EXHIBIT 10
CREDIT AGREEMENT
Dated as of July 28, 2003
among
KAYDON CORPORATION
THE SUBSIDIARY BORROWERS FROM TIME TO TIME PARTIES HERETO
THE ALTERNATE CURRENCY BORROWERS FROM TIME TO TIME PARTIES HERETO
THE INSTITUTIONS FROM TIME TO TIME PARTIES HERETO AS LENDERS
BANK ONE, NA
as Administrative Agent
SUNTRUST BANK and COMERICA BANK
as Syndication Agents
BANK OF AMERICA, N.A.
as Documentation Agent
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BANC ONE CAPITAL MARKETS, INC.,
as Lead Arranger and Sole Book Runner
SIDLEY XXXXXX XXXXX & XXXX LLP
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
TABLE OF CONTENTS
SECTION PAGE
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ARTICLE I: DEFINITIONS........................................................................................... 1
1.1. Certain Defined Terms.................................................................................. 1
1.2. References............................................................................................. 26
1.3. Company Acting on Behalf of Itself and Subsidiary Borrowers............................................ 26
1.4. Joint and Several Liability for Obligations of the Company and Domestic Subsidiary Borrowers;
Joint and Several Liability for Obligations of the Foreign Subsidiary Borrowers; No Liability of
Foreign Subsidiary Borrowers for Obligations of the Company or the Domestic Subsidiary Borrowers...... 26
ARTICLE II: REVOLVING LOAN FACILITIES............................................................................ 27
2.1. Revolving Loans........................................................................................ 27
2.2. Swing Line Loans....................................................................................... 28
2.3. Rate Options for all Advances; Maximum Interest Periods................................................ 30
2.4. Optional Payments; Mandatory Prepayments............................................................... 31
2.5. Reduction of Commitments............................................................................... 32
2.6. Method of Borrowing.................................................................................... 33
2.7. Method of Selecting Types, Currency and Interest Periods for Advances.................................. 33
2.8. Minimum Amount of Each Advance......................................................................... 34
2.9. Method of Selecting Types, Currency and Interest Periods for Conversion and Continuation of Advances... 34
2.10. Default Rate.......................................................................................... 35
2.11. Method of Payment..................................................................................... 35
2.12. Evidence of Debt...................................................................................... 36
2.13. Telephonic Notices.................................................................................... 37
2.14. Promise to Pay; Interest and Facility Fees; Interest Payment Dates; Interest and Fee Basis; Taxes..... 37
2.15. Notification of Advances, Interest Rates, Prepayments and Aggregate Revolving Loan Commitment.
Reductions........................................................................................... 42
2.16. Lending Installations................................................................................. 43
2.17. Non-Receipt of Funds by the Administrative Agent...................................................... 43
2.18. Termination Date...................................................................................... 43
2.19. Replacement of Certain Lenders........................................................................ 43
2.20. Alternate Currency Loans.............................................................................. 44
2.21. Judgment Currency..................................................................................... 46
2.22. Market Disruption; Denomination of Amounts in Dollars; Dollar Equivalent of Reimbursement
Obligations......................................................................................... 47
2.23. Additional Alternate Currency Borrowers............................................................... 48
2.24. Additional Subsidiary Borrowers....................................................................... 48
2.25. Increase of Aggregate Revolving Loan Commitment....................................................... 48.
ARTICLE III: THE LETTER OF CREDIT FACILITY....................................................................... 51
3.1. Obligation to Issue Letters of Credit.................................................................. 51
3.2. Transitional Letters of Credit......................................................................... 51
3.3. Types and Amounts...................................................................................... 51
3.4. Conditions............................................................................................. 51
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3.5. Procedure for Issuance of Letters of Credit............................................................ 52
3.6. Letter of Credit Participation......................................................................... 52
3.7. Reimbursement Obligation............................................................................... 52
3.8. Letter of Credit Fees.................................................................................. 53
3.9. Issuing Bank Reporting Requirements.................................................................... 53
3.10. Indemnification; Exoneration.......................................................................... 54
3.11. Cash Collateral....................................................................................... 55
ARTICLE IV: CHANGE IN CIRCUMSTANCES.............................................................................. 55
4.1. Yield Protection....................................................................................... 55
4.2. Changes in Capital Adequacy Regulations................................................................ 56
4.3. Availability of Types of Advances...................................................................... 57
4.4. Funding Indemnification................................................................................ 57
4.5. Lender Statements; Survival of Indemnity............................................................... 57
4.6. Non-U.S. Reserve Costs or Fees......................................................................... 57
ARTICLE V: CONDITIONS PRECEDENT.................................................................................. 58
5.1. Initial Advances and Letters of Credit................................................................. 58
5.2. Each Advance and Letter of Credit...................................................................... 59
5.3. Initial Advance to Each New Alternate Currency Borrower................................................ 59
5.4. Initial Advance to Each New Subsidiary Borrower........................................................ 60
ARTICLE VI: REPRESENTATIONS AND WARRANTIES....................................................................... 61
6.1. Organization; Corporate Powers......................................................................... 61
6.2. Authority.............................................................................................. 61
6.3. No Conflict; Governmental Consents..................................................................... 62
6.4. Financial Statements................................................................................... 62
6.5. No Material Adverse Change............................................................................. 62
6.6. Taxes.................................................................................................. 62
6.7. Litigation; Loss Contingencies and Violations.......................................................... 63
6.8. Subsidiaries........................................................................................... 63
6.9. ERISA.................................................................................................. 63
6.10. Accuracy of Information............................................................................... 64
6.11. Securities Activities................................................................................. 64
6.12. Material Agreements................................................................................... 64
6.13. Compliance with Laws.................................................................................. 64
6.14. Assets and Properties................................................................................. 64
6.15. Statutory Indebtedness Restrictions................................................................... 64
6.16. Labor Matters......................................................................................... 64
6.17. Environmental Matters................................................................................. 65
6.18. Representations and Warranties of each Foreign Subsidiary that is a Borrower.......................... 65
6.19. Insurance............................................................................................. 66
6.20. Benefits.............................................................................................. 66
6.21. Reportable Transaction................................................................................ 66
6.22. No Default............................................................................................ 66
ARTICLE VII: COVENANTS........................................................................................... 66
7.1. Reporting.............................................................................................. 66
7.2. Affirmative Covenants.................................................................................. 69
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7.3. Negative Covenants..................................................................................... 71
7.4. Financial Covenants.................................................................................... 76
ARTICLE VIII: DEFAULTS........................................................................................... 76
8.1. Defaults............................................................................................... 76
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES................................... 79
9.1. Termination of Revolving Loan Commitments; Acceleration................................................ 79
9.2. Preservation of Rights................................................................................. 79
9.3. Amendments............................................................................................. 80
ARTICLE X: GENERAL PROVISIONS.................................................................................... 80
10.1. Survival of Representations........................................................................... 80
10.2. Governmental Regulation............................................................................... 81
10.3. Performance of Obligations............................................................................ 81
10.4. Headings.............................................................................................. 81
10.5. Entire Agreement...................................................................................... 81
10.6. Several Obligations; Benefits of this Agreement....................................................... 81
10.7. Expenses; Indemnification............................................................................. 82
10.8. Numbers of Documents.................................................................................. 84
10.9. Accounting............................................................................................ 84
10.10. Severability of Provisions........................................................................... 84
10.11. Nonliability of Lenders.............................................................................. 84
10.12. GOVERNING LAW........................................................................................ 84
10.13. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.............................................. 84
10.14. Contribution Rights.................................................................................. 85
ARTICLE XI: THE ADMINISTRATIVE AGENT............................................................................. 86
11.1. Appointment; Nature of Relationship................................................................... 86
11.2. Powers................................................................................................ 86
11.3. General Immunity...................................................................................... 87
11.4. No Responsibility for Loans, Creditworthiness, Recitals, Etc.......................................... 87
11.5. Action on Instructions of Lenders..................................................................... 87
11.6. Employment of Administrative Agents and Counsel....................................................... 87
11.7. Reliance on Documents; Counsel........................................................................ 88
11.8. The Administrative Agent's and the Alternate Currency Banks' Reimbursement and Indemnification........ 88
11.9. Rights as a Lender; Bank One Roles.................................................................... 88
11.10. Lender Credit Decision............................................................................... 89
11.11. Successor Administrative Agent....................................................................... 89
11.12. Execution of Collateral Documents.................................................................... 89
11.13. No Duties Imposed Upon Syndication Agent, Co-Documentation Agents or Arranger........................ 90
11.14. Notice of Default.................................................................................... 90
11.15. Delegation to Affiliates............................................................................. 91
ARTICLE XII: SETOFF; RATABLE PAYMENTS............................................................................ 91
12.1. Setoff................................................................................................ 91
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12.2. Ratable Payments...................................................................................... 91
12.3. Application of Payments............................................................................... 91
12.4. Relations Among Lenders............................................................................... 92
12.5. Representations and Covenants Among Lenders........................................................... 93
ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.................................................. 93
13.1. Successors and Assigns; Designated Lenders............................................................ 93
13.2. Participations........................................................................................ 95
13.3. Assignments........................................................................................... 95
13.4. Confidentiality....................................................................................... 97
13.5. Dissemination of Information.......................................................................... 98
13.6. Tax Certifications.................................................................................... 98
ARTICLE XIV: NOTICES............................................................................................. 98
14.1. Giving Notice......................................................................................... 98
14.2. Change of Address..................................................................................... 98
ARTICLE XV: COUNTERPARTS......................................................................................... 98
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EXHIBITS AND SCHEDULES
EXHIBITS
EXHIBIT A -- Revolving Loans
(Definitions)
EXHIBIT A-1 -- Eurocurrency Payment Offices
(Definitions)
EXHIBIT B -- Form of Borrowing/Election Notice
(Section 2.2 and Section 2.7 and Section 2.9)
EXHIBIT C -- Form of Request for Letter of Credit
(Section 3.4)
EXHIBIT D _ Form of Assignment Agreement
(Definitions and Section 13.3)
EXHIBIT E -- Form of Borrowers' US Counsel's Opinion and Form of
Borrowers' Foreign Counsel's Opinion
(Section 5.1)
EXHIBIT F -- List of Closing Documents
(Section 5.1)
EXHIBIT G -- Form of Officer's Certificate
(Sections 5.2 and 7.1(A)(iii))
EXHIBIT H -- Form of Compliance Certificate
(Sections 5.2 and 7.1(A)(iii))
EXHIBIT I-1 -- Form of Parent Guaranty
(Definitions)
EXHIBIT I-2 -- Form of Subsidiary Guaranty
(Definitions)
EXHIBIT J -- Forms of Alternate Currency Addenda
(Definitions)
EXHIBIT K -- Form of Revolving Loan Note
(If Requested)
EXHIBIT L -- Form of Assumption Letter
(Definitions)
EXHIBIT M -- Form of Designation Agreement
(Section 13.1(B))
EXHIBIT N -- Form of Commitment and Acceptance
(Section 2.25)
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SCHEDULES
Schedule 1.1.1 -- Permitted Existing Indebtedness (Definitions)
Schedule 1.1.2 -- Permitted Existing Investments (Definitions)
Schedule 1.1.3 -- Permitted Existing Liens (Definitions)
Schedule 3.2 -- Transitional Letters of Credit (Section 3.2)
Schedule 6.3 -- Conflicts; Governmental Consents (Section 6.3)
Schedule 6.8 -- Subsidiaries (Section 6.8)
Schedule 6.17 -- Environmental Matters (Section 6.17)
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CREDIT AGREEMENT
This Credit Agreement dated as of July 28, 2003 is entered into among
KAYDON CORPORATION, a Delaware corporation as the Company, the Subsidiary
Borrowers and Alternate Currency Borrowers from time to time parties hereto, the
institutions from time to time parties hereto as Lenders, whether by execution
of this Agreement or an Assignment Agreement pursuant to Section 13.3, Bank One,
NA, as Administrative Agent for itself and the other Lenders, SunTrust Bank and
Comerica Bank, as Syndication Agents and Bank of America, N.A., as Documentation
Agent. The parties hereto agree as follows:
ARTICLE I: DEFINITIONS
1.1. Certain Defined Terms. The following terms used in this Agreement
shall have the following meanings, applicable both to the singular and the
plural forms of the terms defined.
As used in this Agreement:
"ACCOUNTING CHANGES" is defined in Section 10.9 hereof.
"ACQUISITION" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (other than transactions involving solely the
Company and its Subsidiaries) (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or division thereof,
whether through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in a
series of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election of
directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage of voting power) of the
outstanding Equity Interests of another Person.
"ACCUMULATED FUNDING DEFICIENCY" means any "accumulated funding
deficiency" within the meaning of Section 412 of the Code or Section 302 of
ERISA.
"ADMINISTRATIVE AGENT" means Bank One in its capacity as contractual
representative for itself and the Lenders pursuant to Article XI hereof and any
successor Administrative Agent appointed pursuant to Article XI hereof.
"ADVANCE" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by the Lenders to a Borrower of the same Type
and, in the case of Eurocurrency Rate Advances and Alternate Currency Loans, in
the same currency and for the same Interest Period.
"AFFECTED LENDER" is defined in Section 2.19 hereof.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act)
of greater than or equal to ten percent (10%) or more of any class of voting
securities (or other voting interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
Capital Stock, by contract or otherwise. The term "Affiliate" shall not include
a Subsidiary of the Company.
"AGGREGATE REVOLVING LOAN COMMITMENT" means the aggregate of the
Revolving Loan Commitments of all the Lenders, as may be increased or reduced
from time to time pursuant to the terms hereof. The initial Aggregate Revolving
Loan Commitment is Two Hundred Million and 00/100 Dollars ($200,000,000.00).
"AGREED CURRENCIES" means (i) Dollars, (ii) so long as such currency
remains an Eligible Currency, Canadian Dollars, British Pounds Sterling, euro
and Swiss Francs, and (iii) any other Eligible Currency which the Company
requests the Administrative Agent to include as an Agreed Currency hereunder and
which is acceptable to one-hundred percent (100%) of the Lenders with a
Revolving Loan Commitment; provided, that the Administrative Agent shall
promptly notify each such Lender of each such request and each such Lender shall
be deemed not to have agreed to each such request unless its written consent
thereto has been received by the Administrative Agent within ten (10) Business
Days from the date of such notification by the Administrative Agent to such
Lender.
"AGREEMENT" means this Credit Agreement, as it may be amended, restated
or otherwise modified and in effect from time to time.
"AGREEMENT ACCOUNTING PRINCIPLES" means, except as provided in Section
10.9, GAAP as in effect in the United States of America, applied in a manner
consistent with that used in preparing the financial statements of the Company
referred to in Section 6.4 hereof.
"ALTERNATE BASE RATE" means, for any day, a fluctuating rate of
interest per annum equal to the higher of (i) the Prime Rate for such day and
(ii) the sum of (a) the Federal Funds Effective Rate for such day and (b)
one-half of one percent (0.5%) per annum.
"ALTERNATE CURRENCY" shall mean (i) only so long as such currency
remains an Eligible Currency, Canadian Dollars, British Pounds Sterling, euro
and Swiss Francs and (ii) any other Eligible Currency which the applicable
Borrower requests the applicable Alternate Currency Bank to include as an
Alternate Currency hereunder and which is acceptable to such Alternate Currency
Bank and with respect to which an Alternate Currency Addendum has been executed
by an Alternate Currency Borrower and such Alternate Currency Bank in connection
therewith.
"ALTERNATE CURRENCY ADDENDUM" means an addendum substantially in the
applicable form of Exhibit J with such modifications thereto as shall be
approved by the applicable Alternate Currency Banks.
"ALTERNATE CURRENCY BANK" means Bank One or any other Lender (or any
Affiliate, branch or agency thereof) to the extent it is party to an Alternate
Currency Addendum. If any agency, branch or Affiliate of Bank One or such Lender
shall be a party to an Alternate Currency Addendum, such agency, branch or
Affiliate shall, to the extent of any commitment extended and any Loans made by
it, have all the rights of Bank One or such Lender hereunder; provided, however,
that Bank One or such Lender shall, to the exclusion of such agency, branch or
Affiliate, continue to have all the voting rights vested in it by the terms
hereof.
"ALTERNATE CURRENCY BORROWER" means (i) any Wholly-Owned Subsidiary
which is a Foreign Subsidiary of the Company, whether now existing or hereafter
formed, that is a party to an Alternate Currency Addendum, which Subsidiary
shall have delivered to the Administrative Agent an Assumption Letter in
accordance with Section 2.23 and such other documents as may be required
2
pursuant to this Agreement, in each case together with its respective successors
and assigns and (ii) the Company.
"ALTERNATE CURRENCY BORROWING" means any borrowing consisting of a Loan
made to an Alternate Currency Borrower in an Alternate Currency.
"ALTERNATE CURRENCY COMMITMENT" means, for any Alternate Currency Bank
for each Alternate Currency, the obligation of such Alternate Currency Bank to
make Alternate Currency Loans not exceeding the Dollar Amount set forth in the
applicable Alternate Currency Addendum, as such amount may be modified from time
to time pursuant to the terms of this Agreement and the applicable Alternate
Currency Addendum.
"ALTERNATE CURRENCY INTEREST PERIOD" means, with respect to any
Alternate Currency Loan, the Interest Period as set forth on the applicable
Alternate Currency Addendum.
"ALTERNATE CURRENCY LOAN" means any Loan denominated in an Alternate
Currency made by an Alternate Currency Bank to an Alternate Currency Borrower
pursuant to Section 2.20 and the related Alternate Currency Addendum.
"ALTERNATE CURRENCY RATE" means, for any day for any Alternate Currency
Loan, the per annum rate of interest selected by the applicable Alternate
Currency Borrower under and as set forth in the applicable Alternate Currency
Addendum plus the then Applicable Alternate Currency Margin.
"ALTERNATE CURRENCY SUBLIMIT" means $50,000,000.
"APPLICABLE ALTERNATE CURRENCY MARGIN" means, as at any date of
determination, the rate per annum applicable to Alternate Currency Loans
determined in accordance with the provisions of Section 2.14(D)(ii) hereof, or
as modified by the applicable Alternate Currency Addendum.
"APPLICABLE EUROCURRENCY MARGIN" means, as at any date of
determination, the rate per annum then applicable to Eurocurrency Rate Loans
determined in accordance with the provisions of Section 2.14(D)(ii) hereof.
"APPLICABLE FACILITY FEE PERCENTAGE" means, as at any date of
determination, the rate per annum then applicable in the determination of the
amount payable under Section 2.14(C)(i) hereof determined in accordance with the
provisions of Section 2.14(D)(ii) hereof.
"APPLICABLE L/C FEE PERCENTAGE" means, as at any date of determination,
a rate per annum then applicable for Letter of Credit fees determined in
accordance with the provisions of Section 2.14(D)(ii) hereof.
"APPROVED FUND" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"ARRANGER" means Banc One Capital Markets, Inc., in its capacity as
lead arranger and sole book runner for the loan transaction evidenced by this
Agreement.
"ASSET SALE" means, with respect to the Company or any Subsidiary, the
sale, lease, conveyance, disposition or other transfer by such Person of any of
its assets (including by way of a sale-leaseback transaction, and including the
sale or other transfer of any of the Equity Interests of
3
any Subsidiary of such Person) to any Person other than the Company or any of
its wholly-owned Subsidiaries other than (i) the sale of Inventory in the
ordinary course of business, (ii) the sale or other disposition of any obsolete,
excess, damaged or worn-out Equipment disposed of in the ordinary course of
business, (iii) leases of assets in the ordinary course of business consistent
with past practice, (iv) the sale of Receivables and Related Security in
connection with a Permitted Receivables Financing and (v) transfers consisting
of Liens permitted under Section 7.3(C), Investments permitted under Section
7.3(D) and Restricted Payments permitted under Section 7.3(F).
"ASSIGNMENT AGREEMENT" means an assignment and assumption agreement
entered into in connection with an assignment pursuant to Section 13.3 hereof in
substantially the form of Exhibit D.
"ASSUMPTION LETTER" means a letter of a Subsidiary of the Company
addressed to the Lenders in substantially the applicable form of Exhibit L
hereto pursuant to which such Subsidiary agrees to become a Subsidiary Borrower
or an Alternate Currency Borrower and agrees to be bound by the terms and
conditions hereof as if originally a party hereto.
"AUTHORIZED OFFICER" means, with respect to the Company, any of the
President, Chief Executive Officer, the Vice President, Corporate Development
and Treasurer, the Vice President and Corporate Controller or the Vice
President, Administration and Secretary of the Company, acting singly, or with
respect to any Subsidiary Borrower or Alternate Currency Borrower, any officer
of such Person as designated by the Company to the Administrative Agent from
time to time, in each case acting singly.
"BANK ONE" means Bank One, NA, in its individual capacity, and its
successors.
"BANK ONE ROLES" is defined in Section 11.9(b) hereof.
"BENEFIT PLAN" means a defined benefit plan as defined in Section 3(35)
of ERISA (other than a Multiemployer Plan or Foreign Pension Plan) in respect of
which the Company or any other member of the Controlled Group is, or within the
immediately preceding six (6) years was, an "employer" as defined in Section
3(5) of ERISA.
"BORROWER" means each of (i) the Company, (ii) any Subsidiary Borrower
and (iii) any Alternate Currency Borrower, in each case together with its
permitted successors and assigns and "BORROWERS" shall mean, collectively, the
Company, the Subsidiary Borrowers and the Alternate Currency Borrowers and their
permitted successors and assigns.
"BORROWING DATE" means a date on which an Advance or Swing Line Loan is
made hereunder.
"BORROWING/ELECTION NOTICE" is defined in Section 2.7 hereof.
"BRITISH POUNDS STERLING" means the lawful currency of Great Britain.
"BUSINESS DAY" means:
(a) for the purposes of determining the Eurocurrency Base Rate, a
day other than a Saturday or Sunday on which banks are open
for the transaction of domestic and foreign exchange business
in London, England;
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(b) for the purpose of any payment to be made in Dollars, a day
other than a Saturday or Sunday on which banks are open for
the transaction of domestic and foreign exchange business in
Chicago, Illinois;
(c) for any other purpose, means a day (i) other than a Saturday
or Sunday on which banks are generally open for the
transaction of domestic and foreign exchange business in
Chicago, Illinois and (ii) with respect to borrowings, payment
or rate selection of Loans denominated in (A) euro, a day on
which such clearing system as is determined by the
Administrative Agent to be suitable for clearing or settlement
of euro is open for business and (B) an Agreed Currency other
than Dollars and euro, a day on which the applicable
Eurocurrency Payment Office related to such currency is open
for the transaction of domestic and foreign exchange business.
"CANADIAN DOLLARS" means the lawful currency of Canada.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a limited liability
company, membership interests, (iv) in the case of a partnership, partnership
interests (whether general or limited) and (v) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person;
provided, however, that "Capital Stock" shall not include any debt securities
convertible into equity securities prior to such conversion.
"CAPITALIZED LEASE" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be capitalized
on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.
"CASH EQUIVALENTS" means (i) direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by, the United
States of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in each
case maturing within one year from the date of acquisition thereof; (ii)
investments in commercial paper maturing within 270 days from the date of
acquisition thereof and, at such date of acquisition, rated A-1 or better by S&P
or P-1 or better by Xxxxx'x; (iii) investments in certificates of deposit,
banker's acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money market
deposit accounts issued or offered by, any domestic office of any commercial
bank organized under the laws of the United States of America or any State
thereof which has a combined capital and surplus and undivided profits of not
less than $500,000,000; (iv) fully collateralized repurchase agreements with a
term of not more than 30 days for securities described in clause (i) above or
rated A-1, AAA or better by S&P or P-1, Aaa or better by Xxxxx'x and entered
into with a financial institution satisfying the criteria described in clause
(iii) above; (v) shares of money market, mutual or similar funds having assets
in excess of $100,000,000 and rated AAA by S&P or Aaa by Xxxxx'x, (vi) auction
rate securities including municipal securities and preferred stock with holding
periods not to exceed 270 days and rated AAA by S&P or Aaa by Xxxxx'x and (vii)
in the case of
5
any Foreign Subsidiary (in addition to the items permitted by the foregoing
clauses (i) through (vi)) any of the following: (a) marketable direct
obligations issued by, or unconditionally guaranteed by, the sovereign nation in
which such Foreign Subsidiary is organized and is conducting business or issued
by any agency of such sovereign nation and backed by the full faith and credit
of such sovereign nation, in each case maturing within one year from the date of
acquisition, so long as the indebtedness of such sovereign nation is rated at
least A by S&P or A2 by Xxxxx'x or carries an equivalent rating from a
comparable foreign rating agency if available and (b) investments of the type
and maturity described in clauses (iii) through (vi) above of foreign obligors,
which investments or obligors have ratings described in such clauses or
equivalent ratings from comparable foreign rating agencies if available.
"CHANGE" is defined in Section 4.2 hereof.
"CHANGE OF CONTROL" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act), becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act, provided
that a person shall be deemed to have "beneficial ownership" of all securities
that such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of
thirty-five percent (35%) or more of the combined voting power of the Company's
outstanding Capital Stock ordinarily having the right to vote at an election of
directors; or
(b) the majority of the board of directors of the Company fails to
consist of Continuing Directors.
"CLOSING DATE" means July 28, 2003.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"COLLATERAL DOCUMENTS" means collectively, each of the Pledge
Agreements and the Guarantees, together with all agreements and documents
referred to therein or contemplated thereby.
"COMMISSION" means the Securities and Exchange Commission of the United
States of America and any Person succeeding to the functions thereof.
"COMMITMENT AND ACCEPTANCE" is defined in Section 2.25 hereof.
"COMMITMENT INCREASE NOTICE" is defined in Section 2.25 hereof.
"COMPANY" means Kaydon Corporation, a Delaware corporation, together
with its successors and permitted assigns.
"CONSOLIDATED ASSETS" means the total assets of the Company and its
Subsidiaries on a consolidated basis (determined in accordance with Agreement
Accounting Principles).
"CONTAMINANT" means any pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance, asbestos, polychlorinated biphenyls ("PCBs"), or any constituent of
any such substance, and includes but is not limited to these terms as defined in
Environmental, Health or Safety Requirements of Law.
6
"CONTINGENT OBLIGATION" as applied to any Person, means any Contractual
Obligation, contingent or otherwise, of that Person with respect to any
Indebtedness of another, including, without limitation, any such Indebtedness of
another directly or indirectly guaranteed, endorsed (otherwise than for
collection or deposit in the ordinary course of business), co-made or discounted
or sold with recourse by that Person, or in respect of which that Person is
otherwise directly or indirectly liable, including Contractual Obligations
(contingent or otherwise) arising through any agreement to purchase, repurchase,
or otherwise acquire such Indebtedness, obligation or liability or any security
therefor, or to provide funds for the payment or discharge thereof (whether in
the form of loans, advances, stock purchases, capital contributions or
otherwise), but excluding any such Contingent Obligation among the Obligors.
"CONTINUING DIRECTOR" means, with respect to any Person as of any date
of determination, any member of the board of directors of such Person who (a)
was a member of such board of directors on the date of this Agreement, or (b)
was nominated for election or elected to such board of directors with the
approval of the Continuing Directors who were members of such board at the time
of such nomination or election.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any provision
of any equity or debt securities issued by that Person or any indenture,
mortgage, deed of trust, security agreement, pledge agreement, guaranty,
contract, undertaking, agreement or instrument, in any case in writing, to which
that Person is a party or by which it or any of its properties is bound, or to
which it or any of its properties is subject.
"CONTROLLED GROUP" means the group consisting of (i) any corporation
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Company; (ii) a partnership or
other trade or business (whether or not incorporated) which is under common
control (within the meaning of Section 414(c) of the Code) with the Company; and
(iii) a member of the same affiliated service group (within the meaning of
Section 414(m) of the Code) as the Company, any corporation described in clause
(i) above or any partnership or trade or business described in clause (ii)
above.
"CONVERTIBLE NOTES" means those certain 4.0% Contingent Convertible
Senior Subordinated Notes due 2023 issued by the Company in an aggregate
principal amount of $200,000,000.
"CREDIT SUPPORT REQUIREMENT" means the requirement hereunder that, as
of any time the same is to be determined, the assets of all Credit Supporters at
such time contributed at least seventy-five percent (75%) of EBIT for the then
most recently completed Last Twelve-Month Period as reported in the most recent
quarterly or, in the case of the fourth fiscal quarter of any fiscal year,
annual consolidated financial statements delivered pursuant to Section 7.1(A)(i)
or (ii) (as applicable) (or, prior to the delivery of the first of such
financial statements, as reported in the most recent quarterly or, in the case
of the fourth fiscal quarter of any fiscal year, annual consolidated financial
statements of the Company and its Subsidiaries).
"CREDIT SUPPORTERS" means (a) the Company, (b) each Subsidiary
Guarantor and (c) each Pledged Foreign Subsidiary.
"CUSTOMARY PERMITTED LIENS" means:
7
(i) Liens (other than Environmental Liens and Liens in favor
of the IRS or the PBGC) with respect to the payment of taxes,
assessments or governmental charges in all cases which are not yet
delinquent or which thereafter can be paid without penalty or (if
foreclosure, distraint, sale or other similar proceedings shall not
have been commenced or any such proceeding after being commenced is
stayed) which are being contested in good faith by appropriate
proceedings properly instituted and diligently conducted and with
respect to which adequate reserves or other appropriate provisions are
being maintained, which reserves and provisions shall be maintained in
accordance with GAAP as in effect from time to time, if and to the
extent that GAAP so require;
(ii) statutory Liens of landlords and Liens of suppliers,
mechanics, carriers, materialmen, warehousemen or workmen and other
similar Liens imposed by law created in the ordinary course of business
for amounts not more than 60 days past due or which are being contested
in good faith by appropriate proceedings properly instituted and
diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained, which reserves and
provisions shall be maintained in accordance with GAAP as may be in
effect from time to time, if and to the extent that GAAP so require;
(iii) Liens (other than Environmental Liens and Liens in favor
of the IRS or the PBGC) incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance or other types of social security benefits or to
secure the performance of bids, tenders, sales, contracts (other than
for the repayment of borrowed money), surety, appeal and performance
bonds; provided that (A) all such Liens do not in the aggregate
materially detract from the value of the Company's or such Subsidiary's
assets or property taken as a whole or materially impair the use
thereof in the operation of the businesses taken as a whole, and (B)
all Liens securing bonds to stay judgments or in connection with
appeals do not secure at any time an aggregate amount exceeding
$10,000,000;
(iv) Liens arising with respect to zoning restrictions,
easements, encroachments, licenses, reservations, covenants,
rights-of-way, utility easements, building restrictions and other
similar charges, restrictions or encumbrances on the use of real
property which do not in any case materially detract from the value of
the property subject thereto or materially interfere with the ordinary
use or occupancy of the real property or with the ordinary conduct of
the business of the Company or any of its Subsidiaries;
(v) Liens of attachment or judgment with respect to judgments,
writs or warrants of attachment, or similar process against the Company
or any of its Subsidiaries which do not constitute a Default under
Section 8.1(H) hereof; and
(vi) any interest or title of the lessor in the property
subject to any operating lease entered into by the Company or any of
its Subsidiaries in the ordinary course of business.
"DEEMED DIVIDEND PROBLEM" means, with respect to any Foreign
Subsidiary, such Foreign Subsidiary's accumulated and undistributed earnings and
profits being deemed to be repatriated to the Company or the applicable parent
Domestic Subsidiary for U.S. federal income tax purposes and the effect of such
repatriation causing adverse tax consequences to the Company or such parent
Domestic Subsidiary, in each case as determined by the Company in its
commercially reasonable judgment acting in good faith and in consultation with
its legal and tax advisors.
8
"DEFAULT" means an event described in Article VIII hereof.
"DESIGNATED LENDER" means, with respect to each Designating Lender,
each Eligible Designee designated by such Designating Lender pursuant to Section
13.1(B).
"DESIGNATING LENDER" means, with respect to each Designated Lender, the
Lender that designated such Designated Lender pursuant to Section 13.1(B).
"DESIGNATION AGREEMENT" is defined in Section 13.1(B).
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
that is ninety-one (91) days after the Revolving Loan Termination Date.
"DIVESTITURE" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (other than transactions involving solely the
Company and its Subsidiaries) (i) divests any going business or all or
substantially all of the assets of the Company, any Subsidiary or any division
thereof, whether through sale of assets, merger or otherwise or (ii) directly or
indirectly disposes (in one transaction or as the most recent transaction in a
series of transactions) at least a majority (in number of votes) of the
securities of any Subsidiary which have ordinary voting power for the election
of directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage of voting power) of the
outstanding Equity Interests of any Subsidiary.
"DOCUMENTATION AGENT" means Bank of America, N.A. in its capacity as
documentation agent for the credit transaction evidenced by this Agreement.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"DOLLAR" and "$" means dollars in the lawful currency of the United
States of America.
"DOLLAR AMOUNT" of any currency at any date shall mean (i) the amount
of such currency if such currency is Dollars or (ii) the Equivalent Amount of
Dollars if such currency is any currency other than Dollars.
"DOMESTIC SUBSIDIARY" means a Subsidiary of the Company organized under
the laws of a jurisdiction located in the United States of America and
substantially all of the operations of which are conducted within the United
States, which Subsidiary is not directly or indirectly a Subsidiary of a Foreign
Subsidiary.
"DOMESTIC SUBSIDIARY BORROWER" means a Subsidiary Borrower that is a
Domestic Subsidiary.
"EBIT" means, for any period, on a consolidated basis for the Company
and its Subsidiaries, the sum of the amounts for such period, without
duplication, of (i) Net Income, plus (ii) Interest Expense to the extent
deducted in computing Net Income, plus (iii) charges against income for foreign,
federal, state and local taxes to the extent deducted in computing Net Income,
all as
9
determined in accordance with Agreement Accounting Principles, plus (iv) any
extraordinary, unusual or non-recurring non-cash losses (including any non-cash
impairments to fixed assets or goodwill or other intangible assets) to the
extent deducted in computing Net Income, plus (v) to the extent not included in
Interest Expense and to the extent deducted in computing Net Income, the implied
interest component of Receivables Facility Attributed Indebtedness, plus (vi)
any non-cash expenses incurred in connection with issuance of restricted Capital
Stock by the Company or any Subsidiary, to the extent such expenses are deducted
in computing Net Income, plus (vii) any losses incurred by any Person whose
income is subtracted from the calculation of EBIT pursuant to clauses (ix) or
(x) below but only to the extent such losses are not funded by the Company or
any Subsidiary pursuant to a capital call, Investment or otherwise, minus (viii)
any extraordinary, unusual or non-recurring gains or other income to the extent
added in computing Net Income, minus (ix) the income of any Person (other than a
Wholly-Owned Subsidiary of the Company) (a) in which any Person other than the
Company or any of its Subsidiaries has a joint interest or a partnership
interest or other ownership interest and (b) to the extent the Company or any of
its Subsidiaries does not control the Board of Directors or other governing body
of such Person or otherwise does not control the declaration of a dividend or
other distribution by such Person, except in each case to the extent of the
amount of dividends or other distributions actually paid to the Company or any
of its Subsidiaries by such Person during such period, minus (x) the income of
any Subsidiary of the Company to the extent that the declaration or payment of
dividends or distributions (including via intercompany advances or other
intercompany transactions but in each case up to and not exceeding the amount of
such income) by that Subsidiary of that income is not at the time permitted by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary. Notwithstanding anything herein, in any financial statements of the
Company or in Agreement Accounting Principles to the contrary, for purposes of
calculating and determining EBIT, any Acquisition made by the Company or any of
its Subsidiaries (including through mergers or consolidations), any Divestitures
consummated by the Company or any of its Subsidiaries, and including in each
case any related financing transactions, during the period for which such EBIT
was calculated shall be deemed to have occurred on the first day of the relevant
period for which such EBIT was calculated on a pro forma basis in accordance
with Regulation S-X.
"EBITDA" means, for any period, on a consolidated basis for the Company
and its Subsidiaries, the sum of the amounts for such period, without
duplication, of (i) EBIT, plus (ii) depreciation expense to the extent deducted
in computing EBIT, plus (iii) amortization expense, including, without
limitation, amortization of goodwill and other intangible assets to the extent
deducted in computing EBIT. Notwithstanding anything herein, in any financial
statements of the Company or in Agreement Accounting Principles to the contrary,
for purposes of calculating and determining EBITDA, any Acquisition made by the
Company or any of its Subsidiaries (including through mergers or
consolidations), any Divestitures consummated by the Company or any of its
Subsidiaries, and including in each case any related financing transactions,
during the period for which such EBITDA was calculated shall be deemed to have
occurred on the first day of the relevant period for which such EBITDA was
calculated on a pro forma basis in accordance with Regulation S-X.
"EFFECTIVE COMMITMENT AMOUNT" is defined in Section 2.25 hereof.
"ELIGIBLE DESIGNEE" means a special purpose corporation, partnership,
trust, limited partnership or limited liability company that is administered by
the respective Designating Lender or an Affiliate of such Designating Lender and
(i) is organized under the laws of the United States of
10
America or any state thereof, (ii) is engaged primarily in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its business
and (iii) issues (or the parent of which issues) commercial paper rated at least
A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by
Xxxxx'x.
"ELIGIBLE CURRENCY" means any currency other than Dollars with respect
to which the Administrative Agent or the Company has not given notice in
accordance with Section 2.22 and that is readily available, freely traded, in
which deposits are customarily offered to banks in the London interbank market,
convertible into Dollars in the international interbank market available to the
Lenders in such market and as to which an Equivalent Amount may be readily
calculated. If, after the designation by the Lenders at the request of the
Company of any currency as an Agreed Currency or Alternate Currency, currency
control or other exchange regulations are imposed in the country in which such
currency is issued with the result that different types of such currency are
introduced, such country's currency is, in the determination of the
Administrative Agent, no longer readily available or freely traded or (ii) as to
which, in the determination of the Administrative Agent, an Equivalent Amount is
not readily calculable (each of clause (i) and (ii), a "DISQUALIFYING EVENT"),
then the Administrative Agent shall promptly notify the Lenders and the Company,
and such country's currency shall no longer be an Agreed Currency or Alternate
Currency until such time as the Disqualifying Event(s) no longer exist, but in
any event within five (5) Business Days of receipt of such notice from the
Administrative Agent, the Company shall repay all Loans in such currency to
which the Disqualifying Event applies or convert such Loan into Loans in Dollars
or another Agreed Currency or Alternate Currency, subject to the other terms
contained in Articles II and IV.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to foreign, federal, state and
local laws or regulations relating to or addressing pollution or protection of
the environment, or protection of worker health or safety, including, but not
limited to, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. Section 9601 et seq., the Occupational Safety and Health Act of
1970, 29 U.S.C. Section 651 et seq., and the Resource Conservation and Recovery
Act of 1976, 42 U.S.C. ss. 6901 et seq., in each case including any amendments
thereto, any successor statutes, and any regulations or guidance promulgated
thereunder, and any state or local equivalent thereof.
"ENVIRONMENTAL LIEN" means a lien in favor of any Governmental
Authority for (a) any liability under Environmental, Health or Safety
Requirements of Law, or (b) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"ENVIRONMENTAL PROPERTY TRANSFER ACT" means any applicable requirement
of law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the closure of any property or the transfer, sale or
lease of any property or deed or title for any property for environmental
reasons, including, but not limited to, any so-called "Industrial Site Recovery
Act" or "Responsible Property Transfer Act."
"EQUIPMENT" means all of the Company's and each Subsidiary's present
and future (i) equipment, including, without limitation, machinery,
manufacturing, distribution, data processing and office equipment, assembly
systems, tools, molds, dies, fixtures, appliances, furniture, furnishings,
vehicles, vessels, aircraft, aircraft engines, and trade fixtures, (ii) other
tangible personal property (other than Inventory), and (iii) any and all
accessions, parts and appurtenances attached to
11
any of the foregoing or used in connection therewith, and any substitutions
therefor and replacements, products and proceeds thereof.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"EQUIVALENT AMOUNT" of any currency at any date shall mean the
equivalent in Dollars of such currency, calculated on the basis of the
arithmetic mean of the buy and sell spot rates of exchange of the Administrative
Agent or an Affiliate of the Administrative Agent or the applicable Alternate
Currency Bank, as applicable, in the London interbank market (or other market
where the Administrative Agent's or Alternate Currency Bank's, as applicable,
foreign exchange operations in respect of such currency are then being
conducted) for such other currency at or about 11:00 a.m. (local time applicable
to the transaction in question) on the date on which such amount is to be
determined, rounded up to the nearest amount of such currency as determined by
the Administrative Agent or the applicable Alternate Currency Bank from time to
time; provided, however, that if at the time of any such determination, for any
reason, no such spot rate is being quoted, the Administrative Agent or an
Affiliate of the Administrative Agent or the applicable Alternate Currency Bank,
may use any reasonable method it deems appropriate (after consultation with the
Company) to determine such amount, and such determination shall be conclusive
absent manifest error.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time including (unless the context otherwise requires) any
rules or regulations promulgated thereunder.
"EURO" means the lawful currency of the member states of the European
Union which adopted the Council Regulation E.C. No. 1103/97 dated 17 June 1997
passed by the Council of the European Union, or, if different, the then lawful
currency of the member states of the European Union that participate in the
third stage of the Economic and Monetary Union.
"EUROCURRENCY BASE RATE" means, with respect to a Eurocurrency Rate
Loan for the relevant Interest Period, the applicable British Bankers'
Association Interest Settlement Rate for deposits in the Agreed Currency as
reported by Telerate (or, if Telerate shall not display such a rate or if the
Administrative Agent shall not subscribe to Telerate, any other generally
recognized financial information reporting service) as of 11:00 a.m. (London
time) two (2) Business Days prior to, or in the case of Loans made in London on,
the first day of such Interest Period, and having a maturity equal to such
Interest Period, as adjusted for Reserves provided that, if no such British
Bankers' Association Interest Settlement Rate is available to the Administrative
Agent, the applicable Eurocurrency Base Rate for the relevant Interest Period
shall instead be the rate determined by the Administrative Agent to be the rate
at which Bank One or one of its Affiliate banks offers to place deposits in the
Agreed Currency with first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two (2) Business Days prior to, or in the
case of Loans made in London on, the first day of such Interest Period, in the
approximate amount of Bank One's relevant Eurocurrency Rate Loan and having a
maturity equal to such Interest Period, as adjusted for Reserves.
"EUROCURRENCY PAYMENT OFFICE" of the Administrative Agent shall mean,
for each of the Agreed Currencies, any agency, branch or Affiliate of the
Administrative Agent, specified as the "Eurocurrency Payment Office" for such
Agreed Currency on Exhibit A-1 hereto or such other
12
agency, branch, Affiliate or correspondence bank of the Administrative Agent, as
it may from time to time specify to the Company and each Lender as its
Eurocurrency Payment Office.
"EUROCURRENCY RATE" means, with respect to a Eurocurrency Rate Loan for
the relevant Interest Period, the Eurocurrency Base Rate applicable to such
Interest Period plus the Applicable Eurocurrency Margin then in effect.
"EUROCURRENCY RATE ADVANCE" means an Advance which bears interest at
the Eurocurrency Rate.
"EUROCURRENCY RATE LOAN" means a Loan made on a fully syndicated basis
pursuant to Section 2.1, which bears interest at the Eurocurrency Rate.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three (3) Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"FINANCIAL ASSISTANCE PROBLEM" means, with respect to any Foreign
Subsidiary, the inability of such Foreign Subsidiary to become a Subsidiary
Guarantor or to permit its Capital Stock from being pledged pursuant to a Pledge
Agreement on account of legal or financial limitations imposed by the
jurisdiction of organization of such Foreign Subsidiary or other relevant
jurisdictions having authority over such Foreign Subsidiary, in each case as
determined by the Company in its commercially reasonable judgment acting in good
faith and in consultation with its legal and tax advisors
"FIRST TIER FOREIGN SUBSIDIARY" means each Foreign Subsidiary with
respect to which any one or more of the Company and its Domestic Subsidiaries
directly owns or controls more than 50% of such Foreign Subsidiary's Capital
Stock.
"FIXED-RATE LOAN" means any Eurocurrency Rate Loan and any Alternate
Currency Loan bearing a fixed rate of interest for the applicable Interest
Period.
"FLOATING RATE" means, for any day for any Loan, a rate per annum equal
to the Alternate Base Rate for such day, changing when and as the Alternate Base
Rate changes.
"FLOATING RATE ADVANCE" means an Advance which bears interest at the
Floating Rate.
"FLOATING RATE LOAN" means a Loan, or portion thereof, which bears
interest at the Floating Rate.
"FOREIGN CURRENCY SUBLIMIT" means $75,000,000.
"FOREIGN EMPLOYEE BENEFIT PLAN" means any employee benefit plan as
defined in Section 3(3) of ERISA which is maintained or contributed to for the
benefit of the employees of the
13
Company or any member of the Controlled Group, but which is not covered by ERISA
pursuant to Section 4(b)(4) of ERISA.
"FOREIGN PENSION PLAN" means any employee pension benefit plan (as
defined in Section 3(2) of ERISA) which (i) is maintained or contributed to for
the benefit of employees of the Company or any other member of the Controlled
Group, (ii) is not covered by ERISA pursuant to Section 4(b)(4) thereof and
(iii) under applicable local law, is required to be funded through a trust or
other funding vehicle.
"FOREIGN SUBSIDIARY" means a Subsidiary of the Company which is not
organized under the laws of a jurisdiction located in the United States of
America.
"FOREIGN SUBSIDIARY BORROWER" means a Subsidiary Borrower that is a
Foreign Subsidiary.
"FUND" means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles as in effect in
the United States of America.
"GOVERNMENTAL ACTS" is defined in Section 3.10(A) hereof.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative authority or
functions of or pertaining to government, including any authority or other
quasi-governmental entity established to perform any of such functions.
"GUARANTY" means each of (i) the Subsidiary Guaranty and (ii) the
Parent Guaranty.
"HEDGING AGREEMENTS" is defined in Section 7.3(L) hereof.
"HEDGING ARRANGEMENTS" is defined in the definition of "Hedging
Obligations" below.
"HEDGING OBLIGATIONS" of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, commodity prices,
exchange rates or forward rates applicable to such party's assets, liabilities
or exchange transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants or any similar derivative
transactions ("HEDGING ARRANGEMENTS"), and (ii) any and all cancellations, buy
backs, reversals, terminations or assignments of any of the foregoing.
"HOLDERS OF SECURED OBLIGATIONS" means the holders of the Secured
Obligations from time to time and shall include (i) each Lender in respect of
its Loans (including, without limitation, each Alternate Currency Bank in
respect of its Alternate Currency Loans), (ii) each Issuing Bank in respect of
Reimbursement Obligations owed to it, (iii) the Administrative Agent, the
Lenders and the
14
Issuing Banks in respect of all other present and future obligations and
liabilities of the Company or any of its Subsidiaries of every type and
description arising under or in connection with this Agreement or any other Loan
Document, (iv) each Indemnitee in respect of the obligations and liabilities of
the Company or any of its Subsidiaries to such Person hereunder or under the
other Loan Documents, (v) each Lender (or affiliate thereof), in respect of all
Hedging Obligations of the Company and its Subsidiaries to such Lender (or such
affiliate) as exchange party or counterparty under any Hedging Agreements, and
(vi) their respective successors, transferees and assigns.
"HOME COUNTRY" is defined in Section 6.18(A) hereof.
"INDEBTEDNESS" of a Person means, without duplication, such Person's
(i) obligations for borrowed money, including, without limitation, the
Convertible Notes, subordinated indebtedness and all other notes and debentures,
(ii) obligations representing the deferred purchase price of property or
services (other than accounts payable arising in the ordinary course of such
person's business payable on terms customary in the trade and other than
earn-outs or other similar forms of contingent purchase prices), (iii)
obligations, whether or not assumed, secured by Liens on or payable out of the
proceeds or production from property or assets now or hereafter owned or
acquired by such Person, (iv) monetary or financial obligations which are
evidenced by notes, acceptances or other instruments, (v) Capitalized Lease
Obligations, (vi) Contingent Obligations with respect to the Indebtedness of
other Persons (it being understood and agreed that, in calculating the amount of
Indebtedness hereunder, the amount of any such Contingent Obligations shall only
be included to the extent such Contingent Obligations do not cover obligations
representing other Indebtedness already included in such calculation), (vii)
obligations with respect to standby letters of credit, bankers acceptances or
similar instruments (other than commercial letters of credit) in respect of
drafts which may be presented or have been presented and have not yet been paid
and are not included in clause (i) above, (viii) Off-Balance Sheet Liabilities
and (ix) Disqualified Stock. The amount of Indebtedness of any Person at any
date shall be without duplication (a) the outstanding balance at such date of
all unconditional obligations as described above and the maximum liability of
any such Contingent Obligations at such date and (b) in the case of Indebtedness
of others secured by a Lien to which the property or assets owned or held by
such Person is subject, the lesser of the fair market value at such date of any
asset subject to a Lien securing the Indebtedness of others and the amount of
the Indebtedness secured.
"INDEMNIFIED MATTERS" is defined in Section 10.7(B) hereof.
"INDEMNITEES" is defined in Section 10.7(B) hereof.
"INITIAL OBLIGOR GROUP" means each Obligor as of the Closing Date.
"INTEREST EXPENSE" means, without duplication, for any period, the
total interest expense of the Company and its consolidated Subsidiaries, whether
paid or accrued (including the interest component of Capitalized Leases,
Off-Balance Sheet Liabilities and net payments or receipts (if any) pursuant to
Hedging Arrangements relating to interest rate protection but excluding
commitment and letter of credit fees, other non-interest based fees,
commissions, discounts and costs related to financings and amortization and
accretion of debt discount and all of the foregoing excluded items), all as
determined in conformity with Agreement Accounting Principles.
"INTEREST PERIOD" means, (i) any Alternate Currency Interest Period and
(ii) with respect to a Eurocurrency Rate Loan, a period of one (1), two (2),
three (3) or six (6) months, commencing on a
15
Business Day selected by the Company on which a Eurocurrency Rate Advance is
made to the Company pursuant to this Agreement. Such interest Period shall end
on (but exclude) the day which corresponds numerically to such date one (1), two
(2), three (3) or six (6) months thereafter; provided, however, that if there is
no such numerically corresponding day in such next, second, third or sixth
succeeding month, such Interest Period shall end on the last Business Day of
such next, second, third or sixth succeeding month. If an Interest Period would
otherwise end on a day which is not a Business Day, such Interest Period shall
end on the next succeeding Business Day, provided, however, that if said next
succeeding Business Day falls in a new calendar month, such Interest Period
shall end on the immediately preceding Business Day.
"INVENTORY" shall mean any and all goods, including, without
limitation, goods in transit, wheresoever located, whether now owned or
hereafter acquired by the Company or any of its Subsidiaries, which are held for
sale or lease, furnished under any contract of service or held as raw materials,
work in process or supplies, and all materials used or consumed in the business
of Borrower or any of its Subsidiaries, and shall include all right, title and
interest of the Company or any of its Subsidiaries in any property the sale or
other disposition of which has given rise to Receivables and which has been
returned to or repossessed or stopped in transit by the Company or any of its
Subsidiaries.
"INVESTMENT" means, with respect to any Person, (i) any purchase or
other acquisition by that Person of any Indebtedness, Equity Interests or other
securities, or of a beneficial interest in any Indebtedness, Equity Interests or
other securities, issued by any other Person, (ii) any purchase by that Person
of all or substantially all of the assets of a business (whether of a division,
branch, unit operation, or otherwise) conducted by another Person, and (iii) any
loan, advance (other than deposits with financial institutions available for
withdrawal on demand, prepaid expenses, accounts receivable, advances to
employees and similar items made or incurred in the ordinary course of business
on terms customary in trade) or capital contribution by that Person to any other
Person, including all Indebtedness to such Person arising from a sale of
property by such Person other than in the ordinary course of its business.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"ISSUING BANKS" means Bank One or any of its Affiliates or any other
Lender in its separate capacity as an issuer of Letters of Credit pursuant to
Section 3.1 and in its separate capacity as an issuer of letters of credit
deemed to be Letters of Credit pursuant to Section 3.2. The designation of any
Lender as an Issuing Bank after the date hereof shall be subject to the prior
written consent of the Administrative Agent, which consent shall not be
unreasonably withheld or delayed.
"LAST TWELVE-MONTH PERIOD" is defined in Section 7.4(A) hereof.
"L/C DOCUMENTS" is defined in Section 3.4 hereof.
"L/C DRAFT" means a draft drawn on an Issuing Bank pursuant to a Letter
of Credit.
"L/C INTEREST" shall have the meaning ascribed to such term in Section
3.6 hereof.
16
"L/C OBLIGATIONS" means, without duplication, an amount equal to the
sum of (i) the aggregate of the Dollar Amount then available for drawing under
each of the Letters of Credit and (ii) the aggregate outstanding Dollar Amount
of all Reimbursement Obligations at such time.
"LENDER INCREASE NOTICE" is defined in Section 2.25 hereof.
"LENDERS" means the lending institutions listed on the signature pages
of this Agreement or an Alternate Currency Addendum, including the Issuing
Banks, the Alternate Currency Banks, the Swing Line Banks and each of their
respective successors and assigns. Each reference in this Agreement to any
Lender shall, to the extent applicable, be deemed a reference to each Alternate
Currency Bank.
"LENDING INSTALLATION" means, with respect to a Lender or the
Administrative Agent, any office, branch, subsidiary or affiliate of such Lender
or the Administrative Agent.
"LETTER OF CREDIT" means the commercial and standby letters of credit
(i) to be issued by the Issuing Banks pursuant to Section 3.1 hereof or (ii)
deemed issued by an Issuing Bank pursuant to Section 3.2 hereof.
"LEVERAGE RATIO" is defined in Section 7.4(A) hereof.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a vendor or lessor
under any conditional sale, Capitalized Lease or other title retention
agreement).
"LOAN(S)" means, with respect to a Lender, such Lender's portion of any
Advance made pursuant to Section 2.1 hereof, as applicable, and in the case of
the Swing Line Bank, any Swing Line Loan made pursuant to Section 2.2 hereof,
and in the case of any Alternate Currency Bank, any Alternate Currency Loan made
pursuant to Section 2.20 and the applicable Alternate Currency Addendum, and
collectively, all Revolving Loans, Swing Line Loans and Alternate Currency
Loans, whether made or continued as or converted to Floating Rate Loans or
Fixed-Rate Loans.
"LOAN ACCOUNT" is defined in Section 2.12(A) hereof.
"LOAN DOCUMENTS" means this Agreement, each Alternate Currency Addendum
executed hereunder, each Assumption Letter, any promissory notes executed
pursuant to Section 2.12(D), the Collateral Documents (including the Pledge
Agreements and the Guarantees), any Assumption Letter, any Commitment and
Acceptance, any Assignment Agreement and all other documents, instruments, notes
and agreements executed in connection therewith or contemplated thereby, as the
same may be amended, restated or otherwise modified and in effect from time to
time.
"MARGIN STOCK" shall have the meaning ascribed to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Company, or the Company and its Subsidiaries
taken as a whole, (b) the collective ability of the Borrowers or any of their
respective Subsidiaries to perform their respective obligations under the Loan
Documents in any material respect, or (c) the ability of the Lenders or the
Administrative Agent to enforce in any material respect the Obligations.
17
"MATERIAL INDEBTEDNESS" means (a) any Indebtedness evidenced by the
Convertible Notes and (b) any other individual class of Indebtedness (other than
Indebtedness hereunder) which has an aggregate outstanding principal amount in
excess of $15,000,000.
"MOODY'S" means Xxxxx'x Investors Service, Inc., together with its
successors and assigns.
"MULTIEMPLOYER PLAN" means a "Multiemployer Plan" as defined in Section
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
was, contributed to by either the Company or any member of the Controlled Group.
"NET INCOME" means, for any period, the net income (or loss) after
taxes of the Company and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with
Agreement Accounting Principles.
"NEW CURRENCY" is defined in Section 2.11(c) hereof.
"NON-ERISA COMMITMENTS" means:
(i) each pension, medical, dental, life, accident insurance,
disability, group insurance, sick leave, profit sharing, deferred
compensation, bonus, stock option, stock purchase, retirement, savings,
severance, stock ownership, performance, incentive, hospitalization or
other insurance, or other welfare, benefit or fringe benefit plan,
policy, trust, understanding or arrangement of any kind; and
(ii) each employee collective bargaining agreement and each
agreement, understanding or arrangement of any kind, with or for the
benefit of any present or prior officer, director, employee or
consultant (including, without limitation, each employment,
compensation, deferred compensation, severance or consulting agreement
or arrangement and any agreement or arrangement associated with a
change in ownership of the Company or any member of the Controlled
Group);
to which the Company or any member of the Controlled Group is a party or with
respect to which the Company or any member of the Controlled Group is or will be
required to make any payment other than any Plans.
"NON-OBLIGOR SUBSIDIARY" means each Subsidiary of the Company that is
not an Obligor.
"NOTICE OF ASSIGNMENT" is defined in Section 13.3(B) hereof.
"OBLIGATIONS" means all Loans, L/C Obligations, advances, debts,
liabilities, obligations, covenants and duties owing by the Borrowers or any of
their Subsidiaries to the Administrative Agent, any Lender, the Swing Line Bank,
the Arranger, any Affiliate of the Administrative Agent or any Lender, the
Issuing Bank, any Alternate Currency Bank or any Indemnitee, of any kind or
nature, present or future, arising under this Agreement, the L/C Documents, any
Alternate Currency Addendum, the Guarantees, the Pledge Agreements or any other
Collateral Document or Loan Document, whether or not evidenced by any note,
guaranty or other instrument, whether or not for the payment of money, whether
arising by reason of an extension of credit, loan, guaranty, indemnification, or
in any other manner, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired. The term includes, without limitation,
all interest, charges, expenses, fees,
18
attorneys' fees and disbursements, paralegals' fees (in each case whether or not
allowed), and any other sum chargeable to the Company or any of its Subsidiaries
under this Agreement or any other Loan Document.
"OBLIGOR" means each member of the Obligor Group.
"OBLIGOR GROUP" means (a) the Company, (b) each Alternate Currency
Borrower, (c) each Subsidiary Guarantor and (d) each Pledged Foreign Subsidiary.
"OFF-BALANCE SHEET LIABILITIES" of a Person means (a) any Receivables
Facility Attributed Indebtedness and repurchase obligation or liability of such
Person or any of its Subsidiaries with respect to Receivables and Related
Security sold by such Person or any of its Subsidiaries, (b) any liability of
such Person or any of its Subsidiaries under any sale and leaseback transactions
which do not create a liability on the consolidated balance sheet of such
Person, (c) any liability of such Person or any of its Subsidiaries under any
financing lease or so-called "synthetic" lease transaction, or (d) any
obligations of such Person or any of its Subsidiaries arising with respect to
any other transaction which is the functional equivalent of or takes the place
of borrowing but which, in the case of the foregoing clauses (a) through (d),
does not constitute a liability on the consolidated balance sheets of such
Person and its Subsidiaries.
"ORIGINAL CURRENCY" is defined in Section 2.11(c) hereof.
"OTHER TAXES" is defined in Section 2.14(E)(ii) hereof.
"PARENT GUARANTY" means that certain Guaranty dated as of the Closing
Date, containing substantially the terms set forth in Exhibit I-1 hereto,
executed by the Company in favor of the Administrative Agent, for the ratable
benefit of the Lenders, the Alternate Currency Banks, the Swing Line Bank and
the Issuing Banks (as it may be amended, modified, supplemented and/or restated,
and as in effect from time to time), unconditionally guaranteeing all of the
indebtedness, obligations and liabilities of each Alternate Currency Borrower
arising under or in connection with the Loan Documents.
"PARTICIPANTS" is defined in Section 13.2(A) hereof.
"PAYMENT DATE" means the last Business Day of each March, June,
September and December and the Termination Date.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"PERMITTED ACQUISITION" is defined in Section 7.3(G) hereof.
"PERMITTED EXISTING INDEBTEDNESS" means the Indebtedness of the Company
and its Subsidiaries identified as such on Schedule 1.1.1 to this Agreement.
"PERMITTED EXISTING INVESTMENTS" means the Investments of the Company
and its Subsidiaries identified as such on Schedule 1.1.2 to this Agreement.
"PERMITTED EXISTING LIENS" means the Liens on assets of the Company and
its Subsidiaries identified as such on Schedule 1.1.3 to this Agreement.
19
"PERMITTED RECEIVABLES FINANCING" means any transaction or series of
transactions that may be entered into by the Company or any Subsidiary pursuant
to which the Company and/or any of its Subsidiaries may sell, convey or
otherwise transfer, directly or indirectly, to a newly-formed SPV, or any other
Person, any Receivables and Related Security for the purpose of obtaining
financing; provided that (i) all of the terms and conditions of such transaction
or series of transactions, including without limitation the amount and type of
any recourse to the Company or any Subsidiary with respect to the assets
transferred, are acceptable to the Administrative Agent and (ii) the Receivables
Facility Attributed Indebtedness incurred in such transaction or series of
transactions does not exceed $100,000,000 in the aggregate.
"PERMITTED REFINANCING INDEBTEDNESS" means any replacement, renewal,
refinancing or extension of any Indebtedness permitted by this Agreement that
(i) does not exceed the aggregate principal amount (plus accrued interest and
any applicable premium and associated fees and expenses) of the Indebtedness
being replaced, renewed, refinanced or extended, (ii) does not rank at the time
of such replacement, renewal, refinancing or extension senior to the
Indebtedness being replaced, renewed, refinanced or extended, and (iii) does not
contain terms (including, without limitation, terms relating to security,
amortization, interest rate, premiums, fees, covenants, subordination, event of
default and remedies) materially less favorable to the relevant Subsidiary or to
the Lenders than those applicable to the Indebtedness being replaced, renewed,
refinanced or extended.
"PERSON" means any individual, corporation, firm, enterprise,
partnership, trust, incorporated or unincorporated association, joint venture,
joint stock company, limited liability company or other entity of any kind, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"PLAN" means an employee benefit plan defined in Section 3(3) of ERISA
in respect of which the Company or any member of the Controlled Group is, or
within the immediately preceding six (6) years was, an "employer" as defined in
Section 3(5) of ERISA.
"PLEDGE AGREEMENT" means a Pledge Agreement in form and substance
satisfactory to the Administrative Agent and its counsel, duly executed and
delivered by the Company and/or any applicable Subsidiary of the Company to and
in favor of the Administrative Agent (for the benefit of itself, the Issuing
Banks, the Lenders and the other Holders of Secured Obligations), as it may from
time to time be amended, supplemented or otherwise modified, with respect to 65%
of the outstanding Capital Stock of a Foreign Subsidiary.
"PLEDGED FOREIGN SUBSIDIARY" means each Foreign Subsidiary the stock of
which has been pledged pursuant to a Pledge Agreement.
"PRIME RATE" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One, NA or its parent (which is not
necessarily the lowest rate charged to any customer), changing when and as said
prime rate changes.
"PROHIBITED TRANSACTION" means a "prohibited transaction" within the
meaning of Section 406 of ERISA or Section 4795 of the Code.
"PRO RATA SHARE" means, with respect to any Lender, the percentage
obtained by dividing (x) such Lender's Revolving Loan Commitment at such time
(in each case, as adjusted from time to
20
time in accordance with the provisions of this Agreement) by (y) the Aggregate
Revolving Loan Commitment at such time; provided, however, if all of the
Revolving Loan Commitments are terminated pursuant to the terms of this
Agreement, then "Pro Rata Share" means the percentage obtained by dividing (x)
the sum of (A) such Lender's Revolving Loans, plus (B) such Lender's share of
the obligations to purchase participations in Swing Line Loans, Alternate
Currency Loans and Letters of Credit, by (y) the sum of (A) the aggregate
outstanding amount of all Revolving Loans, plus (B) the aggregate outstanding
amount of all Swing Line Loans, all Alternate Currency Loans and all Letters of
Credit.
"PURCHASERS" is defined in Section 13.3(A).
"RATE OPTION" means the Eurocurrency Rate or the Floating Rate or the
Alternate Currency Rate, as applicable.
"RECEIVABLE(S)" means and includes all of the Company's and each
Subsidiary's presently existing and hereafter arising or acquired accounts,
accounts receivable, and all present and future rights of the Company or such
Subsidiary to payment for goods sold or leased or for services rendered (except
those evidenced by instruments or chattel paper), whether or not they have been
earned by performance, and all rights in any merchandise or goods which any of
the same may represent, and all rights, title, security and guarantees with
respect to each of the foregoing, including, without limitation, any right of
stoppage in transit.
"RECEIVABLES FACILITY ATTRIBUTED INDEBTEDNESS" means the amount of
obligations outstanding under a receivables purchase facility on any date of
determination that would be characterized as principal if such facility were
structured as a secured lending transaction rather than as a purchase.
"RECEIVABLES AND RELATED SECURITY" means the Receivables and the
related security and collections with respect thereto which are sold or
transferred by the Company, an SPV or any other Subsidiary in connection with
any Permitted Receivables Financing.
"REGISTER" is defined in Section 13.3(C) hereof.
"REGULATION S-X" means Regulation S-X promulgated under the Securities
Exchange Act.
"REGULATION T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by and to brokers and dealers of securities for the purpose
of purchasing or carrying margin stock (as defined therein).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks, non-banks and non-broker lenders for the purpose
of purchasing or carrying Margin Stock applicable to member banks of the Federal
Reserve System.
"REGULATION X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation
21
of said Board of Governors relating to the extension of credit by foreign
lenders for the purpose of purchasing or carrying margin stock (as defined
therein).
"REIMBURSEMENT OBLIGATION" is defined in Section 3.7 hereof.
"RELEASE" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including the movement of Contaminants
through or in the air, soil, surface water or groundwater.
"REPLACEMENT LENDER" is defined in Section 2.19 hereof.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within thirty (30)
days after such event occurs, provided, however, that a failure to meet the
minimum funding standards of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"REQUEST FOR LETTER OF CREDIT" is defined in Section 3.4(A) hereof.
"REQUIRED LENDERS" means Lenders whose Pro Rata Shares, in the
aggregate, are greater than fifty percent (50%); provided, however, that, if any
of the Lenders shall have failed to fund its Pro Rata Share of (i) any Revolving
Loan requested by the Company, (ii) any Revolving Loan required to be made in
connection with reimbursement for any L/C Obligations, (iii) any participation
in any Alternate Currency Loan pursuant to Section 2.20(E), or (iv) any Swing
Line Loan as requested by the Administrative Agent, which such Lenders are
obligated to fund under the terms of this Agreement, and any such failure has
not been cured, then for so long as such failure continues, "REQUIRED LENDERS"
means Lenders (excluding all Lenders whose failure to fund their respective Pro
Rata Shares of such Revolving Loans or Swing Line Loans or Alternate Currency
Loans has not been so cured) whose Pro Rata Shares represent greater than fifty
percent (50%) of the aggregate Pro Rata Shares of such Lenders; provided
further, however, that, if the Revolving Loan Commitments have been terminated
pursuant to the terms of this Agreement, "REQUIRED LENDERS" means Lenders
(without regard to such Lenders' performance of their respective obligations
hereunder) whose aggregate ratable shares (stated as a percentage) of the
aggregate outstanding principal balance of all Loans and L/C Obligations are
greater than fifty percent (50%).
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws
or other organizational or governing documents of such Person, and any law, rule
or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act, the Securities Exchange Act,
Regulations T, U and X, ERISA, the Fair Labor Standards Act, the Worker
Adjustment and Retraining Notification Act, Americans with Disabilities Act of
1990, and any certificate of occupancy, zoning ordinance, building,
environmental or land use requirement or permit or environmental, labor,
employment, occupational safety or health law, rule or regulation, including
Environmental, Health or Safety Requirements of Law.
22
"RESERVES" shall mean the maximum reserve requirement, as prescribed by
the Board of Governors of the Federal Reserve System (or any successor) with
respect to "Eurocurrency liabilities" or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Eurocurrency Rate Loans is determined or category of extensions of credit or
other assets which includes loans by a non-United States office of any Lender to
United States residents.
"RESTRICTED PAYMENT" means (i) any dividend or other distribution,
direct or indirect, on account of any Equity Interests of the Company now or
hereafter outstanding, except a dividend payable solely in the Company's Capital
Stock (other than Disqualified Stock) or in options, warrants or other rights to
purchase such Capital Stock, (ii) any redemption, retirement, purchase or other
acquisition for value, direct or indirect, of any Equity Interests of the
Company or any of its Subsidiaries now or hereafter outstanding, other than in
exchange for, or out of the proceeds of, the substantially concurrent sale
(other than to a Subsidiary of the Company) of other Equity Interests of the
Company (other than Disqualified Stock), (iii) any redemption, purchase,
retirement, defeasance, prepayment or other acquisition for value, direct or
indirect, of any Indebtedness subordinated to the Obligations, and (iv) any
payment of a claim for the rescission of the purchase or sale of, or for
material damages arising from the purchase or sale of, any Indebtedness (other
than the Obligations) or any Equity Interests of the Company, or any of its
Subsidiaries, or of a claim for reimbursement, indemnification or contribution
arising out of or related to any such claim for damages or rescission.
"REVOLVING CREDIT AVAILABILITY" means, at any particular time, the
amount by which (x) the Aggregate Revolving Loan Commitment at such time exceeds
(y) the Dollar Amount of the Revolving Credit Obligations outstanding at such
time.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the sum
of (i) the outstanding principal Dollar Amount of the Revolving Loans at such
time, plus (ii) the outstanding principal Dollar Amount of the Swing Line Loans
at such time, plus (iii) the Dollar Amount of outstanding L/C Obligations at
such time, plus (iv) the Dollar Amount of the outstanding principal amount of
the Alternate Currency Loans at such time.
"REVOLVING LOAN" is defined in Section 2.1 hereof.
"REVOLVING LOAN COMMITMENT" means, for each Lender, the obligation of
such Lender to make Revolving Loans and to purchase participations in Letters of
Credit and to participate in Swing Line Loans and Alternate Currency Loans in an
aggregate amount not exceeding the amount set forth on Exhibit A to this
Agreement opposite its name thereon under the heading "Revolving Loan
Commitment" or the signature page of the Assignment Agreement by which it became
a Lender, as such amount may be modified from time to time pursuant to the terms
of this Agreement or to give effect to any applicable Assignment Agreement.
"REVOLVING LOAN TERMINATION DATE" means July 28, 2006.
"RISK-BASED CAPITAL GUIDELINES" is defined in Section 4.2 hereof.
"S&P" means Standard and Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, together with its successors and assigns.
23
"SECURED OBLIGATIONS" means, collectively, (i) the Obligations and (ii)
all Hedging Obligations owing under Hedging Agreements to any Lender or any
Affiliate of any Lender.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time
to time.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary of the Company that, as
of the end of each fiscal quarter of the Company, has assets with a total book
value equal to or greater than five percent (5%) of the aggregate book value of
the Consolidated Assets of the Company and its Subsidiaries as reported in the
most recent quarterly or, in the case of the fourth fiscal quarter of any fiscal
year, annual consolidated financial statements delivered pursuant to Section
7.1(A)(i) or (ii) (as applicable) (or, prior to the delivery of the first of
such financial statements, as reported in the most recent quarterly or, in the
case of the fourth fiscal quarter of any fiscal year, annual consolidated
financial statements of the Company and its Subsidiaries); provided that if at
any time the aggregate amount of the book value of assets of all Subsidiaries
that are not Significant Subsidiaries exceeds fifteen (15%) of the aggregate
book value of the Consolidated Assets of the Company and its Subsidiaries) as
reported in the most recent quarterly or, in the case of the fourth fiscal
quarter of any fiscal year, annual consolidated financial statements delivered
pursuant to Section 7.1(A)(i) or (ii) (as applicable) (or, prior to the delivery
of the first of such financial statements, as reported in the most recent
quarterly or, in the case of the fourth fiscal quarter of any fiscal year,
annual consolidated financial statements of the Company and its Subsidiaries),
the Company shall designate in writing to the Administrative Agent additional
Subsidiaries as "Significant Subsidiaries" to eliminate such excess.
"SINGLE EMPLOYER PLAN" means a Plan maintained by the Company or any
member of the Controlled Group for employees of the Company or any member of the
Controlled Group.
"SPV" means a Subsidiary of the Company that is a special purpose
entity established solely for the purpose of purchasing Receivables and related
assets in connection with a Permitted Receivables Financing.
"SUBSIDIARY" of a Person means (i) any corporation more than fifty
percent (50%) of the outstanding securities having ordinary voting power of
which shall at the time be owned or controlled, directly or indirectly, by such
Person or by one or more of its Subsidiaries or by such Person and one or more
of its Subsidiaries, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization more than fifty
percent (50%) of the ownership interests having ordinary voting power of which
shall at the time be so owned or controlled. Unless otherwise expressly
provided, all references herein to a "Subsidiary" means a Subsidiary of the
Company and shall include, without limitation, each Subsidiary Borrower.
"SUBSIDIARY BORROWER" means any Wholly-Owned Subsidiary of the Company,
whether now existing or hereafter formed, that becomes a party hereto pursuant
to an Assumption Letter and subject to the satisfaction of such other conditions
set forth in Sections 2.23 and 5.3 of this Agreement, together with its
respective successors and assigns.
"SUBSIDIARY GUARANTORS" means (i) as of the Closing Date, all of the
Company's Subsidiaries party to the Subsidiary Guaranty on the Closing Date and
(ii) after the Closing Date, all other Subsidiaries which are required to become
Subsidiary Guarantors in satisfaction of Section
24
7.2(K), together with their respective successors and assigns, subject in each
case to such addition or removal as is permitted under Section 7.2(M).
"SUBSIDIARY GUARANTY" means (i) that certain Guaranty dated as of the
Closing Date, in form and substance substantially similar to Exhibit I-2 hereto,
executed by the Subsidiary Guarantors in favor of the Administrative Agent, for
the ratable benefit of the Lenders, the Alternate Currency Banks, the Swing Line
Bank and the Issuing Banks (as it may be amended, modified, supplemented and/or
restated (including to add new Subsidiary Guarantors), and as in effect from
time to time) or (ii) any other guaranty, in form and substance satisfactory to
the Administrative Agent and its counsel, delivered, but only at the Company's
option in the case of a Foreign Subsidiary to the extent such delivery would
cause a Deemed Dividend Problem or a Financial Assistance Problem with respect
to such Foreign Subsidiary, in each case unconditionally guaranteeing all of the
indebtedness, obligations and liabilities of the Borrowers arising under or in
connection with the Loan Documents, as the same may be amended, modified,
supplemented and/or restated (including to add new Subsidiary Guarantors).
"SWING LINE BANK" means Bank One or any other Lender as a successor
Swing Line Bank pursuant to the terms hereof.
"SWING LINE COMMITMENT" means the obligation of the Swing Line Bank to
make Swing Line Loans to the Company up to a maximum principal amount of
$15,000,000 at any one time outstanding.
"SWING LINE LOAN" means a Loan made available to the Syndicated
Borrowers by the Swing Line Bank pursuant to Section 2.2 hereof.
"SWISS FRANCS" means the lawful currency of Switzerland.
"SYNDICATED BORROWERS" means, collectively, the Company and the
Subsidiary Borrowers and "SYNDICATED BORROWER" means any of the foregoing.
"SYNDICATION AGENTS" means each of SunTrust Bank and Comerica Bank in
its capacity as a syndication agent for the credit transaction evidenced by this
Agreement.
"TAXES" is defined in Section 2.14(E)(i) hereof.
"TERMINATION DATE" means the earlier of (a) the Revolving Loan
Termination Date, and (b) the date of termination in whole of the Aggregate
Revolving Loan Commitment pursuant to Section 2.5 hereof or the Revolving Loan
Commitments pursuant to Section 9.1 hereof.
"TERMINATION EVENT" means (i) a Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of the Company or any member of the Controlled
Group from a Benefit Plan during a plan year in which the Company or such
Controlled Group member was a "substantial employer" as defined in Section
4001(a)(2) of ERISA with respect to such Plan; (iii) the imposition of an
obligation under Section 4041 of ERISA to provide affected parties written
notice of intent to terminate a Benefit Plan in a distress termination described
in Section 4041(c) of ERISA; (iv) the institution by the PBGC or any foreign
governmental authority of proceedings to terminate or appoint a trustee to
administer a Benefit Plan or Foreign Pension Plan; (v) any event or condition
which might constitute grounds under Section 4042 of ERISA for the termination
of, or the
25
appointment of a trustee to administer, any Benefit Plan; or (vi) the partial or
complete withdrawal of the Company or any member of the Controlled Group from a
Multiemployer Plan or Foreign Pension Plan.
"TRANSFEREE" is defined in Section 13.5 hereof.
"TYPE" means, with respect to any Loan, its nature as a Floating Rate
Loan or a Fixed-Rate Loan.
"UNMATURED DEFAULT" means an event which, but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"WHOLLY-OWNED SUBSIDIARY" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled. A Foreign Subsidiary which has issued, solely to comply
with applicable law, directors' qualifying or other qualifying shares to a party
other than another Subsidiary shall, nevertheless, to the extent otherwise
eligible pursuant to this definition, be considered a Wholly-Owned Subsidiary
for purposes of this Agreement.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms. Any accounting terms used in
this Agreement which are not specifically defined herein shall have the meanings
customarily given them in accordance with Agreement Accounting Principles in
existence as of the date hereof.
1.2. References. Any references to Subsidiaries of the Borrowers set
forth herein with respect to representations and warranties which deal with
historical matters shall be deemed to include the Company and its Subsidiaries
and shall not in any way be construed as consent by the Administrative Agent or
any Lender to the establishment, maintenance or acquisition of any Subsidiary,
except as may otherwise be permitted hereunder.
1.3. Company Acting on Behalf of Itself and Subsidiary Borrowers.
Whether or not expressly provided herein, each notice or certificate delivered
hereunder or in connection herewith or the other Loan Documents by or to the
Company (in its capacity as a Borrower) or an officer thereof, and each notice
or consent requested by or from the Company (in its capacity as a Borrower) or
an officer thereof, shall be so delivered or given to, by or on behalf of the
Company for the benefit of itself and the Subsidiary Borrowers. In furtherance
and without limitation of the foregoing, the Company is hereby authorized and
given a power of attorney by and on behalf of each of the Subsidiary Borrowers
to perform and accept any and all such actions on its behalf under this
Agreement and the other Loan Documents.
1.4. Joint and Several Liability for Obligations of the Company and
Domestic Subsidiary Borrowers; Joint and Several Liability for Obligations of
the Foreign Subsidiary Borrowers; No Liability of Foreign Subsidiary Borrowers
for Obligations of the Company or the Domestic Subsidiary Borrowers.
26
(A) Joint and Several Liability for Obligations of the Company and
Domestic Subsidiary Borrowers. Notwithstanding anything to the contrary
contained herein, each of the Company and each Domestic Subsidiary Borrower
jointly and severally hereby irrevocably and unconditionally retains and
accepts joint and several liability with one another with respect to the
payment and performance of all of the Obligations arising hereunder or
under the other Loan Documents (including without limitation Reimbursement
Obligations in respect of a Letter of Credit issued for the account of a
Subsidiary), it being the intention of the parties hereto that all of such
Obligations shall be the joint and several obligations of the Company and
the Domestic Subsidiary Borrowers without preferences or distinction among
them. Each provision hereunder or in the Loan Documents relating to the
obligations or liabilities of the Company or any Domestic Subsidiary
Borrower shall be deemed to include a reference to all such Borrowers, as
joint and several obligors for such obligations and liabilities, whether or
not a specific reference to any other Borrower is included therein.
(B) Joint and Several Liability for Obligations of the Foreign
Subsidiary Borrowers. Notwithstanding anything to the contrary contained
herein, each of the Company and each Domestic Subsidiary Borrower jointly
and severally hereby irrevocably and unconditionally retains and accepts
joint and several liability with the Foreign Subsidiary Borrowers (and the
Foreign Subsidiary Borrowers retain and accept such joint and several
liability with one another) with respect to the payment and performance of
all of the Obligations of or attributable to the Foreign Subsidiary
Borrowers arising hereunder or under the other Loan Documents, it being the
intention of the parties hereto that all of such Obligations shall be the
joint and several obligations of the Company, each Domestic Subsidiary
Borrower and each Foreign Subsidiary Borrower without preferences or
distinction among them. Each provision hereunder or in the Loan Documents
relating to the obligations or liabilities of any Foreign Subsidiary
Borrowers shall be deemed to include a reference to the Company, the
Domestic Subsidiary Borrowers and any other Foreign Subsidiary Borrower, as
a joint and several obligor for such obligations and liabilities, whether
or not a specific reference to the Company, any Domestic Subsidiary
Borrower or such other Foreign Subsidiary Borrower is included therein.
(C) No Liability of Foreign Subsidiary Borrowers for Obligations
of the Company or the Domestic Subsidiary Borrowers. Notwithstanding
anything to the contrary contained herein and notwithstanding that the
Company and the Domestic Subsidiary Borrowers shall be liable for all of
the Loans and other Obligations of all Borrowers hereunder, no Foreign
Subsidiary Borrower shall be liable for the Loans made to or any other
Obligations incurred solely by or on behalf of the Company or any Domestic
Subsidiary Borrower; provided, however, that at any time that, and for so
long as, no Deemed Dividend Problem or Financial Assistance Problem applies
to a Foreign Subsidiary Borrower and no other applicable law would preclude
such joint and several liability or impose financial hardship on such
Foreign Subsidiary Borrower as a result of such joint and several
liability, this clause (C) shall not apply to such Foreign Subsidiary
Borrower and such Foreign Subsidiary Borrower shall be treated as a
Domestic Subsidiary Borrower for purposes of the remaining provisions of
this Section 1.4.
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ARTICLE II: REVOLVING LOAN FACILITIES
2.1. Revolving Loans.
(A) Upon the satisfaction of the conditions precedent set forth in
Sections 5.1, 5.2 and 5.3, as applicable, from and including the Closing
Date and prior to the Termination Date, each Lender severally and not
jointly agrees, on the terms and conditions set forth in this Agreement, to
make revolving loans to the Syndicated Borrowers from time to time, in
Dollars or Eurocurrency Loans in any Agreed Currency, in a Dollar Amount
not to exceed such Lender's Pro Rata Share of Revolving Credit Availability
at such time (each individually, a "REVOLVING LOAN" and, collectively, the
"REVOLVING LOANS"); provided, however, at no time shall (i) the Dollar
Amount of the Revolving Credit Obligations exceed the Aggregate Revolving
Loan Commitment or (ii) the Dollar Amount of the Revolving Loans
denominated in Agreed Currencies other than Dollars, when aggregated with
the Dollar Amount of all Alternate Currency Loans, exceed the Foreign
Currency Sublimit. Subject to the terms of this Agreement, the Syndicated
Borrowers may borrow, repay and reborrow Revolving Loans at any time prior
to the Termination Date. The Revolving Loans made on the Closing Date or on
or before the third (3rd) Business Day thereafter shall initially be
Floating Rate Loans and thereafter may be continued as Floating Rate Loans
or converted into Eurocurrency Rate Loans in the manner provided in Section
2.9 and subject to the other conditions and limitations therein set forth
and set forth in this Article II and set forth in the definition of
Interest Period. Revolving Loans made after the third (3rd) Business Day
after the Closing Date shall be, at the option of the Company, selected in
accordance with Section 2.9, either Floating Rate Loans or Eurocurrency
Rate Loans. On the Termination Date, the Syndicated Borrowers shall repay
in full the outstanding principal balance of the Revolving Loans. Each
Advance under this Section 2.1 shall consist of Revolving Loans made by
each Lender ratably in proportion to such Lender's respective Pro Rata
Share.
(B) Borrowing/Election Notice. The Company (on behalf of itself or
any Subsidiary Borrower) shall deliver to the Administrative Agent a
Borrowing/Election Notice, signed by it, in accordance with the terms of
Section 2.7. The Administrative Agent shall promptly notify each Lender
with a Revolving Loan Commitment greater than zero of such request.
(C) Making of Revolving Loans. Promptly after receipt of the
Borrowing/Election Notice under Section 2.7 in respect of Revolving Loans,
the Administrative Agent shall notify each Lender in writing (including
electronic transmission, facsimile transmission or similar writing), of the
requested Revolving Loan. Each Lender with a Revolving Loan Commitment
greater than zero shall make available its Revolving Loan in accordance
with the terms of Section 2.6. The Administrative Agent will promptly make
the funds so received from the Lenders available to the applicable
Syndicated Borrower at the Administrative Agent's office in Chicago,
Illinois or the Administrative Agent's Eurocurrency Payment Office on the
applicable Borrowing Date and shall disburse such proceeds in accordance
with the applicable Syndicated Borrower's disbursement instructions set
forth in such Borrowing/Election Notice. The failure of any Lender to
deposit the amount described above with the Administrative Agent on the
applicable Borrowing Date shall not relieve any other Lender of its
obligations hereunder to make its Revolving Loan on such Borrowing Date.
2.2. Swing Line Loans.
(A) Amount of Swing Line Loans. Upon the satisfaction of the
conditions precedent set forth in Section 5.1, 5.2 and 5.3, as applicable,
from and including the Closing Date and prior to the Termination Date and
in the sole discretion of the Swing Line Bank, the Swing Line Bank agrees,
on the terms and conditions set forth in this Agreement, to make swing line
loans to the
28
Syndicated Borrowers from time to time, in any Agreed Currency acceptable
to the Swing Line Bank, in an Aggregate Dollar Amount not to exceed the
Swing Line Commitment (each, individually, a "SWING LINE LOAN" and
collectively, the "SWING LINE LOANS"); provided, however, at no time shall
the Dollar Amount of the Revolving Credit Obligations exceed the Aggregate
Revolving Loan Commitment; and provided, further, that at no time shall the
sum of (a) the Swing Line Lender's Pro Rata Share of the Swing Line Loans,
plus (b) the outstanding Dollar Amount of Revolving Loans made by the Swing
Line Bank pursuant to Section 2.1, plus, (c) the Swing Line Lender's Pro
Rata Share of the Alternate Currency Loans, exceed the Swing Line Bank's
Revolving Loan Commitment at such time. Subject to the terms of this
Agreement, the Syndicated Borrowers may borrow, repay and reborrow Swing
Line Loans at any time prior to the Termination Date.
(B) Borrowing/Election Notice. The Company (on behalf of itself or
any Subsidiary Borrower) shall deliver to the Administrative Agent and the
Swing Line Bank a Borrowing/Election Notice, signed by it, not later than
(x) 12:00 noon (Chicago time) on the Borrowing Date of each Swing Line Loan
to be made in Dollars and (y) 11:00 a.m. (London, England time) one (1)
Business Day prior the Borrowing Date of each Swing Line Loan to be made in
any Agreed Currency other than Dollars, specifying (i) the applicable
Borrowing Date (which date shall be a Business Day and which may be the
same date as the date the Borrowing/Election Notice is given), (ii) the
Agreed Currency applicable thereto and (iii) the aggregate amount of the
requested Swing Line Loan which shall be a Dollar Amount not less than
$50,000. The Swing Line Loans shall at all times be Floating Rate Loans or
shall bear interest at such other rate as shall be agreed to between the
Company and the Swing Line Bank at the time of the making of such Swing
Line Loans.
(C) Making of Swing Line Loans. Promptly after receipt of the
Borrowing/Election Notice under Section 2.2(B) in respect of Swing Line
Loans, the Administrative Agent shall notify each Lender by telex or
telecopy, or other similar form of transmission, of the requested Swing
Line Loan. Not later than 2:00 p.m. (Chicago time) on the applicable
Borrowing Date, the Swing Line Bank shall make available its Swing Line
Loan, in funds immediately available in Chicago to the Administrative Agent
at its address specified pursuant to Article XIV or at the applicable
Eurocurrency Payment Office. The Administrative Agent will promptly make
the funds so received from the Swing Line Bank available to the applicable
Syndicated Borrower on the Borrowing Date at the Administrative Agent's
aforesaid address.
(D) Repayment of Swing Line Loans. Each Swing Line Loan shall be
paid in full by the Syndicated Borrowers on or before the tenth (10th)
Business Day after the Borrowing Date for such Swing Line Loan or such
later date as is agreed to between the Company and the Swing Line Bank at
the time of the making of such Swing Line Loan. The Syndicated Borrowers
may at any time pay, without penalty or premium, all outstanding Swing Line
Loans or, in a minimum Dollar Amount of $50,000, any portion of the
outstanding Swing Line Loans, upon notice to the Administrative Agent and
the Swing Line Bank. In addition, the Administrative Agent (i) may at any
time in its sole discretion with respect to any outstanding Swing Line
Loan, or (ii) shall on the tenth (10th) Business Day, or such later
repayment date as is agreed to between the Company and the Swing Line Bank,
after the Borrowing Date of any Swing Line Loan, require each Lender
(including the Swing Line Bank) to make a Revolving Loan in, at the Swing
Line Bank's option, the amount (in the currency in which such Swing Line
Loan was made) or Dollar Amount of such Lender's Pro Rata Share of such
Swing Line Loan, for the purpose of repaying such Swing Line Loan. No later
than 2:00 p.m. (Chicago time) on the date of any notice received
29
pursuant to this Section 2.2(D), each Lender shall make available its
required Revolving Loan or Revolving Loans, in funds immediately available
to the Administrative Agent in Chicago at its address specified pursuant to
Article XIV or at the applicable Eurocurrency Payment Office. Revolving
Loans made pursuant to this Section 2.2(D), if made in Dollars, shall
initially be Floating Rate Loans and thereafter may be continued as
Floating Rate Loans or converted into Eurocurrency Rate Loans in the manner
provided in Section 2.9 and subject to the other conditions and limitations
therein set forth and set forth in this Article II. Revolving Loans made
pursuant to this Section 2.2(D), if made in an Agreed Currency other than
Dollars, shall initially be Eurocurrency Rate Loans having an Interest
Period selected by the Swing Line Bank and thereafter shall be subject to
Section 2.9 and the other conditions and limitations therein set forth and
set forth in this Article II. Unless a Lender shall have notified the Swing
Line Bank, prior to its making any Swing Line Loan, that any applicable
condition precedent set forth in Sections 5.1, 5.2 and 5.3, as applicable,
had not then been satisfied, such Lender's obligation to make Revolving
Loans pursuant to this Section 2.2(D) to repay Swing Line Loans shall be
unconditional, continuing, irrevocable and absolute and shall not be
affected by any circumstances, including, without limitation, (a) any
set-off, counterclaim, recoupment, defense or other right which such Lender
may have against the Administrative Agent, the Swing Line Bank or any other
Person, (b) the occurrence or continuance of a Default or Unmatured
Default, (c) any adverse change in the condition (financial or otherwise)
of the Company, or (d) any other circumstances, happening or event
whatsoever. In the event that any Lender fails to make payment to the
Administrative Agent of any amount due under this Section 2.2(D), the
Administrative Agent shall be entitled to receive, retain and apply against
such obligation the principal and interest otherwise payable to such Lender
hereunder until the Administrative Agent receives such payment from such
Lender or such obligation is otherwise fully satisfied. In addition to the
foregoing, if for any reason any Lender fails to make payment to the
Administrative Agent of any amount due under this Section 2.2(D), such
Lender shall be deemed, at the option of the Administrative Agent, to have
unconditionally and irrevocably purchased from the Swing Line Bank, without
recourse or warranty, an undivided interest and participation in the
applicable Swing Line Loan in, at the Swing Line Lender's option, the
amount or Dollar Amount of such Revolving Loan, and such interest and
participation may be recovered from such Lender together with interest
thereon at the Federal Funds Effective Rate for each day during the period
commencing on the date of demand and ending on the date such amount is
received. On the Termination Date, the Syndicated Borrowers shall repay in
full the outstanding principal balance of the Swing Line Loans.
2.3. Rate Options for all Advances; Maximum Interest Periods. The Swing
Line Loans shall be Floating Rate Advances (if denominated in Dollars) or shall
bear interest at such other rate as may be agreed to between the Company (on
behalf of itself or any Subsidiary Borrower) and the Swing Line Bank at the time
of the making of any such Swing Line Loan. The Revolving Loans may be Floating
Rate Advances or Eurocurrency Rate Advances, or a combination thereof, selected
by the Company (on behalf of itself or any Subsidiary Borrower) in accordance
with Section 2.9. The Company may select, in accordance with Section 2.9, Rate
Options and Interest Periods applicable to portions of the Revolving Loans and
Alternate Currency Loans; provided that there shall be no more THAN ten (10)
Interest Periods in effect with respect to all of the Loans at any time (unless
otherwise provided in the applicable Alternate Currency Addendum with respect to
Alternate Currency Loans). Each Alternate Currency Loan shall bear interest on
the outstanding principal amount thereof, for the Interest Period applicable
thereto, at the Alternate Currency Rate as set forth in the applicable Alternate
Currency Addendum.
30
2.4. Optional Payments; Mandatory Prepayments.
(A) Optional Payments. The Borrowers may from time to time and at
any time upon at least one (1) Business Day's prior written notice repay or
prepay, without penalty or premium all or any part of outstanding Floating
Rate Advances (other than Swing Line Loans) in an aggregate minimum Dollar
Amount of $2,500,000. Eurocurrency Rate Advances (other than Alternate
Currency Loans) may be voluntarily repaid or prepaid prior to the last day
of the applicable Interest Period, subject to the indemnification
provisions contained in Section 4.4 in an aggregate minimum amount of
$2,500,000, provided, that no Borrower may so prepay Eurocurrency Rate
Advances unless it shall have provided at least three (3) Business Days'
prior written notice to the Administrative Agent of such prepayment if the
Agreed Currency is Dollars and four (4) Business Days' prior written notice
to the Administrative Agent if the Agreed Currency is a Currency other than
Dollars. Each Alternate Currency Borrower may, upon prior written notice to
the Administrative Agent and to the applicable Alternate Currency Bank as
prescribed in the applicable Alternate Currency Addendum and specifying
that it is prepaying all or a portion of its Alternate Currency Loans,
prepay its Alternate Currency Loans in whole at any time, or from time to
time in part in a Dollar Amount aggregating $1,000,000 or any larger
multiple Dollar Amount of $500,000 (or as otherwise specified in the
applicable Alternate Currency Addendum) by paying the principal amount to
be paid together with all accrued and unpaid interest thereon to and
including the date of payment; provided, that any such payment occurring
prior to the last day of any Interest Period related to such Alternate
Currency Loan shall be subject to the indemnification provisions contained
in Section 4.4.
(B) Mandatory Prepayments of Loans.
(i) If at any time and for any reason (other than fluctuations
in currency exchange rates): the Dollar Amount of the Revolving Credit
Obligations are greater than the Aggregate Revolving Loan Commitment,
or the Dollar Amount of the Revolving Loans denominated in Agreed
Currencies other than Dollars, when aggregated with the Dollar Amount
of all outstanding Alternate Currency Loans, are greater than the
Foreign Currency Sublimit, or the Dollar Amount of all outstanding
Alternate Currency Loans exceed the Alternate Currency Sublimit, the
Company shall in each such case immediately make a mandatory prepayment
of the applicable Obligations in an amount equal to each such excess.
(ii) If at any time, solely as a result of fluctuations in
currency exchange rates:
(w) the Dollar Amount of the Revolving Credit Obligations
exceeds one hundred three percent (103%) of the
Aggregate Revolving Loan Commitment, the Borrowers
for the ratable benefit of the Lenders shall
immediately prepay Loans in an aggregate amount such
that after giving effect thereto the Dollar Amount of
the Revolving Credit Obligations is less than or
equal to the Aggregate Revolving Loan Commitment;
provided that each Alternate Currency Borrower shall
prepay on a pro-rata basis based on the amount of
each Alternate Currency Borrower's Revolving Credit
Obligations; or
(x) the Dollar Amount of all outstanding Alternate
Currency Loans under the Alternate Currency Addenda
exceeds one hundred three percent (103%) of the
aggregate Alternate Currency Commitments with respect
thereto, the Company shall on such date prepay, or
cause to be prepaid, Alternate
31
Currency Loans in an aggregate amount such that after
giving effect thereto the Dollar Amount of all such
Alternate Currency Loans is less than or equal to the
aggregate Alternate Currency Commitments with respect
thereto and less than or equal to the Alternate
Currency Sublimit; provided that each Alternate
Currency Borrower shall prepay on a pro-rata basis
based on the amount of each Alternate Currency
Borrower's Alternate Currency Loans; or
(y) the Dollar Amount of the aggregate outstanding
principal amount of Alternate Currency Loans in the
same Alternate Currency exceeds the aggregate
Alternate Currency Commitments with respect thereto,
the applicable Alternate Currency Borrower shall on
such date prepay Alternate Currency Loans in such
Alternate Currency in an aggregate amount such that
after giving effect thereto the Dollar Amount of all
Alternate Currency Loans in such Alternate Currency
is less than or equal to the aggregate Alternate
Currency Commitments with respect thereto; or
(z) the Dollar Amount of the aggregate outstanding
principal amount of Alternate Currency Loans plus the
aggregate outstanding principal amount of Revolving
Loans made pursuant to Section 2.1(A) in Agreed
Currencies exceeds one hundred three percent (103%)
of the Foreign Currency Sublimit, the Company shall
on such date prepay, or cause to be prepaid, loans in
an amount sufficient to eliminate such excess;
provided that each Alternate Currency Borrower shall
prepay on a pro-rata basis based on the amount of
each Alternate Currency Borrower's Alternate Currency
Loans and Revolving Loans.
(iii) Prior to the occurrence of a Default, the Administrative
Agent shall hold all mandatory prepayments in escrow for the benefit of
the Lenders and shall release such amounts upon the expiration of the
Interest Periods applicable to any Loans being prepaid (it being
understood that interest shall continue to accrue on the Obligations
until such time as such prepayments are released from escrow and
applied to reduce the Obligations). After the occurrence and during the
continuance of a Default, at the direction of the Administrative Agent
or the Required Lenders, all of the mandatory prepayments made
hereunder shall be applied first to Floating Rate Loans and Alternate
Currency Loans bearing a fluctuating Alternate Currency Rate and to any
Fixed-Rate Loans maturing on such date and then to subsequently
maturing Fixed-Rate Loans in order of maturity.
2.5. Reduction of Commitments. The Company (on behalf of itself and the
Subsidiary Borrowers) may permanently reduce the Aggregate Revolving Loan
Commitment in whole, or in part ratably among the Lenders, in an aggregate
minimum amount of $10,000,000 and integral multiples of $10,000,000 in excess
thereof, unless the Aggregate Revolving Loan Commitment is reduced in whole,
upon at least three (3) Business Day's prior written notice to the
Administrative Agent, which notice shall specify the amount of any such
reduction; provided, however, that the amount of the Aggregate Revolving Loan
Commitment may not be reduced below the aggregate principal Dollar Amount of the
outstanding Revolving Credit Obligations. All accrued facility fees shall be
payable on the effective date of any termination of the obligations of the
Lenders to make Loans hereunder. In addition, each Alternate Currency Borrower
may, upon three (3) Business Days' prior written notice to the Administrative
Agent and to the applicable Alternate Currency Bank, terminate entirely at any
time or reduce from time to time, by an aggregate amount of
32
$5,000,000 or any larger multiple of $1,000,000 (or as otherwise set forth on
the applicable Alternate Currency Addendum), the unused portions of the
applicable Alternate Currency Commitment as specified by the applicable
Alternate Currency Borrower in such notice to the Administrative Agent and the
Alternate Currency Bank; provided, however, that at no time shall the Alternate
Currency Commitments be reduced to a figure less than the total of the
outstanding principal amount of all Alternate Currency Loans.
2.6. Method of Borrowing. Not later than 12:00 noon (Chicago time) on
each Borrowing Date, each Lender shall make available its Revolving Loan in
immediately available funds in the Agreed Currency to the Administrative Agent
at its address specified pursuant to Article XIV, unless the Administrative
Agent has notified the Lenders that such Loan is to be made available to the
applicable Syndicated Borrower at the Administrative Agent's Eurocurrency
Payment Office, in which case each Lender shall make available its Loan or
Loans, in funds immediately available to the Administrative Agent at its
Eurocurrency Payment Office, not later than 12:00 noon (local time in the city
of the Administrative Agent's Eurocurrency Payment Office) in the Agreed
Currency designated by the Administrative Agent. The Administrative Agent will
promptly make the funds so received from the Lenders available to the applicable
Syndicated Borrower at the Administrative Agent's aforesaid applicable address.
2.7. Method of Selecting Types, Currency and Interest Periods for
Advances. The Company (on behalf of itself or any applicable Subsidiary
Borrower) and the Alternate Currency Borrowers, as applicable, shall select the
Type of Advance and, in the case of each Alternate Currency Loan and
Eurocurrency Rate Advance, the Interest Period, Agreed Currency and Alternate
Currency applicable to each Advance from time to time. The applicable Borrower
shall give the Administrative Agent irrevocable notice in substantially the form
of Exhibit B hereto (a "BORROWING/ELECTION NOTICE") not later than 11:00 a.m.
(Chicago time) (a) on or before the Borrowing Date of each Floating Rate
Advance, and (b) three (3) Business Days before the Borrowing Date for each
Eurocurrency Rate Advance to be made in Dollars, and (c) four (4) Business Days
before the Borrowing Date for each Eurocurrency Rate Advance to be made in any
Agreed Currency other than Dollars and (d) four (4) Business Days before the
Borrowing Date for each Alternate Currency Loan (or such other period as may be
agreed to by the Administrative Agent), and the applicable Alternate Currency
Borrower shall give the applicable Alternate Currency Bank irrevocable notice by
10:00 a.m. (local time) two (2) Business Days prior to the Borrowing Date for
such Alternate Currency Loan (or such other period as may be specified in the
applicable Alternate Currency Addendum), specifying: (i) the Borrowing Date
(which shall be a Business Day) of such Advance; (ii) the aggregate amount of
such Advance; (iii) the Type of Advance selected; and (iv) in the case of each
Eurocurrency Rate Advance and Alternate Currency Loan, the Interest Period and
Agreed Currency or Alternate Currency applicable thereto. The applicable
Borrower shall select Interest Periods so that, to the best of the Company's
knowledge, it will not be necessary to prepay all or any portion of any
Eurocurrency Rate Advance or Alternate Currency Loan prior to the last day of
the applicable Interest Period in order to make mandatory prepayments as
required pursuant to the terms hereof. Each Floating Rate Advance, each
Alternate Currency Loan bearing a fluctuating Alternate Currency Rate and all
Obligations other than Loans shall bear interest from and including the date of
the making of such Advance, in the case of Loans, and the date such Obligation
is due and owing in the case of such other Obligations, to (but not including)
the date of repayment thereof at the Floating Rate or Alternate Currency Rate,
as applicable, changing when and as such Floating Rate or Alternate Currency
Rate, as applicable, changes. Changes in the rate of interest on that portion of
any Advance maintained as a Floating Rate Loan will take effect simultaneously
with each change in the Alternate Base Rate. Changes in the rate of interest on
any portion of any Alternate Currency Loan bearing a fluctuating
33
Alternate Currency Rate will take effect simultaneously with each change in such
Alternate Currency Rate. Each Fixed-Rate Loan shall bear interest from and
including the first day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the interest rate determined
as applicable to such Eurocurrency Rate Advance or Alternate Currency Loan, as
applicable.
2.8. Minimum Amount of Each Advance. Each Advance (other than an
Advance to repay Swing Line Loans or a Reimbursement Obligation) shall be in the
minimum amount of $3,000,000 (or the approximate Equivalent Amount of any Agreed
Currency other than Dollars or any Alternate Currency) and in multiples of
$1,000,000 (or the approximate Equivalent Amount of any Agreed Currency other
than Dollars or any Alternate Currency) if in excess thereof (or such other
amounts as may be specified in the applicable Alternate Currency Addendum),
provided, however, that any Floating Rate Advance may be in the amount of the
unused Aggregate Revolving Loan Commitment.
2.9. Method of Selecting Types, Currency and Interest Periods for
Conversion and Continuation of Advances.
(A) Right to Convert. The applicable Borrower may elect from time
to time, subject to the provisions of Section 2.3 and this Section 2.9, to
convert all or any part of a Loan of any Type into any other Type or Types
of Loan; provided that any conversion of any Eurocurrency Rate Advance and
any Alternate Currency Loan shall be made on, and only on, the last day of
the Interest Period applicable thereto.
(B) Automatic Conversion and Continuation. Floating Rate Loans
shall continue as Floating Rate Loans unless and until such Floating Rate
Loans are converted into Eurocurrency Rate Loans. Eurocurrency Rate Loans
in Dollars shall continue as Eurocurrency Rate Loans in Dollars until the
end of the then applicable Interest Period therefor, at which time such
Eurocurrency Rate Loans shall be automatically converted into Floating Rate
Loans unless the Company shall have given the Administrative Agent notice
in accordance with Section 2.9(D) requesting that, at the end of such
Interest Period, such Eurocurrency Rate Loans continue as a Eurocurrency
Rate Loan. Unless a Borrowing/Election Notice shall have timely been given
in accordance with the terms of this Section 2.9, Eurocurrency Rate
Advances in an Agreed Currency other than Dollars and Alternate Currency
Loans shall automatically continue as Eurocurrency Rate Advances in the
same Agreed Currency or Alternate Currency Loans in the same Alternate
Currency, as applicable, with an Interest Period of one (1) month.
(C) No Conversion Post-Default. Notwithstanding anything to the
contrary contained in Section 2.9(A) or Section 2.9(B), no Loan may be
converted into or continued as a Eurocurrency Rate Loan or an Alternate
Currency Loan (except with the consent of the Required Lenders) when any
Default has occurred and is continuing.
(D) Borrowing/Election Notice. The Company (on behalf of itself or
any Subsidiary Borrower) shall give the Administrative Agent an irrevocable
Borrowing/Election Notice of each conversion of a Floating Rate Loan into a
Eurocurrency Rate Loan or continuation of a Eurocurrency Rate Loan not
later than 11:00 a.m. (Chicago time) (x) three (3) Business Days prior to
the date of the requested conversion or continuation, with respect to any
Loan to be converted or continued as a Eurocurrency Rate Loan in Dollars,
(y) four (4) Business Days prior to the date of the requested conversion or
continuation with respect to any Loan to be converted or continued as a
Eurocurrency Rate Loan in an Agreed Currency other than Dollars, and (z)
four
34
(4) Business Days before the date of the requested conversion or
continuation Borrowing Date with respect to the conversion or continuation
of any Alternate Currency Loan (or such other period as may be agreed to by
the Administrative Agent), and the applicable Alternate Currency Borrower
shall give the applicable Alternate Currency Bank irrevocable notice by
10:00 a.m. (local time) two (2) Business Days prior to the conversion or
continuation of such Alternate Currency Loan (or such other period as may
specified in the applicable Alternate Currency Addendum), specifying: (i)
the requested date (which shall be a Business Day) of such conversion or
continuation; (ii) the amount and Type of the Loan to be converted or
continued; and (iii) the amount of Eurocurrency Rate Loan(s) or Alternate
Currency Loan(s), as applicable, into which such Loan is to be converted or
continued, the Agreed Currency or Alternate Currency, as applicable, and
the duration of the Interest Period applicable thereto.
(E) Limitations on Conversion. Notwithstanding anything herein to
the contrary, at the election of the applicable Borrowers under this
Section 2.9, (x) Eurocurrency Rate Advances in an Agreed Currency may be
converted and/or continued as Eurocurrency Rate Advances only in the same
Agreed Currency, and (y) Alternate Currency Loans in an Alternate Currency
may be converted and/or continued as Alternate Currency Loans only in the
same Alternate Currency.
2.10. Default Rate. After the occurrence and during the continuance of
a Default, the interest rate(s) applicable to the Obligations and to the fees
payable under Section 3.8(B) and (C) with respect to Letters of Credit shall be
equal to the Floating Rate hereunder plus two percent (2.0%) per annum;
provided, that (a) the fee described in Section 3.8(A) shall be equal to the
then Applicable L/C Fee Percentage plus two percent (2.0%) per annum and (b) the
interest rate applicable to Alternate Currency Loans shall be equal to the then
applicable Alternate Currency Rate plus two percent (2.0%) per annum.
2.11. Method of Payment. (a) All payments of principal, interest, fees,
commissions and L/C Obligations hereunder shall be made, without setoff,
deduction or counterclaim (unless indicated otherwise in Section 2.14(E)), in
immediately available funds to the Administrative Agent (i) at the
Administrative Agent's address specified pursuant to Article XIV with respect to
Advances or other Obligations denominated in Dollars and (ii) at the
Administrative Agent's Eurocurrency Payment Office with respect to any Advance
or other Obligations denominated in an Agreed Currency other than Dollars, or at
any other Lending Installation of the Administrative Agent specified in writing
by the Administrative Agent to the Company, by 2:00 p.m. (Chicago time) on the
date when due and shall be made ratably among the Lenders (unless such amount is
not to be shared ratably in accordance with the terms hereof). Each Advance
shall be repaid or prepaid in the Agreed Currency in which it was made in the
amount borrowed and interest payable thereon shall also be paid in such
currency. Each payment delivered to the Administrative Agent for the account of
any Lender shall be delivered promptly by the Administrative Agent to such
Lender in the same type of funds which the Administrative Agent received at its
address specified pursuant to Article XIV at its Eurocurrency Payment Office or
at any Lending Installation specified in a notice received by the Administrative
Agent from such Lender. The Company authorizes the Administrative Agent to
charge the account of the Company or any Subsidiary Guarantor maintained with
Bank One or any of its affiliates for each payment of principal, interest, fees,
commissions and L/C Obligations as it becomes due hereunder. In addition, except
to the extent limited by a Deemed Dividend Problem or a Financial Assistance
Problem, each Foreign Subsidiary Borrower and Alternate Currency Borrower
authorizes the Administrative Agent to charge any account of such Borrower
maintained with Bank One or any of its Affiliates for each payment of principal,
interest, fees and commissions owed or incurred by or on behalf of any Borrower
(in the case of accounts of a Foreign Subsidiary Borrower)
35
and any Alternate Currency Borrower (in the case of accounts of Alternate
Currency Borrowers) as it becomes due hereunder. Each reference to the
Administrative Agent in this Section 2.11 shall also be deemed to refer, and
shall apply equally, to each Issuing Bank, in the case of payments required to
be made by the Company to any Issuing Bank pursuant to Article III.
(b) All payments to be made by the applicable Borrowers hereunder in
respect of any Alternate Currency Loans shall be made in the currencies in which
such Loans are denominated and in funds immediately available, at the office or
branch from which the Loan was made pursuant to Section 2.20 and the applicable
Alternate Currency Addendum not later than 3:00 p.m. (local time) on the date on
which such payment shall become due. Promptly upon receipt of any payment of
principal of the Alternate Currency Loans the applicable Alternate Currency Bank
shall give written notice to the Administrative Agent by telex or telecopy of
the receipt of such payment.
(c) Notwithstanding the foregoing provisions of this Section, if, after
the making of any Advance in any currency other than Dollars, currency control
or exchange regulations are imposed in the country which issues such Agreed
Currency or Alternate Currency, as applicable, with the result that different
types of such Agreed Currency or Alternate Currency, as applicable, (the "NEW
CURRENCY") are introduced and the type of currency in which the Advance was made
(the "ORIGINAL CURRENCY") no longer exists or any Borrower is not able to make
payment to the Administrative Agent for the account of the Lenders or Alternate
Currency Bank, as applicable, in such Original Currency, then all payments to be
made by the Borrowers hereunder in such currency shall be made to the
Administrative Agent or Alternate Currency Bank, as applicable, in such amount
and such type of the New Currency or Dollars as shall be equivalent to the
amount of such payment otherwise due hereunder in the Original Currency, it
being the intention of the parties hereto that the Borrowers take all risks of
the imposition of any such currency control or exchange regulations. In
addition, notwithstanding the foregoing provisions of this Section, if, after
the making of any Advance in any currency other than Dollars, any applicable
Borrower is not able to make payment to the Administrative Agent for the account
of the Lenders or the applicable Alternate Currency Bank in the type of currency
in which such Advance was made because of the imposition of any such currency
control or exchange regulation, then such Advance shall instead be repaid when
due in Dollars in a principal amount equal to the Dollar Amount (as of the date
of repayment) of such Advance.
2.12. Evidence of Debt.
(A) Loan Account. Each Lender shall maintain in accordance with
its usual practice an account or accounts (a "LOAN ACCOUNT") evidencing the
indebtedness of the Borrowers to such Lender owing to such Lender from time
to time, including the amounts of principal and interest payable and paid
to such Lender from time to time hereunder.
(B) Register. The Register maintained by the Administrative Agent
pursuant to Section 13.3(C) shall include a control account, and a
subsidiary account for each Lender, in which accounts (taken together)
shall be recorded (i) the date and the amount of each Loan made hereunder,
the Type thereof and the Interest Period, if any, applicable thereto, (ii)
the amount of any principal or interest due and payable or to become due
and payable from the Borrowers to each Lender hereunder, (iii) the
effective date and amount of each Assignment Agreement delivered to and
accepted by it and the parties thereto pursuant to Section 13.3, (iv) the
amount of any sum received by the Administrative Agent hereunder for the
account of the Lenders and each Lender's share thereof, and (v) all other
appropriate debits and credits as provided in this Agreement, including,
without limitation, all fees, charges, expenses and interest.
36
(C) Entries in Loan Account and Register. The entries made in the
Loan Account, the Register and the other accounts maintained pursuant to
subsections (A) or (B) of this Section shall be conclusive and binding for
all purposes, absent manifest error, unless the applicable Borrower objects
to information contained in the Loan Accounts, the Register or the other
accounts within thirty (30) days of the applicable Borrower's receipt of
such information; provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligation of the Borrowers to repay the Loans
in accordance with the terms of this Agreement.
(D) Notes Upon Request. Any Lender may request that the Loans made
by it each be evidenced by a promissory note in substantially the forms of
Exhibit K to evidence such Lender's Revolving Loans. In such event, each
applicable Borrower shall prepare, execute and deliver to such Lender such
a promissory note for such Loans payable to the order of such Lender.
Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section
13.3) be represented by one or more promissory notes in such form payable
to the order of the payee named therein, except to the extent that any such
Lender subsequently returns any such note for cancellation and requests
that such Loans once again be evidenced as described in clauses (a) and (b)
above.
2.13. Telephonic Notices. The Borrowers authorize the Lenders and the
Administrative Agent to extend Advances, effect selections of Types of Advances
and to transfer funds based on telephonic notices made by any person or persons
the Administrative Agent or any Lender in good faith believes to be acting on
behalf of the applicable Borrower. The Borrowers agree to deliver promptly to
the Administrative Agent a written confirmation, signed by an Authorized
Officer, if such confirmation is requested by the Administrative Agent or any
Lender, of each telephonic notice. If the written confirmation differs in any
material respect from the action taken by the Administrative Agent and the
Lenders, the records of the Administrative Agent and the Lenders shall govern
absent manifest error. In case of disagreement concerning such notices, if the
Administrative Agent has recorded telephonic borrowing notices, such recordings
will be made available to the applicable Borrower upon any Borrower's request
therefor.
2.14. Promise to Pay; Interest and Facility Fees; Interest Payment
Dates; Interest and Fee Basis; Taxes.
(A) Promise to Pay. Without limiting the provisions of Section 1.4
hereof, each of the Borrowers unconditionally promises to pay when due the
principal amount of each Loan incurred by it and all other Obligations
incurred by it, and to pay all unpaid interest accrued thereon, in
accordance with the terms of this Agreement and the other Loan Documents.
(B) Interest Payment Dates. Interest accrued on each Floating Rate
Loan and each Alternate Currency Loan bearing a fluctuating Alternate
Currency Rate shall be payable on each Payment Date, commencing with the
first such date to occur after the date hereof, upon any prepayment whether
by acceleration or otherwise, and at maturity (whether by acceleration or
otherwise). Interest accrued on each Fixed-Rate Loan shall be payable on
the last day of its applicable Interest Period, on any date on which such
Fixed-Rate Loan is prepaid, whether by acceleration or otherwise, and at
maturity. Interest accrued on each Fixed-Rate Loan having an Interest
Period longer than three months shall also be payable on the last day of
each three-month interval during such Interest Period. Interest accrued on
the principal balance of all other Obligations shall be payable in arrears
(i) on each Payment Date, commencing on the first such
37
Payment Date following the incurrence of such Obligation, (ii) upon
repayment thereof in full or in part, and (iii) if not theretofore paid in
full, at the time such other Obligation becomes due and payable (whether by
acceleration or otherwise).
(C) Fees.
(i) The Company shall pay to the Administrative Agent, for the
account of the Lenders in accordance with their Pro Rata Shares, from
and after the date of this Agreement until the date on which the
Aggregate Revolving Loan Commitment shall be terminated in whole, a
facility fee accruing at the rate of the then Applicable Facility Fee
Percentage, on the amount of the Aggregate Revolving Loan Commitment in
effect on the date of such payment. All such facility fees payable
under this clause (C)(i) shall be payable quarterly in arrears on each
Payment Date occurring after the date of this Agreement (with the first
such payment being calculated for the period from the date of this
Agreement and ending on September 30, 2003), and, in addition, on the
date on which the Aggregate Revolving Loan Commitment shall be
terminated in whole.
(ii) The Company agrees to pay to the Administrative Agent or
the Arranger the fees set forth in the letter agreement between the
Administrative Agent, the Arranger and the Company dated June 27, 2003,
payable at the times and in the amounts set forth therein.
(D) Interest and Fee Basis; Applicable Eurocurrency Margin,
Applicable Alternate Currency Margin, Applicable L/C Fee Percentage and
Applicable Facility Fee Percentage.
(i) Interest on all Eurocurrency Rate Loans, all Alternate
Currency Loans (except as provided otherwise in the applicable
Alternate Currency Addendum), all Floating Rate Loans where the basis
for calculation is the Federal Funds Effective Rate and on all fees
shall be calculated for actual days elapsed on the basis of a 360-day
year. Interest on all Floating Rate Loans for which the basis for
calculation is the Prime Rate shall be calculated for actual days
elapsed on the basis of a 365-, or when appropriate 366-, day year.
Interest shall be payable for the day an Obligation is incurred but not
for the day of any payment on the amount paid if payment is received
prior to 2:00 p.m. (local time) at the place of payment. If any payment
of principal of or interest on a Loan or any payment of any other
Obligations shall become due on a day which is not a Business Day, such
payment shall be made on the next succeeding Business Day and, in the
case of a principal payment, such extension of time shall be included
in computing interest, fees and commissions in connection with such
payment.
(ii) The Applicable Eurocurrency Margin, Applicable Alternate
Currency Margin, Applicable L/C Fee Percentage and Applicable Facility
Fee Percentage shall be determined on the basis of the then applicable
Leverage Ratio as described in this Section 2.14(D)(ii), from time to
time by reference to the following table:
38
===================================================================================================
LEVEL II LEVEL III LEVEL IV
STATUS STATUS STATUS
LEVEL I (GREATER THAN (GREATER THAN (GREATER THAN
STATUS 1.00 TO 1.00 1.50 TO 1.00 2.00 TO 1.00 AND LEVEL V
(LESS THAN OR AND LESS THAN AND LESS THAN LESS THAN OR STATUS
APPLICABLE EQUAL TO 1.00 OR EQUAL TO OR EQUAL TO EQUAL TO 2.50 TO (GREATER THAN
MARGIN TO 1.00) 1.50 TO 1.00) 2.00 TO 1.00) 1.00) 2.50 TO 1.0)
------------------------------------------------ --------------------------------------------------
Eurocurrency 0.575% 0.675% 0.775% 1.000% 1.200%
Margin and
Alternate
Currency
Margin and
L/C Fee
Percentage
---------------------------------------------------------------------------------------------------
Facility Fee 0.175% 0.200% 0.225% 0.250% 0.300%
Percentage
===================================================================================================
For purposes of this Section 2.14(D)(ii), the Leverage Ratio shall be
calculated as provided in Section 7.4(B). Upon receipt of the financial
statements delivered pursuant to Sections 7.1(A)(i) and (ii), as
applicable, the Applicable Eurocurrency Margin, Applicable Alternate
Currency Margin, the Applicable L/C Fee Percentage and Applicable
Facility Fee Percentage shall be adjusted, such adjustment being
effective five (5) Business Days following the date such financial
statements and the compliance certificate are required to be delivered
in connection therewith pursuant to Section 7.1(A)(iii); provided, that
if the Company shall not have timely delivered its financial statements
in accordance with Section 7.1(A)(i) or (ii), as applicable, and such
failure continues for five (5) days after notice from the
Administrative Agent to the Company, then, at the discretion of the
Required Lenders, commencing on the date upon which such financial
statements should have been delivered and continuing until five (5)
days after such financial statements are actually delivered, it shall
be assumed for purposes of determining the Applicable Eurocurrency
Margin, Applicable Alternate Currency Margin, Applicable L/C Fee
Percentage and Applicable Facility Fee Percentage that the Leverage
Ratio was greater than 2.50 to 1.0 and Level V pricing shall be
applicable.
(iii) Notwithstanding anything herein to the contrary, from
the date of this Agreement to but not including the fifth (5th)
Business Day following receipt of the Company's financial statements
delivered pursuant to Section 7.1(A)(i) for the fiscal quarter ending
September 30, 2003, the Applicable Eurocurrency Margin, Applicable
Alternate Currency Margin, the Applicable L/C Fee Percentage and
Applicable Facility Fee Percentage shall be determined based upon a
Leverage Ratio less than or equal to 1.00 to 1.00 and Level I pricing
shall be applicable.
(E) Taxes.
(i) Any and all payments by the Borrowers hereunder (whether
in respect of principal, interest, fees or otherwise and including
pursuant to an Alternate Currency Addendum) shall be made free and
clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings or any interest,
penalties or liabilities with respect thereto imposed by any
Governmental Authority including those arising after the date hereof as
a result of the adoption of or any change in any law, treaty, rule,
regulation, guideline or determination of a Governmental Authority or
any change in the interpretation or application thereof by a
Governmental Authority but excluding, in the case of each Lender and
the Administrative Agent, such taxes (including income taxes, franchise
taxes and branch profit taxes) as are imposed on or measured by such
Lender's or the Administrative Agent's, as the case may be, net income
or similar taxes imposed by the United States of America or any
Governmental Authority of the jurisdiction under the laws of which such
Lender or the
39
Administrative Agent, as the case may be, is organized or maintains a
Lending Installation (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings, and liabilities which the
Administrative Agent or a Lender determines to be applicable to this
Agreement, the other Loan Documents, the Revolving Loan Commitments,
the Loans or the Letters of Credit being hereinafter referred to as
"TAXES"). If a Borrower or the Administrative Agent shall be required
by law to deduct or withhold any Taxes from or in respect of any sum
payable hereunder or under the other Loan Documents to any Lender or
the Administrative Agent, (i) the sum payable shall be increased as may
be necessary so that after making all required deductions or
withholdings (including deductions or withholdings applicable to
additional sums payable under this Section 2.14(E)) such Lender or the
Administrative Agent (as the case may be) receives an amount equal to
the sum it would have received had no such deductions or withholdings
been made, (ii) the applicable Borrower shall make such deductions or
withholdings, and (iii) the applicable Borrower shall pay the full
amount deducted or withheld to the relevant taxation authority or other
authority in accordance with applicable law. If any Tax, including,
without limitation, any withholding tax, of the United States of
America or any other Governmental Authority shall be or become
applicable (y) after the date of this Agreement, to such payments by
the applicable Borrower made to the Lending Installation or any other
office that a Lender may claim as its Lending Installation, or (z)
after such Lender's selection and designation of any other Lending
Installation, to such payments made to such other Lending Installation,
such Lender shall use reasonable efforts to make, fund and maintain its
Loans through another Lending Installation of such Lender in another
jurisdiction so as to reduce the applicable Borrower's liability
hereunder, if the making, funding or maintenance of such Loans through
such other Lending Installation of such Lender does not, in the
reasonable judgment of such Lender, otherwise adversely and materially
affect such Loans, or obligations under the Revolving Loan Commitments
of such Lender.
(ii) In addition, each 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, from the issuance of Letters of Credit hereunder, or from
the execution, delivery or registration of, or otherwise with respect
to, this Agreement, the other Loan Documents, the Revolving Loan
Commitments, the Loans or the Letters of Credit (hereinafter referred
to as "OTHER TAXES").
(iii) Each Borrower hereby agrees to indemnify each Lender and
the Administrative Agent for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed by any
Governmental Authority on amounts payable under this Section 2.14(E))
paid by such Lender or the Administrative Agent (as the case may be)
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; provided that each Alternate
Currency Borrower shall only be liable for a maximum amount consisting
of its pro-rata share of the aggregate amount indemnified under this
Section 2.14(E)(iii), based upon its obligations. This indemnification
shall be made within thirty (30) days after the date such Lender or the
Administrative Agent (as the case may be) makes written demand
therefor. A certificate as to any additional amount payable to any
Lender or the Administrative Agent under this Section 2.14(E) submitted
to the applicable Borrower and the Administrative Agent (if a Lender is
so submitting) by such Lender or the
40
Administrative Agent shall show in reasonable detail the amount payable
and the calculations used to determine such amount and shall, absent
manifest error, be final, conclusive and binding upon all parties
hereto. With respect to such deduction or withholding for or on account
of any Taxes and to confirm that all such Taxes have been paid to the
appropriate Governmental Authorities, the applicable Borrower shall
promptly (and in any event not later than thirty (30) days after
receipt) furnish to each Lender and the Administrative Agent such
certificates, receipts and other documents as may be required (in the
judgment of such Lender or the Administrative Agent) to establish any
tax credit to which such Lender or the Administrative Agent may be
entitled.
(iv) Within thirty (30) days after the date of any payment of
Taxes or Other Taxes by any Borrower, the Company shall furnish to the
Administrative Agent the original or a certified copy of a receipt
evidencing payment thereof.
(v) Without prejudice to the survival of any other agreement
of the Borrowers hereunder, the agreements and obligations of the
Borrowers contained in this Section 2.14(E) shall survive the payment
in full of all Obligations hereunder, the termination of the Letters of
Credit and the termination of this Agreement.
(vi) Each Lender (including any Replacement Lender or
Purchaser) that is not created or organized under the laws of the
United States of America or a political subdivision thereof (each a
"NON-U.S. LENDER") shall deliver to the Company and the Administrative
Agent on or before the Closing Date, or, if later, the date on which
such Lender becomes a Lender pursuant to Section 13.3 hereof (and from
time to time thereafter upon the request of the Company or the
Administrative Agent, but only for so long as such Non-U.S. Lender is
legally entitled to do so), either (1) two (2) duly completed copies of
either (A) IRS Form W-8BEN, or (B) IRS Form W-8ECI, or in either case
an applicable successor form; or (2) in the case of a Non-U.S. Lender
that is not legally entitled to deliver the forms listed in clause
(vi)(1), (x) a certificate of a duly authorized officer of such
Non-U.S. Lender to the effect that such Non-U.S. Lender is not (A) a
"bank" within the meaning of Section 881(c)(3)(A) of the Code, (B) a
"10 percent shareholder" of any Borrower within the meaning of Section
881(c)(3)(B) of the Code, or (C) a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code (such certificate, an "EXEMPTION CERTIFICATE")
and (y) two (2) duly completed copies of IRS Form W-8BEN or applicable
successor form. Each such Lender further agrees to deliver to the
Company and the Administrative Agent from time to time a true and
accurate certificate executed in duplicate by a duly authorized officer
of such Lender in a form satisfactory to the Company and the
Administrative Agent, before or promptly upon the occurrence of any
event requiring a change in the most recent certificate previously
delivered by it to the Company and the Administrative Agent pursuant to
this Section 2.14(E)(vi). Further, each Lender which delivers a form or
certificate pursuant to this clause (vi) covenants and agrees to
deliver to the Company and the Administrative Agent within fifteen (15)
days prior to the expiration of such form, for so long as this
Agreement is still in effect, another such certificate and/or two (2)
accurate and complete original newly-signed copies of the applicable
form (or any successor form or forms required under the Code or the
applicable regulations promulgated thereunder).
Each Lender shall promptly furnish to the Company and the
Administrative Agent such additional documents as may be reasonably
required by the Company or the
41
Administrative Agent to establish any exemption from or reduction of
any Taxes or Other Taxes required to be deducted or withheld and which
may be obtained without undue expense to such Lender. Notwithstanding
any other provision of this Section 2.14(E), no Borrower shall be
obligated to gross up any payments to any Lender pursuant to Section
2.14(E)(i), or to indemnify any Lender pursuant to Section
2.14(E)(iii), in respect of United States federal withholding taxes to
the extent imposed as a result of (x) the failure of such Lender to
deliver to the Company the form or forms and/or an Exemption
Certificate, as applicable to such Lender, pursuant to Section
2.14(E)(vi), (y) such form or forms and/or Exemption Certificate not
establishing a complete exemption from U.S. federal withholding tax or
the information or certifications made therein by the Lender being
untrue or inaccurate on the date delivered in any material respect, or
(z) the Lender designating a successor Lending Installation at which it
maintains its Loans which has the effect of causing such Lender to
become obligated for tax payments in excess of those in effect
immediately prior to such designation; provided, however, that the
applicable Borrower shall be obligated to gross up any payments to any
such Lender pursuant to Section 2.14(E)(i), and to indemnify any such
Lender pursuant to Section 2.14(E)(iii), in respect of United States
federal withholding taxes if (x) any such failure to deliver a form or
forms or an Exemption Certificate or the failure of such form or forms
or exemption certificate to establish a complete exemption from U.S.
federal withholding tax or inaccuracy or untruth contained therein
resulted from a change in any applicable statute, treaty, regulation or
other applicable law or any interpretation of any of the foregoing
occurring after the date such Lender became a party hereto, which
change rendered such Lender no longer legally entitled to deliver such
form or forms or Exemption Certificate or otherwise ineligible for a
complete exemption from U.S. federal withholding tax, or rendered the
information or the certifications made in such form or forms or
Exemption Certificate untrue or inaccurate in any material respect,
(ii) the redesignation of the Lender's Lending Installation was made at
the request of the Company or (iii) the obligation to gross up payments
to any such Lender pursuant to Section 2.14(E)(i), or to indemnify any
such Lender pursuant to Section 2.14(E)(iii), is with respect to a
Purchaser that becomes a Purchaser as a result of an assignment made at
the request of the Company.
(vii) Upon the request, and at the expense of the Borrowers,
each Lender to which any Borrower is required to pay any additional
amount pursuant to this Section 2.14(E), shall reasonably afford the
applicable Borrower the opportunity to contest, and shall reasonably
cooperate with the applicable Borrower in contesting, the imposition of
any Tax giving rise to such payment; provided, that (i) such Lender
shall not be required to afford the applicable Borrower the opportunity
to so contest unless such Borrower shall have confirmed in writing to
such Lender its obligation to pay such amounts pursuant to this
Agreement; and (ii) the Borrowers shall reimburse such Lender for its
attorneys' and accountants' fees and disbursements incurred in so
cooperating with such Borrower in contesting the imposition of such
Tax; provided, however, that notwithstanding the foregoing, no Lender
shall be required to afford any Borrower the opportunity to contest, or
cooperate with any Borrower in contesting, the imposition of any Taxes,
if such Lender in good faith determines that to do so would have an
adverse effect on it.
2.15. Notification of Advances, Interest Rates, Prepayments and
Aggregate Revolving Loan Commitment Reductions. Promptly after receipt thereof,
the Administrative Agent will notify each Lender of the contents of each
Aggregate Revolving Loan Commitment reduction notice, Commitment Increase
Notice, Borrowing/Election Notice, and repayment notice received by it
42
hereunder. The Administrative Agent will notify each Lender of the interest rate
and Agreed Currency applicable to each Eurocurrency Rate Loan promptly upon
determination of such interest rate and Agreed Currency and will give each
Lender prompt notice of each change in the Alternate Base Rate.
2.16. Lending Installations. Each Lender may book its Loans or Letters
of Credit at any Lending Installation selected by such Lender and may change its
Lending Installation from time to time. All terms of this Agreement shall apply
to any such Lending Installation. Each Lender may, by written or facsimile
notice to the Administrative Agent and the Company, designate a Lending
Installation through which Loans will be made by it and for whose account Loan
payments and/or payments of L/C Obligations are to be made.
2.17. Non-Receipt of Funds by the Administrative Agent. Unless a
Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case
of a Borrower, a payment of principal, interest or fees to the Administrative
Agent for the account of the Lenders, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been made.
The Administrative Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If such Lender or Borrower, as the case may be, has not in fact made
such payment to the Administrative Agent, the recipient of such payment shall,
on demand by the Administrative Agent, repay to the Administrative Agent the
amount so made available together with interest thereon in respect of each day
during the period commencing on the date such amount was so made available by
the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (ii) in the case of payment by a
Borrower, the interest rate applicable to the relevant Loan.
2.18. Termination Date. This Agreement shall be effective until the
Termination Date. Notwithstanding the termination of this Agreement, until (A)
all of the Obligations (other than contingent indemnity obligations) shall have
been fully and indefeasibly paid and satisfied in cash, (B) all financing
arrangements among the Borrowers and the Lenders pursuant to the Loan Documents
shall have been terminated and (C) all of the Letters of Credit shall have
expired, been canceled, terminated or cash collateralized in accordance with
Section 3.11, all of the rights and remedies under this Agreement and the other
Loan Documents shall survive.
2.19. Replacement of Certain Lenders. In the event a Lender ("AFFECTED
LENDER") shall have: (i) failed to fund its Pro Rata Share of any Advance
requested by a Borrower, or to fund a Revolving Loan in order to repay Swing
Line Loans pursuant to Section 2.2(D), or to make payment in respect of any
Alternate Currency Loan purchased by such Lender pursuant to Section 2.20(E),
which such Lender is obligated to fund under the terms of this Agreement and
which failure has not been cured, (ii) requested compensation from a Borrower
under Sections 2.14(E), 4.1 or 4.2 to recover Taxes, Other Taxes or other
additional costs incurred by such Lender which are not being incurred generally
by the other Lenders except as provided under any applicable Alternate Currency
Addendum, (iii) delivered a notice pursuant to Section 4.3 claiming that such
Lender is unable to extend Eurocurrency Rate Loans to the applicable Borrower
for reasons not generally applicable to the other Lenders or (iv) has invoked
Section 10.2, then, in any such case, the Company or the Administrative Agent
may make written demand on such Affected Lender (with a copy to the
Administrative Agent in the case of a demand by the Company and a copy to the
Company in the
43
case of a demand by the Administrative Agent) for the Affected Lender to assign,
and such Affected Lender shall use commercially reasonable efforts to assign
pursuant to one or more duly executed Assignment Agreements five (5) Business
Days after the date of such demand, to one or more financial institutions that
comply with the provisions of Section 13.3(A) which the Company or the
Administrative Agent, as the case may be, shall have engaged for such purpose
("REPLACEMENT LENDER"), all of such Affected Lender's rights and obligations
under this Agreement and the other Loan Documents (including, without
limitation, its Revolving Loan Commitment, all Loans owing to it, all of its
participation interests in existing Letters of Credit, and its obligation to
participate in additional Letters of Credit and Swing Line Loans and Alternate
Currency Loans hereunder) in accordance with Section 13.3 (it being understood
and agreed that nothing contained herein shall require any Affected Lender to
assign its rights and obligations under this Agreement and the other Loan
Documents at less than par value). The Administrative Agent agrees, upon the
occurrence of such events with respect to an Affected Lender and upon the
written request of the Company, to use its reasonable efforts to obtain the
commitments from one or more financial institutions to act as a Replacement
Lender. The Administrative Agent is authorized to execute one or more Assignment
Agreements as attorney-in-fact for any Affected Lender failing to execute and
deliver the same within five (5) Business Days after the date of such demand.
Further, with respect to such assignment the Affected Lender shall have
concurrently received, in cash, all amounts due and owing to the Affected Lender
hereunder or under any other Loan Document, including, without limitation, the
aggregate outstanding principal amount of the Loans owed to such Lender,
together with accrued interest thereon through the date of such assignment,
amounts payable under Sections 2.14(E), 4.1, and 4.2 with respect to such
Affected Lender and compensation payable under Section 2.14(C) in the event of
any replacement of any Affected Lender under clause (ii) or clause (iii) of this
Section 2.19; provided that upon such Affected Lender's replacement, such
Affected Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.14(E), 4.1, 4.2, 4.4, and 10.7 and each
other provision of this Agreement or the other Loan Documents whereby the
Company or any of its Subsidiaries agrees to reimburse or indemnify any of the
Administrative Agent and the Lenders, as well as to any fees accrued for its
account hereunder and not yet paid, and shall continue to be obligated under
Section 11.8 for such amounts, obligations and liabilities as are due and
payable up to and including (but not after) the date such Affected Lender is
replaced pursuant hereto. Upon the replacement of any Affected Lender pursuant
to this Section 2.19, the provisions of Section 9.2 shall continue to apply with
respect to Loans which are then outstanding with respect to which the Affected
Lender failed to fund its Pro Rata Share and which failure has not been cured.
2.20. Alternate Currency Loans.
(A) Making of Alternate Currency Loans. Upon the satisfaction of
the conditions precedent set forth in Article V hereof and set forth in the
applicable Alternate Currency Addendum, from and including the later of the
date of this Agreement and the date of execution of the applicable
Alternate Currency Addendum and prior to Termination Date (unless an
earlier termination date shall be specified in or pursuant to the
applicable Alternate Currency Addendum), each Alternate Currency Bank
agrees, on the terms and conditions set forth in this Agreement and in the
applicable Alternate Currency Addendum, to make Alternate Currency Loans
under such Alternate Currency Addendum to the applicable Alternate Currency
Borrower party to such Alternate Currency Addendum from time to time in the
applicable Alternate Currency, in an amount not to exceed each such
Alternate Currency Bank's applicable Alternate Currency Commitment;
provided, however, at no time shall (i) the Dollar Amount of the
outstanding principal amount of any specific Alternate Currency Loan exceed
the Alternate Currency Commitment set forth in the applicable Alternate
Currency Addendum or the Dollar
44
Amount of all Alternate Currency Loans exceed the Alternate Currency
Sublimit, in each case other than as a result of currency fluctuations and
then only to the extent permitted in Section 2.4(B)(ii), (ii) the Dollar
Amount of the outstanding principal amount of all Alternate Currency Loans,
when aggregated with the Dollar Amount of the Revolving Loans denominated
in Agreed Currencies other than Dollars, exceed the Foreign Currency
Sublimit and (iii) the Dollar Amount of the Revolving Credit Obligations
exceed the Aggregate Revolving Loan Commitment. Subject to the terms of
this Agreement and the applicable Alternate Currency Addendum, the
applicable Alternate Currency Borrowers may borrow, repay and reborrow
Alternate Currency Loans at any time prior to the Termination Date (unless
an earlier termination date shall be specified in or pursuant to the
applicable Alternate Currency Addendum). On the Termination Date (unless an
earlier termination date shall be specified in or pursuant to the
applicable Alternate Currency Addendum), the outstanding principal balance
of the Alternate Currency Loans shall be paid in full by the applicable
Alternate Currency Borrower and prior to Termination Date (unless an
earlier termination date shall be specified in or pursuant to the
applicable Alternate Currency Addendum), prepayments of the Alternate
Currency Loans shall be made by the applicable Alternate Currency Borrower
if and to the extent required in Section 2.4(B)(ii).
(B) Borrowing Notice. When the applicable Alternate Currency
Borrower desires to borrow under this Section 2.20, the applicable
Alternate Currency Borrower shall deliver to the applicable Alternate
Currency Bank and the Administrative Agent a Borrowing/Election Notice,
signed by it, as provided in Section 2.7 specifying that the Alternate
Currency Borrower is requesting an Alternate Currency Loan pursuant to this
Section 2.20. Any Borrowing/Election Notice given pursuant to this Section
2.20 shall be irrevocable.
(C) Termination. Except as otherwise required by applicable law,
in no event shall an Alternate Currency Bank have the right to accelerate
the Alternate Currency Loans outstanding under any Alternate Currency
Addendum or to terminate its commitments (if any) thereunder to make
Alternate Currency Loans prior to the stated termination date in respect
thereof, except that such Alternate Currency Bank shall have such rights
upon an acceleration of the Loans and a termination of the Revolving Credit
Commitments pursuant to Article IX.
(D) Statements. Each Alternate Currency Bank shall furnish to the
Company and the Administrative Agent not less frequently than monthly, and
at any other time at the reasonable request of the Company or the
Administrative Agent, a statement setting forth the outstanding Alternate
Currency Loans made and repaid during the period since the last such report
under such Alternate Currency Addendum.
(E) Risk Participation. Unless a Lender shall have notified the
Alternate Currency Bank, prior to its making of any Alternate Currency
Loan, that any applicable condition precedent set forth in Sections 5.1,
5.2 or 5.3, as applicable, had not then been satisfied, immediately upon
the making of any Alternate Currency Loan by the applicable Alternate
Currency Bank, each Lender with a Pro Rata Share shall be deemed to have
automatically, irrevocably and unconditionally purchased and received from
such Alternate Currency Bank an undivided interest and participation in and
to such Alternate Currency Loan in an amount equal to the Dollar Amount of
such Alternate Currency Loan multiplied by such Lender's Pro Rata Share. In
addition, immediately and automatically upon the occurrence of a Default
under Sections 8.1(A), (F) or (G), all Alternate Currency Loans shall be
converted to and redenominated in Dollars equal to the Dollar Amount of
each such Alternate Currency Loan determined as of the date of such
45
conversion; provided, that to the extent such conversion shall occur other
than at the end of an Interest Period, the applicable Borrower shall pay to
the applicable Alternate Currency Bank, all losses and breakage costs
related thereto in accordance with Section 4.4 and, upon the written
request of the Administrative Agent, each of the Lenders shall pay to the
applicable Alternate Currency Bank not later than two (2) Business Days
following a request for payment from such Alternate Currency Bank, in
Dollars, an amount equal to the undivided interest in and participation in
the Alternate Currency Loan purchased by such Lender pursuant to this
Section 2.20(E). In the event that any Lender fails to make payment to the
applicable Alternate Currency Bank of any amount due under this Section
2.20(E), the Administrative Agent shall be entitled to receive, retain and
apply against such obligation the principal and interest otherwise payable
to such Lender hereunder until the Administrative Agent receives from such
Lender an amount sufficient to discharge such Lender's payment obligation
as prescribed in this Section 2.20(E) together with interest thereon at the
Federal Funds Effective Rate for each day during the period commencing on
the date of demand by the applicable Alternate Currency Bank and ending on
the date such obligation is fully satisfied. The Administrative Agent will
promptly remit all payments received as provided above to the Alternate
Currency Bank.
(F) Other Provisions Applicable to Alternate Currency Loans. The
specification of payment of Alternate Currency Loans in the related
Alternate Currency at a specific place pursuant to this Agreement is of the
essence. Such Alternate Currency shall be the currency of account and
payment of such Loans under this Agreement and the applicable Alternate
Currency Addendum. Notwithstanding anything in this Agreement, the
obligation of the applicable Alternate Currency Borrower in respect of such
Loans shall not be discharged by an amount paid in any other currency or at
another place, whether pursuant to a judgment or otherwise, to the extent
the amount so paid, on prompt conversion into the applicable Alternate
Currency and transfer to such Lender under normal banking procedure, does
not yield the amount of such Alternate Currency due under this Agreement
and the applicable Alternate Currency Addendum. In the event that any
payment, whether pursuant to a judgment or otherwise, upon conversion and
transfer, does not result in payment of the amount of such Alternate
Currency due under this Agreement or the applicable Alternate Currency
Addendum, such Lender shall have an independent cause of action against
each of the Borrowers for the currency deficit.
2.21. Judgment Currency. If, for the purposes of obtaining judgment in
any court, it is necessary to convert a sum due from any Borrower hereunder in
the currency expressed to be payable herein (the "SPECIFIED CURRENCY") into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the specified currency with such other currency at the Administrative
Agent's main office in Chicago, Illinois on the Business Day preceding that on
which the final, non-appealable judgment is given. The obligations of each
Borrower in respect of any sum due to any Lender or the Administrative Agent
hereunder shall, notwithstanding any judgment in a currency other than the
specified currency, be discharged only to the extent that on the Business Day
following receipt by such Lender or the Administrative Agent (as the case may
be) of any sum adjudged to be so due in such other currency such Lender or the
Administrative Agent (as the case may be) may in accordance with normal,
reasonable banking procedures purchase the specified currency with such other
currency. If the amount of the specified currency so purchased is less than the
sum originally due to such Lender or the Administrative Agent, as the case may
be, in the specified currency, each Borrower agrees, to the fullest extent that
it may effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender or the Administrative Agent, as the case may
be, against such
46
loss, and if the amount of the specified currency so purchased exceeds (a) the
sum originally due to any Lender or the Administrative Agent, as the case may
be, in the specified currency and (b) any amounts shared with other Lenders as a
result of allocations of such excess as a disproportionate payment to such
Lender under Section 12.2, such Lender or the Administrative Agent, as the case
may be, agrees to remit such excess to such Borrower.
2.22. Market Disruption; Denomination of Amounts in Dollars; Dollar
Equivalent of Reimbursement Obligations.
(A) Market Disruption. Notwithstanding the satisfaction of all
conditions referred to in this Article II with respect to any Advance in
any Agreed Currency other than Dollars or any Alternate Currency, as
applicable, if there shall occur on or prior to the date of such Advance
any change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which would in
the reasonable opinion of the Company, any Alternate Currency Borrower, any
Alternate Currency Bank, the Administrative Agent or the Required Lenders
make it impracticable for the Eurocurrency Rate Loans or Alternate Currency
Loans comprising such Advance to be denominated in the Agreed Currency or
Alternate Currency, as applicable, specified by the applicable Borrower,
then the Administrative Agent shall forthwith give notice thereof to such
Borrower, such Alternate Currency Bank and the Lenders, or the applicable
Borrower shall give notice to the Administrative Agent, such Alternate
Currency Bank and the Lenders, as the case may be, and such Eurocurrency
Rate Loans or Alternate Currency Loans shall not be denominated in such
currency but shall be made on such Borrowing Date in Dollars, in an
aggregate principal amount equal to the Dollar Amount of the aggregate
principal amount specified in the related Borrowing Notice, as Floating
Rate Loans, unless the applicable Borrower notifies the Administrative
Agent at least one (1) Business Day before such date that (i) it elects not
to borrow on such date or (ii) it elects to borrow on such date in a
different Agreed Currency or Alternate Currency, as the case may be, in
which the denomination of such Loans would in the opinion of the
Administrative Agent, the applicable Alternate Currency Bank, if
applicable, and the Required Lenders be practicable and in an aggregate
principal amount equal to the Dollar Amount of the aggregate principal
amount specified in the related Borrowing Notice.
(B) Calculation of Amounts. Except as set forth below, all amounts
referenced in this Article II shall be calculated using the Dollar Amount
determined based upon the Equivalent Amount in effect as of the date of any
determination thereof; provided, however, that to the extent any Borrower
shall be obligated hereunder to pay in Dollars any Advance denominated in a
currency other than Dollars, such amount shall be paid in Dollars using the
Dollar Amount of the Advance (calculated based upon the Equivalent Amount
in effect on the date of payment thereof) and in the event that the Company
does not reimburse the Administrative Agent and the Lenders are required to
fund a purchase of a participation in such Advance, such purchase shall be
made in Dollars in an amount equal to the Dollar Amount of such Advance
(calculated based upon the Equivalent Amount in effect on the date of
payment thereof). Notwithstanding anything herein to the contrary, the full
risk of currency fluctuations shall be borne by the Borrowers and the
Borrowers agree to indemnify and hold harmless each Issuing Bank, the
Alternate Currency Banks, the Administrative Agent and the Lenders from and
against any loss resulting from any borrowing denominated in a currency
other than in Dollars and for which the Lenders are not reimbursed on the
day of such borrowing as it relates to each Borrower's respective
Obligations.
47
2.23. Additional Alternate Currency Borrowers. The Company may at any
time or from time to time, with the consent of the Administrative Agent, add as
a party to this Agreement any Subsidiary to be an Alternate Currency Borrower
hereunder by the execution and delivery to the Administrative Agent and the
Lenders of (a) a duly completed Assumption Letter by such Subsidiary, with the
written consent of the Company at the foot thereof and (b) such other guaranty
and subordinated intercompany indebtedness documents as may be reasonably
required by the Administrative Agent and the Required Lenders, such documents
with respect to any additional Subsidiaries to be substantially similar in form
and substance to the Loan Documents executed on or about the date hereof by the
Subsidiaries parties hereto as of the Closing Date. Upon such execution,
delivery and consent, such Subsidiary shall for all purposes be a party hereto
as an Alternate Currency Borrower as fully as if it had executed and delivered
this Agreement. So long as the principal of and interest on any Advances made to
any Alternate Currency Borrower under this Agreement shall have been repaid or
paid in full and all other obligations of such Alternate Currency Borrower under
this Agreement shall have been fully performed, the Company may, by not less
than five (5) Business Days' prior notice to the Administrative Agent (which
shall promptly notify the Lenders thereof), terminate such Subsidiary's status
as an "Alternate Currency Borrower".
2.24. Additional Subsidiary Borrowers. The Company may at any time add
as a party to this Agreement a Subsidiary to become a "Subsidiary Borrower"
hereunder subject to (a) the consent of the Administrative Agent, (b) the
receipt of evidence satisfactory to the Administrative Agent that such
Subsidiary would not, in its capacity as a Borrower hereunder, be required by
law to withhold or deduct any Taxes from or in respect of any sum payable
hereunder by such Subsidiary to the Administrative Agent or any Lender unless an
exemption from such requirement can be obtained by such Subsidiary (with the
reasonable cooperation of the Administrative Agent and the Lenders) and that no
other adverse tax, regulatory or other consequences would affect the
Administrative Agent or the Lender as a result of such Subsidiary's status as a
Borrower, (c) the execution and delivery to the Administrative Agent of a duly
completed Assumption Letter by such Subsidiary, with the written consent of the
Company appearing thereon and (d) the execution and delivery to the
Administrative Agent and the Lenders of each other instrument, document and
agreement required by Section 5.3. Upon such satisfaction of all such
conditions, such Subsidiary shall for all purposes be a party hereto as a
Subsidiary Borrower as fully as if it had executed and delivered this Agreement.
2.25. Increase of Aggregate Revolving Loan Commitment.
(A) At any time, the Company may request (in consultation with the
Administrative Agent) that the Aggregate Revolving Loan Commitment be
increased by an aggregate amount of up to $25,000,000 without the prior
written consent of all of the Lenders, provided, that, the Aggregate
Revolving Loan Commitment shall at no time exceed $225,000,000. Such
request shall be made in a written notice given to the Administrative Agent
and the Lenders by the Company not less than twenty (20) Business Days
prior to the proposed effective date of such increase, which notice (a
"COMMITMENT INCREASE NOTICE") shall specify the amount of the proposed
increase in the Aggregate Revolving Loan Commitment and the proposed
effective date of such increase. In the event of such a Commitment Increase
Notice, each of the Lenders shall be given the opportunity to participate
in the requested increase. No Lender shall have any obligation to increase
its Revolving Loan Commitment pursuant to a Commitment Increase Notice.
(B) On or prior to the date that is ten (10) Business Days after
receipt of the Commitment Increase Notice, each Lender shall submit to the
Administrative Agent a notice
48
indicating the maximum amount by which it is willing to increase its
Revolving Loan Commitment in connection with such Commitment Increase
Notice (any such notice, a "LENDER INCREASE NOTICE"). Any Lender which does
not submit a Lender Increase Notice to the Administrative Agent prior to
the expiration of such ten (10) Business Day period shall be deemed to have
denied any increase in its Revolving Loan Commitment. In the event that the
increases of Revolving Loan Commitments set forth in the Lender Increase
Notices exceed the amount requested by the Company in the Commitment
Increase Notice, the Company shall have the right, in consultation with the
Administrative Agent and the Arranger, to allocate the amount of increases
necessary to meet the Company's Commitment Increase Notice. In the event
that the Lender Increase Notices are less than the amount requested by the
Company, not later than three (3) Business Days prior to the proposed
effective date of such increase, the Company may notify the Administrative
Agent of an extension of the proposed effective date of such increase
and/or any financial institution that shall have agreed to become a
"Lender" party hereto (a "PROPOSED NEW LENDER") in connection with the
Commitment Increase Notice. Any Proposed New Lender shall be subject to the
consent of the Administrative Agent (which consent shall not be
unreasonably withheld). If the Company shall not have arranged any Proposed
New Lender(s) to commit to the shortfall from the Lender Increase Notices,
then the Company shall be deemed to have reduced the amount of its
Commitment Increase Notice to the aggregate amount set forth in the Lender
Increase Notices. Based upon the Lender Increase Notices, any allocations
made in connection therewith and any notice regarding any Proposed New
Lender, if applicable, the Administrative Agent shall notify the Company
and the Lenders on or before the Business Day immediately prior to the
proposed effective date of the amount of each Lender's and Proposed New
Lender's Revolving Loan Commitment (the "EFFECTIVE COMMITMENT AMOUNT") and
the amount of the Aggregate Revolving Loan Commitment, which amount shall
be effective on the following Business Day.
(C) Any increase in the Aggregate Revolving Loan Commitment shall
be subject to the following conditions precedent: (i) the Company shall
have obtained the consent thereto of any Guarantor and its reaffirmation of
any Loan Documents executed by it, which consent and reaffirmation shall be
in writing and in form and substance reasonably satisfactory to the
Administrative Agent, (ii) as of the date of the Commitment Increase Notice
and as of the proposed effective date of the increase in the Aggregate
Revolving Loan Commitment, all representations and warranties set forth in
Article VI hereof shall be true and correct as though made on such date
(unless any such representation and warranty is made as of a specific date,
in which case, such representation and warranty shall be true and correct
as of such date) and no Default or Unmatured Default shall have occurred
and then be continuing, (iii) the Company, the Administrative Agent and
each Proposed New Lender or Lender that shall have agreed to provide a
"Revolving Loan Commitment" in support of such increase in the Aggregate
Revolving Loan Commitment (it being understood and agreed that no
individual Lender shall be obligated to so agree) shall have executed and
delivered a Commitment and Acceptance ("COMMITMENT AND ACCEPTANCE")
substantially in the form of Exhibit M hereto and (iv) the Company, each
Alternate Currency Borrower and any Proposed New Lender shall otherwise
have executed and delivered such other instruments, documents and
agreements as the Administrative Agent shall have reasonably requested in
connection with such increase. If any fee shall be charged by the Lenders
or Proposed New Lenders in connection with any such increase, such fee
shall be approved by the Company (acting in consultation with the
Administrative Agent) and shall be in accordance with then prevailing
market conditions, which market conditions shall have been reasonably
documented by the Administrative Agent to the Company. Upon satisfaction of
the conditions precedent to any increase in the Aggregate Revolving Loan
Commitment, the
49
Administrative Agent shall promptly advise the Company and each Lender of
the effective date of such increase. Upon the effective date of any
increase in the Aggregate Revolving Loan Commitment that is provided by a
Proposed New Lender, such Proposed New Lender shall be a party to this
Agreement as a Lender and shall have the rights and obligations of a Lender
hereunder. Nothing contained herein shall constitute, or otherwise be
deemed to be, a commitment on the part of any Lender to increase its
Revolving Loan Commitment hereunder at any time.
(D) Upon the execution and delivery of such Commitment and
Acceptance, the Administrative Agent shall reallocate any outstanding Loans
ratably among the Lenders after giving effect to each such increase in the
Aggregate Commitment; provided, that the Company hereby agrees to
compensate each Lender for all losses, expenses and liabilities incurred by
such Lender in connection with the sale and assignment of any Eurocurrency
Rate Loans hereunder on the terms and in the manner as set forth in
Article IV.
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ARTICLE III: THE LETTER OF CREDIT FACILITY
3.1. Obligation to Issue Letters of Credit. Subject to the terms and
conditions of this Agreement and in reliance upon the representations,
warranties and covenants of the Company herein set forth, each Issuing Bank
hereby agrees to issue for the account of the Company or any Subsidiary through
such Issuing Bank's branches as it and the Company may jointly agree, one or
more Letters of Credit denominated in Dollars in accordance with this Article
III, from time to time during the period, commencing on the Closing Date and
ending on the Business Day prior to the Termination Date.
3.2. Transitional Letters of Credit. Schedule 3.2 contains a schedule
of certain letters of credit issued for the account of the Company or any
Subsidiary prior to the Closing Date. Subject to the satisfaction of the
conditions contained in Sections 5.1 and 5.2, from and after the Closing Date
such letters of credit shall be deemed to be Letters of Credit issued pursuant
to this Article III.
3.3. Types and Amounts. No Issuing Bank shall have any obligation to
and no Issuing Bank shall:
(A) issue (or amend) any Letter of Credit if on the date of
issuance (or amendment), before or after giving effect to the Letter of
Credit requested hereunder, (i) the Dollar Amount of the Revolving Credit
Obligations at such time would exceed the Aggregate Revolving Loan
Commitment at such time, or (ii) the aggregate outstanding Dollar Amount of
the L/C Obligations would exceed $25,000,000; or
(B) issue (or amend) any Letter of Credit which has an expiration
date later than the date which is five (5) Business Days immediately
preceding the Termination Date.
3.4. Conditions. In addition to being subject to the satisfaction of
the conditions contained in Sections 5.1, 5.2 and 5.3, the obligation of an
Issuing Bank to issue any Letter of Credit is subject to the satisfaction in
full of the following conditions:
(A) the Company shall have delivered to the applicable Issuing
Bank (and, if the Issuing Bank is a Lender other than Bank One, with a copy
to the Administrative Agent) at such times and in such manner as such
Issuing Bank may reasonably prescribe, a request for issuance of such
Letter of Credit in substantially the form of Exhibit C hereto (each such
request a "REQUEST FOR LETTER OF CREDIT"), duly executed applications for
such Letter of Credit, and such other documents, instructions and
agreements as may be required pursuant to the terms thereof (all such
applications, documents, instructions, and agreements being referred to
herein as the "L/C DOCUMENTS"), and the proposed Letter of Credit shall be
reasonably satisfactory to such Issuing Bank as to form and content;
(B) as of the date of issuance no order, judgment or decree of any
court, arbitrator or Governmental Authority shall purport by its terms to
enjoin or restrain the applicable Issuing Bank from issuing such Letter of
Credit and no law, rule or regulation applicable to such Issuing Bank and
no request or directive (whether or not having the force of law) from a
Governmental Authority with jurisdiction over such Issuing Bank shall
prohibit or request that such Issuing Bank refrain from the issuance of
Letters of Credit generally or the issuance of that Letter of Credit; and
51
(C) in the event of any conflict or inconsistency between the
terms of this Agreement and the terms of any application for a Letter of
Credit, the terms of this Agreement shall control.
3.5. Procedure for Issuance of Letters of Credit.
(A) Subject to the terms and conditions of this Article III and
provided that the applicable conditions set forth in Sections 5.1, 5.2 and
5.3 hereof have been satisfied, the applicable Issuing Bank shall, on the
requested date, issue a Letter of Credit on behalf of the Company in
accordance with such Issuing Bank's usual and customary business practices
and, in this connection, such Issuing Bank may assume that the applicable
conditions set forth in Section 5.2 hereof have been satisfied unless it
shall have received notice to the contrary from the Administrative Agent or
a Lender or has knowledge that the applicable conditions have not been met.
(B) The applicable Issuing Bank shall give the Administrative
Agent written or telex notice, or telephonic notice confirmed promptly
thereafter in writing, of the issuance of a Letter of Credit; provided,
however, that the failure to provide such notice shall not result in any
liability on the part of such Issuing Bank.
(C) No Issuing Bank shall extend or amend any Letter of Credit
unless the requirements of this Section 3.5 are met as though a new Letter
of Credit was being requested and issued.
3.6. Letter of Credit Participation. On the date of this Agreement with
respect to the Letters of Credit identified on Schedule 3.2 and immediately upon
the issuance of each Letter of Credit hereunder, each Lender with a Pro Rata
Share shall be deemed to have automatically, irrevocably and unconditionally
purchased and received from the applicable Issuing Bank an undivided interest
and participation in and to such Letter of Credit, the obligations of the
Company in respect thereof, and the liability of such Issuing Bank thereunder
(collectively, an "L/C INTEREST") in an amount equal to the Dollar Amount
available for drawing under such Letter of Credit multiplied by such Lender's
Pro Rata Share. Each Issuing Bank will notify each Lender promptly upon
presentation to it of an L/C Draft or upon any other draw under a Letter of
Credit. On or before the Business Day on which an Issuing Bank makes payment of
each such L/C Draft or, in the case of any other draw on a Letter of Credit, on
demand by the Administrative Agent or the applicable Issuing Bank, each Lender
shall make payment to the Administrative Agent, for the account of the
applicable Issuing Bank, in immediately available funds in Dollars in an amount
equal to such Lender's Pro Rata Share of the Dollar Amount of such payment or
draw. The obligation of each Lender to reimburse the Issuing Banks under this
Section 3.6 shall be unconditional, continuing, irrevocable and absolute. In the
event that any Lender fails to make payment to the Administrative Agent of any
amount due under this Section 3.6, the Administrative Agent shall be entitled to
receive, retain and apply against such obligation the principal and interest
otherwise payable to such Lender hereunder until the Administrative Agent
receives such payment from such Lender or such obligation is otherwise fully
satisfied; provided, however, that nothing contained in this sentence shall
relieve such Lender of its obligation to reimburse the applicable Issuing Bank
for such amount in accordance with this Section 3.6.
3.7. Reimbursement Obligation. The Company agrees unconditionally,
irrevocably and absolutely to pay immediately to the Administrative Agent, for
the account of the Lenders, the amount of each advance drawn under or pursuant
to a Letter of Credit (regardless of whether the account party in respect
thereof is the Company or a Subsidiary) or an L/C Draft related thereto (such
52
obligation of the Company to reimburse the Administrative Agent for an advance
made under a Letter of Credit or L/C Draft being hereinafter referred to as a
"REIMBURSEMENT OBLIGATION" with respect to such Letter of Credit or L/C Draft;
it being understood and agreed that any Letter of Credit issued for the account
of a Subsidiary shall be deemed to be issued for the account of the Company and
the Company's Reimbursement Obligation in respect of such Letter of Credit or
L/C Draft shall remain unconditional, irrevocable and absolute), each such
reimbursement to be made by the Company no later than the Business Day on which
the applicable Issuing Bank makes payment of each such L/C Draft or, if the
Company shall have received notice of a Reimbursement Obligation later than 9:00
a.m. (Chicago time), on any Business Day or on a day which is not a Business
Day, no later than 12:00 noon (Chicago time), on the immediately following
Business Day or, in the case of any other draw on a Letter of Credit, the date
specified in the demand of such Issuing Bank. If the Company at any time fails
to repay a Reimbursement Obligation pursuant to this Section 3.7, the Company
shall be deemed to have elected to borrow Revolving Loans from the Lenders, as
of the date of the advance giving rise to the Reimbursement Obligation, equal in
amount to the Dollar Amount of the unpaid Reimbursement Obligation. Such
Revolving Loans shall be made as of the date of the payment giving rise to such
Reimbursement Obligation, automatically, without notice and without any
requirement to satisfy the conditions precedent otherwise applicable to an
Advance of Revolving Loans. Such Revolving Loans shall constitute a Floating
Rate Advance, the proceeds of which Advance shall be used to repay such
Reimbursement Obligation. If, for any reason, the Company fails to repay a
Reimbursement Obligation on the day such Reimbursement Obligation arises and,
for any reason, the Lenders are unable to make or have no obligation to make
Revolving Loans, then such Reimbursement Obligation shall bear interest from and
after such day, until paid in full, at the interest rate applicable to a
Floating Rate Advance plus two percent (2.0%) per annum.
3.8. Letter of Credit Fees. The Company agrees to pay:
(A) quarterly, in arrears, to the Administrative Agent for the
ratable benefit of the Lenders, except as set forth in Section 9.2, a
letter of credit fee at a rate per annum equal to the Applicable L/C Fee
Percentage on the average daily outstanding Dollar Amount available for
drawing under each standby Letter of Credit;
(B) quarterly, in arrears, to the applicable Issuing Bank, a
letter of credit fronting fee equal to 0.125% per annum on the average
daily outstanding face Dollar Amount available for drawing under each
standby Letter of Credit issued by such Issuing Bank; and
(C) to the applicable Issuing Bank, all customary fees and other
issuance, amendment, cancellation, document examination, negotiation,
transfer and presentment expenses and related charges in connection with
the issuance, amendment, cancellation, presentation of L/C Drafts,
negotiation, transfer and the like customarily charged by such Issuing
Banks with respect to standby and commercial Letters of Credit, including,
without limitation, standard commissions with respect to commercial Letters
of Credit, payable at the time of invoice of such amounts.
3.9. Issuing Bank Reporting Requirements. In addition to the notices
required by Section 3.5(B), each Issuing Bank shall, no later than the tenth
(10th) Business Day following the last day of each month, provide to the
Administrative Agent, upon the Administrative Agent's request, schedules, in
form and substance reasonably satisfactory to the Administrative Agent, showing
the date of issue, account party and amount, expiration date and the reference
number of each Letter of Credit issued by it outstanding at any time during such
month and the aggregate amount payable by the Company during such month. In
addition, upon the request of the Administrative Agent, each
53
Issuing Bank shall furnish to the Administrative Agent copies of any Letter of
Credit and any application for or reimbursement agreement with respect to a
Letter of Credit to which the Issuing Bank is party and such other documentation
as may reasonably be requested by the Administrative Agent. Upon the request of
any Lender, the Administrative Agent will provide to such Lender information
concerning such Letters of Credit.
3.10. Indemnification; Exoneration.
(A) In addition to amounts payable as elsewhere provided in this
Article III, the Company hereby agrees to protect, indemnify, pay and save
harmless the Administrative Agent, each Issuing Bank and each Lender from
and against any and all liabilities and costs which the Administrative
Agent, such Issuing Bank or such Lender may incur or be subject to as a
consequence, direct or indirect, of (i) the issuance of any Letter of
Credit other than, in the case of the applicable Issuing Bank, to the
extent resulting from its gross negligence or willful misconduct or from
its failure to comply with Uniform Customs and Practice for Documentary
Credits of the International Chamber of Commerce, or (ii) the failure of
the applicable Issuing Bank to honor a drawing under a Letter of Credit as
a result of any act or omission, whether rightful or wrongful, of any
present or future de jure or de facto Governmental Authority (all such acts
or omissions herein called "GOVERNMENTAL ACTS").
(B) As among the Company, the Lenders, the Administrative Agent
and the Issuing Banks, the Company assumes all risks of the acts and
omissions of, or misuse of such Letter of Credit by, the beneficiary of any
Letters of Credit. In furtherance and not in limitation of the foregoing,
subject to the provisions of the Letter of Credit applications and Letter
of Credit reimbursement agreements executed by the Company at the time of
request for any Letter of Credit, neither the Administrative Agent, any
Issuing Bank nor any Lender shall be responsible (in the absence of gross
negligence or willful misconduct in connection therewith or failure to
comply with Uniform Customs and Practice for Documentary Credits of the
International Chamber of Commerce): (i) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance
of the Letters of Credit, even if it should in fact prove to be in any or
all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii)
for the validity or sufficiency of any instrument transferring or assigning
or purporting to transfer or assign a 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) for failure of the
beneficiary of a Letter of Credit to comply duly with conditions required
in order to draw upon such Letter of Credit; (iv) for errors, omissions,
interruptions or delays in transmission or delivery of any messages, by
mail, cable, telegraph, telex, facsimile, electronic transmission or
otherwise; (v) for errors in interpretation of technical trade terms; (vi)
for any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under any Letter of Credit or of the
proceeds thereof; (vii) for the misapplication by the beneficiary of a
Letter of Credit of the proceeds of any drawing under such Letter of
Credit; and (viii) for any consequences arising from causes beyond the
control of the Administrative Agent, the Issuing Banks and the Lenders,
including, without limitation, any Governmental Acts. None of the above
shall affect, impair, or prevent the vesting of any Issuing Bank's rights
or powers under this Section 3.10.
(C) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by
any Issuing Bank under or in connection with the Letters of Credit or any
related certificates shall not, in the absence of gross negligence
54
or willful misconduct, put the applicable Issuing Bank, the Administrative
Agent or any Lender under any resulting liability to the Company or relieve
the Company of any of its obligations hereunder to any such Person.
(D) Without prejudice to the survival of any other agreement of
the Company hereunder, the agreements and obligations of the Company
contained in this Section 3.10 shall survive the payment in full of
principal and interest hereunder, the termination of the Letters of Credit
and the termination of this Agreement.
3.11. Cash Collateral. Notwithstanding anything to the contrary herein
or in any application for a Letter of Credit, following the occurrence and
during the continuance of a Default or upon payout or termination of this
Agreement in full in cash, the Company shall, on the Business Day that it
receives Administrative Agent's demand, deliver to the Administrative Agent for
the benefit of the Lenders and the Issuing Banks, cash, or other collateral of a
type satisfactory to the Required Lenders, having a value, as determined by such
Lenders, equal to one hundred five percent (105%) of the aggregate Dollar Amount
of the outstanding L/C Obligations. Any such collateral shall be held by the
Administrative Agent in a separate account appropriately designated as a cash
collateral account in relation to this Agreement and the Letters of Credit and
retained by the Administrative Agent for the benefit of the Lenders and the
Issuing Banks as collateral security for the Company's obligations in respect of
this Agreement and each of the Letters of Credit. Such amounts shall be applied
to reimburse the Issuing Banks for drawings or payments under or pursuant to
Letters of Credit, or if no such reimbursement is required, to payment of such
of the other Obligations as the Administrative Agent shall determine. If no
Default shall be continuing, amounts remaining in any cash collateral account
established pursuant to this Section 3.11 which are not to be applied to
reimburse an Issuing Bank for amounts actually paid or to be paid by such
Issuing Bank in respect of a Letter of Credit, shall be returned to the Company
within one (1) Business Day (after deduction of the Administrative Agent's
expenses incurred in connection with such cash collateral account).
ARTICLE IV: CHANGE IN CIRCUMSTANCES
4.1. Yield Protection. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law) adopted after the date the relevant Lender became a
party to this Agreement and having general applicability to all banks within the
jurisdiction in which such Lender operates (excluding, for the avoidance of
doubt, the effect of and phasing in of capital requirements or other regulations
or guidelines passed prior to the date of this Agreement), or any interpretation
or application thereof by any Governmental Authority charged with the
interpretation or application thereof, or the compliance of any Lender
therewith,
(A) subjects any Lender or any applicable Lending Installation to
any tax, duty, charge or withholding on or from payments due from any
Borrower (excluding taxation of the overall net income of any Lender or
taxation of a similar basis, which are governed by Section 2.14(E)), or
changes the basis of taxation of payments to any Lender in respect of its
Revolving Loan Commitment, Loans, its L/C Interests, the Letters of Credit
or other amounts due it hereunder, or
(B) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended
by, any Lender or any applicable Lending Installation (other than reserves
and assessments taken into account in determining the interest rate
applicable to Eurocurrency Rate
55
Loans) with respect to its Revolving Loan Commitment, Loans, L/C Interests
or the Letters of Credit, or
(C) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation of making,
funding or maintaining its Revolving Loan Commitment, the Loans, the L/C
Interests or the Letters of Credit or reduces any amount receivable by any
Lender or any applicable Lending Installation in connection with Loans or
Letters of Credit, or requires any Lender or any applicable Lending
Installation to make any payment calculated by reference to the amount of
its Revolving Loan Commitment, Loans or the L/C Interests held or interest
received by it or by reference to the Letters of Credit, by an amount
deemed material by such Lender;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining its Revolving Loan Commitment, Loans, L/C
Interests, or Letters of Credit or to reduce any amount received under this
Agreement, then, within fifteen (15) days after receipt by the applicable
Borrower of written demand by such Lender pursuant to Section 4.5, the
applicable Borrower shall pay such Lender that portion of such increased expense
incurred or reduction in an amount received which such Lender determines is
attributable to making, funding and maintaining its Loans, L/C Interests,
Letters of Credit and its Revolving Loan Commitment; provided that such Lender
shall only require such payment from the applicable Borrower to the extent such
Lender is requiring such payments from other borrowers of comparable
creditworthiness as the Company.
4.2. Changes in Capital Adequacy Regulations. If a Lender determines
(i) the amount of capital required or expected to be maintained by such Lender,
any Lending Installation of such Lender or any corporation controlling such
Lender is increased as a result of a "Change" (as defined below), and (ii) such
increase in capital will result in an increase in the cost to such Lender of
maintaining its Revolving Loan Commitment, Loans, L/C Interests, the Letters of
Credit or its obligation to make Loans hereunder, then, within fifteen (15) days
after receipt by the applicable Borrower of written demand by such Lender
pursuant to Section 4.5, the applicable Borrower shall pay such Lender the
amount necessary to compensate for any shortfall in the rate of return on the
portion of such increased capital which such Lender determines is attributable
to this Agreement, its Loans, its L/C Interests, the Letters of Credit or its
obligation to make Loans hereunder (after taking into account such Lender's
policies as to capital adequacy); provided that such Lender shall only require
such payment from the applicable Borrower to the extent such Lender is requiring
such payments from other borrowers of comparable creditworthiness as the
Company. "CHANGE" means (i) any change after the date the relevant Lender became
a party to this Agreement in the "Risk-Based Capital Guidelines" (as defined
below) excluding, for the avoidance of doubt, the effect of any phasing in of
such Risk-Based Capital Guidelines or any other capital requirements passed
prior to the date hereof, or (ii) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
date the relevant Lender became a party to this Agreement and having general
applicability to all banks and financial institutions within the jurisdiction in
which such Lender operates which affects the amount of capital required or
expected to be maintained by any Lender or any Lending Installation or any
corporation controlling any Lender. "RISK-BASED CAPITAL GUIDELINES" means (i)
the risk-based capital guidelines in effect in the United States on the date the
relevant Lender became a party to this Agreement, including transition rules,
and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
56
including transition rules, and any amendments to such regulations adopted prior
to the date the relevant Lender became a party to this Agreement.
4.3. Availability of Types of Advances. If (i) any Lender determines
that maintenance of its Fixed-Rate Rate Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation or directive, whether or not
having the force of law, or (ii) the Required Lenders determine that (x)
deposits of a type, currency or maturity appropriate to match fund Fixed-Rate
Loans are not available or (y) the interest rate applicable to Fixed-Rate Loans
does not accurately reflect the cost of making or maintaining such an Advance,
then the Administrative Agent shall suspend the availability of the affected
Type of Advance and, in the case of any occurrence set forth in clause (i),
require any Advances of the affected Type to be repaid or converted into another
Type.
4.4. Funding Indemnification. Subject to Sections 2.4(B)(i), (ii), and
(iii), if any payment of a Fixed-Rate Loan occurs on a date which is not the
last day of the applicable Interest Period, whether because of acceleration,
prepayment, or otherwise, or a Fixed-Rate Loan is not made on the date specified
by the Borrowers for any reason other than default by the Lenders, the Borrowers
shall indemnify each Lender for any loss or cost incurred by it resulting
therefrom, including, without limitation, any loss or cost in liquidating or
employing deposits acquired to fund or maintain the Fixed-Rate Loan.
4.5. Lender Statements; Survival of Indemnity. If reasonably possible,
each Lender shall designate an alternate Lending Installation with respect to
its Fixed-Rate Loans to reduce any liability of the Borrowers to such Lender
under Sections 4.1 and 4.2 or to avoid the unavailability of a Type of Advance
under Section 4.3, so long as such designation is not disadvantageous, in the
judgment of the Lender, to such Lender. Any demand for compensation pursuant to
Section 2.14(E) or this Article IV shall be in writing and shall state the
amount due, if any, under Section 2.14(E), 4.1, 4.2, 4.4 or 4.6 and shall set
forth in reasonable detail the calculations upon which such Lender determined
such amount and shall be final, conclusive, and binding on the Borrowers in the
absence of manifest error. Determination of amounts payable under such Sections
in connection with a Fixed-Rate Loan shall be calculated as though each Lender
funded its Fixed-Rate Loan through the purchase of a deposit of the type,
currency and maturity corresponding to the deposit used as a reference in
determining the Eurocurrency Rate or Alternate Currency Rate applicable to such
Loan, whether in fact that is the case or not. The obligations of the Borrowers
under Sections 2.14(E), 4.1, 4.2, 4.4 and 4.6 shall survive payment of the
Obligations and termination of this Agreement.
4.6. Non-U.S. Reserve Costs or Fees. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive of any
jurisdiction outside of the United States of America or any subdivision thereof
(whether or not having the force of law), imposes or deems applicable any
reserve requirement against or fee with respect to assets of, deposits with or
for the account of, or credit extended by, any Lender or any applicable Lending
Installation, and the result of the foregoing is to increase the cost to such
Lender or applicable Lending Installation of making or maintaining its
Eurocurrency Loans to any Borrower that is not incorporated under the laws of
the United States of America or a state thereof (each a "NON-U.S. BORROWER") or
its Commitment to any Non-U.S. Borrower or to reduce the return received by such
Lender or applicable Lending Installation in connection with such Eurocurrency
Loans to any Non-U.S. Borrower or Commitment to any Non-U.S. Borrower, then,
within 15 days of demand by such Lender, such Non-U.S. Borrower shall pay such
Lender such additional amount or amounts as will compensate such Lender for such
increased cost or reduction in amount received.
57
ARTICLE V: CONDITIONS PRECEDENT
5.1. Initial Advances and Letters of Credit. The Lenders shall not be
required to make the initial Loans or issue any Letters of Credit unless the
Company has furnished to the Administrative Agent each of the following, with
sufficient copies for the Lenders, all in form and substance satisfactory to the
Administrative Agent:
(1) Copies of the Certificate of Incorporation (or other
comparable constituent document) of each member of the Initial Obligor
Group, together with all amendments and a certificate of good standing,
both certified by the appropriate governmental officer in its
jurisdiction of incorporation;
(2) Copies, certified by the Secretary or Assistant Secretary
of each member of the Initial Obligor Group (except as otherwise
permitted and contemplated by Section 7.2(M)), of its By-Laws (or other
comparable governing document) and of its Board of Directors'
resolutions (and resolutions of other bodies, if any are deemed
necessary by counsel for any Lender) authorizing the execution of the
Loan Documents;
(3) An incumbency certificate, executed by the Secretary or
Assistant Secretary of each member of the Initial Obligor Group, which
shall identify by name and title and bear the signature of the officers
of the members of the Initial Obligor Group authorized to sign the Loan
Documents (and, in the case of the Borrowers, to make borrowings
hereunder or under any applicable Alternate Currency Addendum), upon
which certificate the Lenders shall be entitled to rely until informed
of any change in writing by the Company;
(4) A certificate, in form and substance satisfactory to the
Administrative Agent, signed by an Authorized Officer of each Borrower,
stating that on the date of this Agreement all the representations in
this Agreement and in any applicable Alternate Currency Addendum are
true and correct in all material respects (unless such representation
and warranty is made as of a specific date, in which case, such
representation and warranty shall be true in all material respects as
of such date) and no Default or Unmatured Default has occurred and is
continuing;
(5) Written money transfer instructions reasonably requested
by the Administrative Agent, addressed to the Administrative Agent and
signed by an Authorized Officer;
(6) Evidence satisfactory to the Administrative Agent that the
Company has paid to the Administrative Agent and the Arranger the fees
agreed to in the fee letter dated June 27, 2003, among the
Administrative Agent, the Arranger and the Company;
(7) The written opinions of the initial Borrowers' and the
Subsidiary Guarantors' U.S. counsel, and, if such Borrower or
Subsidiary Guarantor is a Foreign Subsidiary, foreign counsel, in the
forms of the opinions attached hereto as Exhibit E, in each case,
addressed to the Administrative Agent, the Alternate Currency Banks,
the Issuing Banks and the Lenders, in form and substance acceptable to
the Administrative Agent and its counsel, with respect to (without
limitation) the due authorization, execution and enforceability of this
Agreement and the other Loan Documents;
58
(8) Such other documents as the Administrative Agent or any
Lender or its counsel may have reasonably requested, including, without
limitation the Parent Guaranty, the Subsidiary Guaranty, any applicable
Alternate Currency Addendum and each other document reflected on the
List of Closing Documents attached as Exhibit F to this Agreement; and
(9) The Administrative Agent shall have received the audited
financial statements of the Company and its consolidated Subsidiaries,
in the form contemplated under Section 7.1(A)(ii), accompanied by a
compliance certificate (substantially in the form of Exhibit H attached
hereto and in such detail as is requested by the Administrative Agent)
signed by the Company's chief financial officer and demonstrating
compliance with the financial tests set forth herein.
5.2. Each Advance and Letter of Credit. The Lenders shall not be
required to make any Advance, or issue any Letter of Credit, unless on the
applicable Borrowing Date, or in the case of a Letter of Credit, the date on
which the Letter of Credit is to be issued, both before and after giving effect
to such Advance or Letter of Credit:
(A) There exists no Default or Unmatured Default;
(B) The representations and warranties contained in Article VI are
true and correct in all material respects as of such Borrowing Date (except
for those made as of a particular date which shall be true and correct as
of such date); and
(C) (i) The Dollar Amount of the Revolving Credit Obligations do
not, and after making such proposed Advance or issuing such Letter of
Credit would not, exceed the Aggregate Revolving Loan Commitment, (ii) the
Dollar Amount of Revolving Loans denominated in Agreed Currencies other
than Dollars plus the Dollar Amount of all Alternate Currency Loans do not,
and after making such proposed Advance or issuing such Letter of Credit
would not, exceed the Foreign Currency Sublimit and (iii) the Dollar Amount
of all Alternate Currency Loans do not, and after making such proposed
Advance or issuing such Letter of Credit would not, exceed (a) the
aggregate Alternate Currency Commitments with respect thereto and (b) the
Alternate Currency Sublimit.
Each Borrowing/Election Notice with respect to each such Advance and
the letter of credit application with respect to each Letter of Credit shall
constitute a representation and warranty by the Company that the conditions
contained in Sections 5.2(A), (B) and (C) have been satisfied.
5.3. Initial Advance to Each New Alternate Currency Borrower. No
Alternate Currency Bank shall be required to make any Alternate Currency Loans,
in each case, to a new Alternate Currency Borrower added after the Closing Date
unless the Company has furnished or caused to be furnished to the Administrative
Agent with sufficient copies for the Lenders:
(1) The Assumption Letter executed and delivered by such
Alternate Currency Borrower and containing the written consent of the
Company thereon, as contemplated by Section 2.23.
(2) Copies of the Certificate of Incorporation (or other
comparable constituent document) of the Alternate Currency Borrower,
together with all amendments and a
59
certificate of good standing, both certified by the appropriate
governmental officer in its jurisdiction of organization.
(3) Copies, certified by the Secretary or Assistant Secretary
of the Alternate Currency Borrower, of its By-Laws (or other comparable
governing document) and of its Board of Directors' (or comparable
governing body's) resolutions (and resolutions of other bodies, if any
are deemed necessary by the Administrative Agent) approving the
Assumption Letter.
(4) An incumbency certificate, executed by the Secretary,
Assistant Secretary, Director or Authorized Officer of the Alternate
Currency Borrower, which shall identify by name and title and bear the
signature of the officers of such Alternate Currency Borrower
authorized to sign the Assumption Letter and the other documents to be
executed and delivered by such Alternate Currency Borrower hereunder,
upon which certificate the Administrative Agent and the Lenders shall
be entitled to rely until informed of any change in writing by the
Company.
(5) An opinion of counsel to such Alternate Currency Borrower,
in a form reasonably acceptable to the Administrative Agent and its
counsel.
(6) Promissory notes payable to each of the Lenders requesting
promissory notes pursuant to Section 2.12(D) hereof; and
(7) Such other instruments, documents or agreements as the
Administrative Agent or its counsel may reasonably request, all in form
and substance reasonably satisfactory to the Administrative Agent and
its counsel.
5.4. Initial Advance to Each New Subsidiary Borrower. Without in any
way limiting the applicability of the foregoing Sections 5.1 and 5.2, the
Lenders shall not be required to make any Advance hereunder, or issue any Letter
of Credit, in each case, to or with respect to any Subsidiary Borrower unless
the Company or such Subsidiary Borrower has furnished or caused to be furnished
to the Administrative Agent with sufficient copies for the Lenders:
(1) The Assumption Letter executed and delivered by such
Subsidiary Borrower and containing the written consent of the Company
thereon, as contemplated by Section 2.25;
(2) Copies of the Certificate of Incorporation (or other
comparable constituent document) of such Subsidiary Borrower, together
with all amendments and a certificate of good standing (or equivalent
thereof, to the extent obtainable in any jurisdiction outside the
United States), both certified by the appropriate governmental officer
in its jurisdiction of organization;
(3) Copies, certified by the Secretary or Assistant Secretary
of such Subsidiary Borrower, of its By-Laws (or other comparable
governing document) and of its Board of Directors' (or comparable
governing body's) resolutions (and resolutions of other bodies, if any
are deemed necessary by the Administrative Agent) approving the
Assumption Letter;
(4) An incumbency certificate, executed by the Secretary,
Assistant Secretary, Director or Authorized Officer of such Subsidiary
Borrower, which shall identify by name
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and title and bear the signature of the officers of such Subsidiary
Borrower authorized to sign the Assumption Letter and the other
documents to be executed and delivered by such Subsidiary Borrower
hereunder, upon which certificate the Administrative Agent and the
Lenders shall be entitled to rely until informed of any change in
writing by the such Subsidiary Borrower;
(5) An opinion of counsel to such Subsidiary Borrower in a
form reasonably acceptable to the Administrative Agent and its counsel;
(6) Promissory notes payable to each of the Lenders requesting
promissory notes pursuant to Section 2.12(D) hereof; and
(7) Such other instruments, documents or agreements as the
Administrative Agent may reasonably request in connection with the
addition of such Subsidiary Borrower, all in form and substance
reasonably satisfactory to the Administrative Agent.
ARTICLE VI: REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans and the other financial accommodations
to the Borrowers and to issue the Letters of Credit described herein, the
Company (and each other Borrower shall also be deemed to make each
representation and warranty to the extent it relates to such Borrower and its
Subsidiaries) represents and warrants as follows to each Lender and the
Administrative Agent as of the Closing Date, giving effect to the consummation
of the transactions contemplated by the Loan Documents on the Closing Date, and
thereafter on each date as required by Section 5.2 or 5.3, as applicable:
6.1. Organization; Corporate Powers. The Company and each of its
Subsidiaries (i) is a corporation, partnership or limited liability company duly
organized, validly existing and in good standing (to the extent such concept
applies to such entity) under the laws of the jurisdiction of its organization,
(ii) is duly qualified to do business as a foreign entity and is in good
standing under the laws of each jurisdiction in which the failure to be so
qualified and in good standing could reasonably be expected to have a Material
Adverse Effect, and (iii) has all requisite authority to own, operate and
encumber its property and to conduct its business as presently conducted and as
proposed to be conducted, except where the failure to obtain such authority
could not reasonably be expected to have a Material Adverse Effect.
6.2. Authority.
(A) The Company and each of its Subsidiaries has the requisite
power and authority to execute, deliver and perform each of the Loan
Documents which have been executed by it as required by this Agreement and
the other Loan Documents on or prior to Closing Date and (ii) to file the
Loan Documents which have been filed by it as required by this Agreement,
the other Loan Documents or otherwise on or prior to the Closing Date with
any Governmental Authority.
(B) The execution, delivery and performance, as the case may be,
of each of the Loan Documents which have been executed or filed as required
by this Agreement, the other Loan Documents or otherwise on or prior to the
Closing Date and to which the Company or any of its Subsidiaries is party,
and the consummation of the transactions contemplated thereby, have been
61
duly authorized by all requisite corporate, partnership or limited
liability company acts (including any required shareholder or partner
approval) of the Company and its Subsidiaries.
(C) Each of the Loan Documents to which the Company or any of its
Subsidiaries is a party has been duly executed or delivered, as the case
may be, by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms (except as
enforceability may be limited by bankruptcy, insolvency, or similar laws
affecting the enforcement of creditors' rights generally), is in full force
and effect and no material term or condition thereof has been amended,
modified or waived from the terms and conditions contained in the Loan
Documents delivered to the Administrative Agent pursuant to Section 5.1
without the prior written consent of the Administrative Agent and any other
requisite parties hereto, and the Company and its Subsidiaries have, and,
to the best of the Company's and its Subsidiaries' knowledge, all other
parties thereto have, performed and complied with all the terms,
provisions, agreements and conditions set forth therein and required to be
performed or complied with by such parties on or before the Closing Date.
6.3. No Conflict; Governmental Consents. The execution, delivery and
performance of each of the Loan Documents to which the Company or any of its
Subsidiaries is a party do not and will not (i) conflict with the certificate or
articles of incorporation, partnership agreement, certificate of partnership,
articles or certificate of organization or formation, by-laws, operating
agreement or other management agreement (or other applicable constituent
documents) of the Company or any such Subsidiary, (ii) conflict with, result in
a breach of or constitute (with or without notice or lapse of time or both) a
default under any Requirement of Law (including, without limitation, any
Environmental Property Transfer Act) or Contractual Obligation of the Company or
any such Subsidiary, or require termination of any Contractual Obligation,
except such breach, default or termination which individually or in the
aggregate could not reasonably be expected to have a Material Adverse Effect, or
(iii) result in or require the creation or imposition of any Lien whatsoever
upon any of the property or assets of the Company or any such Subsidiary, other
than Liens permitted or created by the Loan Documents. Except as set forth on
Schedule 6.3 to this Agreement, the execution, delivery and performance of each
of the Loan Documents to which the Company or any of its Subsidiaries is a party
do not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by any Governmental Authority, including
under any Environmental Property Transfer Act, except filings, consents or
notices which have been made, obtained or given, or which, if not made, obtained
or given, individually or in the aggregate could not reasonably be expected to
have a Material Adverse Effect.
6.4. Financial Statements. Complete and accurate copies of the audited
consolidated financial statements and the audit report related thereto of the
Company and its Subsidiaries as at December 31, 2002 have been delivered to the
Administrative Agent.
6.5. No Material Adverse Change. Since December 31, 2002, there has
occurred no change in the business, assets, liabilities (actual or contingent),
operations, condition (financial or otherwise), performance or prospects of the
Company and its Subsidiaries, taken as a whole, which has had or could
reasonably be expected to have a Material Adverse Effect.
6.6. Taxes. The Company and each of its Subsidiaries has filed or
caused to be filed all federal, state and local or other (including foreign) tax
returns which are required to be filed by it other than tax returns in respect
of which the failure to so file could not reasonably be expected to have a
Material Adverse Effect. Except for taxes and assessments being contested in
good faith and
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reserved for in accordance with GAAP as in effect from time to time or taxes the
nonpayment of which could not reasonably be expected to have a Material Adverse
Effect, the Company and each of its Subsidiaries has paid or caused to be paid
all taxes as shown on said returns on any assessment received by it, to the
extent that such taxes have become due. The Company has no knowledge of any
proposed tax assessment against the Company or any of its Subsidiaries that will
have or could reasonably be expected to have a Material Adverse Effect.
6.7. Litigation; Loss Contingencies and Violations. There is no action,
suit, proceeding, arbitration or, to the Company's knowledge, investigation
before or by any Governmental Authority or private arbitrator pending or, to the
Company's knowledge, threatened against the Company, any of its Subsidiaries or
any property of any of them which could reasonably be expected to have a
Material Adverse Effect.
6.8. Subsidiaries. Schedule 6.8 to this Agreement (i) contains a
description of the corporate structure of the Company, its Subsidiaries and any
other Person in which the Company or any of its Subsidiaries holds an Equity
Interest; and (ii) accurately sets forth (A) the correct legal name and the
jurisdiction of organization, (B) the authorized, issued and outstanding shares
of each class of Capital Stock of each of the Company's Subsidiaries and the
owners of such shares, and (C) a summary of the direct and indirect partnership,
joint venture, or other Equity Interests, if any, which the Company and each
Subsidiary of the Company holds in any Person that is not a corporation. Except
as disclosed on Schedule 6.8, none of the issued and outstanding Capital Stock
of the Company or any of the Company's Subsidiaries is subject to any vesting,
redemption, or repurchase agreement, and there are no warrants or options
outstanding with respect to such Capital Stock. The outstanding Capital Stock of
each of the Company's Subsidiaries is duly authorized, validly issued, fully
paid and nonassessable and is not Margin Stock.
6.9. ERISA. No Benefit Plan has incurred any material Accumulated
Funding Deficiency whether or not waived. Neither the Company nor any member of
the Controlled Group has incurred any material liability to the PBGC which
remains outstanding other than the payment of premiums. Neither the Company nor
any member of the Controlled Group has (i) failed to make a required
contribution or payment to a Multiemployer Plan of a material amount or (ii)
incurred a material complete or partial withdrawal under Section 4203 or Section
4205 of ERISA from a Multiemployer Plan. Neither the Company nor any member of
the Controlled Group has failed to make an installment or any other payment of a
material amount required under Section 412 of the Code on or before the due date
for such installment or other payment. There have been no and there is no
Prohibited Transaction with respect to any Plan for which a statutory or
administrative exemption does not exist which could reasonably be expected to
subject the Borrower or any of is Subsidiaries to material liability. Neither
the Company nor any member of the Controlled Group has taken or failed to take
any action which would constitute or result in a Termination Event, which action
or inaction could reasonably be expected to subject the Company or any of its
Subsidiaries to material liability. Neither the Company nor any member of the
Controlled Group is subject to any material liability under, or has any
potential material liability under, Section 4063, 4064, 4069, 4204 or 4212(c) of
ERISA. With respect to any Foreign Employee Benefit Plan other than a Foreign
Pension Plan, reasonable reserves have been established in accordance with
prudent business practice or where required by ordinary accounting practices in
the jurisdiction in which such plan is maintained. For purposes of this Section
6.9, "material" means any amount, noncompliance or other basis for liability
which could reasonably be expected to subject the Company or any of its
Subsidiaries to liability, individually or in the aggregate with each other
basis for liability under this Section 6.9, in excess of $25,000,000.
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6.10. Accuracy of Information. The information, exhibits and reports
furnished by the Company and any of its Subsidiaries, or by the Company on
behalf of any of its Subsidiaries, to the Administrative Agent or to any Lender
in connection with the negotiation of, or compliance with, the Loan Documents,
the representations and warranties of the Company and its Subsidiaries contained
in the Loan Documents, and all certificates and documents delivered to the
Administrative Agent and the Lenders pursuant to the terms thereof, taken as a
whole, do not contain as of the date thereof any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
contained herein or therein, in light of the circumstances under which they were
made, not misleading in any material respect. In addition, all financial
projections, if any, that have been prepared by the Company and made available
to the Administrative Agent or any Lender have been prepared in good faith based
upon reasonable assumptions (it being understood that such projections are
subject to significant uncertainties and contingencies, many of which are beyond
the Company's control, and that no assurance can be given that the projections
will be realized).
6.11. Securities Activities. Neither the Company nor any of its
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying Margin Stock and Margin Stock constitutes less than 25%
of the value of those assets of the Company and its Subsidiaries which are
subject to any limitation on sale, pledge, or other restriction hereunder.
6.12. Material Agreements. Neither the Company nor any of its
Subsidiaries has received written notice that (i) it is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any Contractual Obligation to which it is a party, or
(ii) any condition exists which, with the giving of notice or the lapse of time
or both, would constitute a default with respect to any such Contractual
Obligation, in each case, which default has, or if not remedied within any
applicable grace period could reasonably be likely to have, a Material Adverse
Effect.
6.13. Compliance with Laws. The Company and its Subsidiaries are in
compliance with all Requirements of Law applicable to them and their respective
businesses, in each case where the failure to so comply individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect.
6.14. Assets and Properties. The Company and each of its Subsidiaries
has good and marketable title to all of its real and personal properties owned
by it or a valid leasehold interest in all of its leased assets (except insofar
as marketability may be limited by any laws or regulations of any Governmental
Authority affecting such assets), and all such assets and property are free and
clear of all Liens, except Liens permitted under Section 7.3(C).
6.15. Statutory Indebtedness Restrictions. Neither the Company nor any
of its Subsidiaries is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, or the Investment Company Act of
1940, or any other foreign, federal or state statute or regulation which limits
its ability to incur indebtedness or its ability to consummate the transactions
contemplated hereby.
6.16. Labor Matters. To the knowledge of the Company, as of the Closing
Date, no attempt to organize the employees of the Company or any of its
Subsidiaries, and no labor disputes, strikes or walkouts affecting the
operations of the Company or any of its Subsidiaries, is pending, or, to the
Company's or such Subsidiaries' knowledge, threatened, planned or contemplated
which could reasonably be expected to have a Material Adverse Effect.
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6.17. Environmental Matters.
(A) Except as disclosed on Schedule 6.17 to this Agreement
(i) the operations of the Company and its Subsidiaries comply
in all material respects with Environmental, Health or Safety
Requirements of Law;
(ii) the Company and its Subsidiaries have all material
permits, licenses or other authorizations required under Environmental,
Health or Safety Requirements of Law and are in material compliance
with such permits;
(iii) neither the Company, any of its Subsidiaries nor any of
their respective present property or operations, or, to the Company's
or any of its Subsidiaries' knowledge, any of their respective past
property or operations, are subject to or the subject of, any material
investigation known to the Company or any of its Subsidiaries, any
material judicial or administrative proceeding, order, judgment,
decree, settlement or other agreement respecting: (A) any material
violation of Environmental, Health or Safety Requirements of Law; (B)
any material remedial action; or (C) any material claims or liabilities
arising from the Release or threatened Release of a Contaminant into
the environment;
(iv) there is not now, nor to the Company's or any of its
Subsidiaries' knowledge has there ever been, on or in the property of
the Company or any of its Subsidiaries any landfill, waste pile,
underground storage tanks, aboveground storage tanks, surface
impoundment or hazardous waste storage facility of any kind, any
polychlorinated biphenyls (PCBs) used in hydraulic oils, electric
transformers or other equipment, or any asbestos containing material,
in each case whereby such presence has, or could reasonably be expected
to have, a Material Adverse Effect; and
(v) to the knowledge of the Company or any of its
Subsidiaries, neither the Company nor any of its Subsidiaries has any
material Contingent Obligation in connection with any Release or
threatened Release of a Contaminant into the environment.
(B) For purposes of this Section 6.17 "material" means any
noncompliance or basis for liability which has, or could reasonably be to
have, a Material Adverse Effect.
6.18. Representations and Warranties of each Foreign Subsidiary that is
a Borrower. Each Foreign Subsidiary that is a Borrower represents and warrants
to the Lenders that:
(A) Filing. To ensure the enforceability or admissibility in
evidence of this Agreement and each other Loan Document to which such
Borrower is a party in the laws of the jurisdiction of its organization
(such jurisdiction being hereinafter referred to as the "HOME COUNTRY"), it
is not necessary that this Agreement or any other Loan Document to which
such Borrower is a party or any other document be filed or recorded with
any court or other authority in its Home Country or that any stamp or
similar tax be paid to or in respect of this Agreement or any other Loan
Document of such Borrower, other than documents which have been so filed or
recorded and stamp or similar taxes which have been so paid.
(B) No Immunity. Neither such Borrower nor any of its assets is
entitled to immunity from suit, execution, attachment or other legal
process. Such Borrower's execution and delivery
65
of the Loan Documents to which it is a party constitute, and the exercise
of its rights and performance of and compliance with its obligations under
such Loan Documents will constitute, private and commercial acts done and
performed for private and commercial purposes.
(C) Application of Representations and Warranties. It is
understood and agreed by the parties hereto that the representations and
warranties in this Section 6.18 of each Foreign Subsidiary that is a
Borrower shall only be applicable to such Borrower on and after the date of
its execution of its Assumption Letter and any applicable Alternate
Currency Addendum.
6.19. Insurance. The Company maintains, and has caused each Subsidiary
to maintain, with financially sound and reputable insurance companies, insurance
on all of its property in such amounts, subject to deductibles and
self-insurance retentions, and covering such properties and risks, as is
consistent with sound business practices.
6.20. Benefits. The Administrative Agent and the Lenders have stated
and each Borrower acknowledges that, but for the agreement by each of the
Subsidiary Guarantors to execute and deliver the Subsidiary Guaranty, the
Administrative Agent and the Lenders would not have made available the credit
facilities established hereby on the terms set forth herein.
6.21. Reportable Transaction. None of the Borrowers intend to treat the
Advances and related transactions as being a "reportable transaction" (within
the meaning of Treasury Regulation Section 1.6011-4). In the event any Borrower
determines to take any action inconsistent with such intention, it will promptly
notify the Administrative Agent thereof.
6.22. No Default. There exists no Default or Unmatured Default.
ARTICLE VII: COVENANTS
The Company covenants and agrees on behalf of itself and its
Subsidiaries (and each other Borrower shall also be deemed to so covenant and
agree to the extent such covenant relates to such Borrower and its Subsidiaries)
that so long as any Revolving Loan Commitments are outstanding and thereafter
until payment in full of all of the Obligations (other than contingent indemnity
obligations) and termination of all Letters of Credit (or cash collateralization
thereof in accordance with Section 3.11), unless the Required Lenders shall
otherwise give prior written consent:
7.1. Reporting. The Company shall:
(A) Financial Reporting. Furnish to the Administrative Agent (with
sufficient copies for each of the Lenders):
(i) Quarterly Reports. As soon as practicable, and in any
event within the earlier of (x) ten (10) days after the date on which
quarterly reports are required to be delivered to the Commission and
(y) fifty (50) days after the end of the first three fiscal quarters of
the Company, the consolidated balance sheet of the Company and its
Subsidiaries as at the end of such period and the related consolidated
statement of income of the Company and its Subsidiaries for such fiscal
quarter and for the period from the beginning of the then current
fiscal year to the end of such fiscal quarter and the related
consolidated statement of cash flows for the period from the beginning
of the then current fiscal year to the end of such fiscal quarter,
certified by the chief financial officer of the Company on behalf of
the
66
Company as fairly presenting in all material respects the consolidated
financial position of the Company and its Subsidiaries as at the dates
indicated and the results of their operations and cash flows for the
periods indicated in accordance with GAAP, subject to normal year-end
audit adjustments and the absence of footnotes.
(ii) Annual Reports. As soon as practicable, and in any event
within the earlier of (x) ten (10) days after the date on which annual
reports are required to be delivered to the Commission and (y)
ninety-five (95) days after the end of each fiscal year of the Company,
(a) the consolidated balance sheet of the Company and its Subsidiaries
as at the end of such fiscal year and the related consolidated
statements of income, stockholders' equity and cash flows of the
Company and its Subsidiaries for such fiscal year, and (b) an audit
report on the items listed in clause (a) hereof of independent
certified public accountants of recognized national standing, which
audit report shall be unqualified (except for qualifications relating
to changes in GAAP) and shall state that such consolidated financial
statements fairly present the financial position of the Company and its
Subsidiaries as at the dates indicated and the results of their
operations and cash flows for the periods indicated in conformity with
GAAP as in effect from time to time and that the examination by such
accountants in connection with such consolidated financial statements
has been made in accordance with generally accepted auditing standards
as then in effect in the United States of America.
(iii) Officer's Certificate. Together with each delivery of
any financial statement (a) pursuant to clauses (i) and (ii) of this
Section 7.1(A), an Officer's Certificate of the Company, substantially
in the form of Exhibit G attached hereto and made a part hereof,
stating that (1) the representations and warranties of the Company
contained in Article VI hereof shall have been true and correct in all
material respects (unless such representation or warranty is made as of
a specific date, in which case, such representation and warranty shall
be true in all material respects as of such date) as of the date of
such Officer's Certificate and (2) as of the date of such Officer's
Certificate no Default or Unmatured Default exists, or if any Default
or Unmatured Default exists, stating the nature and status thereof and
(b) pursuant to clauses (i) and (ii) of this Section 7.1(A), a
compliance certificate, substantially in the form of Exhibit H attached
hereto and made a part hereof, signed by the Company's chief financial
officer, (1) setting forth calculations for the period then ended for
Section 2.4(B), if applicable, (2) demonstrating compliance, when
applicable, with the provisions of Section 7.3(A)(vi), Section
7.3(D)(vi) and Section 7.4, and (3) calculating the Leverage Ratio for
purposes of determining the then Applicable Eurocurrency Margin,
Applicable Alternate Currency Margin, Applicable L/C Fee Percentage and
Applicable Facility Fee Percentage.
(B) Notice of Default. Promptly upon the Company or any Subsidiary
obtaining knowledge (and in any event within 10 days of obtaining such
knowledge) (i) of any condition or event which constitutes a Default or
Unmatured Default, or (ii) that any Person has given any written notice to
the Company or any Subsidiary or taken any other action with respect to a
claimed default or event or condition of the type referred to in Section
8.1(E), the Company shall deliver to the Administrative Agent an Officer's
Certificate specifying (a) the nature and period of existence of any such
claimed default, Default, Unmatured Default, condition or event, (b) the
notice given or action taken by such Person in connection therewith, and
(c) what action the applicable Borrower has taken, is taking and proposes
to take with respect thereto.
(C) Lawsuits. (i) Promptly upon the Company or any Subsidiary
obtaining knowledge of the institution of, or written threat of, any
action, suit, proceeding, governmental investigation
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or arbitration, by or before any Governmental Authority, against or
affecting such Borrower or any of its Subsidiaries or any property of such
Borrower or any of its Subsidiaries not previously disclosed pursuant to
Section 6.7, which action, suit, proceeding, governmental investigation or
arbitration exposes, or in the case of multiple actions, suits,
proceedings, governmental investigations or arbitrations arising out of the
same general allegations or circumstances which expose, in the Company's
reasonable judgment, any Borrower or any of its Subsidiaries to liability
in an amount aggregating $15,000,000 or more (exclusive of claims covered
by insurance policies of the Company or any of its Subsidiaries unless the
insurers of such claims have disclaimed coverage or reserved the right to
disclaim coverage on such claims and exclusive of claims covered by the
indemnity of a financially responsible indemnitor in favor of the Company
or any of its Subsidiaries unless the indemnitor has disclaimed or reserved
the right to disclaim coverage thereof), give written notice thereof to the
Administrative Agent and provide such other information as may be
reasonably available to enable each Lender to evaluate such matters; and
(ii) in addition to the requirements set forth in clause (i) of this
Section 7.1(C), upon request of the Administrative Agent or the Required
Lenders, promptly give written notice of the status of any action, suit,
proceeding, governmental investigation or arbitration covered by a report
delivered pursuant to clause (i) above and provide such other information
as may be reasonably available to it that would not jeopardize any
attorney-client privilege by disclosure to the Lenders to enable each
Lender and the Administrative Agent and its counsel to evaluate such
matters.
(D) ERISA Notices. Deliver or cause to be delivered to the
Administrative Agent, at the Company's expense, as soon as reasonably
possible, and in any event within thirty (30) days after the Company knows
that any Termination Event has occurred with respect to any Plan, a
statement, signed by the chief financial officer of the Company, describing
said Termination Event and the action which the Company proposes to take
with respect thereto.
(E) Material Indebtedness. Deliver to the Administrative Agent (i)
a copy of each regular report, notice or communication regarding unmatured
or actual defaults (including any accompanying officer's certificate)
delivered by or on behalf of the Company to the holders of Material
Indebtedness pursuant to the terms of the agreements governing such
Material Indebtedness, such delivery to be made at the same time and by the
same means as such notice of default is delivered to such holders, and (ii)
a copy of each notice or other communication received by the Company from
the holders of Material Indebtedness regarding unmatured or actual defaults
pursuant to the terms of such Material Indebtedness, such delivery to be
made promptly after such notice or other communication is received by the
Company.
(F) Other Reports. Deliver or cause to be delivered to the
Administrative Agent copies of all reports and notices on Form 8-K, if any,
sent or made available generally by the Company to its securities holders
or filed with the Commission by the Company. Borrower shall include the
Administrative Agent and the Lenders on its standard distribution lists for
all press releases made available generally by the Company to the public
concerning material developments in the business of the Company or any such
Subsidiary.
(G) Other Information. Promptly upon receiving a request therefor
from the Administrative Agent, prepare and deliver to the Administrative
Agent such other information with respect to the Company, any of its
Subsidiaries, as from time to time may be reasonably requested by the
Administrative Agent.
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7.2. Affirmative Covenants.
(A) Corporate Existence, Etc. Except as permitted pursuant to
Section 7.3(I), the Company shall, and shall cause each of its Subsidiaries
to, at all times maintain its valid existence and (to the extent such
concept applies to such entity) in good standing as a corporation,
partnership or limited liability company in its jurisdiction of
incorporation or organization, as the case may be, and preserve and keep,
or cause to be preserved and kept, in full force and effect its rights and
franchises material to its businesses, except to the extent that the
failure to maintain any of the foregoing would not have a Material Adverse
Effect.
(B) Corporate Powers; Conduct of Business. The Company shall, and
shall cause each of its Subsidiaries to, qualify and remain qualified to do
business in each jurisdiction in which the nature of its business requires
it to be so qualified and where the failure to be so qualified will have or
could reasonably be expected to have a Material Adverse Effect.
(C) Compliance with Laws, Etc. The Company shall, and shall cause
its Subsidiaries to, (a) comply with all Requirements of Law and all
restrictive covenants affecting such Person or the business, properties,
assets or operations of such Person, and (b) obtain as needed all permits
necessary for its operations and maintain such permits in good standing
unless failure to comply with such Requirements of Law or such covenants or
to obtain or maintain such permits could not reasonably be expected to have
a Material Adverse Effect.
(D) Payment of Taxes and Claims; Tax Consolidation. The Company
shall pay, and cause each of its Subsidiaries to pay, all material taxes,
assessments and other governmental charges imposed upon it or on any of its
properties or assets or in respect of any of its franchises, business,
income or property before any penalty or interest accrues thereon;
provided, however, that no such taxes, assessments and governmental charges
(and interest, penalties or fines relating thereto) need be paid if being
contested in good faith by appropriate proceedings diligently instituted
and conducted and if such reserve or other appropriate provision, if any,
as shall be required in conformity with GAAP as in effect from time to time
shall have been made therefor.
(E) Insurance. The Company shall maintain for itself and its
Subsidiaries, or shall cause each of its Subsidiaries to maintain in full
force and effect, such insurance policies and programs as reflect coverage
that is reasonably consistent with sound business practices.
(F) Inspection of Property; Books and Records; Discussions. The
Company will, and will cause each Subsidiary to, permit the Administrative
Agent and the Lenders, by their respective representatives and agents, to
inspect any of the assets, property, books and financial records of the
Company and each Subsidiary, to examine and make copies of the books of
accounts and other financial records of the Company and each Subsidiary,
and to discuss the affairs, finances and accounts of the Company and each
Subsidiary with, and to be advised as to the same by, the officers of the
Company at such reasonable times and intervals as the Administrative Agent
or any Lender may designate.
(G) ERISA Compliance. The Company shall, and shall cause each of
its Subsidiaries to, establish, maintain and operate all Plans to comply in
all material respects with the provisions of ERISA and shall operate all
Plans and Non-ERISA Commitments to comply in all material respects with the
applicable provisions of the Code, all other applicable laws, and the
regulations
69
and interpretations thereunder and the respective requirements of the
governing documents for such Plans and Non-ERISA Commitments.
(H) Maintenance of Property. The Company shall cause all material
property used in the conduct of its business or the business of any
Subsidiary to be maintained and kept in adequate condition, repair and
working order and supplied with all necessary equipment and shall cause to
be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be
necessary so that the business carried on in connection therewith may be
properly conducted at all times; provided, however, that nothing in this
Section 7.2(H) shall prevent the Company from discontinuing the operation
or maintenance of any of such property if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary.
(I) Environmental Compliance. The Company and its Subsidiaries
shall comply with all Environmental, Health or Safety Requirements of Law,
except where noncompliance will not have or is not reasonably likely to
subject the Company or any of its Subsidiaries to liability, individually
or in the aggregate, in excess of $15,000,000.
(J) Use of Proceeds. The Company shall use the proceeds of the
Revolving Loans to provide funds for the working capital needs and other
general corporate purposes of the Company and its Subsidiaries (including,
without limitation, to consummate Permitted Acquisitions). The Company will
not, nor will it permit any Subsidiary to, use any of the proceeds of the
Loans to purchase or carry any Margin Stock.
(K) Subsidiary Guarantees. The Company shall, to the extent
necessary to remain in compliance with the Credit Support Requirement, (a)
cause each Subsidiary to execute the Subsidiary Guaranty (and from and
after the Closing Date cause each new Subsidiary to execute and deliver to
the Administrative Agent, as promptly as possible, but in any event within
sixty (60) days after becoming a Subsidiary, the Subsidiary Guaranty or an
executed Supplement to become a Subsidiary Guarantor under the Subsidiary
Guaranty in the form of Annex I to Exhibit I-2 attached hereto (whereupon
such Subsidiary shall become a "Subsidiary Guarantor" under this
Agreement)), and (b) deliver and cause each such Subsidiary to deliver such
corporate resolutions, opinions of counsel, and such other corporate
documentation as the Administrative Agent may reasonably request, all in
form and substance reasonably satisfactory to the Administrative Agent;
provided that no Foreign Subsidiary shall be required to execute and
deliver the Subsidiary Guaranty (or supplement thereto) if such execution
and delivery would cause a Deemed Dividend Problem or a Financial
Assistance Problem with respect to such Foreign Subsidiary and, in lieu
thereof, the Company and the relevant Subsidiaries shall comply with
Section 7.2(L) hereinbelow.
(L) Pledge Agreements.
(i) The Company, to the extent necessary to remain in
compliance with the Credit Support Requirement, in connection with a
Foreign Subsidiary which cannot become a Subsidiary Guarantor due to a
Deemed Dividend Problem or a Financial Assistance Problem in respect
thereof, shall or shall cause the applicable parent Domestic Subsidiary
as promptly as possible (but in any event within sixty (60) days
following the creation or acquisition thereof) to (a) execute a Pledge
Agreement with respect to 65% of the Capital Stock of such Foreign
Subsidiary, and (b) deliver and cause each such parent Domestic
Subsidiary and
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Foreign Subsidiary to deliver such corporate resolutions, opinions of
counsel, stock certificates, stock powers and such other corporate
documentation as the Administrative Agent or its counsel may reasonably
request, all in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.
(ii) Notwithstanding the foregoing, no Subsidiary Guaranty (or
supplement thereto) or Pledge Agreement in respect of a Foreign
Subsidiary shall be required hereunder to the extent (a) the guaranty
or pledge thereunder is prohibited by applicable law or (b) the
Administrative Agent or its counsel reasonably determines that such
guaranty or pledge would not provide material credit support for the
benefit of the Holders of Secured Obligations pursuant to legally
valid, binding and enforceable Collateral Documents; it being
understood and agreed that the Company shall make commercially
reasonable efforts to designate one or more alternative Foreign
Subsidiaries to remain in compliance with the Credit Support
Requirement.
(M) Credit Support Requirement. The Company shall, and shall cause
each of its Subsidiaries to, comply at all times with the Credit Support
Requirement; it being understood and agreed that the Company may add or
remove one or more Subsidiaries from their status as either Subsidiary
Guarantors or Pledged Foreign Subsidiaries so long as no Default has
occurred and is continuing at such time and such addition or removal does
not cause noncompliance with the Credit Support Requirement.
7.3. Negative Covenants.
(A) Subsidiary Indebtedness. The Company shall not permit any of
its Subsidiaries to directly or indirectly create, incur, assume or
otherwise become or remain directly or indirectly liable with respect to
any Indebtedness, except:
(i) the Obligations;
(ii) Permitted Existing Indebtedness and Permitted Refinancing
Indebtedness;
(iii) Indebtedness in respect of obligations secured by
Customary Permitted Liens;
(iv) Indebtedness arising from intercompany loans and
advances; provided, that if any Borrower or Subsidiary Guarantor is the
obligor on such Indebtedness, such Indebtedness shall be expressly
subordinate to the payment in full in cash of the Obligations;
(v) Indebtedness secured by Liens permitted by clauses (v) and
(vii) of Section 7.3(C); and
(vi) other Indebtedness of a type not referred to elsewhere in
this Section 7.3(A) incurred by the Company's Subsidiaries; provided
that no Default or Unmatured Default shall have occurred and be
continuing at the date of such incurrence or would result therefrom;
and provided further that the aggregate outstanding amount of all
Indebtedness incurred by the Company's Subsidiaries (other than
Indebtedness incurred pursuant to clauses (i), (ii), (iii), (iv) and
(v) of this Section 7.3(A)) shall not at any time exceed $20,000,000.
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(B) Sales of Assets. Neither the Company nor any of its
Subsidiaries shall consummate any Asset Sale, except:
(i) transfers of assets between the Company and any
Wholly-Owned Subsidiary of the Company or between wholly-owned
Subsidiaries of the Company not otherwise prohibited by this Agreement;
and
(ii) any Asset Sale which (a) is for not less than fair market
value (as determined in good faith by the Company's management or board
of directors) and (b) (1) when combined with all such other Asset Sales
(each such Asset Sale being valued at book value) during the period of
twelve (12) consecutive months then most recently ended, represents the
disposition of assets with an aggregate book value not greater than ten
percent (10%) of the aggregate book value of the Company's Consolidated
Assets as of the end of such period and (2) when combined with all such
other Asset Sales (each such Asset Sale being valued at book value)
during the period from the Closing Date to the date of such proposed
transaction, represents the disposition of not greater than twenty-five
percent (25%) of the Company's Consolidated Assets as of the end of the
immediately preceding fiscal year.
(C) Liens. Neither the Company nor any of its Subsidiaries shall
directly or indirectly create, incur, assume or permit to exist any Lien on
or with respect to any of their respective property or assets except:
(i) Liens created by the Loan Documents or otherwise securing
the Secured Obligations;
(ii) Permitted Existing Liens;
(iii) Customary Permitted Liens;
(iv) purchase money Liens (including the interest of a lessor
under a Capitalized Lease and Liens to which any property is subject at
the time of the Company's or such Subsidiary's acquisition thereof)
securing Indebtedness in an aggregate principal amount not in excess of
$15,000,000 at any one time outstanding; provided that such Liens shall
not apply to any property of the Company or its Subsidiaries other than
that purchased or subject to such Capitalized Lease;
(v) Liens with respect to property acquired by the Company or
any of its Subsidiaries after the Closing Date pursuant to a Permitted
Acquisition; provided, that such Liens shall (a) extend only to the
property so acquired and (b) secure Indebtedness in an aggregate
principal amount not in excess of $25,000,000 at any one time
outstanding;
(vi) Liens on Receivables and Related Security securing a
Permitted Receivables Financing; and
(vii) (a) other Liens of the type covered in clause (v) of
this Section 7.3(C) and (b) other Liens securing Indebtedness of a type
not covered elsewhere in this Section 7.3(C) so long as the
Indebtedness secured by the Liens in clauses (a) and (b) of this
Section 7.3(C)(vii) are in a cumulative amount not to exceed
$35,000,000 in the aggregate.
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In addition, neither the Company nor any of its Subsidiaries shall become a
party to any agreement, note, indenture or other instrument, or take any other
action, which would prohibit the creation of a Lien on any of its properties or
other assets in favor of the Administrative Agent for the benefit of itself and
the Holders of Secured Obligations, as collateral for the Secured Obligations;
provided, further, that (a) any agreement, note, indenture or other instrument
in connection with purchase money Indebtedness (including Capitalized Leases)
for which the related Liens are permitted hereunder may prohibit the creation of
a Lien in favor of the Administrative Agent for the benefit of itself and the
Holders of Secured Obligations, as collateral for the Secured Obligations, with
respect to the assets or property obtained with the proceeds of such
Indebtedness and (b) the documents evidencing a Permitted Receivables Financing
may prohibit the creation of a Lien in favor of the Administrative Agent for the
benefit of itself and the other Holders of Obligations, as collateral for the
Secured Obligations, with respect to the Receivables and Related Security of the
Company and/or its Subsidiaries to the extent transferred to an SPV or other
Person in connection therewith.
(D) Investments. Except to the extent permitted pursuant to
paragraph (G) below, neither the Company nor any of its Subsidiaries shall
directly or indirectly make or own any Investment except:
(i) Investments in cash and Cash Equivalents;
(ii) Permitted Existing Investments in an initial amount not
greater than the amount thereof on the Closing Date;
(iii) Investments in trade receivables or received in
connection with the bankruptcy or reorganization of suppliers and
customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course
of business;
(iv) Investments consisting of deposit accounts maintained by
the Company and its Subsidiaries;
(v) Investments in any Obligor;
(vi) Investments in any member of the Non-Obligor Group and in
any joint venture so long as all the aggregate amount of all such
Investments does not exceed $30,000,000 at any time outstanding;
(vii) Investments constituting Permitted Acquisitions and
Investments in Foreign Subsidiaries to finance Permitted Acquisitions;
(viii) Investments constituting Indebtedness permitted by
Section 7.3(A);
(ix) Investments consisting of any right of the Company or its
wholly-owned Domestic Subsidiaries to payment for goods sold or for
services rendered, whether or not it has been earned by performance;
and
(x) Investments comprised of capital contributions (whether in
the form of cash, a note or other assets) to an SPV or other Subsidiary
or otherwise resulting from transfers
73
of assets permitted hereunder to such SPV or other Subsidiary in
connection with a Permitted Receivables Financing.
(E) Intentionally Omitted.
(F) Restricted Payments. The Company shall not declare or make any
Restricted Payment (other than dividends declared and not yet paid) if
either a Default or an Unmatured Default shall have occurred and be
continuing at the date of declaration or payment thereof or would result
therefrom.
(G) Acquisitions. The Company shall not make any Acquisitions,
other than Acquisitions meeting the following requirements or otherwise
approved by the Required Lenders (each such Acquisition constituting a
"PERMITTED ACQUISITION"):
(i) no Default or Unmatured Default shall have occurred and be
continuing or would result from such Acquisition or the incurrence of
any Indebtedness in connection therewith; and
(ii) prior to each such Acquisition with an aggregate purchase
price equal to, or in excess of, $25,000,000 (including the incurrence
or assumption of any Indebtedness in connection therewith and
transaction-related contractual payments to the extent that the
liability for, and the amount of, such payments are established at the
time such Acquisition is consummated), the Company shall deliver to the
Administrative Agent a certificate from one of the Authorized Officers,
demonstrating that after giving effect to such Acquisition and the
incurrence of any Indebtedness permitted by Section 7.3(A) in
connection therewith, on a pro forma basis in accordance with
Regulation S-X, as if the Acquisition and such incurrence of
Indebtedness had occurred on the first day of the twelve-month period
ending on the last day of the Company's most recently completed fiscal
quarter, the Company would have been in compliance with the financial
covenants in Section 7.4 and not otherwise in Default.
(H) Transactions with Shareholders and Affiliates. Neither the
Company nor any of its Subsidiaries shall directly or indirectly enter into
or permit to exist any transaction (including, without limitation, the
purchase, sale, lease or exchange of any property or the rendering of any
service) with any Affiliate of the Company, on terms that are (a) not in
the ordinary course of business, (b) not authorized by the Board of
Directors or (c) less favorable to the Company or any of its Subsidiaries,
as applicable, than those that might be obtained in an arm's length
transaction at the time from Persons who are not such a holder or
Affiliate, except for (i) Restricted Payments permitted by Section 7.3(F),
(ii) Investments permitted by Section 7.3(D), (iii) loans and advances to
employees in the ordinary course of business and in amounts consistent with
practice in effect prior to the Closing Date and (iv) Investments comprised
of capital contributions (whether in the form of cash, a note or other
assets) to an SPV or other Subsidiary or otherwise resulting from transfers
of assets permitted hereunder to such SPV or other Subsidiary in connection
with a Permitted Receivables Financing.
(I) Merger. The Company will not, nor will it permit any
Subsidiary to, merge or consolidate with or into any other Person, except
that (i) a Subsidiary may merge into the Company or a Wholly-Owned
Subsidiary and (ii) provided that no Default or Unmatured Default shall
have occurred and be continuing or would result therefrom on a pro forma
basis in accordance with Regulation S-X, the Company or any Subsidiary may
merge or consolidate with
74
any other corporation so long as (a) the Company or such Subsidiary is the
surviving corporation or (b) the holders of the Voting Stock of the Company
or such Subsidiary immediately prior to such merger have, directly or
indirectly, shares of Capital Stock of the continuing or surviving
corporation (or its parent) immediately after such merger which entitle
such holders to exercise in excess of 50% of the total voting power of all
shares of Voting Stock of the continuing or surviving corporation (or its
parent). As used herein, "VOTING STOCK" of a Person means Capital Stock of
such Person of the class or classes pursuant to which the holders thereof
have the general voting power under ordinary circumstances (determined
without regard to any classification of directors) to elect at least a
majority of the board of directors, managers or trustees of such Person
(irrespective of whether or not at the time Capital Stock of any other
class or classes shall have or might have voting power by reason of the
happening of any contingency).
(J) ERISA. The Company shall not:
(i) permit to exist any Accumulated Funding Deficiency, with
respect to any Benefit Plan, whether or not waived;
(ii) terminate, or permit any Controlled Group member to
terminate, any Benefit Plan which would result in liability of the
Company or any Controlled Group member under Title IV of ERISA;
(iii) fail, or permit any Controlled Group member to fail, to
pay any required installment or any other payment required under
Section 412 of the Code on or before the due date for such installment
or other payment; or
(iv) permit any unfunded liabilities with respect to any
Foreign Pension Plan;
except where such transactions, events, circumstances, or failures could not,
individually or in the aggregate, result in a Material Adverse Effect.
(K) Subsidiary Covenants. The Company will not, and will not
permit any Borrower or Subsidiary Guarantor to, create or otherwise cause
to become effective any consensual encumbrance or restriction of any kind
on the ability of any Borrower or any Subsidiary Guarantor to pay dividends
or make any other distribution on its stock, or make any other Restricted
Payment, pay any Indebtedness or other Obligation owed to the Company or
any other Borrower or Subsidiary Guarantor, make loans or advances or other
Investments in the Company or any other Borrower or Subsidiary Guarantor,
or sell, transfer or otherwise convey any of its property to the Company or
any other Borrower or Subsidiary Guarantor other than pursuant to (i)
applicable law, (ii) this Agreement or the other Loan Documents or (iii)
restrictions imposed by the holder of a Lien permitted by Section 7.3(C).
(L) Hedging Obligations. The Company shall not and shall not
permit any of its Subsidiaries to enter into any interest rate, commodity
or foreign currency exchange, swap, collar, cap or similar agreements
evidencing Hedging Obligations, other than interest rate, foreign currency
or commodity exchange, swap, collar, cap or similar agreements entered into
by the Company or any of its Subsidiaries pursuant to which the Company or
such Subsidiary has hedged its reasonably estimated interest rate, foreign
currency or commodity exposure. Such permitted hedging agreements entered
into by the Company or such Subsidiary are sometimes referred to herein as
"HEDGING AGREEMENTS."
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7.4. Financial Covenants. The Company shall comply with the following:
(A) Maximum Leverage Ratio. The Company and its consolidated
Subsidiaries shall not permit the ratio (the "LEVERAGE RATIO") of (i)
Indebtedness of the Company and its consolidated Subsidiaries minus the
amount, in excess of $15,000,000, maintained by the Company or any of its
Domestic Subsidiaries in cash and Cash Equivalents in the United States of
America to (ii) EBITDA to be greater than 3.00 to 1.00 for each four (4)
fiscal quarter period of the Company.
The Leverage Ratio shall be calculated, in each case, determined as of the last
day of each fiscal quarter of the Company based upon (a) for calculating
Indebtedness and cash and Cash Equivalents, Indebtedness and cash and Cash
Equivalents as of the last day of each such fiscal quarter; and (b) for
calculating EBITDA, the actual amount for the four (4) fiscal quarter period
ending on such day (the "LAST TWELVE-MONTH PERIOD"), provided, that the Leverage
Ratio shall be calculated, with respect to Permitted Acquisitions, on a pro
forma basis in accordance with Regulation S-X.
(B) Minimum Interest Coverage Ratio. The Company and its
consolidated Subsidiaries shall not permit the ratio (the "INTEREST
COVERAGE RATIO") of (i) EBIT to (ii) Interest Expense to be less than 3.00
to 1.00 for each four (4) fiscal quarter period of the Company.
The Interest Coverage Ratio shall be calculated, in each case, determined as of
the last day of each fiscal quarter of the Company based upon (a) for
calculating EBIT, the actual amount for the Last Twelve-Month Period; and (b)
for calculating Interest Expense, the actual amount for the Last Twelve-Month
Period, provided, that the Interest Coverage Ratio shall be calculated, with
respect to Permitted Acquisitions, on a pro forma basis in accordance with
Regulation S-X.
ARTICLE VIII: DEFAULTS
8.1. Defaults. Each of the following occurrences shall constitute a
Default under this Agreement:
(A) Failure to Make Payments When Due. The Company or any
Alternate Currency Borrower or any Subsidiary Borrower shall (i) fail to
pay when due any of the Obligations consisting of principal with respect to
the Loans or Reimbursement Obligations or (ii) shall fail to pay within
five (5) Business Days of the date when due any of the other Obligations
under this Agreement or the other Loan Documents.
(B) Breach of Certain Covenants. The Company shall fail duly and
punctually to perform or observe any agreement, covenant or obligation
binding on the Company under:
(i) Sections 7.1 or 7.2 and such failure shall continue
unremedied for fifteen (15) Business Days, or
(ii) Sections 7.3 or 7.4.
(C) Breach of Representation or Warranty. Any representation or
warranty made or deemed made by any Borrower to the Administrative Agent or
any Lender herein or by the any Borrower or any of its Subsidiaries in any
of the other Loan Documents or in any statement or certificate at any time
given by any such Person pursuant to any of the Loan Documents shall be
false or misleading in any material respect on the date as of which made
(or deemed made).
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(D) Other Defaults. Any Borrower shall default in the performance
of or compliance with any term contained in this Agreement (other than as
covered by paragraphs (A) or (B) of this Section 8.1), or the Company or
any Alternate Currency Borrower or any of their Subsidiaries shall default
in the performance of or compliance with any term contained in any of the
other Loan Documents, and such default shall continue for thirty (30) days
after the occurrence thereof.
(E) Default as to Other Indebtedness. The Company or any of its
Subsidiaries shall fail to make any payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise) with
respect to any Material Indebtedness including, without limitation,
Disqualified Stock), beyond any period of grace provided with respect
thereto; or any breach, default or event of default shall occur, or any
other condition shall exist under any instrument, agreement or indenture
pertaining to any such Material Indebtedness having such aggregate
outstanding principal amount, beyond any period of grace, if any, provided
with respect thereto, if the effect thereof is to cause an acceleration,
mandatory redemption, a requirement that the Company offer to purchase such
Material Indebtedness or other required repurchase of such Indebtedness, or
permit the holder(s) of such Material Indebtedness to accelerate the
maturity of any such Material Indebtedness or require a redemption or other
repurchase of such Material Indebtedness; or any such Material Indebtedness
shall be otherwise declared to be due and payable (by acceleration or
otherwise) or required to be prepaid, redeemed or otherwise repurchased by
the Company or any of its Subsidiaries (other than by a regularly scheduled
required prepayment) prior to the stated maturity thereof.
(F) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the Company
or any of the Significant Subsidiaries and the petition shall not be
dismissed, stayed, bonded or discharged within sixty (60) days after
commencement of the case; or a court having jurisdiction in the
premises shall enter a decree or order for relief in respect of the
Company or any of the Significant Subsidiaries in an involuntary case,
under any applicable bankruptcy, insolvency or other similar law now or
hereinafter in effect; or any other similar relief shall be granted
under any applicable federal, state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over the
Company or any of the Significant Subsidiaries or over all or a
substantial part of the property of the Company or any of the
Significant Subsidiaries shall be entered; or an interim receiver,
trustee or other custodian of the Company or any of the Significant
Subsidiaries or of all or a substantial part of the property of the
Company or any of the Significant Subsidiaries shall be appointed or a
warrant of attachment, execution or similar process against any
substantial part of the property of the Company or any of the
Significant Subsidiaries shall be issued and any such event shall not
be stayed, dismissed, bonded or discharged within sixty (60) days after
entry, appointment or issuance.
(G) Voluntary Bankruptcy; Appointment of Receiver, Etc. The
Company or any of the Significant Subsidiaries shall (i) commence a
voluntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, (ii) consent to the entry of an order for
relief in an involuntary case, or to the conversion of an involuntary case
to a voluntary case, under any such law, (iii) consent to the appointment
of or taking possession by a receiver, trustee
77
or other custodian for all or a substantial part of its property, (iv) make
any assignment for the benefit of creditors or (v) take any corporate
action to authorize any of the foregoing.
(H) Judgments and Attachments. Any money judgment(s) (other than a
money judgment covered by insurance as to which the applicable insurance
company has not disclaimed or reserved the right to disclaim coverage),
writ or warrant of attachment, or similar process against the Company or
any of its Subsidiaries or any of their respective assets involving in any
single case or in the aggregate an amount in excess of $15,000,000 is or
are entered and either (i) enforcement proceedings shall have been
commenced by any creditor upon a final or nonappealable judgment or order
or (ii) such judgment(s) shall remain undischarged, unvacated, unbonded or
unstayed for a period of thirty (30) days.
(I) Dissolution. (i) Any order, judgment or decree shall be
entered against the Company or any of its Significant Subsidiaries
decreeing its involuntary dissolution or split up and such order shall
remain undischarged and unstayed for a period in excess of sixty (60) days;
or (ii) Borrower or any of its Subsidiaries shall otherwise dissolve or
cease to exist, except as specifically permitted by this Agreement.
(J) Loan Documents. At any time, for any reason, any Loan Document
ceases to be in full force and effect or the Company or any of the
Company's Subsidiaries party thereto seek to repudiate their respective
obligations thereunder.
(K) ERISA. Any Termination Event occurs which the Required Lenders
believe is reasonably likely to subject either the Company or any member of
its Controlled Group to liability in excess of $15,000,000.
(L) Change of Control. A Change of Control shall occur.
(M) Environmental Matters. The Company or any of its Subsidiaries
shall be the subject of any proceeding or investigation pertaining to (i)
the Release by the Company or any of its Subsidiaries of any Contaminant
into the environment, (ii) the liability of the Company or any of its
Subsidiaries arising from the Release by any other Person of any
Contaminant into the environment, or (iii) any violation of any
Environmental, Health or Safety Requirements of Law which by the Company or
any of its Subsidiaries, which, in any case, has or is reasonably likely to
subject the Company to liability in excess of $15,000,000.
(N) Guarantor Revocation. Any guarantor of the Obligations shall
terminate or revoke any of its obligations under the applicable Guaranty or
breach any of the material terms of such Guaranty.
(O) Collateral Documents. Any of the following shall occur: (i)
any Collateral Document shall for any reason fail to create a valid and
perfected first priority security interest in any collateral purported to
be covered thereby, except as permitted by the terms of the applicable
Collateral Document, (ii) any Collateral Document shall fail to remain in
full force or effect, (iii) any action shall be taken to discontinue or to
assert the invalidity or unenforceability of any Collateral Document, or
(iv) the Company shall fail to comply with any of the terms or provisions
of any Collateral Document.
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(P) Receivables Facility Attributed Indebtedness. An event (such
event, a "RECEIVABLES FACILITY TRIGGER EVENT") shall occur which (i)
permits the investors or purchasers in respect of Receivables Facility
Attributed Indebtedness of the Company or any Subsidiary or Affiliate of
the Company to require the amortization or liquidation of such Receivables
Facility Attributed Indebtedness and (x) such Receivables Facility Trigger
Event shall not be remedied or waived within the later to occur of the
tenth day after the occurrence thereof or the expiry date of any grace
period related thereto under the agreement evidencing such Receivables
Facility Attributed Indebtedness, or (y) such investors shall require the
amortization or liquidation of such Receivables Facility Attributed
Indebtedness as a result of such Receivables Facility Trigger Event, (ii)
results in the termination of reinvestments of collections or proceeds of
Receivables and Related Security under the agreements evidencing such
Receivables Facility Attributed Indebtedness, or (iii) causes or otherwise
permits the replacement or substitution of the Company or any Subsidiary or
Affiliate thereof as the servicer under the agreements evidencing such
Receivables Facility Attributed Indebtedness; provided, however, that this
Section 8.1(P) shall not apply on any date with respect to any voluntary
request by the Company or any Subsidiary or Affiliate thereof for an
above-described amortization, liquidation, or termination of reinvestments
so long as the aforementioned investors or purchasers cannot independently
require on such date such amortization, liquidation or termination of
reinvestments.
A Default shall be deemed "continuing" until cured or until waived in
writing in accordance with Section 9.3.
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES
9.1. Termination of Revolving Loan Commitments; Acceleration. If any
Default described in Section 8.1(F) or 8.1(G) occurs with respect to any
Borrower, the obligations of the Lenders to make Loans (including, without
limitation, Alternate Currency Loans) hereunder and the obligation of any
Issuing Banks to issue Letters of Credit hereunder shall automatically terminate
and the Obligations shall immediately become due and payable without any
election or action on the part of the Administrative Agent or any Lender. If any
other Default occurs, the Required Lenders may terminate or suspend the
obligations of the Lenders to make Loans (including, without limitation,
Alternate Currency Loans) hereunder and the obligation of the Issuing Banks to
issue Letters of Credit hereunder, or declare the Obligations to be due and
payable, or both, whereupon the Obligations shall become immediately due and
payable, without presentment, demand, protest or notice of any kind, all of
which each Borrower expressly waives.
9.2. Preservation of Rights. No delay or omission of the Lenders or the
Administrative Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan or the issuance of a Letter of Credit
notwithstanding the existence of a Default or the inability of any Borrower to
satisfy the conditions precedent to such Loan or issuance of such Letter of
Credit shall not constitute any waiver or acquiescence. Any single or partial
exercise of any such right shall not preclude other or further exercise thereof
or the exercise of any other right, and no waiver, amendment or other variation
of the terms, conditions or provisions of the Loan Documents whatsoever shall be
valid unless in writing signed by the Lenders required pursuant to Section 9.3,
and then only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all
shall be available to the Administrative Agent and the Lenders until the
Obligations have been paid in full in cash.
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9.3. Amendments. Subject to the provisions of this Article IX, the
Required Lenders (or the Administrative Agent with the consent in writing of the
Required Lenders) and the Borrowers may enter into agreements supplemental
hereto for the purpose of adding or modifying any provisions to the Loan
Documents or changing in any manner the rights of the Lenders or the Borrowers
hereunder or waiving any Default hereunder; provided, however, that no such
supplemental agreement shall, without the consent of each Lender (which is not a
defaulting Lender under the provisions of Sections 2.19(i) or 10.2) affected
thereby:
(i) Postpone or extend the Revolving Loan Termination Date or
any other date fixed for any payment of principal of, or interest on,
the Loans, the Reimbursement Obligations or any fees or other amounts
payable to such Lender or any modifications of the provisions relating
to prepayments of Loans and other Obligations.
(ii) Reduce the principal amount of any Loans or L/C
Obligations, or reduce the rate or extend the time of payment of
interest or fees thereon; provided, however, that (a) modifications to
the provisions relating to prepayments of Loans and other Obligations
and (b) a waiver or other modification of the application of the
default rate of interest pursuant to Section 2.10 hereof shall, in each
case, only require the approval of the Required Lenders.
(iii) Reduce the percentage specified in the definition of
Required Lenders or any other percentage of Lenders specified to be the
applicable percentage in this Agreement to act on specified matters or
amend the definitions of "Required Lenders" or "Pro Rata Share".
(iv) Increase the Aggregate Revolving Loan Commitment to an
amount in excess of $225,000,000, increase the amount of the Revolving
Loan Commitment of any Lender hereunder or increase any Lender's Pro
Rata Share.
(v) Permit any Borrower to assign its rights under this
Agreement.
(vi) Other than pursuant to a transaction permitted by the
terms of this Agreement, release any guarantor from its obligations
under a Guaranty.
(vii) Other than pursuant to a transaction permitted by the
terms of this Agreement, release all or substantially all of the
collateral which is subject to the Collateral Documents.
(viii) Amend this Section 9.3.
No amendment of any provision of this Agreement relating to (a) the
Administrative Agent shall be effective without the written consent of the
Administrative Agent, (b) Swing Line Loans shall be effective without the
written consent of the Swing Line Bank, (c) any Issuing Bank shall be effective
without the written consent of such Issuing Bank and (d) any Alternate Currency
Bank shall be effective without the written consent of such Alternate Currency
Bank. The Administrative Agent may waive payment of the fee required under
Section 13.3(C) without obtaining the consent of any of the Lenders.
ARTICLE X: GENERAL PROVISIONS
10.1. Survival of Representations. All representations and warranties
of the Borrowers contained in this Agreement shall survive delivery of this
Agreement and the making of the Loans herein contemplated so long as any
principal, accrued interest, fees, or any other amount due and
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payable under any Loan Document is outstanding and unpaid (other than contingent
reimbursement and indemnification obligations) and so long as the Revolving Loan
Commitments have not been terminated.
10.2. Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Borrowers in violation of any limitation or prohibition provided by any
applicable statute or regulation.
10.3. Performance of Obligations. Each Borrower agrees that the
Administrative Agent may, but shall have no obligation to (i) at any time, pay
or discharge taxes, liens, security interests or other encumbrances levied or
placed on or threatened against any property of such Borrower to the extent such
Borrower is required by the terms hereof to pay any such amount, but has not
done so and (ii), after the occurrence and during the continuance of a Default,
to make any other payment or perform any act required of a Borrower under any
Loan Document or take any other action which the Administrative Agent in its
discretion deems necessary or desirable to protect or preserve such property of
such Borrower. The Administrative Agent shall use its reasonable efforts to give
the Company notice of any action taken under this Section 10.3 prior to the
taking of such action or promptly thereafter provided the failure to give such
notice shall not affect the applicable Borrower's obligations in respect
thereof. The applicable Borrower agrees to pay the Administrative Agent, upon
demand, the principal amount of all funds advanced by the Administrative Agent
under this Section 10.3, together with interest thereon at the rate from time to
time applicable to Floating Rate Loans from the date of such advance until the
outstanding principal balance thereof is paid in full. If the applicable
Borrower fails to make payment in respect of any such advance under this Section
10.3 within one (1) Business Day after the date such Borrower receives written
demand therefor from the Administrative Agent, the Administrative Agent shall
promptly notify each Lender and each Lender agrees that it shall thereupon make
available to the Administrative Agent, in Dollars in immediately available
funds, the amount equal to such Lender's Pro Rata Share of such advance. If such
funds are not made available to the Administrative Agent by such Lender within
one (1) Business Day after the Administrative Agent's demand therefor, the
Administrative Agent will be entitled to recover any such amount from such
Lender together with interest thereon at the Federal Funds Effective Rate for
each day during the period commencing on the date of such demand and ending on
the date such amount is received. The failure of any Lender to make available to
the Administrative Agent its Pro Rata Share of any such unreimbursed advance
under this Section 10.3 shall neither relieve any other Lender of its obligation
hereunder to make available to the Administrative Agent such other Lender's Pro
Rata Share of such advance on the date such payment is to be made nor increase
the obligation of any other Lender to make such payment to the Administrative
Agent.
10.4. Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
10.5. Entire Agreement. The Loan Documents embody the entire agreement
and understanding among the Borrowers, the Administrative Agent and the Lenders
and supersede all prior agreements and understandings among the Borrowers the
Administrative Agent and the Lenders relating to the subject matter thereof.
10.6. Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other Lender (except to the extent to which
the Administrative Agent is authorized to act as such). The
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failure of any Lender to perform any of its obligations hereunder shall not
relieve any other Lender from any of its obligations hereunder. This Agreement
shall not be construed so as to confer any right or benefit upon any Person
other than the parties to this Agreement and their respective successors and
assigns. None of the Alternate Currency Borrowers shall have any liability
whatsoever under this Agreement for any Obligations of any kind of the Company
or a Domestic Subsidiary.
10.7. Expenses; Indemnification.
(A) Expenses. The Borrowers shall reimburse the Administrative
Agent, the Alternate Currency Banks and the Arranger for any reasonable
costs and out-of-pocket expenses (including reasonable attorneys' and
paralegals' fees and time charges of attorneys and paralegals for the
Administrative Agent, which attorneys and paralegals may be employees of
the Administrative Agent) paid or incurred by the Administrative Agent, the
Alternate Currency Banks or the Arranger in connection with the
preparation, negotiation, execution, delivery, syndication, review,
amendment, modification, and administration of the Loan Documents; provided
that each Alternate Currency Borrower shall only be liable for a maximum
amount consisting of its pro-rata share of the aggregate amount of such
expenses, based upon its obligations. Each Borrower also agrees to
reimburse the Administrative Agent, the Alternate Currency Banks and the
Arranger and the Lenders for any costs, internal charges and out-of-pocket
expenses (including reasonable attorneys' and paralegals' fees and time
charges of attorneys and paralegals for the Administrative Agent, the
Alternate Currency Banks and the Arranger and the Lenders, which attorneys
and paralegals may be employees of the Administrative Agent, the Alternate
Currency Banks or the Arranger or the Lenders) paid or incurred by the
Administrative Agent or the Arranger, the Alternate Currency Banks or any
Lender in connection with the collection of the Obligations and enforcement
of the Loan Documents; provided that each Alternate Currency Borrower shall
only be liable for a maximum amount consisting of its pro-rata share of the
aggregate amount of such expenses, based upon its Obligations. In addition
to expenses set forth above, the Borrowers agree to reimburse the
Administrative Agent, promptly after the Administrative Agent's request
therefor, for each audit, or other business analysis performed by or for
the benefit of the Lenders in connection with this Agreement or the other
Loan Documents in an amount equal to the Administrative Agent's then
customary charges for each person employed to perform such audit or
analysis, plus all reasonable costs and expenses (including without
limitation, travel expenses) incurred by the Administrative Agent in the
performance of such audit or analysis; provided that (i) each Alternate
Currency Borrower shall only be liable for a maximum amount consisting of
its pro-rata share of the aggregate amount of such expenses, based upon its
Obligations and (ii) except during such time when a Default has occurred
and is continuing, the Borrowers' obligation to so reimburse the
Administrative Agent shall be limited to one such audit or business
analysis during any calendar year. Administrative Agent shall provide the
Company with a detailed statement of all reimbursements requested under
this Section 10.7(A).
(B) Indemnity. The Borrowers further agree to defend, protect,
indemnify, and hold harmless the Administrative Agent, the Arranger, the
Alternate Currency Banks and each and all of the Lenders and each of their
respective Affiliates, and each of such Administrative Agent's, Arranger's,
Alternate Currency Bank's, Lender's, or Affiliate's respective officers,
directors, trustees, investment advisors, employees, attorneys and agents
(including, without limitation, those retained in connection with the
satisfaction or attempted satisfaction of any of the conditions set forth
in Article V) (collectively, the "INDEMNITEES"), provided that each
Alternate
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Currency Borrower shall be liable for a maximum amount consisting of its
pro-rata share of the aggregate amount of such indemnification, based upon
its obligations, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims, costs,
expenses of any kind or nature whatsoever (including, without limitation,
the fees and disbursements of counsel for such Indemnitees in connection
with any investigative, administrative or judicial proceeding, whether or
not such Indemnitees shall be designated a party thereto), imposed on,
incurred by, or asserted against such Indemnitees in any manner relating to
or arising out of:
(i) this Agreement or any of the other Loan Documents, or any
act, event or transaction related or attendant thereto or to the making
of the Loans, and the issuance of and participation in Letters of
Credit hereunder, the management of such Loans or Letters of Credit,
the use or intended use of the proceeds of the Loans or Letters of
Credit hereunder, or any of the other transactions contemplated by the
Loan Documents; or
(ii) any liabilities, obligations, responsibilities, losses,
damages, personal injury, death, punitive damages, economic damages,
consequential damages, treble damages, intentional, willful or wanton
injury, damage or threat to the environment, natural resources or
public health or welfare, costs and expenses (including, without
limitation, attorney, expert and consulting fees and costs of
investigation, feasibility or remedial action studies), fines,
penalties and monetary sanctions, interest, direct or indirect, known
or unknown, absolute or contingent, past, present or future relating to
violation of any Environmental, Health or Safety Requirements of Law
arising from or in connection with the past, present or future
operations of the Borrowers, their Subsidiaries or any of their
respective predecessors in interest, or, the past, present or future
environmental, health or safety condition of any respective property of
the Borrowers or their Subsidiaries, the presence of
asbestos-containing materials at any respective property of the
Borrowers or their Subsidiaries or the Release or threatened Release of
any Contaminant into the environment (collectively, the "INDEMNIFIED
MATTERS");
provided, however, the Borrowers shall have no obligation to an Indemnitee
hereunder with respect to Indemnified Matters to the extent caused by or
resulting from the willful misconduct or gross negligence of such Indemnitee
with respect to the Loan Documents. If the undertaking to indemnify, pay and
hold harmless set forth in the preceding sentence may be unenforceable because
it is violative of any law or public policy, the Borrowers shall contribute the
maximum portion which it is permitted to pay and satisfy under applicable law,
to the payment and satisfaction of all Indemnified Matters incurred by the
Indemnitees.
(C) Waiver of Certain Claims; Settlement of Claims. Each Borrower
further agrees to assert no claim against any of the Indemnitees on any
theory of liability seeking consequential, special, indirect, exemplary or
punitive damages. No settlement shall be entered into by any Borrower or
any of its Subsidiaries with respect to any claim, litigation, arbitration
or other proceeding relating to or arising out of the transactions
evidenced by this Agreement, the other Loan Documents unless such
settlement releases all Indemnitees from any and all liability with respect
thereto.
(D) Survival of Agreements. The obligations and agreements of the
Borrowers under this Section 10.7 and each other provision hereunder or in
any other Loan Document whereby
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the Company or any of its Subsidiaries agrees to reimburse or indemnify any
Holder of Secured Obligations shall survive the termination of this
Agreement.
10.8. Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
10.9. Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles. If any changes in GAAP are hereafter required or permitted and are
adopted by the Company or any of its Subsidiaries with the agreement of its
independent certified public accountants and such changes result in a change in
the method of calculation of any of the financial covenants, tests, restrictions
or standards herein or in the related definitions or terms used therein
("ACCOUNTING CHANGES"), the parties hereto agree, at the Company's request, to
enter into negotiations, in good faith, in order to amend such provisions in a
credit neutral manner so as to reflect equitably such changes with the desired
result that the criteria for evaluating the Company's and its Subsidiaries'
financial condition shall be the same after such changes as if such changes had
not been made; provided, however, until such provisions are amended in a manner
reasonably satisfactory to the Administrative Agent and the Required Lenders, no
Accounting Change shall be given effect in such calculations and all financial
reports (excluding in any event financial statements) required to be delivered
hereunder shall be prepared in accordance with Agreement Accounting Principles
without taking into account such Accounting Changes. In the event such amendment
is entered into, all references in this Agreement to Agreement Accounting
Principles shall mean GAAP as of the date of such amendment.
10.10. Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
10.11. Nonliability of Lenders. The relationship between each Borrower
and the Lenders and the Administrative Agent shall be solely that of borrower
and lender. Neither the Administrative Agent nor any Lender shall have any
fiduciary responsibilities to the Borrowers. Neither the Administrative Agent
nor any Lender undertakes any responsibility to the Borrowers to review or
inform the Borrowers of any matter in connection with any phase of the
Borrowers' business or operations.
10.12. GOVERNING LAW. ANY DISPUTE BETWEEN ANY BORROWER AND THE
ADMINISTRATIVE AGENT, ANY LENDER OR ANY OTHER HOLDER OF SECURED OBLIGATIONS
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THE BORROWERS AND THE LENDERS IN CONNECTION WITH, THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER ARISING IN CONTRACT,
TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL
LAWS (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF
MICHIGAN.
10.13. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
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(A) NON-EXCLUSIVE JURISDICTION. EACH BORROWER, THE ADMINISTRATIVE
AGENT AND EACH LENDER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR MICHIGAN STATE COURT SITTING
IN DETROIT, MICHIGAN IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO ANY LOAN DOCUMENTS AND EACH BORROWER, THE ADMINISTRATIVE AGENT AND EACH
LENDER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION
OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY
WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT
IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST ANY
BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING
BY ANY BORROWER AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN
DETROIT, MICHIGAN.
(B) SERVICE OF PROCESS. EACH BORROWER WAIVES PERSONAL SERVICE OF
ANY PROCESS UPON IT AND IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF
ANY WRITS, PROCESS OR SUMMONSES IN ANY SUIT, ACTION OR PROCEEDING BY THE
MAILING THEREOF BY THE ADMINISTRATIVE AGENT OR THE LENDERS BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY ADDRESSED AS PROVIDED
HEREIN. NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF
THE ADMINISTRATIVE AGENT OR THE LENDERS TO SERVE ANY SUCH WRITS, PROCESS OR
SUMMONSES IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
(C) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED
WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM
IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES
HERETO AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY
HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.14. Contribution Rights. If any Obligor makes a payment in respect
of the Secured Obligations it shall have the rights of contribution set forth
below against the other Obligors; provided that no Obligor shall exercise its
right of contribution until all the Secured Obligations shall have been finally
paid in full in cash. If any Obligor makes a payment in respect of the Secured
Obligations that is smaller in proportion to its Payment Share (as hereinafter
defined) than such payments made by the other Obligors are in proportion to the
amounts of their respective Payment
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Shares, the Obligor making such proportionately smaller payment shall, when
permitted by the preceding sentence, pay to the other Obligors an amount such
that the net payments made by the Obligor in respect of the Secured Obligations
shall be shared among the Obligors pro rata in proportion to their respective
Payment Shares. If any Obligor receives any payment that is greater in
proportion to the amount of its Payment Shares than the payments received by the
other Obligors are in proportion to the amounts of their respective Payment
Shares, the Obligor receiving such proportionately greater payment shall, when
permitted by the second preceding sentence, pay to the other Obligors an amount
such that the payments received by the Obligors shall be shared among the
Obligors pro rata in proportion to their respective Payment Shares.
Notwithstanding anything to the contrary contained in this paragraph or in this
Agreement, no liability or Secured Obligation of any Obligor that shall accrue
pursuant to this paragraph shall be paid nor shall it be deemed owed pursuant to
this paragraph until all of the Secured Obligations shall be finally paid in
full in cash. For purposes hereof, the "Payment Share" of each Obligor shall be
the sum of (a) the aggregate proceeds of the Secured Obligations received by
such Obligor plus (b) the product of (i) the aggregate Secured Obligations
remaining unpaid on the date such Secured Obligations become due and payable in
full, whether by stated maturity, acceleration, or otherwise (the "Determination
Date") reduced by the amount of such Secured Obligations attributed to such
Obligor pursuant to clause (a) above, times (ii) a fraction, the numerator of
which is such Obligor's net worth on the effective date of this Agreement
(determined as of the end of the immediately preceding fiscal reporting period
of such Obligor), and the denominator of which is the aggregate net worth of all
Obligors on such effective date.
ARTICLE XI: THE ADMINISTRATIVE AGENT
11.1. Appointment; Nature of Relationship. Bank One is appointed by the
Lenders as the Administrative Agent hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the Administrative
Agent to act as the contractual representative of such Lender with the rights
and duties expressly set forth herein and in the other Loan Documents. The
Administrative Agent agrees to act as such contractual representative upon the
express conditions contained in this Article XI. Notwithstanding the use of the
defined term "Administrative Agent," it is expressly understood and agreed that
the Administrative Agent shall not have any fiduciary responsibilities to any
Holder of Secured Obligations by reason of this Agreement and that the
Administrative Agent is merely acting as the representative of the Lenders with
only those duties as are expressly set forth in this Agreement and the other
Loan Documents. In its capacity as the Lenders' contractual representative, the
Administrative Agent (i) does not assume any fiduciary duties to any of the
Holders of Secured Obligations, (ii) is a "representative" of the Holders of
Secured Obligations within the meaning of Section 9-102 of the Uniform
Commercial Code as in effect from time to time in the State of Michigan (or any
successor provision) and (iii) is acting as an independent contractor, the
rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. Each of the Lenders, for itself and on
behalf of its affiliates as Holders of Secured Obligations, agrees to assert no
claim against the Administrative Agent on any agency theory or any other theory
of liability for breach of fiduciary duty, all of which claims each Holder of
Secured Obligations waives.
11.2. Powers.
(1) Generally. The Administrative Agent shall have and may
exercise such powers under the Loan Documents as are specifically
delegated to the Administrative Agent by the terms of each thereof,
together with such powers as are reasonably incidental thereto. The
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Administrative Agent shall have no implied duties or fiduciary duties
to the Lenders, or any obligation to the Lenders to take any action
hereunder or under any of the other Loan Documents except any action
specifically provided by the Loan Documents required to be taken by the
Administrative Agent.
(2) Foreign Pledges. The Administrative Agent is hereby
authorized, and granted an irrevocable power of attorney, to execute
and deliver any documents necessary or appropriate to execute any and
all appropriate Collateral Documents and take any other action to
create and perfect any pledge created under any of the Pledge
Agreements for the benefit of the Holders of Secured Obligations.
11.3. General Immunity. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Borrowers, the
Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction arose solely from the
gross negligence or willful misconduct of such Person.
11.4. No Responsibility for Loans, Creditworthiness, Recitals, Etc.
Neither the Administrative Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into,
or verify (i) any statement, warranty or representation made in connection with
any Loan Document or any borrowing hereunder; (ii) the performance or observance
of any of the covenants or agreements of any obligor under any Loan Document;
(iii) the satisfaction of any condition specified in Article V, except receipt
of items required to be delivered solely to the Administrative Agent; (iv) the
existence or possible existence of any Default or (v) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith. The Administrative Agent shall not be
responsible to any Lender for any recitals, statements, representations or
warranties herein or in any of the other Loan Documents for the perfection or
priority of the Liens on any collateral subject to the Collateral Documents, or
for the execution, effectiveness, genuineness, validity, legality,
enforceability, collectibility, or sufficiency of this Agreement or any of the
other Loan Documents or the transactions contemplated thereby, or for the
financial condition of any guarantor of any or all of the Obligations, the
Borrowers or any of their Subsidiaries.
11.5. Action on Instructions of Lenders. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders (or all of the Lenders in the event
that and to the extent that this Agreement expressly requires such), and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders and on all owners of Loans and on all Holders of
Secured Obligations. Upon receipt of any such instructions from the Required
Lenders (or all of the Lenders in the even that and to the extent that this
Agreement expressly requires such), the Administrative Agent shall be permitted
to act on behalf of the full principal amount of the Secured Obligations. The
Administrative Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
11.6. Employment of Administrative Agents and Counsel. The
Administrative Agent may execute any of its duties as the Administrative Agent
hereunder and under any other Loan Document by or through employees, agents, and
attorney-in-fact and shall not be answerable to the Lenders,
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except as to money or securities received by it or its authorized agents, for
the default or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care. The Administrative Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Administrative Agent
and the Lenders and all matters pertaining to the Administrative Agent's duties
hereunder and under any other Loan Document.
11.7. Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
11.8. The Administrative Agent's and the Alternate Currency Banks'
Reimbursement and Indemnification. The Lenders agree to reimburse and indemnify
the Administrative Agent and the applicable Alternate Currency Banks ratably in
proportion to their respective Pro Rata Shares (i) for any amounts not
reimbursed by the applicable Borrower for which the Administrative Agent and
such Alternate Currency Bank is entitled to reimbursement by the applicable
Borrower under the Loan Documents, (ii) for any other expenses incurred by the
Administrative Agent or such Alternate Currency Bank on behalf of the Lenders,
in connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent or such Alternate
Currency Bank in any way relating to or arising out of the Loan Documents or any
other document delivered in connection therewith or the transactions
contemplated thereby, or the enforcement of any of the terms thereof or of any
such other documents, provided that no Lender shall be liable for any of the
foregoing to the extent such liability arose solely from the gross negligence or
willful misconduct of the Administrative Agent or such Alternate Currency Bank.
The obligations and agreements of the Lenders under this Section 11.8 shall
survive the termination of this Agreement.
11.9. Rights as a Lender; Bank One Roles.
(a) Rights as a Lender. With respect to its Revolving Loan
Commitment, Loans made by it, and Letters of Credit issued by it, the
Administrative Agent shall have the same rights and powers hereunder
and under any other Loan Document as any Lender or Issuing Bank and may
exercise the same as though it were not the Administrative Agent, and
the term "Lender" or "Lenders", "Issuing Bank" or "Issuing Banks"
shall, unless the context otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative
Agent may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition to
those contemplated by this Agreement or any other Loan Document, with
the Borrowers or any of their Subsidiaries in which such Person is not
prohibited hereby from engaging with any other Person.
(b) Bank One Roles. Each Lender acknowledges that, in addition
to acting as a Lender and Issuing Bank with all of the rights and
powers thereof as set forth in Section 11.9(a), Bank One acts, or may
in the future act, as Administrative Agent for the Lenders. Without
limiting the generality of this Section 11.9(b), each Lender hereby
acknowledges and consents to any and all Bank One Roles and agrees that
in connection with any Bank One
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Role, Bank One may take, or refrain from taking, any action that it, in
its discretion, deems appropriate.
11.10. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the Arranger
or any other Lender and based on the financial statements prepared by the
Company and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent, the Arranger or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents.
11.11. Successor Administrative Agent. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Company. Upon any such resignation, the Required Lenders shall have the right to
appoint, on behalf of the Borrowers and the Lenders, a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Required Lenders and shall have accepted such appointment within thirty days
after the retiring Administrative Agent's giving notice of resignation, then the
retiring Administrative Agent may appoint, on behalf of the Borrowers and the
Lenders, a successor Administrative Agent. Notwithstanding anything herein to
the contrary, so long as no Default has occurred and is continuing, each such
successor Administrative Agent shall be subject to approval by the Company,
which approval shall not be unreasonably withheld. Such successor Administrative
Agent shall be a commercial bank having capital and retained earnings of at
least $500,000,000. Upon the acceptance of any appointment as the Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article XI shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Administrative Agent hereunder and under the other Loan Documents.
11.12. Execution of Collateral Documents.
(A) Authority to Take Action. Each Lender authorizes the
Administrative Agent to enter into each of the Collateral Documents to
which the Administrative Agent is a party and to take all action
contemplated by such documents, including, without limitation, all
enforcement actions. Each Lender agrees that no Holder of Secured
Obligations (other than the Administrative Agent acting on its behalf)
shall have the right individually to seek to realize upon the security
granted by any Collateral Document, it being understood and agreed that
such rights and remedies may be exercised solely by the Administrative
Agent for the benefit of the Holders of Secured Obligations upon the terms
of the Collateral Documents.
(B) Authority to Execute and Deliver. In the event that any
collateral granted by any Collateral Document is hereafter pledged by any
Person as collateral security for the Obligations, the Administrative Agent
is hereby authorized to execute and deliver on behalf of the Holders of
Secured Obligations any Loan Documents necessary or appropriate to grant
and perfect a Lien on such collateral in favor of the Administrative Agent
on behalf of the Holders of Secured Obligations.
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(C) Authority to Release Liens and Guarantors. The Lenders hereby
authorize the Administrative Agent, at its option and in its discretion, to
release any Lien granted to or held by the Administrative Agent upon any
collateral granted by any Collateral Document or release any Guarantor from
its obligations under any of the Guarantees (i) upon termination of the
Commitments and payment and satisfaction of all of the Obligations at any
time arising under or in respect of this Agreement or the Loan Documents or
the transactions contemplated hereby or thereby (which satisfaction, in the
case of outstanding Letters of Credit, may take the form of a backstop
letter of credit from an issuer acceptable to the Administrative Agent or
cash collateral); (ii) in connection with any transaction which is
expressly permitted or otherwise not prohibited by the terms of the
applicable Loan Document; or (iii) if approved, authorized or ratified in
writing by the Required Lenders, unless such release is required to be
approved by all of the Lenders hereunder. Upon request by the
Administrative Agent at any time, the Lenders will confirm in writing the
Administrative Agent's authority to release particular types or items of
collateral or Guarantors pursuant to this Section 11.12(C).
(D) Additional Authority. Upon any sale or transfer of assets
constituting collateral granted by any Collateral Document which is
expressly permitted pursuant to the terms of any Loan Document, or
consented to in writing by the Required Lenders or all of the Lenders, as
applicable, and upon at least five (5) Business Days' prior written request
by the Company, the Administrative Agent shall (and is hereby irrevocably
authorized by the Lenders to) execute such documents as may be necessary to
evidence the release of the Liens granted to the Administrative Agent for
the benefit of the Holders of Secured Obligations herein or pursuant hereto
upon the collateral that was sold or transferred; provided, however, that
(i) the Administrative Agent shall not be required to execute any such
document on terms which, in the Administrative Agent's opinion, would
expose the Administrative Agent to liability or create any obligation or
entail any consequence other than the release of such Liens without
recourse or warranty, and (ii) such release shall not in any manner
discharge, affect or impair the Secured Obligations or any Liens upon (or
obligations of the Borrowers or any Subsidiary in respect of) all interests
retained by the Borrowers or any Subsidiary, including (without limitation)
the proceeds of the sale, all of which shall continue to constitute part of
such collateral.
11.13. No Duties Imposed Upon Syndication Agents, Documentation Agent,
Co-Agents or Arranger. None of the Persons identified on the cover page to this
Agreement, the signature pages to this Agreement or otherwise in this Agreement
as a "Syndication Agent", "Documentation Agent", "Co-Agent" or "Arranger" shall
have any right, power, obligation, liability, responsibility or duty under this
Agreement other than if such Person is a Lender, those applicable to all Lenders
as such. Without limiting the foregoing, none of the Persons identified on the
cover page to this Agreement, the signature pages to this Agreement or otherwise
in this Agreement as a "Syndication Agent" or "Documentation Agent" or
"Co-Agent" or "Arranger" shall have or be deemed to have any fiduciary duty to
or fiduciary relationship with any Lender. In addition to the agreement set
forth in Section 11.10, each of the Lenders acknowledges that it has not relied,
and will not rely, on any of the Persons so identified in deciding to enter into
this Agreement or in taking or not taking action hereunder.
11.14. Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Unmatured
Default hereunder unless the Administrative Agent has received written notice
from a Lender or the Company referring to this Agreement describing such Default
or Unmatured Default and stating that such notice is a "notice of default". In
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the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give prompt notice thereof to the Lenders.
11.15. Delegation to Affiliates. The Borrowers and the Lenders agree
that the Administrative Agent may delegate any of its duties under this
Agreement to any of its Affiliates. Any such Affiliate (and such Affiliate's
directors, officers, agents and employees) which performs duties in connection
with this Agreement shall be entitled to the same benefits of the
indemnification, waiver and other protective provisions to which the
Administrative Agent is entitled under terms of this Agreement.
ARTICLE XII: SETOFF; RATABLE PAYMENTS
12.1. Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if any Default occurs and is continuing, any
Indebtedness from any Lender to the Borrowers (including all account balances,
whether provisional or final and whether or not collected or available) may be
offset and applied toward the payment of the Obligations owing to such Lender,
whether or not the Obligations, or any part hereof, shall then be due (provided,
however, that no deposits of the Alternate Currency Borrowers or Indebtedness
held by or owing to the Alternate Currency Borrowers shall be offset by any
Lender and applied towards the Obligations incurred solely by or on behalf of
any of the Syndicated Borrowers).
12.2. Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (other than payments received pursuant to
Sections 2.14(E), 4.1, 4.2, 4.4 or 4.6) in a greater proportion than that
received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Loans held by the other Lenders so that after such
purchase each Lender will hold its ratable share of the Loans. If any Lender,
whether in connection with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its Obligation or such
amounts which may be subject to setoff, such Lender agrees, promptly upon
demand, to take such action necessary such that all Lenders share in the
benefits of such collateral ratably in proportion to the obligations owing to
them. In case any such payment is disturbed by legal process, or otherwise,
appropriate further adjustments shall be made.
12.3. Application of Payments. Subject to the provisions of Section
9.2, the Administrative Agent shall, unless otherwise specified at the direction
of the Required Lenders which direction shall be consistent with the last
sentence of this Section 12.3, apply all payments and prepayments in respect of
any Obligations in the following order:
(A) first, to pay interest on and then principal of any portion of
the Loans which the Administrative Agent may have advanced on behalf of any
Lender for which the Administrative Agent has not then been reimbursed by
such Lender or the applicable Borrower;
(B) second, to pay interest on and then principal of any advance
made under Section 10.3 for which the Administrative Agent has not then
been paid by the applicable Borrower or reimbursed by the Lenders;
(C) third, to pay Obligations in respect of any fees, expenses,
reimbursements or indemnities then due to the Administrative Agent;
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(D) fourth, to pay Obligations in respect of any fees, expenses,
reimbursements or indemnities then due to the Lenders and the issuer(s) of
Letters of Credit;
(E) fifth, to pay interest due in respect of Swing Line Loans and
Alternate Currency Loans;
(F) sixth, to pay interest due in respect of Loans (other than
Swing Line Loans or Alternate Currency Loans) and L/C Obligations;
(G) seventh, to the ratable payment or prepayment of principal
outstanding on Swing Line Loans and Alternate Currency Loans;
(H) eighth, to the ratable payment or prepayment of principal
outstanding on Loans (other than Swing Line Loans), Reimbursement
Obligations and Hedging Obligations under Hedging Agreements in such order
as the Administrative Agent may determine in its sole discretion;
(I) ninth, to provide required cash collateral, if required
pursuant to Section 3.11; and
(J) tenth, to the ratable payment of all other Obligations.
Unless otherwise designated (which designation shall only be applicable prior to
the occurrence of a Default) by the Company, all principal payments in respect
of Loans (other than Swing Line Loans) shall be applied first, to repay
outstanding Floating Rate Loans, and then to repay outstanding Eurocurrency Rate
Loans with those Eurocurrency Rate Loans which have earlier expiring Interest
Periods being repaid prior to those which have later expiring Interest Periods.
The order of priority set forth in this Section 12.3 and the related provisions
of this Agreement are set forth solely to determine the rights and priorities of
the Administrative Agent, the Lenders, the Swing Line Bank and the issuer(s) of
Letters of Credit as among themselves. The order of priority set forth in
clauses (D) through (J) of this Section 12.3 may at any time and from time to
time be changed by the Required Lenders without necessity of notice to or
consent of or approval by the Company, or any other Person; provided, that the
order of priority of payments in respect of Swing Line Loans may be changed only
with the prior written consent of the Swing Line Bank and in respect of
Alternate Currency Loans may be changed only with the prior written consent of
the Alternate Currency Banks. The order of priority set forth in clauses (A)
through (C) of this Section 12.3 may be changed only with the prior written
consent of the Administrative Agent.
12.4. Relations Among Lenders.
(A) Except with respect to the exercise of set-off rights of any
Lender in accordance with Section 12.1, the proceeds of which are applied
in accordance with this Agreement, and except as set forth in the following
sentence, each Lender agrees that it will not take any action, nor
institute any actions or proceedings, against the Borrowers or any other
obligor hereunder or with respect to any Loan Document, without the prior
written consent of the Required Lenders or, as may be provided in this
Agreement or the other Loan Documents, at the direction of the
Administrative Agent.
(B) The Lenders are not partners or co-venturers, and no Lender
shall be liable for the acts or omissions of, or (except as otherwise set
forth herein in case of the Administrative Agent)
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authorized to act for, any other Lender. The Administrative Agent shall
have the exclusive right on behalf of the Lenders to enforce on the payment
of the principal of and interest on any Loan after the date such principal
or interest has become due and payable pursuant to the terms of this
Agreement.
12.5. Representations and Covenants Among Lenders. Each Lender
represents and covenants for the benefit of all other Lenders and the
Administrative Agent that such Lender is not satisfying and shall not satisfy
any of its obligations pursuant to this Agreement with any assets considered for
any purposes of ERISA or Section 4975 of the Code to be assets of or on behalf
of any "plan" as defined in section 3(3) of ERISA or section 4975 of the Code,
regardless of whether subject to ERISA or Section 4975 of the Code.
ARTICLE XIII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1. Successors and Assigns; Designated Lenders.
(A) Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers,
the Administrative Agent and the Lenders and their respective successors
and assigns permitted hereby, except that (i) no Borrower shall have the
right to assign its rights or obligations under the Loan Documents without
the prior written consent of each Lender, (ii) any assignment by any Lender
must be made in compliance with Section 13.3, and (iii) any transfer by
Participants must be made in compliance with Section 13.2. Any attempted
assignment or transfer by any party not made in compliance with this
Section 13.1 shall be null and void, unless such attempted assignment or
transfer is treated as a participation in accordance with Section 13.3(B).
The parties to this Agreement acknowledge that clause (ii) of this Section
13.1 relates only to absolute assignments and this Section 13.1 does not
prohibit assignments creating security interests, including, without
limitation, (x) any pledge or assignment by any Lender of all or any
portion of its rights under this Agreement and any promissory note issued
hereunder to a Federal Reserve Bank, (y) in the case of a Lender which is a
Fund, any pledge or assignment of all or any portion of its rights under
this Agreement and any promissory note issued hereunder to its trustee in
support of its obligations to its trustee or (z) any pledge or assignment
by any Lender of all or any portion of its rights under this Agreement and
any promissory note issued hereunder to direct or indirect contractual
counterparties in interest rate swap agreements relating to the Loans, but
in all cases excluding credit default swaps; provided, however, that no
such pledge or assignment creating a security interest shall release the
transferor Lender from its obligations hereunder unless and until the
parties thereto have complied with the provisions of Section 13.3. The
Administrative Agent may treat the Person which made any Revolving Loan or
which holds any promissory note issued hereunder as the owner thereof for
all purposes hereof unless and until such Person complies with Section
13.3; provided, however, that the Administrative Agent may in its
discretion (but shall not be required to) follow instructions from the
Person which made any Revolving Loan or which holds any promissory note
issued hereunder to direct payments relating to such Revolving Loan or
promissory note issued hereunder to another Person. Any assignee of the
rights to any Revolving Loan or any promissory note issued hereunder agrees
by acceptance of such assignment to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the owner of the rights to any Loan (whether or not a promissory
note has been issued hereunder in
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evidence thereof), shall be conclusive and binding on any subsequent holder
or assignee of the rights to such Loan.
(B) Designated Lenders.
(i) Subject to the terms and conditions set forth in this
Section 13.1(B), any Lender may from time to time elect to designate an
Eligible Designee to provide all or any part of the Loans to be made by
such Lender pursuant to this Agreement; provided that the designation
of an Eligible Designee by any Lender for purposes of this Section
13.1(B) shall be subject to the approval of the Administrative Agent
(which consent shall not be unreasonably withheld or delayed). Upon the
execution by the parties to each such designation of an agreement in
the form of Exhibit N hereto (a "DESIGNATION AGREEMENT") and the
acceptance thereof by the Administrative Agent, the Eligible Designee
shall become a Designated Lender for purposes of this Agreement. The
Designating Lender shall thereafter have the right to permit the
Designated Lender to provide all or a portion of the Loans to be made
by the Designating Lender pursuant to the terms of this Agreement and
the making of the Loans or portion thereof shall satisfy the
obligations of the Designating Lender to the same extent, and as if,
such Loan was made by the Designating Lender. As to any Loan made by
it, each Designated Lender shall have all the rights a Lender making
such Loan would have under this Agreement and otherwise; provided, that
(x) all voting rights under this Agreement shall be exercised solely by
the Designating Lender, (y) each Designating Lender shall remain solely
responsible to the other parties hereto for its obligations under this
Agreement, including the obligations of a Lender in respect of Loans
made by its Designated Lender and (z) no Designated Lender shall be
entitled to reimbursement under Article IV hereof for any amount which
would exceed the amount that would have been payable by any Borrower to
the Lender from which the Designated Lender obtained any interests
hereunder. No additional promissory notes shall be required to be
issued hereunder with respect to Loans provided by a Designated Lender;
provided, however, to the extent any Designated Lender shall advance
funds, the Designating Lender shall be deemed to hold the promissory
notes issued hereunder in its possession as an administrative agent for
such Designated Lender to the extent of the Loan funded by such
Designated Lender. Such Designating Lender shall act as an
administrative agent for its Designated Lender and give and receive
notices and communications hereunder. Any payments for the account of
any Designated Lender shall be paid to its Designating Lender as
administrative agent for such Designated Lender and neither the
Borrowers nor the Administrative Agent shall be responsible for any
Designating Lender's application of such payments. In addition, any
Designated Lender may (1) with notice to, but without the consent of
the Borrowers or the Administrative Agent, assign all or portions of
its interests in any Loans to its Designating Lender or to any
financial institution consented to by the Administrative Agent
providing liquidity and/or credit facilities to or for the account of
such Designated Lender and (2) subject to advising any such Person that
such information is to be treated as confidential in accordance with
Section 13.4, disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial
paper dealer or provider of any guarantee, surety or credit or
liquidity enhancement to such Designated Lender.
(ii) Each party to this Agreement hereby agrees that it shall
not institute against, or join any other Person in instituting against,
any Designated Lender any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceedings under any
federal or state bankruptcy or similar law for one year and a day after
the payment in full
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of all outstanding senior indebtedness of any Designated Lender;
provided that the Designating Lender for each Designated Lender hereby
agrees to indemnify, save and hold harmless each other party hereto for
any loss, cost, damage and expense arising out of its inability to
institute any such proceeding against such Designated Lender. This
Section 13.1(B) shall survive the termination of this Agreement.
13.2. Participations.
(A) Permitted Participants; Effect. Any Lender may at any time
sell to one or more banks or other entities ("PARTICIPANTS") participating
interests in any Revolving Credit Obligations of such Lender, any
promissory note issued hereunder held by such Lender, any Revolving Loan
Commitment of such Lender or any other interest of such Lender under the
Loan Documents. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan
Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, such Lender shall remain the owner of its Revolving Credit
Obligations and the holder of any promissory note issued to it hereunder in
evidence thereof for all purposes under the Loan Documents, all amounts
payable by the Borrowers under this Agreement shall be determined as if
such Lender had not sold such participating interests, and the Borrowers
and the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations
under the Loan Documents.
(B) Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other than
any amendment, modification or waiver with respect to any Loan or Revolving
Loan Commitment in which such Participant has an interest which would
require consent of all of the Lenders pursuant to the terms of Section 9.3.
(C) Benefit of Certain Provisions. Each Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in Section
12.1 in respect of its participating interest in amounts owing under the
Loan Documents to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under the Loan Documents,
provided that each Lender shall retain the right of setoff provided in
Section 12.1 with respect to the amount of participating interests sold to
each Participant. The Lenders agree to share with each Participant, and
each Participant, by exercising the right of setoff provided in Section
12.1, agrees to share with each Lender, any amount received pursuant to the
exercise of its right of setoff, such amounts to be shared in accordance
with Section 12.2 as if each Participant were a Lender. Each Borrower
further agrees that each Participant shall be entitled to the benefits of
Article IV to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to Section 13.3, provided that (i) a
Participant shall not be entitled to receive any greater payment under
Article IV than the Lender who sold the participating interest to such
Participant would have received had it retained such interest for its own
account, unless the sale of such interest to such Participant is made with
the prior written consent of the Company and (ii) any Participant not
incorporated under the laws of the United States of America or any State
thereof agrees to comply with the provisions of Article IV to the same
extent as if it were a Lender.
13.3. Assignments.
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(A) Permitted Assignments. Any Lender may at any time assign to
one or more banks or other entities ("PURCHASERS") all or any part of its
rights and obligations under the Loan Documents. Such assignment shall be
evidenced by an agreement substantially in the form of Exhibit D or in such
other form as may be agreed to by the parties thereto (each such agreement,
an "ASSIGNMENT AGREEMENT"). Each such assignment with respect to a
Purchaser which is not a Lender, an Affiliate of a Lender or an Approved
Fund shall, unless otherwise consented to in writing by the Administrative
Agent and, so long as no Default has occurred and is continuing, the
Company, either be in an amount equal to the entire applicable Revolving
Loan Commitment and Revolving Credit Obligations of the assigning Lender or
(unless each of the Company and the Administrative Agent otherwise
consents) be in an aggregate amount not less than $5,000,000. The amount of
the assignment shall be based on the Revolving Loan Commitment and
Revolving Credit Obligations subject to the assignment, determined as of
the date of such assignment or as of the "Trade Date," if the "Trade Date"
is specified in the Assignment Agreement.
(B) Consents. The consent of the Company shall be required prior
to an assignment becoming effective unless the Purchaser is a Lender, an
Affiliate of a Lender or an Approved Fund, provided that the consent of the
Company shall not be required if a Default has occurred and is continuing.
The consent of the Administrative Agent shall be required prior to an
assignment becoming effective unless the Purchaser is a Lender, an
Affiliate of a Lender or an Approved Fund. Any consent required under this
Section 13.3(B) shall not be unreasonably withheld or delayed.
(C) Effect; Effective Date. Upon (i) delivery to the
Administrative Agent of an Assignment Agreement, together with any consents
required by Sections 13.3(A) and 13.3(B), and (ii) payment of a $3,500 fee
to the Administrative Agent for processing such assignment (unless such fee
is waived by the Administrative Agent or unless such assignment is made to
such assigning Lender's Affiliate), such assignment shall become effective
on the effective date specified in such assignment. The Assignment
Agreement shall contain a representation and warranty by the Purchaser to
the effect that none of the funds, money, assets or other consideration
used to make the purchase and assumption of the Revolving Loan Commitment
and Revolving Credit Obligations under the applicable Assignment Agreement
constitutes "plan assets" as defined under ERISA and that the rights,
benefits and interests of the Purchaser in and under the Loan Documents
will not be "plan assets" under ERISA. On and after the effective date of
such assignment, such Purchaser shall for all purposes be a Lender party to
this Agreement and any other Loan Document executed by or on behalf of the
Lenders and shall have all the rights, benefits and obligations of a Lender
under the Loan Documents, to the same extent as if it were an original
party thereto, and the transferor Lender shall be released with respect to
the Revolving Credit Obligations assigned to such Purchaser without any
further consent or action by the Borrowers, the Lenders or the
Administrative Agent. In the case of an assignment covering all of the
assigning Lender's rights, benefits and obligations under this Agreement,
such Lender shall cease to be a Lender hereunder but shall continue to be
entitled to the benefits of, and subject to, those provisions of this
Agreement and the other Loan Documents which survive payment of the
Obligations and termination of the Loan Documents. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that
does not comply with this Section 13.3 shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with Section 13.2. Upon the consummation of
any assignment to a Purchaser pursuant to this Section 13.3(C), the
transferor Lender, the Administrative Agent and the Borrowers shall, if the
transferor Lender or the Purchaser desires
96
that its Loans be evidenced by promissory notes, make appropriate
arrangements so that, upon cancellation and surrender to the Borrowers of
the previously issued promissory notes (if any) held by the transferor
Lender, new promissory notes issued hereunder or, as appropriate,
replacement promissory notes are issued to such transferor Lender, if
applicable, and new promissory notes or, as appropriate, replacement
promissory notes, are issued to such Purchaser, in each case in principal
amounts reflecting their respective Revolving Loan Commitments (or, if the
Revolving Loan Termination Date has occurred, their respective Revolving
Credit Obligations), as adjusted pursuant to such assignment.
(D) The Register. The Administrative Agent, acting solely for this
purpose as an Administrative Agent of the Borrowers (and the Borrowers
hereby designate the Administrative Agent to act in such capacity), shall
maintain at one of its offices in Chicago, Illinois a copy of each
Assignment and Assumption delivered to it and a register (the "REGISTER")
for the recordation of the names and addresses of the Lenders, and the
Revolving Loan Commitments of, and principal amounts of and interest on the
Loans owing to, each Lender pursuant to the terms hereof from time to time
and whether such Lender is an original Lender or assignee of another Lender
pursuant to an assignment under this Section 13.3. The entries in the
Register shall be conclusive, and the Borrowers, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrowers and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.
13.4. Confidentiality. Subject to Section 13.5, the Administrative
Agent and the Lenders and their respective representatives shall hold all
confidential information obtained pursuant to the requirements of this Agreement
in accordance with such Person's customary procedures for handling confidential
information of this nature and in accordance with safe and sound commercial
lending or investment practices and in any event may make disclosure reasonably
required by a prospective Transferee in connection with the contemplated
participation or assignment or as required or requested by any Governmental
Authority or any securities exchange or similar self-regulatory organization or
representative thereof or pursuant to a regulatory examination or legal process,
or to any direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor, and shall require any such
Transferee to agree (and require any of its Transferees to agree) to comply with
this Section 13.4. A determination by a Lender or the Administrative Agent as to
its compliance with the foregoing permitted disclosures shall be conclusive in
good faith. In no event shall the Administrative Agent or any Lender be
obligated or required to return any materials furnished by the Borrowers;
provided, however, each prospective Transferee shall be required to agree that
if it does not become a participant or assignee it shall return all materials
furnished to it by or on behalf of the Borrowers in connection with this
Agreement. Notwithstanding anything herein to the contrary, confidential
information shall not include, and each Lender (and each employee,
representative or other agent of any Lender) may disclose to any and all
Persons, without limitation of any kind, 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 or have been provided to such Lender
relating to such tax treatment or tax structure; provided that with respect to
any document or similar item that in either case contains information concerning
such tax treatment or tax structure of the transactions contemplated hereby as
well as other information, this sentence shall only apply to such portions of
the document or similar item that relate to such tax treatment or tax structure.
97
13.5. Dissemination of Information. Each Borrower authorizes each
Lender to disclose to any Participant or Purchaser or any other Person acquiring
an interest in the Loan Documents by operation of law (each a "TRANSFEREE") and
any prospective Transferee any and all information in such Lender's possession
concerning the Company and its Subsidiaries; provided that prior to any such
disclosure, such prospective Transferee shall agree to preserve in accordance
with Section 13.4 the confidentiality of any confidential information described
therein.
13.6. Tax Certifications. If any interest in any Loan Document is
transferred to any Transferee which is not incorporated under the laws of the
United States or any State thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to comply with
the provisions of Section 2.14(E) and Article IV.
ARTICLE XIV: NOTICES
14.1. Giving Notice. Except as otherwise permitted by Section 2.13 with
respect to Borrowing/Election Notices, all notices, requests and other
communications to any party hereunder shall be in writing (including electronic
transmission, facsimile transmission or similar writing) and shall be given to
such party: (x) in the case of any Borrower, the Lenders or the Administrative
Agent, at its address or facsimile number set forth on the signature pages
hereof (or, with respect to any Lender which is not a party hereto as of the
Closing Date, at its address or facsimile number set forth in any Assignment
Agreement or Commitment and Acceptance) or (y) in the case of any party, at such
other address or facsimile number as such party may hereafter specify for the
purpose by notice to the Administrative Agent and the Company in accordance with
the provisions of this Section 14.1. Each such notice, request or other
communication shall be effective (i) if given by facsimile transmission, when
transmitted to the facsimile number specified in this Section and confirmation
of receipt is received, (ii) if given by mail, seventy-two (72) hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (iii) if given by any other means, when delivered
(or, in the case of electronic transmission, received) at the address specified
in this Section; provided that notices to the Administrative Agent under Article
II shall not be effective until received.
14.2. Change of Address. Each of the Borrowers and the Administrative
Agent may change the address for service of notice upon it by a notice in
writing to the other parties hereto, including, without limitation, each Lender.
Each Lender may change the address for service of notice upon it by a notice in
writing to the Company and the Administrative Agent.
ARTICLE XV: DESIGNATED SENIOR INDEBTEDNESS
The parties hereto acknowledge and agree that the Secured Obligations
shall constitute "Designated Senior Indebtedness" under, and as defined, the
indenture governing the Convertible Notes.
ARTICLE XVI: COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart.
[Remainder of This Page Intentionally Blank]
98
IN WITNESS WHEREOF, the Company, the Lenders and the Administrative
Agent have executed this Agreement as of the date first above written.
KAYDON CORPORATION
By: /s/Xxxxx X. XxXxxxxx
---------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President - Corporate Development
Address: 000 Xxxx Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxx X. XxXxxxxx
-------------------
Telephone No.: (000) 000-0000
---------------
Facsimile No.: (000) 000-0000
---------------
BANK ONE, NA,
as Administrative Agent, as Swing Line Lender, as an
Issuing Bank and as a Lender
By: /s/Xxxx Xxxxx
---------------------------
Name: Xxxx Xxxxx
Title: Associate Director
Address: 0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx
------------------
Telephone No.: (000) 000-0000
--------------
Facsimile No.: (000) 000-0000
--------------
SIGNATURE PAGE TO CREDIT AGREEMENT
KAYDON CORPORATION
JULY 2003
SUNTRUST BANK,
as a Syndication Agent and as a Lender
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Director
Address:
000 Xxxxxxxxx Xxxxxx, XX
--------------------------
10th Floor
--------------------------
Xxxxxxx, XX 00000
--------------------------
Attention: Xxxxxxx Xxxxxxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
SIGNATURE PAGE TO CREDIT AGREEMENT
KAYDON CORPORATION
JULY 2003
COMERICA BANK,
as a Syndication Agent and as a Lender
By: /s/ Xxxxx X. Xxxx
-----------------
Name: Xxxxx X. Xxxx
Title: Vice President
Address:
000 Xxxxxxxx Xxx XX: 3268
------------------------------
Xxxxxxx, XX 00000
------------------------------
Attention:
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
SIGNATURE PAGE TO CREDIT AGREEMENT
KAYDON CORPORATION
JULY 0000
XXXX XX XXXXXXX, X.X.,
as Documentation Agent and as a Lender
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
Address: 000 Xxxxx XxXxxxx Xxxxxx
XX0-000-00-00
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
----------------
Telephone No.: 000-000-0000
-------------
Facsimile No.: 000-000-0000
-------------
SIGNATURE PAGE TO CREDIT AGREEMENT
KAYDON CORPORATION
JULY 2003
NATIONAL CITY BANK,
as a Co-Agent and as a Lender
By: /s/Xxxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
Address: 000 X. Xxxx Xx.
Xxx Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
------------------
Telephone No.: (000) 000-0000
--------------
Facsimile No.: (000) 000-0000
--------------
SIGNATURE PAGE TO CREDIT AGREEMENT
KAYDON CORPORATION
JULY 2003
================================================================================
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Co-Agent and as a Lender
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx Xxxxxx
Title: Associate
Address: 000 X. Xxxxxxx Xx. XX 0000
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx
---------------
Telephone No.: 000-000-0000
------------
Facsimile No.: 000-000-0000
------------
SIGNATURE PAGE TO CREDIT AGREEMENT
KAYDON CORPORATION
JULY 2003
THE NORTHERN TRUST COMPANY,
as a Lender
By:/s/ Xxxx Xxxxxx
--------------------------
Name: Xxxx Xxxxxx
Title:Vice President
Address: 00 X. Xxxxxxx Xxxxxx
-----------------------------
Xxxxxxx, XX 00000
-----------------------------
Attention: Xxxx Xxxxxx
-------------------
Telephone No.: (000) 000-0000
---------------
Facsimile No.: (000) 000-0000
---------------
SIGNATURE PAGE TO CREDIT AGREEMENT
KAYDON CORPORATION
JULY 2003
