable Letter of Credit Fee, to
be greater than 2.0 to 1.0 from the Delivery Date until the
SCHEDULE 1.1(A) - 1
Compliance Certificate and financial statements due for the fiscal quarter
subsequent to the fiscal quarter for which delivery did not timely occur by the
requisite Delivery Date are timely delivered as required, as the case may be,
under Section 8.3.2 [Quarterly Financial Statements] or Section 8.3.3 [Annual
Financial Statements].
SCHEDULE 1.1(A) - 2
SCHEDULE 1.1(B) - 1
